On 30 June 2020 the new European Single Procurement Document (ESPD) template entered in force (can be accessed here). The old ESPD template had been in force since October 2018.
The 2018 ESPD template was prepared by the Ministry of Finance shortly after the new amendments to the Law on public procurement 131/2015 entered in force on 1st October 2018 designed to transpose the Directive 2014/24/EU on public procurement and which has introduced the legal basis for the use of the ESPD. It should be recalled that the 2018 ESPD template was poorly drafted and was very hard to navigate through due to lack of a proper enumeration of fields.
The new version of the ESPD largely follows the Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 establishing the standard form for the European Single Procurement Document. In comparison with the EU template which is divided in VI Parts, the new Moldovan ESPD has one additional Part (V) named ‘General indications concerning selection criteria’ which follows immediately after Part V named ‘Qualification and selection criteria of the economic operators’. This additional Part requests in essence from the economic operator to confirm that he would be able to submit all the documents requested by the Contracting Authority in the contract notice and tender documents in a specified period of days. However, the necessity of this Part is not clear taking into account that this obligation already arises from other parts of the ESPD and from article 20 of the Law on public procurement. The logic and effectiveness of this new Part is yet to be seen.
The new ESPD is designed to be used in the classical procurement sector and in the procurement in the utilities sector. It is worth noting that the new Law on procurement by entities operating in the water, energy, transport and postal services sectors was voted recently by the Parliament and will enter in force next year on 26.06.2021 (If you are interested please see the legal review of this law prepared by Andrei Rogac published on his blog here).
The new template certainly represents an improvement and will be very welcomed by both the public and private sector. Nonetheless, our experience shows that the purpose of the ESPD as a self-declaration submitted by economic operators providing preliminary evidence replacing the certificates issued by public authorities or third parties is not observed. This is because Contracting Authorities tend to request selection or qualification and exclusion documents together with the tender and the later includes the ESPD as well. This practice renders the ESPD superfluous and does not reduce the documentation work-stream, thus, no additional incentive for increased competition. That is why the relevant authorities should put more effort in explaining to the procurement personnel the scope of the ESPD and at which stage the documentary evidence should be sought from the economic operator.
Av. Andrei Rogac
Lastly, it is worth mentioning that in the spring of 2019, Andrei Rogac together with a team of outstanding Moldovan procurement experts have elaborated a new draft of the ESPD which was submitted to the Ministry of Finance. Unfortunately, only some recommendations may be found in the new ESPD template.
If you have any questions or queries concerning the new ESPD template, please contact our partner Andrei Rogac – a.rogac@grlegal.md.
