Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

Article 38 Verification of the suitability and choice of participants and award of contracts

1. Contracts shall be awarded on the basis of the criteria laid down in Articles 47 and 49, taking into account Article 19, after the suitability of the economic operators not excluded under Articles 39 or 40 has been checked by contracting authorities/entities in accordance with the criteria of economic and financial standing, of professional and technical knowledge or ability referred to in Articles 41 to 46 and, where appropriate, with the non-discriminatory rules and criteria referred to in paragraph 3.

2. Contracting authorities/entities may require candidates to meet minimum capacity levels in accordance with Articles 41 and 42.

The extent of the information referred to in Articles 41 and 42 and the minimum levels of ability required for a specific contract must be related and proportionate to the subject-matter of the contract.

These minimum levels shall be indicated in the contract notice.

3. In restricted procedures, negotiated procedures with publication of a contract notice and competitive dialogues, contracting authorities/entities may limit the number of suitable candidates they will invite to tender or with which they will conduct a dialogue. In this case:

• the contracting authorities/entities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. The minimum number of candidates they intend to invite may not be less than three;

• subsequently, the contracting authorities/entities shall invite a number of candidates at least equal to the minimum number set in advance, provided a sufficient number of suitable candidates is available,

Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number, the contracting authority/entity may continue the procedure by inviting the candidate or candidates with the required capabilities.

If the contracting authority/entity considers that the number of suitable candidates is too low to ensure genuine competition, it may suspend the procedure and republish the initial contract notice in accordance with Article 30(2) and Article 32, fixing a new deadline for the submission of requests to participate. In this case, the candidates selected upon the first publication and those selected upon the second shall be invited in accordance with Article 34. This option shall be without prejudice to the ability of the contracting authority/entity to cancel the ongoing procurement procedure and launch a new procedure.

4. In the context of an award procedure, the contracting authority/entity may not include economic operators other than those which made a request to participate, or candidates without the requisite capabilities.

5. Where the contracting authorities/entities exercise the option of reducing the number of solutions to be discussed or of tenders to be negotiated, as provided for in Article 26(3) and Article 27(4), they shall do so by applying the award criteria stated in the contract notice or the contract documents. In the final stage, the number arrived at shall make for genuine competition insofar as there are enough solutions or suitable candidates.