Criterion #23 wording – inconsistency with Regulation

[sakispantazis]

Criterion 23 (i.e. the question regarding Guilty of misinterpretation, withheld information, inability to provide required documents and obtained confidential information of this procedure)

The Regulation’s stipulations for this criterion are:

In the current implementation of the ESPD taxonomy/structure for the criterion 23 the question differs compared to the Regulation. It seeks for a negative answer instead of a positive one and the wording is:

“Can the economic operator confirm that:
a) It has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfillment of the selection criteria,
b) It has withheld such information,
c) It has not been able, without delay, to submit the supporting documents required by a contracting authority or contracting entity, and
d) It has undertaken to unduly influence the decision making process of the contracting authority or contracting entity, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award?”
We implemented this criterion accordingly to the current ESPD taxonomy/structure. Hopefully all implementers have changed the question’s wording to match the ESPD taxonomy/structure. However, the following issue arises: should we change the Regulation accordingly to match the ESPD taxonomy/structure or vice versa? If it was up to me, sending a notification eMail to all implementers to double check the wording, would be enough. However, since it might have legal implications and because lawyers are rather attached to the wording, we might have to change one or the other. Notice: Changing the ESPD taxonomy/structure, would have the consequence that all ESPD artifacts completed so far will show a wrong answer.

[mireiaBM]

The wording will not be modified, as the wording is an issue related to the application/UI and not to the ESPD data model per se.

[jerouris]

Dear Mireia,
I would like to reopen this issue because your statement might be incorrect and we need some more clarifications.

You state that wording is an issue related to the application/UI, however, the application/UI takes its wording from the ESPD Taxonomy, which is an official artifact of the ESPD EDM. (see here )

Can you please reevaluate the issue, taking these facts into account?

[JosePRevenga]

Exclusion grounds are to be answerd always negatively to confirm that there is no law offendance.

For more information please refer to issue #242.