Information;Order — ECLI:EU:C:2022:746
Date: 2022-09-30
Language of the case: Latvian
Court formation: Eighth Chamber
Subject matter: Public procurement in the European Union
Procedure: Reference for a preliminary ruling
Origin: Latvia

Translation C-592/21 – 1 
Case C-592/21 
Request for a preliminary ruling 
Date lodged: 
22 September 2021 
Referring court: 
Administratīvā rajona tiesa (Latvia) 
Date of the decision to refer: 
20 September 2021 
Applicant: 
PS ĒDIENS & KM.LV 
Defendants: 
Ieslodzījuma vietu pārvalde 
Iepirkumu uzraudzības birojs 
  
Administratīvā rajona tiesa (District Administrative Court) 
[…] 
DECISION 
Riga, 20 September 2021 
The District Administrative Court […] [composition of the court and 
representatives of the parties] 
heard, in a public hearing, the administrative-law proceedings originating in the 
action brought by PS ĒDIENS & KM.LV which sought to have the decision […] 
of 25 February 2021 by the applications examination committee of the Iepirkumu 
uzraudzības birojs (Public Procurement Supervisory Authority) declared illegal. 
Subject matter and relevant facts of the main proceedings 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 9. 2021 – CASE C-592/21 
 
2  
[1] On 16 November 2018 the Ieslodzījuma vietu pārvalde (Prison Service, ‘the 
contracting authority’) issued an open invitation to tender for the ‘Provision of 
prison catering services’ (‘the invitation to tender’). 
By decision of 18 January 2021 of the contracting authority’s procurement 
committee (‘the decision of the procurement committee’) the committee ruled that 
the applicant’s tender did not satisfy the experience requirement laid down in 
point 4.1.1 of the tender specifications and excluded the applicant from 
subsequent participation in the invitation to tender. 
The aforesaid provision in the tender specifications stipulated that the tenderer had 
to demonstrate that within the previous 3 years it had performed at least one 
contract for services (meal preparation) of the type covered by the procurement 
contract (or the lot in question). The provision specified that, in order to qualify as 
services of the type covered by the procurement contract, the volume of meal 
preparation services provided during one year under the contract (or contracts) 
must not be less than the estimated annual volume for the corresponding lot stated 
in the technical specifications of the tender documentation. Specifically, during 
2015, 2016 or 2017, or 2018 up to the submission date of the tender, the number 
of meals prepared by the tenderer during the calendar year must not be less than 
the annual number of meals specified for the lot in question. The provision in the 
tender specifications also stated the estimated annual number of meals for each lot 
(each prison) to be used for the purposes of the calculation and explained that, if 
the tenderer was submitting a tender for several or all of the lots, its experience 
would be evaluated against the total number of meals specified in the relevant lots. 
The [procurement] committee selected the limited liability company ALEK.S UN 
V, which had submitted the most economically advantageous tender for all the 
lots in the contract. 
[2] The applicant appealed against the decision of the procurement committee to 
the Public Procurement Supervisory Authority (‘the Authority’) which, by 
decision […] of 25 February 2021 (‘the contested decision’) confirmed the 
decision of the contracting authority’s procurement committee and authorised the 
contracting authority to award the contract to the limited liability company 
ALEKS UN V. 
The decision stated that the applicant, in its formation as a general partnership, did 
not have the necessary experience, and compliance with the qualification 
requirement was therefore based on the experience of the two partners, SIA 
Ēdiens.lv and PI Bruneros. In so far as the meals would actually be prepared only 
by SIA Ēdiens.lv, with the involvement of PI Bruneros being limited to dealing 
with administrative issues, the experience of PI Bruneros in preparing meals could 
not be taken into account, in view of the nature and purpose of the contract. 
[3] The applicant brought a legal action, arguing that it had formed an 
association of suppliers, for which purpose it had concluded a contract under 
ĒDIENS & KM.LV 
 
3 
which its two partners would commit all their resources to meeting the tender 
specifications and that, if they were awarded the procurement contract, they would 
commit all their resources to performing the contract to a high standard and would 
be jointly and severally liable to the contracting authority. If the contracting 
authority wished to impose particular requirements on the members of an 
association of suppliers (in this particular case, a general partnership) ― for 
example, a stipulation that the experience requirement in point 4.1.1 of the tender 
specifications must be met by both partners or by the particular partner directly 
responsible for providing the catering service ― it must include that requirement 
in the tender specifications. Moreover, were the contracting authority to have 
included such a requirement in the tender specifications, it would have imposed an 
undue restriction on competition. 
Legal framework 
European Union law 
[4] Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC 
(‘Directive 2014/24/EU’). 
[4.1] The first sentence of Article 58(4) of Directive 2014/24/EU establishes that, 
with regard to technical and professional ability, contracting authorities may 
impose requirements ensuring that economic operators possess the necessary 
human and technical resources and experience to perform the contract to an 
appropriate quality standard. 
[4.2] The first paragraph of Article 63(1) of Directive 2014/24/EU provides that, 
with regard to … criteria relating to technical and professional ability as set out 
pursuant to Article 58(4), an economic operator may, where appropriate and for a 
particular contract, rely on the capacities of other entities, regardless of the legal 
nature of the links which it has with them. With regard to criteria relating to the 
educational and professional qualifications as set out in point (f) of Annex XII 
Part II, 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 must prove to the 
contracting authority that it will have at its disposal the resources necessary, for 
example, by producing a commitment by those entities to that effect. 
[4.3] The final sentence of Article 63(1) of Directive 2014/24/EU provides that, 
under the same conditions, a group of economic operators may rely on the 
capacities of participants in the group or of other entities. 
Latvian law 
[5] Publisko iepirkumu likums (Law on Public Procurement). 
REQUEST FOR A PRELIMINARY RULING OF 20. 9. 2021 – CASE C-592/21 
 
4  
[5.1] Article 46(1) of the Law on Public Procurement establishes that contracting 
authorities may impose criteria relating to the technical and economic capacity 
required by suppliers in order to perform the contract. Such requirements may 
refer to the staff assigned to performing the contract, the supplier’s experience and 
the technical resources. 
[5.2] Article 46(4) of the Law on Public Procurement provides that a supplier may 
rely on the technical and professional capacities of other persons where necessary 
to perform the contract in question, irrespective of the legal nature of the 
relationship between them. In such cases, the supplier must demonstrate to the 
contracting authority that it will have the necessary resources at its disposal by 
submitting a certificate or agreement from those persons confirming that the 
necessary resources will be made available to the supplier. Suppliers may rely on 
the capacities of other persons as evidence of professional experience or the 
availability of staff who satisfy the contracting authority’s requirements only 
where those persons will perform the works or services for which the capacities in 
question are required. 
Reasons why the referring court has doubts over the application and 
interpretation of European Union law 
[6] The point at issue in the present case is whether the declaration that the 
applicant did not satisfy the experience requirement in point 4.1.1 of the tender 
specifications was correct. 
According to the applicant, its tender satisfies this provision in the tender 
specifications since, in the present case, the tenderer must be deemed to be the 
general partnership and, therefore, the assessment to be made is whether the 
general partnership satisfies the requirements in the tender specifications. In its 
opinion, given that the partners in a general partnership have joint and several 
liability to third parties, including the contracting authority, the internal 
distribution of tasks by the applicant in the performance of the contract has no 
legal relevance. By contrast, the contracting authority and the Authority consider 
that the applicant’s tender does not satisfy the requirements in the aforesaid 
provision in the tender specifications because, in practice, the meals will be 
provided by only one of the applicant’s partners ― SIA Ēdiens.lv ― which, as 
demonstrated by the information in the case file, does not have the necessary 
experience in preparing meals, while the experience of the applicant’s other 
partner ― PI Bruneros ― cannot be taken into account since it will not prepare 
the meals (provide the catering services) but, according to the applicant, will only 
be involved in administrative issues. 
It is clear from the documentation in the case file and the applicant’s comments 
that the applicant had indicated that the intention was for SIA Ēdiens.lv to be 
responsible for operational matters: staff selection and training, organisation of 
work on the ground, service provision organisation and record keeping. For its 
part, PI Bruneros was to be responsible for administrative matters: monitoring and 
ĒDIENS & KM.LV 
 
5 
control, financial involvement, and the drafting and preparation of the necessary 
documents, including technical sheets, menus and self-monitoring forms. 
In the procurement legislation, scope for the service provider to rely on the 
experience of a third party is inextricably linked to the requirement that, in the 
performance of the contract, the operations for which that experience is required 
must be performed by the entity with the necessary actual experience. In view of 
the reason for the inclusion of a requirement for specific experience in the 
invitation to tender, and having regard to a literal interpretation of the final 
sentence of Article 63(1) of Directive 2014/24/EU, it could be considered justified 
to extend that requirement to encompass a situation in which the tenderer is an 
association of persons and one of the association’s members has the required 
experience. The mere fact that a tender has been submitted by an association of 
persons cannot be sufficient grounds for considering that, by contrast with other 
tenderers, there is no need for the association to show that, in the performance of 
the contract, the services in question will be performed by the entity with the 
relevant experience. Where the association has referred in its tender to the prior 
experience of one of its members in providing particular services, it would 
therefore be reasonable to require it to provide the contracting authority with 
conclusive evidence that that member will actually be involved in providing those 
services. Otherwise, one would have to conclude that, in a tender process, an 
association of persons could simply include a formal reference to the prior 
experience of one member of the association, even if a specific part of the contract 
were to be performed solely by association members whose capacity to perform 
the contract in due time and form had not been verified by the contracting 
authority. 
However, in view of the arguments put forward by the applicant, in the context of 
the final sentence of Article 63(1) of Directive 2014/24/EU the [referring] court 
has doubts over the impact which the applicant’s legal form (a general 
partnership) and the consequences thereof (joint and several liability) have on 
satisfaction of the experience requirement, and over whether the contracting 
authority’s examination of this requirement is restricted to the member of the 
association of persons who will actually provide the service in question, where the 
tender specifications make no mention of the need for the individual members of 
the tenderer to satisfy the experience requirement established in the tender 
specifications. Consequently, the [referring] court considers it necessary to refer a 
question to the Court of Justice of the European Union for a preliminary ruling. It 
therefore orders a stay of proceedings until the Court of Justice of the European 
Union gives judgment on the question referred. 
Operative part 
Pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
[…] [reference to national procedural law] the District Administrative Court 
orders 
REQUEST FOR A PRELIMINARY RULING OF 20. 9. 2021 – CASE C-592/21 
 
6  
that the following question be referred to the Court of Justice of the European 
Union for a preliminary ruling: 
Must the final sentence of Article 63(1) of Directive 2014/24/EU of the European 
Parliament and of the Council of 26 February 2014 on public procurement and 
repealing Directive 2004/18/EC be interpreted as meaning that in all cases 
(including those where the tender specifications contain no express reference), 
where a tenderer is an association of persons, in its tender it may rely only on the 
capacities (prior experience) of the association member who, in the performance 
of the contract, will actually perform the activities for which that experience is 
required? 
That proceedings be stayed until the Court of Justice of the European Union gives 
final judgment. 
[…] [procedural references and judges’ signatures]