Requirements regarding the suitability of tenderers

In addition to the requirements set by the procuring entity, the eligibility of bidders can be assessed according to mandatory and discretionary exclusion criteria.

Mandatory grounds for exclusion apply to serious crimes mentioned in the law, which concern the bidder or their representatives (see the section "Crime register extract for the procurement procedure" in more detail below). When these grounds are at hand, the procurement unit has no discretion regarding the exclusion.

Discretionary grounds for exclusion are minor violations or other reasons to exclude the tenderer from the procurement procedure. Regarding the discretionary grounds for exclusion, the procuring entity has the discretion to evaluate the exclusion of the bidder. The grounds for exclusion are recorded in the Procurement Act, so it is not required to mention them in the tender documents.

The discretionary exclusion criteria mentioned in the Procurement Act exist, e.g. when the tenderer is bankrupt or bankruptcy is pending or the tenderer's debts have been settled with a confirmed business restructuring program or if the tenderer has violated the environmental, social and labor law obligations of Finnish or European Union legislation or collective agreements, and the procuring entity can show that to establish the violation.

In addition, a discretionary ground for exclusion is available if the tenderer has, in his professional activities, committed a serious error questioning its reliability, which the procuring entity can prove, or if the tenderer has entered into agreements with other operators in the field that aim to distort competition, and the procuring entity can prove this.

The exclusion criteria aim to prevent the gray economy and ensure the provider's reliability and ability to deliver.
The procuring entity must be required to use the common European procurement document (ESPD) during the procurement procedure as preliminary evidence that the exclusion criteria do not burden the bidder and that the bidder meets the suitability requirements set by the procuring entity. As the name suggests, this is a standard form pre-filled by the procuring entity, with which the bidders assure the procuring entity that the grounds for exclusion are in order for their part and that the bidder meets the requirements set by the procuring entity for the suitability of the bidder.

Before concluding the procurement contract, the procurement entity must require the selected bidder to submit up-to-date certificates and reports to examine whether it is subject to the mandatory exclusion criteria and whether the suitability requirements set by the procurement entity are met.

With regard to discretionary exclusion criteria, the procuring entity has discretion in deciding whether it decides to apply a certain discretionary exclusion criteria and whether it then requires the winning bidder to submit a supplementary document to clarify that discretionary exclusion criteria.

The explanations must be requested before entering into the procurement contract. However, the procuring entity may at any time during the procurement procedure ask bidders to submit all or part of the reports if it is necessary to ensure the proper course of the procedure.

The tenderer has the opportunity to remove the doubts and risks arising from the grounds for exclusion regarding the proper implementation of the procurement contract by presenting corrective measures to the procurement entity. A tenderer who is burdened by a mandatory or discretionary exclusion criterion has the right to present evidence of his reliability to the procuring entity. If the procuring entity considers the evidence and reliability sufficient, it may not exclude the candidate or tenderer in question from the tender. The procurement unit has no obligation to demand or request proof of reliability.

An extract from the criminal record is used to verify the existence of mandatory grounds for exclusion.

The tenderer who won the procurement competition can obtain from the Legal Registry Center extracts from the criminal records for the procurement procedure of persons who are members of the company's administrative, management or supervisory body or exercise representation, decision-making or supervisory authority.

Disclosure of information requires the consent of the person attached to the application. The extract from the criminal record submitted to establish the criminal background must not be older than twelve months.

The criminal record extract contains information about the final decision by which the person has been sentenced (to a prison sentence), for example

• of giving a bribe
• for aggravated bribery
• for tax fraud
• for aggravated tax fraud
• for employment pension insurance payment fraud
• for aggravated employment pension insurance payment fraud,
• bribery in business activities
• for gross bribery in business activities
• accepting a bribe in business activities
• for aggravated bribery in business activities
• money laundering
• for aggravated money laundering
• occupational safety crime
• for the crime of working time protection
• about employment discrimination
• for violating workers' freedom of association or
• on the use of unauthorized foreign labor.

The information of the criminal record extract received by the procurement unit must be kept confidential. The procurement unit or the tenderer may not take a copy of the criminal record extract or deposit it for themselves. After finding out the grounds for exclusion, the procurement unit must destroy the criminal record extract or return it to the person it concerns.

The procurement unit can also set requirements for the suitability of the bidder in national procurements. The suitability requirements must be proportionate to the object of the procurement. The procurement unit must state the requirements it uses in the procurement notice or request for tender.

The procurement unit must exclude from the tender a candidate or tenderer who does not meet the suitability requirements set by it. In national procurements, the procuring entity is not obliged to use the common European procurement document (ESPD).

Instead, the procuring entity may require that bidders provide a declaration as part of their offer that they meet the suitability requirements set by the procuring entity. The accuracy of the information provided in the insurance is checked for the winner of the tender before the contract is signed.

In national procurements, the procuring entity can choose whether it wants to apply mandatory and discretionary exclusion criteria as applied in EU procurement procedures.