Exclusion Criteria Statement

The exclusion criteria statement is the section of the ESPD Response (and its national equivalents) in which a supplier declares whether any disqualifying circumstances apply to it, its directors, or its beneficial owners. It is the procurement system's gatekeeping mechanism: a supplier that is convicted of bribery, seriously delinquent on taxes, or guilty of professional misconduct should not be awarded public contracts, regardless of how competitive its price or how impressive its technical proposal.

What is an exclusion criteria statement?

Article 57 of Directive 2014/24/EU divides exclusion grounds into two categories.

Mandatory grounds. Contracting authorities must exclude suppliers where there is a binding judgment (or equivalent) for participation in a criminal organisation, corruption, fraud, terrorist offences or offences linked to terrorist activities, money laundering or terrorist financing, child labour or other forms of trafficking. These grounds also apply where the economic operator's director, partner, or any person with power of representation or control has been convicted. Evidence of these grounds is typically sought through a criminal record certificate for the company and relevant individuals.

Discretionary grounds. Contracting authorities may exclude suppliers on additional grounds, which they must activate explicitly in the ESPD Request. Common discretionary grounds include: breach of environmental, social, or labour law obligations; insolvency or bankruptcy; serious professional misconduct (including misrepresentation in procurement); significant failure to perform a prior public contract; conflict of interest; and distortion of competition through prior involvement in the preparation of the procedure.

Where a mandatory or discretionary ground technically applies, Article 57(6) of Directive 2014/24/EU allows a supplier to avoid exclusion by demonstrating self-cleaning: paying outstanding debts, cooperating with authorities, taking remediation measures, and demonstrating that it is reliable despite the past issue.

In the UK, the Procurement Act 2023 adopts a similar structure with mandatory and discretionary exclusion grounds, including a debarment list maintained by the Cabinet Office.

Why the exclusion criteria statement matters for bidders

Many suppliers treat the exclusion criteria statement as a formality and click through it without care. This is a mistake for two reasons. First, if a ground technically applies (for example, a minor tax arrears dispute or a historic court conviction for a director), failing to declare it and being found out later is far more damaging than declaring it with a self-cleaning narrative. Second, in a consortium bid, all entities including key subcontractors may need to submit their own exclusion criteria statements, and a problem with one party can affect the whole bid.

Read each ground carefully, confirm the position for all relevant individuals, and document your self-cleaning steps if any grounds apply before submitting your ESPD Response.

Example

A German construction firm bids for a Dutch highway contract. Its ESPD Request activates all mandatory grounds plus three discretionary grounds. The German firm's legal counsel confirms no mandatory grounds apply. One director has a historic minor tax underpayment case from six years ago that was settled. The firm declares the discretionary ground (tax irregularity), describes the remediation (payment in full, corrective internal controls), and submits its ESPD Response with the self-cleaning narrative. The Dutch authority reviews and accepts the declaration.

Frequently Asked Questions

Do exclusion grounds apply only to the legal entity, or also to individuals?

Both. Mandatory exclusion grounds under Article 57(1) of Directive 2014/24/EU apply where any person who is a member of the administrative, management or supervisory body of the company, or who has powers of representation, decision or control, has been convicted. Contracting authorities may require disclosure of individuals alongside the company.

What is the look-back period for exclusion grounds?

Directive 2014/24/EU sets a maximum exclusion period of five years for mandatory grounds and three years for discretionary grounds, measured from the date of conviction or event. Member states may set shorter periods. Grounds older than the applicable period cannot be used to exclude a supplier.

Can an exclusion ground from another country trigger exclusion in a different EU member state?

Yes. Directive 2014/24/EU requires member states to recognise exclusion grounds established in other member states. A conviction for fraud in Italy, for example, would be a mandatory exclusion ground for a procedure in Sweden.