On 17 September 2015, the Crown Commercial Service issued guidance on the rules on the use of electronic communications, e-auctions and electronic catalogues ("Guidance") contained within the Public Contracts Regulations 2015 ("PCR 2015"). Regulation 21 of the PCR 2015 makes it mandatory for contracting authorities to use e-communication for all information exchanged in respect of a contract award subject to the full requirements of Part 2 of the PCR 2015 (the exceptions are set out below) ("Regulated Procurement").
The PCR 2015, also sets out the circumstances in which contracting authorities are not obliged to comply with the requirement to use e-communication in the conduct of Regulated Procurements:
- When the use of e-communications would be impractical or technically unfeasible (Regulation 22(3); and /or
- When circumstances would require contracting authorities to adopt communication means other than e-communications (breach of security of electronic means of communication and/or protection of highly sensitive information) Regulation 22(5); and /or
- When use of oral communication is conducted as specifically permitted (Regulation 22(8) and (10).
The Guidance sets out the e-communication obligations that apply from when the PCR 2015 came into force on 26 February 2015 and the ones that will apply from 18 April 2017 and 18 October 2018.
The e-communication requirements already in force are set out below:
- Contracting authorities conducting Regulated Procurements must ensure that procurement documents are electronically available free of charge, with unrestricted access to all bidders (Regulation 53);
- Dynamic Purchasing Systems must be operated as a completely electronic process (Regulation 34(2));
- Where electronic auctions are intended to be used by contracting authorities, they must follow the rules set out in Regulation 35; this sets out when electronic auctions may and may not be used and how they must be conducted; as in the old rules e-auctions may only be used where the specification can be precise in setting out the contracting authority's requirements and must be structured "as a repetitive electronic process, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods" (Regulation 35(2);
- Use of e-catalogues (covered for the first time in the PCR 2015) where contracting authorities choose to accept or require the use of e-catalogues; this must be stated in the contract notice or invitation to confirm interest, and the procurement documents must give details on it; e-catalogues are encouraged to be in a standardised format in the interest of efficiency to avoid bidders having to customise their catalogue for the purposes of each procurement procedure separately (Regulation 36);
- Use of oral communications by contracting authorities in conducting Regulated Procurements is only permitted where the communication is not about the "essential elements of the procurement procedure" (procurement documents, requests to participate, confirmations of interest and tenders); however oral communications with bidders that could have a substantial impact on the content and assessment of bidders are still required to be sufficiently documented appropriately (e.g. written or audio records or summaries of the main elements of the communication) (Regulations 22(8)-(12) and 121); and
- The general rules applicable to e-communication when conducting Regulated Procurements concerning: the use of tools and devices which are not generally available (can be used provided suitable alternative means of access are offered); the decisions on the level of security required at each stage of a procurement procedure and the use of advanced electronic signatures (to be assessed against the likelihood of a particular risk materialising and the potential adverse consequences if the risk(s) materialise (Regulations 22(13)-(21).
The Guidance also sets out other e-communication obligations contained within PCR 2015 which do not apply until 18 April 2017. Whilst these are not mandatory at this stage the Guidance seeks to encourage contracting authorities to introduce full e-communication practices sufficiently in advance to ensure they are live prior to the mandatory dates.
The use of electronic communication will form a key consideration for contracting authorities conducting Regulated Procurements. The Guidance should provide authorities with the means to successfully implement electronic communication requirements when conducting Regulated Procurements.
