EU Procurement Reform: Supplier Selection and Exclusion Criteria

Introduction

Before a single quality criterion is evaluated or a price is scored, a bidder can be removed from a European public tender altogether. Today that happens for one of six reasons, set out in Article 57 of Directive 2014/24/EU1. Under the Commission's new proposal, the equivalent list — Article 25 of the draft Regulation — runs to eleven². Part 1 of this series looked at the structural move from three directives to one Regulation. This part looks at what that Regulation does to who gets to compete in the first place, because for a serious bidder, exclusion grounds decide more outcomes before evaluation than almost anything in the tender pack itself.

Mandatory Exclusion Grounds Under the 2014 Directive

The current mandatory list is narrow and largely uncontroversial: participation in a criminal organisation, corruption, fraud against the EU's financial interests, terrorist offences, money laundering or terrorist financing, and child labour or other forms of human trafficking¹. A conviction by final judgment on any of these removes a bidder automatically, with no discretion for the buyer to look past it. Self-cleaning — proving reformed conduct through compensation, cooperation with investigators, and preventive measures — is available under Article 57(6), and where a court has not set its own exclusion period, the default runs for five years from conviction¹. That five-year default carries straight through into the new proposal unchanged, which is one of the few things in this part of the text that does not move.

Proposed Additional Grounds for Mandatory Exclusion

Article 25 of the new proposal…