Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 29 June 2021 – SC NV Construct SRL v Județul Timiș
(Case C-403/21)
Language of the case: Romanian
Referring court
Consiliul Național de Soluționare a Contestațiilor
Parties to the main proceedings
Applicant: SC NV Construct SRL
Contracting authority: Județul Timiș
Intervening party: SC Proiect Construct Regiunea Transilvania SRL
Questions referred
Must Article 58 of Directive [2014/24], 1 the principal of proportionality and the principle of liability be interpreted as meaning that the contracting authority has the right to lay down the criteria relating to technical capacity, that is to say, to determine whether or not it is necessary to include in the procurement documents criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws, in respect of activities of minor importance in the contract?
Do the principles of transparency and proportionality preclude the automatic supplementation of the procurement documents with qualification criteria arising from special laws applicable to activities relating to the contract to be awarded which were not set out in the procurement documents and which the contracting authority decided not to impose on the economic operators?
Do Article 63 of the directive and the principle of proportionality preclude the exclusion from the [tendering] procedure of a tenderer who has not named an operator as a subcontractor for the purpose of demonstrating compliance with certain criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws not set out in the procurement documents in the case where the tenderer in question has chosen a different contractual form of involving specialists in the contract, that is to say [a] contract for the supply/provision of services, or has submitted [a] declaration of willingness on their part? Does the right to determine its organisation and contractual relations within the group lie with the economic operator and is it possible also to involve certain providers/suppliers in the contract in the case where the provider is not one of the entities on whose capacity the tenderer intends to rely in order to demonstrate compliance with the relevant criteria?
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1 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 (OJ 2014 L 94, p. 65).