Procurement in a Nutshell – Electronic communication rules to enter into force
14th September 2018
In a previous Nutshell we focussed on the use of electronic communications in procurement procedures and in particular those rules set out under Regulation 22 of the Public Contracts regulations 2015.
You can view that Nutshell here.
In order to allow Contracting Authorities to adjust to the new rules, the implementation of regulation 22 (1) – (7) was staggered.
However, as of 18 October 2018, the rules on the use of electronic communication in all procurement procedures will apply in full and Contracting Authorities need comply.
We thought it would be helpful to remind you of the key obligations that will come into force in full as at 18 October 2018, namely those set out in regulations 22 (1) to 22 (7).
What does Regulation 22 say?
Regulation 22 (1) requires Contracting Authorities to use electronic means of communication during procurement procedures and confirms that:
“the tools and devices to be used for communicating by electronic means, and their technical characteristics, shall be non-discriminatory, generally available and interoperable with the information and communication technology products in general use and shall not restrict economic operators’ access to the procurement procedure.”
Consistent with the treaty principles, the tools to be used by Contracting Authorities must, as far as possible, be open to all and not discriminate through cost or other barriers.
Regulation 22 (3) sets out the exceptions to the general requirement to use electronic procurement namely:
- Where, due to the specialised nature of the procurement, the use of electronic procurement would require specific tools, devices, or file formats that are not generally available or supported by generally available applications.
- Where the file formats that are suitable for the description of tenders cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use.
- Where the use of electronic means of communication would require specialised office equipment that is not generally available.
- Where the procurement documents require the submission of physical or scale models.
Where this applies, regulation 22 (4) sets out the permitted alternative means of communication where the limited circumstances set out in Regulation 22 (3) apply.
Finally, regulations 22 (5) to (7) clarify that, in circumstances where:
- There has been a breach of security of the electronic means of communication; or
- The information is of a particularly sensitive nature “requiring such a high level of protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by means of access” –
then Contracting Authorities are not obliged to require means of electronic communication but, where this is the case, the reasons for this need to be stated in the contract award report of the Contracting Authority.
Why is this important?
Given that the majority of Contracting Authorities are already using electronic communication when conducting their procurements and that a substantial part of regulation 22 is already in force, many will be unaffected by the changes entering into effect on 18 October 2018.
Nevertheless, this deadline represents the perfect opportunity for Contracting Authorities to review whether their use of electronic communications is compliant with the Regulations. Furthermore, organisations who do not currently make use of electronic communications must make sure that going forwards they do so in compliance with regulation 22.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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