The new 2015 Regulations have brought in new requirements surrounding the issuing of procurement documents. This blog post will focus on these new requirements and the key points that both contracting authorities and suppliers should be aware of.
What were the rules previously?
Under the previous 2006 Public Contracts Regulations providing access to documents electronically was optional but incentivised with a reduction of the OJEU time limits applicable if documents were made available in this way.
What are the new rules?
Simple Answer: All documents must be provided electronically (on a website) from the start of the procedure.
Regulation 53 of The Public Contracts Regulations 2015 is devoted in its entirety to the “electronic availability of procurement documents”. This new regulation declares that “contracting authorities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents” from the point of publication or invite. The regulations continue by specifying that the “internet address at which the procurement documents are available” must be included in the text of the notice or ITT.
What documents need to be made available?
Simple Answer: Everything! All documents now have to be made electronically available (including ITT documents at the PQQ stage of a restricted procedure).
Regulation 2 defines procurement documents as “any document produced or referred to by the contracting authority 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 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”.
It has been understood that, in the case of the restricted procedure, this is to include the ITT documents (which are usually distributed at the second stage) being made available at the PQQ stage. In my opinion the benefits of this requirement are unclear as this provides an administrative burden on the contracting authorities in the beginning as well as providing a barrage of documents to the suppliers who may find it difficult to understand which of the documents require completing at that stage. It would also appear that the same level of documents will be required when using the PIN as a call for tender which would seem very premature.
When do the documents need to be available?
Simple Answer: Straight away.
Regulation 53 states that the documents need to be available from “the date of the publication in the Official Journal” or “the date on which an invitation to confirm interest is sent”. If any further documents are requested once the procurement exercise commences then these documents must be provided at least 6 days before the specified deadline (4 if accelerated) and the contracting authority must still consider if the time limits are sufficient in light of the new documents and extend the deadlines if required.
Under the previous 2006 Regulations the requirement to have all the documents available from the start of the award procedure was only the case when wishing to reduce the minimum time limits. The discretion previously lay with the contracting authority as to whether they published the notice prior to having all the documents ready. Due to the mandatory nature of the new 2015 Regulations contracting authorities will not be able to publish their notices until all their documents are ready for distribution.
The above is particularly concerning given the changes to the justification for the use of the accelerated procedures (for more information please see here). The use of the accelerated procedure has become more flexible and will be able to be used when contracting authorities simply “run out of time”. This may become more frequent with contracting authorities having to produce more information at the point of publication making the preparation stage (pre-publication) more elaborate. I am uncertain if the increased use of the accelerated procedure for these reasons will benefit suppliers or the public purse.
Another change to is that contracting authorities can no longer apply application deadline dates (i.e. documents only accessible up until a certain date). Under the 2015 Regulations this is no longer permissible as documents have to be available for the full period of the advert.
Are there any exceptions?
Regulation 53 does, under paragraphs 3-5, provide exceptions to the electronic documents obligations. If applied then the contracting authority must prolong the minimum time limits by 5 days.
Paragraph 4 states that if a contracting authority wish to not use electronic means for confidentiality reasons under Regulation 21(3) then they must “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”.
Paragraph 3 refers to Regulation 22(3), (6) & (7). This Regulation allows exceptions in the following situations:
(a) due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;
(b) the applications supporting file formats that are suitable for the description of the tenders use file formats that 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 by the contracting authority;
(c) the use of electronic means of communication would require specialised office equipment that is not generally available to contracting authorities; or
(d) the procurement documents require the submission of physical or scale models which cannot be transmitted using electronic means.
If one of the above exceptions is followed then the contracting authority must report their decision to the Cabinet Office along with the reason for this decision under Regulation 84.
What about emailing documents?
Under both the previous and current Regulations, the emailing of documents does not qualify as “electronically available”. Under both sets of Regulations (old and new), electronic documents have to be “readily available”. To qualify as “readily available” access has to be made available at any time and therefore emailing of documents does not satisfy this requirement as it relies on the actions of the contracting authority (they are not readily available at any time). This has been further clarified in the 2015 Regulation which has explicitly specified under Regulation 53(2) that an “internet address” must be specified.
Can a contracting authority charge for documents?
Under the previous 2006 Regulations it was possible for contracting authorities to charge a fee for the documents (this was limited to the administrative costs), the new 2015 Regulations clearly state that the documents are to be made available “free of charge” so it would appear that this will no longer be permissible.
It is considered by many that, in practice, not much has changed as the electronic access to documents was already quite widespread. The benefits of making documents available electronically are abundant, including easier access for suppliers who will no longer have to rely on the prompt distribution by contracting authorities and also the contracting authorities themselves who, subject to there being no clarifications, will be able to sit back and wait for the tender deadline to pass once they have published the notice. However, the additional obligations (such as having all the documents ready and available from the offset) will inevitably make the process more complex.
How can Millstream help?
A concern of contracting authorities has been “where do we attach these documents?”. As discussed above, the new Regulations require that contracting authorities attach documents to a website and provide a URL within the text of the notice detailing this location however they do not provide any guidance or assistance on where or how to do this. This is where Millstreams mytenders service can help. mytenders provides contracting authorities with the facilities to attach documents and the wizard tool for creating notices will ensure that a URL to the documents is automatically entered into the notice when documents have been attached. The new requirements are applicable to notices both above and below the EU threshold. This is not a problem for mytenders who, as official partners with Contracts Finder and official e-senders to OJEU, can facilitate both types of notices. For more information on how mytenders can help ease you into these new electronic document requirements and more please do not hesitate to get in touch.
Call the team today on 0844 561 0670.