ESPD - a standardised self-declaration
Contracting authorities have an obligation to accept a standardised form of self-declaration as preliminary evidence of the tenderer is eligible to participate in the procurement. This is called ESPD (European Single Procurement Document).
The information on this page concerns procurements in accordance with:
- the Public Procurement Act (LOU).
- the Act on Procurement in the Utilities Sectors(LUF).
A self-declaration means that the tenderer and tender applicant certifies that there are no grounds for exclusion, that they meet the qualification requirements and that they can submit requested evidence. The contracting authority may request the required documents at any point throughout the procedure if it deems it necessary to assure the tenderer or tender applicant meets the requirements. The documents are to be requested from those tenderers that will be awarded a contract or framework agreement.
When shall ESPD be accepted?
Contracting authorities shall accept the ESPD in procurement procedures subject to the Public Procurement Act where the value of the procedure is above the applicable threshold.
The ESPD system also includes call offs from certain framework agreements where contracts are awarded through the reopening of competition. This means that all tenderers must, as a rule, submit a self-declaration, or submit the necessary evidence for the reopening of competition. However, it is often sufficient for the contracting authority to request that the tenderers, in connection with the call off, confirm that the information in previously submitted ESPDs is still correct.
If the authority requesting the call off also procured the framework agreement, they typically already have access to the evidence and do not normally need to request it in connection with the call off. This applies as long as the evidence is still current at the time of the call off. Conversely, if the framework agreement was procured by a central purchasing body, the evidence will not normally be directly available to the authority making the call off.
There is no obligation to accept an ESPD in a procurement that is not subject to the Public Procurement Directive (such as below the thresholds) or in direct awards in specific situations (such as extreme urgency).
However, there is no legal impediment for contracting authorities to require that the ESPD system shall be used in other procurements as well. In these cases, contracting authorities can also accept a tenderer’s self-declaration as preliminary evidence regarding grounds for exclusion and qualification requirements. Whether it is appropriate or not depends for example on the qualification requirements the contracting authority has set for the procurement. Because in these procurements, the contracting authority is not bound by the detailed rules for exclusion ground and qualification requirements that apply in above-threshold procurement procedures. This means that it is possible to apply qualification requirements that cannot be presented in an ESPD form, and under such circumstances, it is not possible to use the ESPD system.
Contracting entities in the utilities sector do not have a general obligation to use the ESPD system. However, within the utilities sectors (in procurements governed by LUF) contracting entities that are also contracting authorities must accept the ESPD. Other contracting entities shall accept ESPD if they use the same grounds for exclusion and qualification requirements as in LOU.
How do you use ESPD?
The information to be included in an ESPD has been stipulated in an EU implementation regulation. The intention is that ESPD will be part of the different national procurement systems and not exist separately from the procurement systems used to submit electronic tenders. Precisely how to fill in the ESPD therefore varies depending on the procurement system used for the procurement.
What do you need to be aware of in the tender documents?
In the tender documents, the contracting authority should specify that they accept ESPD as a preliminary self-declaration. Tenderers subsequently have two alternatives when submitting their tender or application in the procurement:
- The tenderer can opt to preliminarily certify in the ESPD that they fulfil the requirements in the procurement and that they can submit the evidence requested when the authority needs it.
- Instead, when submitting the tender or the application, the tenderer can submit the requested documents instead of filling in an ESPD.
In the view of The National Agency for Public Procurement, the contracting authority can decide that all suppliers shall fill in and submit an ESPD in the procurement. If so, this should be stated clearly in the tender documents. One advantage of doing this is that it will be easier uphold equal treatment between tenderers in the procurement procedure.
The authority should also keep in mind that they cannot require that such tenderers and tender applicants that have submitted an ESPD submit evidence regarding the requirements subject to ESPD together with their application or tender.
Reliance on capacity and subcontractors
According to the procurement rules, there is a more or less unlimited right for a tenderer to rely on the capacity of another company, such as a parent company or subcontractor, to show that they have the resources and the capacity required to participate in the procurement. However, the competition may prescribe limits to relying on the capacities of other companies. If the supplier relies on the capacity of another company to show that they fulfil the qualification requirements, LOU states that the other company must also submit an ESPD where the company certifies that they should not be excluded and that they fulfil the qualification requirements in question.
- Chapter 15, sections 1-2 of the Public Procurement Act (2016:1145) (LOU) – the ESPD system applies to all procurements subject to the Public Procurement Directive, and the contracting authority must accept a self-declaration submitted by a supplier as preliminary evidence
- Chapter 15, section 4, second paragraph of LOU – the ESPD system also applies when reopening competition in framework agreements subject to the Public Procurement Directive
- Chapter 13, sections 1-3 and chapter 14, sections 1-3 of the Act on Procurement in the Water, Energy, Transport and Postal Services Sectors (2016:1146) (LUF) – the ESPD system applies to procurements where the procuring entity is also a contracting authority, as well as to procurements where the procuring entity uses the same grounds for exclusion and qualification requirements as in LOU
- The Commission’s implementing regulation (EU) 2016/7 from January 5, 2016, establishing the standard form for the European Single Procurement Document (the ESPD regulation) – establishing what information a self-declaration will include
- Government bill 2015/16:195 p. 769 – a tenderer may opt to either submit a self-declaration to preliminarily certify that they fulfil the requirements in the procurement, or submit the requested documents together with the tender
- Chapter 15, section 1, second paragraph of LOU – if the tenderer submitted a self-declaration and also relied on another company’s capacity, the company relied on shall also submit a self-declaration certifying that they should not be excluded and that they fulfil the qualification requirements for which they are being relied upon
- Chapter 4, section 10 and chapter 15, section 4 of LOU – a contracting authority shall obtain evidence and check that the winning tenderer is not subject to exclusion, fulfils the qualification requirements and, where appropriate, the limitation criteria, before a contract is awarded
- Chapter 15, section 3 of LOU – a contracting authority may request evidence at any time during the procurement process if they find it is necessary to correctly conduct the procurement
- Chapter 15, section 5 of LOU – a tenderer is not obligated to submit evidence if the contracting authority already has access to the material or can directly access the evidence at no cost using electronic aids.