Regulation 36 – Electronic catalogues
Regulation 36 transposes the rules of Art 36 of Directive 2014/24 on electronic catalogues, which are one of the novelties of the 2014 rules in relation with the use of electronic means of communication and ultimately aimed at simplifying the process for the submission of tenders and their assessment. Indeed, they have been introduced in order to boost the development of eProcurement or, at least, to provide minimum guidelines concerning this already used technique (see European Dynamics, Report on Electronic Catalogues in Electronic Public Procurement (2007)).
Electronic catalogues are to be used in procurement procedures where electronic communications are used, allowing participating economic operators to supply their prices or characteristics on an electronic format. In other words, they exist to facilitate communication of tender information, reducing timescales, transaction and opportunity costs.
It is important to stress that the use of electronic catalogues does not imply a different type of procedure, but rather ‘a format for the presentation and organisation of information in a manner that is common to all the participating bidders and which lends itself to electronic treatment’ (Recital (68) of Directive 2014/24/EU). Ultimately, electronic catalogues can apparently be used in any procedure, but it is no surprise that a good part of Regulation 36 is dedicated to the specific situations of framework agreements (multi-supplier) and dynamic purchasing systems, both areas where updatable catalogues are expected to be used. This makes perfect sense as they tend to last for a good period of time and result in multiple purchases. In both cases Regulation 36 includes some vague indications on how to electronic catalogues are to be run.
Indeed, functionally, eCatalogues are intended for use in relation to framework agreements of dynamic purchasing systems. The rules in Regulation 36 PCR2015 are fundamentally oriented towards the transparency requirements linked to the use of eCatalogues (Regulation 36(5) PCR2015) and their technical features, with a clear stress towards the obligation of tenderers to adapt their ‘general’ eCatalogues to the specific requirements of the contracting authority (Regulation 36(3) & (4) PCR2015). Indeed, recital (68) of Directive 2014/24/EU, indeed stresses that ‘the use of electronic catalogues for the presentation of tenders should not entail the possibility of economic operators limiting themselves to the transmission of their general catalogue’.
However, there are countervailing concerns linked to the need to standardise eCatalogues in order to avoid imposing an excessive administrative burden on tenderers: ‘in order to participate in a procurement procedure in which use of electronic catalogues … is permitted or required, economic operators would, in the absence of standardisation, be required to customise their own catalogues to each procurement procedure, which would entail providing very similar information in different formats depending on the specifications of the contracting authority concerned. Standardising the catalogue formats would thus improve the level of interoperability, enhance efficiency and would also reduce the effort required of economic operators’ (Recital (55) of Directive2014/24/EU)].
This is an area where, indeed, standardisation would alleviate participation costs and would reduce barriers to access the relevant procurement procedures, given reluctance as investment in eCatalogues is concerned (see C McCue and AV Roman, ‘E-Procurement: Myth Or Reality?’ (2012) 2 Journal of Public Procurement 212–38; and M Rahim and S Kurnia, Understanding E-Procurement System Benefits Using Organisational Adoption Motivation Lens: A Case Study (PACIS 2014 Proceedings, 80)).
The rules applicable to eCatalogues also specify clear requirements governing the reopening of (mini-)competitions in framework agreements and dynamic purchasing systems and, in particular, rules on the specific moment when the information available in the eCatalogues will be frozen and used to award the given contract (Regulations[regs. 36(4) to (13) PCR2015)]. The most troublesome point in our view is paragraph 9 where ‘[c]ontracting authorities shall allow for an adequate period between the notification and the actual collection of information’. We know there is a strong feeling against imposing hard limits when the Directive did not mandate those, but this is a situation where mistakes (and abuse) can easily occur. Our preferred option would always be a minimum time limit (maybe 5 or 10 working days) but absent that it would probably be enough to force the contracting authority to inform in the procurement documents what will be the minimum time limit it will require for information collection.
The use of eCatalogues per se does not seem to create significant scope for distortions of competition, other than the eventual imposition of the use of exceedingly demanding or non-compatible IT solutions. However, that risk should be excluded on the basis of the requirement that ‘electronic catalogues shall comply with the requirements for electronic communication tools as well as with any additional requirements set by the contracting authority in accordance with article 22’ (Regulation 36(4) PCR2015)—which expressly requires that tools and devices ‘used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure’ (see Regulation 22).
Article 36 of Directive 2014/24/EU gives Member States the possibility of making electronic catalogues mandatory for certain types of procedures. Keeping in track with the “bare minimum transposition” prevalent in the Regulations, it is no surprise the law maker did not invest time and effort in considering what areas electronic catalogues could be made mandatory. For example, it is possible to envisage a scenario where all framework agreements would have to be done electronically and multi-supplier frameworks made to use electronic catalogues.
Proposed citation: Albert Sanchez-Graells & Pedro Telles, (2016) Commentary to the Public Contracts Regulations 2015, available at: www.pcr2015.uk.
Last modified: September 5, 2016 by Pedro Telles
36.—(1) Where the use of electronic means of communication is required, contracting authorities may require tenders to be presented in the format of an electronic catalogue or to include an electronic catalogue.
(2) Tenders presented in the form of an electronic catalogue may be accompanied by other documents, completing the tender.
(3) Electronic catalogues shall be established by the candidates or tenderers with a view to participating in a given procurement procedure in accordance with the technical specifications and format established by the contracting authority.
(4) Electronic catalogues shall also comply with the requirements for electronic communication tools set out in regulation 22 as well as with any additional requirements set by the contracting authority in accordance with that regulation.
(5) Where the presentation of tenders in the form of electronic catalogues is accepted or required, contracting authorities shall—
(a) state so in the contract notice or in the invitation to confirm interest; and
(b) indicate in the procurement documents all the necessary information relating to the matters covered by regulation 22(16) to (20) so far as they concern the format, the electronic equipment used and the technical connection arrangements and specifications for the catalogue.
(6) Where a framework agreement has been concluded with more than one economic operator following the submission of tenders in the form of electronic catalogues, contracting authorities may provide that the reopening of competition for specific contracts is to take place on the basis of updated catalogues.
(7) In such a case, contracting authorities shall use one of the following methods:—
(a) invite tenderers to resubmit their electronic catalogues, adapted to the requirements of the contract in question; or
(b) notify tenderers that they intend to collect from the electronic catalogues which have already been submitted the information needed to constitute tenders adapted to the requirements of the contract in question, provided that the use of that method has been indicated in the procurement documents for the framework agreement.
(8) Where contracting authorities reopen competition for specific contracts in accordance with paragraph (7)(b), they shall—
(a) notify tenderers of the date and time at which they intend to collect the information needed to constitute tenders adapted to the requirements of the specific contract in question; and
(b) give tenderers the possibility to refuse such collection of information.
(9) Contracting authorities shall allow for an adequate period between the notification and the actual collection of information.
(10) Before awarding the contract, contracting authorities shall present the collected information to the tenderer concerned so as to give it the opportunity to contest or confirm that the tender thus constituted does not contain any material errors.
Dynamic purchasing systems
(11) Contracting authorities may award contracts based on a dynamic purchasing system by requiring that offers for a specific contract are to be presented in the format of an electronic catalogue.
(12) Contracting authorities may also award contracts based on a dynamic purchasing system in accordance with paragraphs (7)(b) and (8) to (10) provided that the request to participate in the dynamic purchasing system is accompanied by an electronic catalogue in accordance with the technical specifications and format established by the contracting authority.
(13) For the purposes of paragraph (12), the catalogue shall be completed subsequently by the candidates, when they are informed of the contracting authority’s intention to constitute tenders by means of the procedure set out in paragraph (7)(b).