S.L. 601.5 Art. 168Reliance on the capacities of other entities.

(1) Where the objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system include requirements relating to the economic and financial capacity of the economic operator, or to its technical and professional abilities, the economic operator may where necessary rely on the capacity of other entities, whatever the legal nature of the link between itself and those entities. With regard to criteria relating to the educational and professional qualifications of the service provider or contractor or those of the undertaking’s managerial staff or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting entity that those resources will be available to it throughout the period of the validity of the qualification system, for example by producing a commitment by those entities to that effect.

(2) Contracting entities shall verify whether the other entities on whose capacity the economic operator intends to rely, fulfil the relevant selection criteria or whether there are grounds for exclusion or black listing, to which the contracting entities have referred The contracting entity shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or who is excluded or black listed in terms of Part VI of the Public Procurement Regulations.

(3) Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting entity may require that the economic operator and those entities be jointly liable for the execution of the contract.

(4) Under the same conditions, a group of economic operators as referred to in regulations 81 may rely on the capacities of participants in the group or of other entities.

(5) Where the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures, in competitive dialogues or in innovation partnerships include requirements relating to the economic and financial capacity of the economic operator, or to its technical and professional abilities, the economic operator may where necessary and for a particular contract rely on the capacity of other entities, whatever the legal nature of the link between itself and those entities. With regard to criteria relating to the educational and professional qualifications of the service provider or contractor or those of the undertaking’s managerial staff or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting entity that the necessary resources shall be available to it, for example by delivering a commitment by those entities to that effect.

(6) Contracting entities shall verify, in accordance with regulation 166, whether the other entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria or whether there are grounds for exclusion or black-listing. The contracting entity shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion to which the contracting entity has referred:

Provided that where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting entity may require that the economic operator and those entities be jointly liable for the execution of the contract:

Provided further that under the same conditions, a group of economic operators as referred to in regulations 80 and 81 may rely on the capacities of participants in the group or of other entities.

(7) In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting entities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in regulation 30(2) by a participant in that group.