In the Commission's view, Community law requires the contracting entity to publicise the selection and award criteria for identifying the private partner for the IPPP. The criteria used must comply with the principle of equal treatment. This applies both to public contracts fully covered by the Public Procurement Directives27 and in the view of the Commission also to other public contracts and concessions.
The choice of the tenderers or the candidates who will participate in the tendering procedure and the choice between the bids submitted must be made on the basis of these criteria, and the contracting entity needs to follow the procedural rules and basic requirements originally laid down.28
The Public Procurement Directives specify objective requirements related to the personal capacity of the private partner, such as the personal situation of the candidate, his economic and financial standing, his suitability to pursue the professional activity in question and his technical and/or professional ability.29 Such criteria may also be used in the context of concessions and public contracts not fully covered by the Public Procurement Directives.
In the area of social services of general interest clarifications on possible selection and award criteria have been made in the Commission Staff Working Document "Frequently asked questions concerning the application of public procurement rules to social services of general interest".30
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27 Case C-19/00, SIAC Constructions, ECR 2001, I-7725, paragraphs 41-45; Case C-31/87, Beentjes, ECR 1988, page 4635, paragraphs 29 et seq.
28 Even if the specifications provide for the possibility for candidates to make technical improvements to the solutions proposed by the contracting entity (and this will often be the case for IPPP), such modifications may not relate to the basic requirements of the project and must be delimited.
29 Articles 45 to 48 of Directive 2004/18/EC and Article 54 of Directive 2004/17/EC.
30 See footnote 8 above.