Regulation 61 – Recourse to e-Certis

Commentary

Regulation 61 PCR2015 is straightforward and transposes the requirement to have recourse to e-Certis, (online repository database) operated by the European Commission, in the same terms as Article 61(2) of Directive 2014/24/EU. It is worth stressing that the UK has availed itself of the possibility to defer the use of e-Certis until 18 October 2018 under Art 90(5) Dir 2014/24 (see Regulation 1(5) PCR2015), but that does not preclude contracting authorities from using it already.

Regulation 61(1) indeed determines that ‘contracting authorities shall have recourse to e-Certis and shall require primarily such types of certificates or forms of documentary evidence as are covered by e-Certis‘. Regulation 61(2) PCR2015 clarifies that  “e-Certis” means the online repository established by the Commission and referred to as “e-Certis” in Directive 2014/24/EU. It is important to stress that, under Article 61(1) of Directive 2014/24/EU, Member States shall ensure that the information concerning certificates and other forms of documentary evidence introduced in e-Certis established by the Commission is constantly kept up-to-date. The bit that the Directive assumes and the PCR2015 do not tackle is that contracting authorities need training in order to gain an understanding of the information available in e-Certis and the ways to retrieve it. There is an online tutorial available (here), but more training will certainly be needed before the full roll-out of e-Certis use.

In that regard, the legal consequences of failing to use e-Certis could have been clarified. Regulation 61 PCR2015 could have clarified to what extent contracting authorities need to have procedures in place to avoid requiring any documentation available on e-Certis, and in particular it should have clarified whether contracting authorities have a positive duty to check e-Certis when candidates and tenderers fail to supply documentation that, if existing, should be available via e-Certis. In my view, this is the case, but the vagueness of Regulation 61(1) PCR2015 (contracting authorities shall have recourse to e-Certis) does not necessarily allow for such a conclusion. Overall, then, there is a need for further development of the actual implementation of e-Certis use under PCR2015.

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

61.—(1) Contracting authorities shall have recourse to e-Certis and shall require primarily such types of certificates or forms of documentary evidence as are covered by e-Certis.

(2) In this regulation, “e-Certis” means the online repository established by the Commission and referred to as “e-Certis” in the Public Contracts Directive.