Suitability Criteria in Procurement Law

Definition: In public procurement law, suitability criteria are the requirements set by the contracting authority concerning authorisation to pursue the professional activity, economic and financial standing, and technical and professional ability of a candidate or bidder, designed to ensure that the company can properly perform the contract tendered.

Last updated: January 2026 · Legal basis: Article 58 of Directive 2014/24/EU, §§ 68 et seq. BVergG 2018 (AT), §§ 44 et seq. VgV (DE)

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What are suitability criteria?

Suitability criteria are the procurement-law requirements by which contracting authorities ensure that only those companies that have the human, financial and technical conditions for proper contract performance participate in the bid evaluation. They must be strictly separated from award criteria: suitability criteria concern the ability of the company to perform the contract (can the company deliver?), while award criteria evaluate the quality and price of the specific bid (what does the company offer?). The suitability check takes place before the bid evaluation.

Purpose and significance

Suitability criteria serve the contracting authority as a risk-mitigation tool in contract award and at the same time safeguard effective competition by excluding unsuitable bidders on the one hand while setting proportionate requirements that do not unnecessarily restrict competition on the other. Excessive suitability requirements can effectively exclude smaller companies and restrict competition; requirements that are too low risk awarding the contract to unsuitable companies.

The principle of proportionality (Article 58(1), second subparagraph, of Directive 2014/24/EU) is therefore the key benchmark: suitability criteria must relate to the subject matter of the contract and be proportionate to it.

The three categories of suitability criteria

Article 58 of Directive 2014/24/EU sets out three exhaustive categories of suitability criteria, which contracting authorities may apply cumulatively or individually.

Authorisation to pursue the professional activity

Authorisation to pursue the professional activity (Article 58(2) of Directive 2014/24/EU) covers entry in a professional or trade register and – for regulated professions – evidence of the permits, concessions or qualifications required to pursue the profession. Typical evidence:

• Entry in the commercial or companies register
• Trade licence
• Authorisation as an architect, engineer or other regulated professional
• Entry in trade association or contractor registers

Economic and financial standing

Economic and financial standing (Article 58(3) of Directive 2014/24/EU) ensures that the company has the financial stability to perform the contract properly. Permissible evidence includes:

• Bank references or financing evidence
• Annual financial statements for the last three financial years
• Evidence of minimum annual turnover (in principle no more than twice the estimated contract value)
• Evidence of professional indemnity insurance with a specific cover

Technical and professional ability

Technical and professional ability (Article 58(4) of Directive 2014/24/EU) concerns the human and material capacities of the company and its experience with comparable contracts. Permissible evidence includes:

• Reference lists of past supply and service contracts of the last three years
• Evidence of equipment, machinery and technical resources
• Evidence of the qualifications of the relevant specialist staff
• Evidence of training and professional qualifications
• Quality assurance evidence (ISO certifications)
• Certificates from independent bodies as to compliance with environmental or quality standards

Principle of proportionality

The principle of proportionality requires contracting authorities to set suitability requirements only to the extent actually necessary to safeguard proper contract performance. Excessive requirements – such as a minimum annual turnover of three times the contract value or an excessive number of references – are not permissible under procurement law and can be challenged in review proceedings.

Concrete guidance from case law:

• The minimum annual turnover should not exceed twice the estimated contract value
• Reference requirements should be limited to comparable, not identical, contracts
• Certification requirements must be proportionate and contract-specific

Reliance on third-party capacity

Reliance on third-party capacity allows companies to rely on the capacities of other companies to meet suitability requirements they would otherwise not satisfy, provided they demonstrate that those capacities are actually available to them. This instrument under Article 63 of Directive 2014/24/EU is particularly relevant for small and medium-sized enterprises that cannot meet all the suitability requirements on their own.

Conditions for reliance on third-party capacity:

• The third entity must be demonstrably available (e.g. through a declaration of commitment)
• For capacities in the area of financial standing, the contracting authority may require joint and several liability
• For capacities that are essential for performance (e.g. key qualifications), the contracting authority may require the third entity to act as a subcontractor
• Grounds for exclusion and suitability must also be checked for the third entity

Legal basis

The central EU-law basis for suitability criteria is Article 58 of Directive 2014/24/EU on public procurement. Further relevant provisions:

• Article 57 of Directive 2014/24/EU: Grounds for exclusion (mandatory and discretionary)
• Article 59 of Directive 2014/24/EU: European Single Procurement Document (ESPD) as preliminary evidence
• Article 63 of Directive 2014/24/EU: Reliance on third-party capacity
• Article 67 of Directive 2014/24/EU: Award criteria (distinction)
• Implementing Regulation (EU) 2016/7: Standard form for the European Single Procurement Document

National implementation

Austria (BVergG 2018)

In Austria, suitability criteria are governed by §§ 68 et seq. BVergG 2018. Austrian law follows the structure of Directive 2014/24/EU. Specific features:

• § 68 BVergG 2018 governs permissible suitability criteria and their categories
• § 79 BVergG 2018 governs reliance on third-party capacity and clarifies that, for core parts of the service, the contracting authority may require performance by the third entity
• The European Single Procurement Document (ESPD) is admitted as preliminary suitability evidence under §§ 83 et seq. BVergG 2018
• For procurement below the thresholds, the BVergG 2018 provides for simplified suitability requirements
• The Federal Procurement Agency (BBG) provides standardised suitability requirements for framework agreements

Germany (GWB / VgV / UVgO / VOB)

In Germany, §§ 44 et seq. VgV govern suitability criteria for supply and service contracts above the EU thresholds; § 6a EU VOB/A applies to construction works. Key aspects:

• § 44 VgV adopts the three categories of suitability criteria from Article 58 of Directive 2014/24/EU
• § 47 VgV governs reliance on third-party capacity and looks to actual availability for key capacities
• The European Single Procurement Document (ESPD) must be accepted as preliminary evidence under § 50 VgV
• For grounds for exclusion under §§ 123 f. GWB, there are in part mandatory exclusion duties
• Below the EU thresholds, simplified requirements apply under the UVgO

Distinction: suitability criteria vs. award criteria

The separation between suitability criteria and award criteria is a basic principle of EU procurement law: suitability criteria concern only the bidder's ability to perform the contract, while award criteria identify the best tender in the competition between those bidders deemed suitable. Mixing the two categories – for example using references as an award criterion rather than as a suitability criterion – is not permissible under procurement law.

Permissible award criteria under Article 67 of Directive 2014/24/EU are price, costs and qualitative criteria relating to the tender. Qualifications of the staff can only be used as an award criterion where the staff have a substantial influence on the quality of contract performance and this is specifically justified.

Related terms

• Grounds for exclusion: Circumstances leading to mandatory or discretionary exclusion (Article 57 of Directive 2014/24/EU)
• European Single Procurement Document (ESPD): Standard form for the preliminary self-declaration
• Reliance on third-party capacity: Use of third-party capacities to satisfy suitability requirements
• Award criteria: Evaluation criteria for the tenders of bidders found to be suitable
• Pre-qualification: Upstream suitability check used to draw up bidder lists
• Review procedure: Legal remedy against unlawful suitability requirements or decisions

FAQ

Can a contracting authority set any suitability requirement it wishes? No. Suitability requirements are limited to the categories exhaustively listed in Article 58 of Directive 2014/24/EU and must comply with the principle of proportionality. Disproportionate requirements are not permissible under procurement law and can be challenged in review proceedings.

Can a bidder make up for missing suitability through reliance on third-party capacity? In principle yes. Under Article 63 of Directive 2014/24/EU a company may rely on the capacities of third parties, provided it demonstrates that those capacities are actually available. For core parts of the service, the contracting authority may require the third entity to act as a subcontractor.

When must the bidder submit suitability evidence? In EU procurement law, the European Single Procurement Document (ESPD) must be accepted as preliminary evidence. Actual suitability evidence may be requested later; only the anticipated successful tenderer must necessarily submit it, unless the contracting authority provides otherwise.

May suitability criteria be used as award criteria? No. The case law of the CJEU and national procurement bodies prohibits the use of suitability criteria as award criteria. An exception only applies to the qualifications of the staff deployed where their quality has a demonstrably significant influence on contract performance.

What reference periods are permitted for technical capacity? For supply and service contracts, references are in principle to be limited to the last three years; for construction works, to the last five years. Longer reference periods are only permitted exceptionally and with objective justification.

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Last updated: January 2026 All information provided without warranty. For legally binding advice please contact a law firm specialising in procurement law.