Regulation 53 – Electronic availability of procurement documents

Commentary

Regulation 53 PCR2015 establishes requirements for the electronic availability of procurement documents in line with the rules of Article 53 of Directive 2014/24/EU. This is linked to some of the issues derived from Regulation 28 PCR2015 on restricted procedures. As per this Regulation, the general rule is that procurement documents have to be made available electronically free of charge since the date of publication in the Official Journal or the date where an economic operator confirmed its interest. The requirements derived from Regulation 53 are strictly formal and relate to the extension of time limits for the submission of offers when some documents are not made available for different reasons, or when candidates or interested tenderers require additional documentation.

General rule

The general rule established in Regulation 53(1) PCR2015 is that contracting authorities shall offer unrestricted and full direct access to the procurement documents by means of the internet and free of charge. Such access needs to be effective from the date of the publication in the Official Journal of a notice sent in accordance with Regulation 51 PCR2015 or the date on which an invitation to confirm interest is sent. In order to ensure transparency and traceability of the documents, the text of the notice or the invitation to confirm interest shall specify the internet address at which the procurement documents are accessible (Regulation 53(2)).

Special rules

There is first a special rule in Regulation 53(3) PCR2015 for the extension of time limits when the use of electronic means of communication would be either impracticable or counterproductive from a technical perspective under the limits of Regulation 22(3) PCR2015. In that regard, where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet for one of the reasons set out in Regulation 22(3), contracting authorities may indicate in the notice or the invitation to confirm interest that the procurement documents concerned will be transmitted by means other than the internet. It is important to stress that the contracting authorities are under the general requirements of the principle of transparency in Regulation 18, so they must make the communication method clear to the tenderers and candidates. In my view, there would have to be very good reasons for them to do so other than through an explicit indication in the notice or the invitation to confirm interest. In any case, the transmission of documents by means other than the internet will be conducted “in accordance with paragraphs (6) and (7)“, which refer to the submission of additional information requested by the candidates and tenderers (discussed below). Interestingly enough, there appears to be no indication that contracting authorities are entitled not to transmit the documents. In consequence it appears that the contracting authority cannot impose a restriction whereby documents needed to be consulted in situ.

There is a second special rule in Regulation 53(4) PCR2015 for the extension of time limits when some of the procurement documents are declared confidential in accordance with Regulation 21(3) PCR2015, whereby contracting authorities can impose confidentiality duties on candidates and tenderers aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure. In this case, where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet because contracting authorities intend to apply Regulation 21(3), contracting authorities shall indicate in the notice or the invitation to confirm interest which measures aimed at protecting the confidential nature of the information they require and how access can be obtained to the documents concerned. See below for more discussion on this confidentiality exception. 

In case one of the special rules applies, the time limit for the submission of tenders shall be prolonged by 5 days, except in the cases of duly substantiated urgency referred to in Regulations 27(5), 28(10) and 29(10) PCR2015, in which case there will be no extension of the time limit. 

Requests for additional information

Paragraph 53(6) PCR2015 covers the eventuality that not all the relevant documentation is actually disclosed by the contracting authority from the beginning. In that case, provided that it has been requested in good time, contracting authorities shall supply to all tenderers taking part in the procurement procedure additional information relating to the specifications and any supporting documents not later than 6 days before the time limit fixed for the receipt of tenders, or four days in the event of an accelerated procedure under Regulations 27(5), 28(10) and 29(10) PCR2015. In our view, it is also possible for the contracting authority to do it by itself, without a specific request by any tenderer or candidate, provided that the same requirements are met and no economic operator is advantaged.

General remarks

When in doubt about the need/desirability of disclosing procurement documents not initially made electronically available by the contracting authority, particularly under the special rules and the potential requests for additional information, it will be worth taking into consideration that as emphasised by the Crown Commercial Service in its advice following direct enquiries, the general standard should be that “the procurement documents that are required to be accessible are all those that an economic operator needs to make the decision on whether they should express an interest/bid and to enable them from the beginning of the procedure to start preparing for submission of bids“. Hence, contracting authorities need to be particularly reactive to the expressed difficulties derived from lack of access to specific documents, and need to respect the general principles of Regulation 18 PCR2015, mainly proportionality and equal treatment in this case.

Some disagreement about the scope of the confidentiality exception

Both commentators hold different views on the interpretation of the confidentiality exception in Regulation 53(4). Pedro considers this exception to be an obvious one. In case there are confidentiality issues involved, the contracting authority can refuse electronic access but will have to provide access to them. He suspects that the same reasons that would render an electronic transmission impossible would also bar any kind of transmission even via traditional mail. The consequence is that probably access to the documents will have to be physical, thus meaning economic operators based in another Member State will be at a disadvantage. In consequence this exception will have to be interpreted very narrowly. In his view it would always have to due to being an exception, but more so for the cross-border implications it raises.

In contrast, Albert’s view is that this situation will only arise in very limited cases, as the general rules of Regulation 53 PCR2015 are concerned with transmission “by means of the internet”, which he understands to mean a general publication on-line. Hence, the rules of Regulation 22  regarding special security measures should work as a first safeguard and only when they are insufficient, could physical access be required.

Hence, both commentators agree that this exception needs to be interpreted narrowly, but Albert stresses that this needs to be done in conjunction with Regulation 22 PCR2015, which may diminish the practical effects if alternative technical solutions are available.

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

53.—(1) Contracting authorities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents from the date of the publication in the Official Journal of a notice sent in accordance with regulation 51 or the date on which an invitation to confirm interest is sent.

(2) The text of the notice or the invitation to confirm interest shall specify the internet address at which the procurement documents are accessible.

(3) Where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet for one of the reasons set out in regulation 22(3), contracting authorities may indicate in the notice or the invitation to confirm interest that the procurement documents concerned will be transmitted by means other than the internet in accordance with paragraphs (6) and (7).

(4) Where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet because contracting authorities intend to apply regulation 21(3), contracting authorities shall indicate in the notice or the invitation to confirm interest which measures aimed at protecting the confidential nature of the information they require and how access can be obtained to the documents concerned.

(5) In the cases referred to in paragraphs (3) and (4), the time limit for the submission of tenders shall be prolonged by 5 days, except in the cases of duly substantiated urgency referred to in regulations 27(5), 28(10) and 29(10).

(6) Provided that it has been requested in good time, contracting authorities shall supply to all tenderers taking part in the procurement procedure additional information relating to the specifications and any supporting documents not later than 6 days before the time limit fixed for the receipt of tenders.

(7) In the case of an accelerated procedure, the period mentioned in paragraph (6) shall be 4 days.