Uncertainty over electronic availability of procurement documents

The new EU Procurement Directives (Public Sector Directive (2014/24/EU) and Utilities Directive (2014/25/EU)) came into force on 17 April 2014. The new Directives promote the use of electronic means of communication. The objective is to simplify the publication of contracts and increase the efficiency and transparency of procurement processes.

However, one concern currently being raised by authorities is the extent of the new mandatory requirement that “procurement documents” be made available electronically from the date of publication of the OJEU contract notice (or from the date of confirmation of interest in tendering where the contract is advertised using a PIN). The requirement is set out in Article 53 of the new Public Sector Directive and an equivalent provision included in Article 73 of the new Utilities Directive. Under the current rules authorities / utilities are encouraged to publish procurement documents electronically but this is not a mandatory requirement.

The extent of this new requirement needs to be clarified. On one interpretation it would require authorities and utilities to provide upfront electronic access to the ITT, ITN or ITPD to any potential bidder responding to an OJEU contract notice. Such an interpretation would be unfortunate and seems to fly in the face of the stated objectives of simplifying the procurement rules and making tender processes more efficient.

The requirement – public sector

Article 53 of Directive 2014/24 provides that “contacting authorities shall by electronic means offer unrestricted and full direct access free of charge to the procurement documents from the date of publication of a [OJEU contract] notice (…) or the date on which an invitation to confirm interest was sent” (i.e. where the call for competition was made using a Prior Information Notice, or PIN, rather than by an OJEU contract notice).

The only exceptions to this mandatory requirement are where:

• practical limitations arise from specific file formats, tools, equipment or the need for physical/scale models (Article 22(1)); or
• the authority is required to protect confidential information provided to it from bidders (Article 21(2)), e.g. technical or trade secrets and other confidential aspects of tenders.

In these exceptional cases an authority is required to explain the measures it intends to apply to provide access to the relevant documents and must then allow a further five days for submission of tenders (save in the case of “substantiated” urgency).

The requirement – utilities

An equivalent provision is contained in Article 73 of the new Utilities Directive, the only difference being an exception for the use of qualification systems. This provides that “where the means of calling for competition is a notice on the existence of a qualification system, such access shall be offered as soon as possible and at the latest when the invitation to tender or to negotiate is sent.” It means that utilities may be required to provide full upfront electronic disclosure when conducting a regulated tender process under an OJEU contract notice but not when procuring through a qualification system such as through the Achilles UVDB.

Definition of “procurement documents”

Both Directives define a “procurement document” as “any document produced or referred to by the contracting [authority/utility] to describe or determine elements of the procurement or the procedure, including the contract notice, [the prior information notice where it is used as a means of calling for competition / the periodic indicative notice or the notices on the existence of a qualification system where they are used as a means of calling for competition], the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.” (see Article 2 of both the Public Sector Directive and the Utilities Directive).

Need for clarification

When reading the requirement in Articles 53 and 73 alongside the definition of a “procurement document” there is a need for clarification as to the extent of the procurement documents that must be issued (made electronically available) together with the OJEU contract or other form of call for competition. Even if authorities and utilities could manage to finalise the full suite of tender documentation for two stage restricted, competitive dialogue and negotiated procedures prior to issuing the OJEU contract notice, they will be reluctant to allow the market to have full unrestricted access to all of that documentation.

It is hard to see that this degree of upfront disclosure was the intended by the EU institutions when they adopted the new legislative texts. Moreover, such an interpretation would go against the grain of the reforms to the rules, and tighten rather than loosen the straightjacket the rules place around regulated tender processes.

The uncertainty is recognised in the Cabinet Office’s FAQs and requires urgent clarification from the European Commission, preferably before there is any formal consultation on the adoption of implementing regulations.