Note on Exclusion Criteria

The Procurement Directives (Article 45 of Directive 2004/18/EC and Articles 53(3) and 54(4)) of Directive 2008/17/EC (PDF) contain an list of cases where the personal situation of a candidate or tenderer may lead to its exclusion from the procurement procedure. Some of these shortcomings may potentially be related to accessibility. In some particularly serious criminal cases, it may even be mandatory to exclude tenderers. The procurement authority is not permitted to use any of these criteria (that concern the tenderer's suitability to perform the contract) as criteria on which the contract is awarded as was set out in the judgement on the Lianakis case [Case C-532/06 "Emm. G. Lianakis AE and others v Dimos Alexandroupolis and others 28 January 2008].

The EU Procurement Directives provide three categories of Selection Criteria:

  1. Exclusion Criteria
    There may be cases where the personal situation of a candidate or tenderer may lead to its exclusion from the procurement procedure. Though likely not to be a common occurance in relation to accessibility, more information is provided under the Note on Exclusion Criteria
  2. Economic and financial standing
    This Selection Criteria is not linked to accessibility issues and not covered in this Toolkit.
  3. Technical and/or professional ability
    Procurements where technical and/or professional ability are particularly relevant include contracts on web design, software development, outsourcing of operation of ICT infrastructure, call center services etc. In these cases it is  important to assess the Suppliers Accessibility Capacity. Assessing the technical and/or professional ability is less meaningful for the procurement of standard off-the-shelf products.

An example related to accessibility could be where a tenderer has been convicted by a judgment that has the force of res judicata for failure to comply with national rules prohibiting discrimination on the ground of disability.