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COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels,
DOCUMENT OF THE SERVICES OF THE COMMISSION
Requirements for conducting public procurement using electronic means under the new
public procurement Directives 2004/18/EC and 2004/17/EC
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TABLE OF CONTENTS
1. Introduction.................................................................................................................. 4
2.
Rules applicable to communications............................................................................ 5
2.1.
Electronic means of communication and their use in the procurement process .......... 5
2.1.1. Electronic means of communication............................................................................ 5
2.1.2. The use of electronic means in the procurement process............................................. 6
2.2.
Tools for communicating by electronic means ............................................................ 7
2.2.1. General availability and non discrimination ................................................................ 7
2.2.2. Interoperability of the tools for communicating by electronic means ......................... 8
2.3.
Integrity and security of data........................................................................................ 9
2.4. Traceability ................................................................................................................ 10
3.
Notices and electronic access to contract documents ................................................ 10
3.1.
Electronic submission of notices to the Commission ................................................ 10
3.2.
Electronic access to tender documents by economic operators ................................. 10
3.2.1. Unrestricted and full direct access to tender documents by electronic means........... 11
3.2.2. The reduction of deadlines for submitting tenders..................................................... 12
4.
Electronic reception devices for tenders, requests to participate and plans and
projects in contests ..................................................................................................... 12
4.1.
The electronic receipt of tenders and requests to participate in one-off purchases ... 12
4.1.1. Access to the device................................................................................................... 13
4.1.2. Security of data .......................................................................................................... 13
4.1.2.1. Identity of tenderers and electronic signatures........................................................... 13
4.1.2.2. Time stamping............................................................................................................ 14
4.1.2.3. Access to the data transmitted.................................................................................... 14
4.2.
The electronic receipt of tenders in the re-opening of competition under multi-
suppliers framework agreements and dynamic purchasing systems the use of
electronic catalogues .................................................................................................. 15
4.2.1. The electronic receipt of tenders in repetitive procedures and e-catalogues ............. 15
4.2.2. The active collection of tenders ................................................................................. 16
5. Electronic
auctions..................................................................................................... 17
5.1.
Conditions for the use of electronic auctions............................................................. 17
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5.2.
Information to be provided in the specifications........................................................ 18
5.3.
Information to be provided in the invitation to submit new prices/values................. 18
5.4.
Auction device and running of the auction ................................................................ 19
6.
Dynamic Purchasing Systems .................................................................................... 20
6.1.
Admission to the system ............................................................................................ 21
6.2.
Opening for competition of contracts to be awarded under the system..................... 21
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1.
INTRODUCTION
The introduction of electronic means in the public procurement process raises a
number of legal questions. However, few of these are new or specific to the use of
electronic means: most deal with the issue of how to organise electronically
procedures initially designed for paper. Electronic public procurement (hereafter e-
procurement) is therefore firmly rooted in a well understood legal framework which
provides the principles and rules which regulate the awarding process. The basic
guiding principle is that in the absence of specific provisions to the contrary the use
of electronic means does not change any of the steps of the relevant procedure.
The rationale for the legal provisions specifically devoted to e-procurement in the
new public procurement Directives (Directive 2004/18/EC1 and 2004/17/EC2), is
that each and every economic operator across the Union should be able to participate,
with simple and commonly used equipment and basic technical know-how, in a
public procurement process which takes place partially or entirely by electronic
means.
The aim of this document is to present the rules and principles governing e-
procurement under the new public procurement Directives. First, the general rules
and principles and the features that are relevant to all communications in an e-
procurement process will be examined. Second, the rules governing notices and
access to contract documents will be presented. Third, the rules related to the
reception of requests to participate and tenders will be analysed in relation to both,
individual "one-off" purchases and to repetitive purchases under framework
agreements and dynamic purchasing systems. Finally, the new purchasing technique
of electronic auctions will be examined more closely, followed by a consideration of
the main features of the electronic dynamic systems.
This analysis will cover those aspects of a procurement procedure that are regulated
by the Directives, i.e. from the publication of the contract notice to the receipt of
tenders, and the re-opening of competition.3 Other aspects of the procurement cycle
that may also impact on e-procurement (i.e. electronic invoicing, electronic payments
etc.) are addressed by other relevant Community policies and legislation and
discussed in the Commission Action Plan on e-procurement (COM 2004/841/EC).
As electronic procurement processes and methods are under constant development,
the Directives do not pretend to regulate in detail the use of all such methods. Other
electronic purchasing techniques may be used, "providing such use complies with the
1
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the
coordination of procedures fro the award of public works contracts, public supply contracts and public
service contracts, L 134, 30.4.2004, p.114.
2
Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating
the procurement procedures of entities operating in the water, energy, transport and postal services
sectors, OJ L 134, 30.4.2004, p. 1.
3
A project was initiated under the Commission's IDA programme and is currently continued under the
new IDABC programme translating the legal framework into functional requirements, so as to facilitate
technical implementation of operational systems for conducting electronic public procurement
(http://europa.eu.int/idabc/eprocurement).
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rules drawn up under this Directive and the principles of equal treatment, non-
discrimination and transparency" (cf. recitals 12 and 20).
2.
RULES APPLICABLE TO COMMUNICATIONS
2.1.
Electronic means of communication and their use in the procurement process
2.1.1. Electronic means of communication
The new public procurement Directives define electronic means as those using
electronic equipment for the processing (including digital compression) and storage
of data which is transmitted, conveyed and received by wire, by radio, by optical
means or by other electromagnetic means (Article 1(13) of Directive 2004/18/EC and
Article 1(12) of Directive 2004/17/EC).
Electronic means of communication typically rely upon a network which is able to
handle and transmit digital signals. According to Articles 42(2) and 48(2)4 the
chosen means must be generally available and thus not restrict access to the
tendering procedure. This means that the network in question must be open and
everybody must be able to connect to it.
Today such generally available electronic means of communication would include
Internet and e-mail. However technology is constantly and rapidly evolving. In order
to define generally available means, it is preferable therefore not to interpret the
provision restrictively in terms of a specific standard but rather to try to identify the
relevant criteria.
These are most obviously the geographic coverage, the terminal equipment and the
formalities/procedures needed for connection to the network, the level of ICT
literacy required and the costs involved. If a means of communication implies a
connection to a network which is not available everywhere and to everybody and/or
the use of equipment which is not in common use (i.e. satellite communication
today) and/or the costs of which are unreasonably high for the use to which it is
destined, the means cannot be deemed to satisfy the requirement of general
availability.
Therefore, only a pragmatic approach focusing on the obligation not to restrict the
operators' access to the tendering procedures will help contracting authorities to
determine if the chosen means of communication is indeed generally available and
thus satisfies the first requirement of the Directives.
Freely available and reliable access to the contracting authority's connection to an
open network is another important factor needed to guarantee that access to the
tendering procedure is not restricted and to ensure equal treatment and effective
competition.
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The reference is hereunder always made first to the relevant article of Directive 2004/18/EC
immediately followed by the reference to the corresponding relevant article of Directive 2004/17/EC,
unless otherwise indicated.
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Since the Internet is available 24 hours a day, the access to most operations
(browsing, registration, downloading of documents, submission of requests to
participate or tenders) should in principle be available round the clock. Reasonable
access limitations can be envisaged, mainly for maintenance reasons; however they
should never extend into normal business hours. In contrast, those operations that
require interaction (i.e. e-auctions) may only be accessible during normal business
hours. Only if tenders are to be collected in real time, as in some e-auctions, might it
be necessary to modify opening hours in order to allow all tenderers to participate.
To avoid any ambiguity the deadline for submitting offers should be clearly
specified, i.e. with reference to Coordinated Universal Time (UTC) or by adding
"local time".
The contracting authority's system should also be set up so as to provide adequate
protection against unauthorised actions aimed at disrupting its normal operation and
so as to provide a reasonable level of protection and guarantee of security to
economic operators.
Technical problems within the contracting authority's network, service disruptions
and system failures may impede access to contract documents, or may disrupt the
procurement process at a critical moment (e.g. during the transmission of requests for
clarification or the corresponding answers, during receipt of tenders or requests to
participate, or during auctions). Problems within the public or open network and
problems specific to the device or the platform of the contracting authority should be
distinguished: only in the latter case must the contracting authority remedy the
failure by, for example extending the deadlines. The contracting authority is not
responsible for the open network failure and is not obliged to take any remedial
actions, even though it may do so where this seems appropriate (respective
disclaimers may be included in an appropriate location).
The new provisions on e-procurement do not address the issue of charges for
accessing the contracting authority's system. It is reasonable to envisage that each
party covers its own costs. Economic operators would bear the communication costs
to access the procurement system or the costs of obtaining a digital signature.
Contracting authorities would bear the cost of the system for receiving tenders and
for making available the contract documents. Depending on the services offered by
the system (alert mechanisms, database management etc.) certain fees could be
charged to economic operators, except where dynamic purchasing systems are
involved, provided that such fees are justified, proportionate and do not discriminate
or restrict access to the procurement procedure.
2.1.2. The use of electronic means in the procurement process
Electronic means are for the first time put on par with traditional means of
communication (Recitals 35 and 46; Articles 1(12) and 1(11)).
Contracting authorities may decide that all communications and exchanges of
information with economic operators will be performed exclusively by electronic
means (Articles 42(1) and 48(1)) or by a combination of electronic means and paper.
If a combination is chosen it may continue in parallel at every stage of the procedure,
or in successive stages in which only one or the other is used (e.g. only electronic
means for the request of contract documents and only traditional means for the
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submission of tenders). Contracting authorities can also leave the choice of means up
to economic operators.
The right of contracting authorities to choose the means of communication is
nonetheless limited by the Directives:
The receipt of documents, certificates and declarations that do not exist in
electronic format must be organised following the traditional procedures on paper
(Articles 42(5)(d) and 48(5)(d))5;
Some procuring methods/instruments such as auctions and dynamic purchasing
systems (hereafter DPS) may only be conducted by electronic means (Articles
1(7) second indent and 1(6));
When there are reasons to believe that, due to the volume and/or complexity of the
data to be submitted, the communication, exchange and storage of it cannot be
properly handled by electronic means, and therefore the requirements of Articles
42(3) and 48(3) are not satisfied, paper should be adopted.
2.2.
Tools for communicating by electronic means
Articles 42(4) and 48(4) provide that the tools for communicating by electronic
means, as well as their technical characteristics, must be non-discriminatory,
generally available and interoperable with the information and communication
technology products in general use.
2.2.1. General availability and non discrimination
The pragmatic approach described above for determining the general availability of
the chosen means of communication also applies to the tools to be used for
communicating by electronic means.
In contrast to electronic means, electronic tools do not imply the presence of a
network. The term refers to products, mainly software products, which are used by
contracting authorities and economic operators in order to communicate effectively.
The requirement for electronic tools to be generally available is therefore slightly
different. Bearing in mind that the guiding principle is always that whoever can have
access to the Internet via a normal computer with standard applications and programs
shall be able to participate in the public procurement procedure, two different cases
may occur.
The tool for communicating has to be owned by the economic operator: in this
scenario the necessary tool must be off-the shelf software which is easy to buy
(available everywhere at a cost which is proportionate to the use to which it is
destined), easy to install if need be, and reasonably easy to use. The general principle
of proportionality can be used to assess the level of technical knowledge the tool
requires (i.e. when procuring computer services or products, the contracting authority
may probably require a higher level of ICT literacy from potential suppliers).
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It must be noted that economic operators shall in any case respect the time limits set by the contracting
authority and submit the certificates that exist only on paper before the expiry of the deadline.
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The tool is made available by the contracting authority to the interested economic
operators: this is mainly where the chosen tool would not be "easy to buy" for
economic operators. However, this apart, the same requirements of general
availability and non-discrimination will apply as for a tool owned by economic
operators. This is also the case where the requirement of interoperability is more
important.
The level of ICT literacy required for using the tool should be considered. If the
contracting authority can choose between two families of software for presenting
drawings and plans, the exclusive choice of one of them could benefit some
operators to the detriment of others. In such cases, in order to comply with the
requirement of non-discrimination, if the contracting authority really cannot accept
both tools it should consider providing longer time limits to allow economic
operators to get acquainted with the tool.
Finally, and without prejudice to the right of the contracting authority to require
tenders to be drafted in its own language (Annexes VII A (12)(d) and XIII A
(10)(c)), the issue of the language of the tool should be taken into account by the
contracting authority. Software in or at least the presence of some minimum
indications in another language may be advisable to facilitate the installation and use
of the tool made available by the contracting authority, to facilitate access to contract
documents or uploading of tenders especially when complex instructions are needed.
2.2.2. Interoperability of the tools for communicating by electronic means
`Interoperability' is used here to refer to the capability of ICT systems (and of the
business processes they support) to exchange information or services directly and
satisfactorily between them and/or their users, so as to operate effectively together.
This requires the capability to provide interchange of electronic data among, e.g.
different signal formats, transmission media, applications or performance levels.
Interoperable tools permit unhindered communication between different and distinct
systems, bringing together heterogeneous technologies and software. This is the case,
i.e. when suppliers connect to a contracting authority's system, electronically access
tender documents from a mainframe, or upload an offer by connecting to a different
application written in a different programming language.
Different and incompatible technical solutions lack of interoperability - can render
suppliers' access to e-procurement systems impossible or discourage their
participation because of additional difficulties or increased costs. Barriers may arise
in terms of either functional or technical characteristics, or both, of the systems and
tools used. These barriers should be addressed on a case by case basis.
For the purposes of the legal framework, the requirement of interoperable electronic
tools is that the chosen tool must be able to function and to interact with commonly
used equipment and applications, i.e. allowing the main functionalities for
communicating and exchanging data with basic office tools. It does not mean that it
must be interoperable which each single specific application of economic operators'
electronic equipment.
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The legal framework is technology-neutral and does not distinguish between open
source and commercial products as long as they are interoperable with information
and communication technology products in general use.
2.3.
Integrity and security of data
Articles 42(3) and 48(3) determine the conditions to be fulfilled by the chosen means
of communication during the communication, exchange and storage of information.
These conditions have to guarantee the data-integrity and confidentiality of tenders
or requests to participate, and ensure that they are kept securely locked away until the
deadline set for their opening.
These are not typically conditions specific to electronic means, because they also
apply traditionally to paper based communication, exchange and storage of
information. Ad hoc solutions may be required, however, in order to meet these
conditions in an electronic environment.
In particular, neither signatures nor encryption should be used by economic operators
unless they are invited to do so by the contracting authority. Member States may
regulate the level of electronic signature required and restrict the choice of
contracting authorities to qualified signatures (Articles 42(5)(b) and 48(5)(b) and
Annexes X and XXIV). In any case the provisions of Article 5 of Directive 1999/93,
in particular its Para. 26 apply.
Secure channels (https, SSL) and/or encryption may be used to preserve the data-
integrity and the confidentiality of tenders and requests to participate, although
encryption may require higher levels of ICT literacy from economic operators. In any
case in order to comply with the general principles of non discrimination, general
availability and transparency as well as Articles 42(5)(a) and 48(5)(a), information
about encryption must be made available to interested parties together with all
necessary information regarding the specifications for the electronic submission of
tenders and of requests to participate.
Contracting authorities may refuse to accept messages which could harm their
system or their reception devices and they can take appropriate steps to this end. The
senders of messages which are rejected because they are infected by a virus should
be instantaneously informed in order to allow them where possible to re-submit the
message within any deadlines that may be in force.
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"Article 5 Legal effects of electronic signatures
1.
Member States shall ensure that advanced electronic signatures which are based on a qualified
certificate and which are created by a secure-signature-creation device:
(a)
satisfy the legal requirements of a signature in relation to data in electronic form in the same manner as
a handwritten signature satisfies those requirements in relation to paper-based data; and
(b)
are admissible as evidence in legal proceedings.
2.
Member States shall ensure that an electronic signature is not denied legal effectiveness and
admissibility as evidence in legal proceedings solely on the grounds that it is:
- in electronic form, or
- not based upon a qualified certificate, or
- not based upon a qualified certificate issued by an accredited certification-service-provider, or
- not created by a secure signature-creation device."
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These requirements are further developed in section 4.1.2 with specific reference to
the devices for receiving tenders, requests for participation, and plans and projects in
design contests.
2.4.
Traceability
Contracting authorities shall take appropriate steps to document the progress of
award procedures conducted by electronic means (Art. 43, second indent and 50(1)
last indent).
This requirement of traceability must be understood as referring to each stage of the
procurement process conducted electronically, including the stage at which contract
documents are made available.
There should be equipment and functionalities in place to maintain the original
version of all documents and a true and faithful record of all exchanges with
economic operators in order to provide any of the evidence which might be needed in
case of litigation.
For the secure locking of tenders until the expiry of the deadline for the submission
and the protection of data against unauthorised access, the traceability of operations,
including the exact time and date of receipt of data is very important.
Traceability should make it possible to verify what message/data has been
transmitted or made available, by whom, to whom, and when, including the duration
of the communication. It should also be possible to reconstitute the sequence of
events including any automatic data processing or automated calculations.
While it is not mandatory to record who visited or accessed contract documents over
the open network, this may well be advisable. Contracting authorities generally
welcome functionality capable of identifying who has accessed the contract
documents and provided such identification is kept to a minimum, this is admissible.
The traceability of operations should also make it possible to establish whether the
site hosting the procurement process has been compromised or tampered with.
3.
NOTICES AND ELECTRONIC ACCESS TO CONTRACT DOCUMENTS
Providing for the electronic submission of notices to the Office for Official
Publications of the European Communities and the electronic access to tender
documents allows contracting authorities to significantly save time in the
procurement process; in both cases, time-limits can be reduced for the procedure as a
whole.
3.1.
Electronic submission of notices to the Commission
If sent electronically to the Publications Office, procurement notices are published on
TED7 within five days of being sent, instead of the current twelve days (Art. 36(3)
and 44(3)). The time limits for the receipt of tenders and for the receipt of requests to
7
Tenders Electronic Daily, the EU electronic publication board (http://ted.publications.eu.int).
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participate can consequently be shortened by seven days (Art. 38(5) and 45(3)). This
applies to all procedures, including the competitive dialogue.
To effectively achieve publication in such a short time, the notices have to be sent in
the format required by the Directives, using the standard forms available for this
purpose (Art. 35(1), 36(2), Annex VIII points 1, 3 and Art. 41(1), 44(2), Annex XX
points 1, 3)8. Currently, this refers to the standard forms contained in Directive
2001/78/EC. These will be replaced by a new set of forms in the forthcoming
Regulation on Standard Forms, to be adopted as an Implementing Measure of the
Commission. The templates for these standard forms are made available online in the
SIMAP website (http://www.simap.eu.int) as well as technical documentation for
sending notices in structured electronic format (XML).
In order to correctly identify in the standard forms the goods or services to be
purchased, the Directives make mandatory the use of the Common Procurement
Vocabulary (CPV) (Art. 1(14), 35 (1)(a) and Art. 1(13), 41(1)).
In addition, contracting authorities are encouraged to have and maintain an Internet
website, the so called "buyer profile", where they may publish prior information
notices (in this case, a notice of the publication on the buyer's profile shall be sent
electronically to the Publications Office), and other notices also published by the
Publications Office, as well as specifications and additional documents (Art. 35(1),
Annex VIII points 1, 2 and Art. 41(1), 44(5), Annex XX points 1, 2). The buyer
profile may also include information on ongoing invitations to tender, scheduled
purchases, contracts concluded, procedures cancelled and any useful general
information, such as the contact details of the contracting authority (Annexes VIII
and XX point 2(b)).
3.2.
Electronic access to tender documents by economic operators
Tender documents can be either made available to, or sent to, economic operators by
electronic means. In both cases all the rules on electronic communications apply.
The choice between these two possibilities belongs to the contracting authority
except in dynamic purchasing systems, for which it is mandatory to offer unrestricted
and full direct electronic access from the date the notice setting up the system is
published until the expiry of the DPS (Art. 33(3)(c ) and 15(3)(c )).
3.2.1. Unrestricted and full direct access to tender documents by electronic means
Electronic availability of tender documents can be provided in various ways, which
must be indicated in the notice.9 However, only the provision of unrestricted and full
direct access by electronic means entitles contracting authorities to shorten the time
limits as prescribed by Articles 38(6) and 45(6).
8
The standard forms in the most frequently used electronic formats are available on the website. The
Commission envisages organising soon the electronic submission of notices only in a structured XML
format.
9
When inviting the selected candidates to submit their tenders or to negotiate or to take part in the
competitive dialogue, contracting authorities shall make sure the invitation includes the reference to
accessing the specifications and the other documents (Articles 40 and 47).
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To achieve unrestricted and full direct access to the contract documents all relevant
documents must be accessible round the clock, from the date of publication of the
notice until the expiry of the deadline for submitting tenders (or the expiry of the
DPS) at the website indicated in the notice itself, without any intermediary stage.
This means i.e. that if an access fee has to be paid then payment can take place
instantaneously (i.e. at present by accepting all common international payment
cards). No other way of making available the tender documents electronically (i.e. by
automatic response email) permits the deadlines for submitting tenders to be reduced.
The possibility to browse contract documents without previous registration should
ideally be provided. Contracting authorities may want to ask interested economic
operators to register before downloading documents. To this effect a simple user ID
and password, a valid e-mail account and the use of properly dated e-mail
accompanied by the automatic acknowledgement of receipt are the most appropriate
tools. However, the requirement to use a qualified signature at this stage is not
justified and constitutes a hindrance to the access of documents. Contracting
authorities may also want to ask interested economic operators to accept the
conditions of operation of their site upon registration.
3.2.2. The reduction of deadlines for submitting tenders
Deadlines can be reduced provided that the above requirements are satisfied,
regardless of the means chosen for the other stages of the procurement process.
According to Articles 38(6) and 45(6), the deadlines for the receipt of tenders in open
and restricted procedures may be shortened by five days.10
In open procedures11 it is possible to cumulate the two possibilities of reduction, the
one for electronic transmission of the notice and the one for the unrestricted and full
direct access to tender documents, leading to a total reduction of the deadline for
submitting tenders of twelve days.
4.
ELECTRONIC DEVICE FOR THE RECEIPT OF TENDERS, REQUESTS TO PARTICIPATE
AND PLANS AND PROJECTS IN CONTESTS
4.1.
The electronic receipt of tenders and requests to participate in one-off
purchases
Further into the procurement process, electronic means can be used to transmit and
receive tenders and requests to participate, as well as plans and projects in design
contests. Articles 42(5) and 48(5) determine the key rules and refer to Annexes X
10
In the Utilities Directive (2004/17/2004), such reduction of the deadline for the submission of tenders is
also possible in respect of negotiated procedures, cf. Art. 45(6) provided the cumulative effect of
reductions does not result in a time limit for the receipt of tenders of less than 10 days (Art. 45(8)(2)).
11
In respect of the other procedures, the reduction of deadlines in case of electronic transmission of
notices applies to the deadline for the presentation of requests to participate. That is why it is not
possible to cumulate the two grounds for a reduction of deadlines in order to shorten the sole deadline
for the presentation of tenders; for restricted procedures it possible to cumulate in the sense of applying
both reductions the one for the deadline for submitting requests to participate and the one for submitting
tenders within the same award procedure, cf. Art. 38(6)(2) of Directive 2004/18/EC and Art. 45(6) and
45(8)(2) of Directive 2004/17/EC.
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and XXIV for the specific minimum requirements for the security and confidentiality
of electronic reception devices. Thus all requirements previously mentioned relating
to the definition and use of electronic means and tools equally apply to the device,
together with the specific requirements explained below.
Contracting authorities are free to choose the appropriate means of communication
and are responsible for organising the electronic receipt of tenders and requests to
participate with respect to the legal requirements set out in the Directives discussed
above. Economic operators shall comply with the specifications of the reception
device in order to present a valid tender or request to participate.
4.1.1. Access to the reception device
To guarantee access to the device, the first requirement is that the necessary
specifications, including encryption, are made available to interested parties (Articles
42(5)(a) and 48(5)(a)). These specifications should be indicated in the contract notice
or in the contract documents, including the type of formats to be used. Contracting
authorities may require a specific format and that tenders be structured in a specific
way.
4.1.2. Security of data
4.1.2.1. Identity of tenderers and electronic signatures
The device for the electronic receipt of tenders and requests to participate must
guarantee that the electronic signatures used are in conformity with the national
provisions adopted pursuant to Directive 1999/93/EC on electronic signatures
(Annex X(a) and Annex XXIV(a)).
Member States are free to set the level of the type of signature required; in particular
they can ask for the tenders and/or requests to participate to be accompanied by
advanced qualified electronic signatures (Art. (42(5)(b) and 48(5)(b)).
The Directives require contracting authorities to accept any signature that was legally
produced in any other Member State. Therefore, whilst the device should be
organised with reference to the required level of signature it should also be equipped
to receive and handle other signatures in conformity with Article 5 of Directive
1999/93/EC. In any case the device should be able to deal with extremely complex
tenders (e.g. tenders emanating from consortia that combine different signatures, i.e.
from public administrations and economic operators, of different level and origin
from different Member States). In practice, this may lead to problems of
interoperability of the different signatures, both at a technical level (effective receipt
and processing of the foreign signatures) and at organisational level (definition and
mutual recognition of specific types and levels of foreign signatures).
Until a solution to the interoperability issue is found, it seems that a viable
provisional alternative would consist in organising a submission on paper in parallel
to the electronic one or to accept simple electronic signatures, possibly followed by
confirmation on paper.
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If the national legislation requires that anonymity be preserved until the opening of
tenders, the device should guarantee that sender-related information is inaccessible as
well as the content of the tender.
4.1.2.2. Time stamping
The device shall guarantee the exact time stamping of the receipt (Annexes X (b) and
XXIV (b)). This means that data should be automatically time stamped and locked.
Irrefutable time stamping can be performed by an independent third party; however,
other solutions providing a reasonable level of certainty are also acceptable. A time
stamp should be made at the beginning and end of reception. The time zone should
be part of the time stamp as where they are stored documents could depend on the
location of the provider of the tendering platform service.
In practice transmission of data could take some time. The specification should
indicate at which moment events will be taken into account. In the absence of any
specific indication it shall be considered that the transmission must be completed
before the expiry of the deadline.
An acknowledgement of the successful receipt of the tender should ideally be
automatically issued by the device and sent to the tenderer's electronic address.
The device shall provide appropriate information to tenderers if the uploading or
submission of the tender did not succeed particularly in cases where a virus is
detected. In this case it shall be considered that no submission was made and re-
submission should be possible provided the deadline is still running.
4.1.2.3. Access to the data transmitted
According to Annex X (c) and (d) and Annex XXIV (c) and (d), the device shall
guarantee the locking of the data transmitted, including detection any unauthorised
access.
This means that data transmitted should be received and stored automatically without
anyone being able to tamper with it until the relevant deadline for opening it has
passed. It is technically possible to document each server access. The system logs
and any operation performed on the data should be recorded and safely stored to
ensure the traceability of operations. Before the data is opened the system should
confirm that no unauthorised access has been detected.
According to Annex X (e) and XXIV (e), the device shall guarantee that only
authorised persons can set or change the dates for opening data received. It might be
necessary, in fact, to delay the opening of some parts of the tenders. The device shall
allow this without compromising the security for the unopened parts and in general it
must guarantee that the modification of dates does not have any untoward
consequences for the confidentiality of tenders.
Internal security measures based on the "four eyes" principle must be implemented.
This means that at least two persons should by simultaneous action perform opening
of tenders.
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According to Annex X (f), (g), and (h) and XXIV (f),(g) and (h), the device shall
guarantee that access to the data submitted is only possible through simultaneous
action by authorised persons, only after the prescribed date has expired, and lastly,
that data once received and opened remain accessible only to persons authorised to
acquaint themselves therewith.
It can be assumed that the opening of data is an on-line function. Simultaneous
action, in this context, means that the designated authorised persons within a time
span of some few minutes, shall produce logs of what components have been opened
and when.
The security features of the device may render the practice of opening tenders in
public difficult to organise. However an on-line public opening can always be
envisaged, at least insofar as the information normally disclosed during the public
opening could be made immediately available electronically. Physical presence of
the opening board in a specific location should not be a requirement unless paper
documents exist as complete, separate tenders or as components of tenders.
Each authorised person would need an individualised key. Codes may be distributed
in advance but preferably after the expiry of the deadline for submitting tenders. On
the date and time fixed for the opening of tenders and requests to participate the
authorised persons should proceed to the simultaneous unlocking of data for read-
only access. Electronic signatures should be verified and the integrity of data should
be confirmed. The timely submission of data should be checked as well. Paper copies
could be distributed but only the electronic version shall be considered original. As
long as documents are kept within the system they could be checked against master
files.
Whatever modalities for the antivirus check have been adopted, the device shall
ensure that the confidentiality and the inaccessibility of the tender or of the request to
participate to anybody before the formal opening of offers, and to unauthorised
persons afterwards, are in any circumstance fully respected, as well as the
requirement for traceability of all operations.
If national law requires the tender to be presented in separate parts (e.g. as separate
technical and economic offers) the device should allow the deferred opening of the
separate files in the required sequence in the same way as with sealed envelopes.
National law will also regulate which parts of the tender need to be signed and by
whom.
In case data is encrypted and the key is owned by the tenderer, the latter must ensure
that the key reaches the contracting authority before date set for the opening of
tenders.
4.2.
The electronic receipt of tenders in the re-opening of competition under multi-
suppliers framework agreements and dynamic purchasing systems the use of
electronic catalogues
4.2.1. The electronic receipt of tenders in repetitive procedures and electroniccatalogues
Everything said above on the receipt of tenders for one-off purchases applies to
repetitive purchases.
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The only difference is that in framework agreements and DPS, at the stage of the re-
opening of competition, the contracting authority and the participants operate in a
closed circuit, where all the actors are already known.
As a consequence, unless forbidden by the national legislation, the level of signature
required by the contracting authority can be lowered even if the general rule is the
qualified signature.
The stage of re-opening of competition in particular allows for the use of electronic
catalogues (e-catalogues). Electronic catalogues are electronic documents established
by the suppliers which describe products and prices which may, under certain
conditions, constitute a tender; these are either transmitted or uploaded to the
contracting authority website or made available in the suppliers' website.
Economic operators may use e-catalogues to present their tenders provided they
comply with the above mentioned requirements for electronic communication tools
as well as with possible requirements set by the contracting authority (i.e. the use of a
specific format). In such cases appropriate indications following Articles 42(5)(a)
and 48(5)(a) shall be provided.
In theory, e-catalogues can also be used to present the tender in a one-off procedure
or the initial tender in a repetitive procedure. However, it is precisely when the
supplier and products have already been admitted that e-catalogues may easily be
used to update the indicative tender for a DPS or to submit a new tender.
In running framework agreements and DPSs, e-catalogues shall refer to the
tender/product for which the supplier has been selected and shall not contain
substantial amendments to the terms laid down in the framework agreement (Article
32(2)). At the stage of setting up the multi-supplier framework agreement or of
setting up or joining the DPS, e-catalogues can only be submitted in a `frozen'
format under the conditions specified in Articles 42 and 48 and Annexes X and
XXIV, because the public purchaser operates in an open environment to which
anyone must have access.
4.2.2. The active collection of tenders
Traditionally, the contracting authority passively receives the tenders submitted by
suppliers.
The situation is different at the stage of the re-opening of competition when the
contracting authority operates in a closed circuit where all possible suppliers (even
the newcomers in a DPS) are already known. In a closed circuit it does not make any
difference from a technical point of view whether the updated tender is transmitted
by the supplier or retrieved from the supplier's website by the contracting authority.
All the requirements and procedural stages related to the submission of tenders
including the invitation the time-limits and the locking of tenders shall be valid; the
only thing that changes is the way the tender arrives.
In particular, in this scenario the contracting authority must take care to inform all
suppliers in due time when and how the tender data updated indicative offers or
new offers will be retrieved by it.
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Provided the catalogues are in conformity with the requirements of the contracting
authority (in terms of their content, presentation, format, and tools), and that all the
requirements of Annexes X and XXIV are satisfied, the contracting authority may
decide to have exclusive access to the catalogue on a dedicated platform or, if the
supplier agrees, to have access to it via the supplier's website.
5.
ELECTRONIC AUCTIONS
Electronic auctions are reiterative processes involving an electronic device that
allows tenderers to present new prices, and/or new values for some or all elements of
their tenders (Articles 1(7) and 1(6)). Electronic auctions constitute a particular step
of the awarding stage of the procurement procedure and as such they shall always be
preceded by the full evaluation of the tenders received, which will result in a score
(notation) that enables the contracting authority to rank the tenders using automatic
evaluation methods.
Member States may regulate and limit the resort to e-auctions (Art. 54(1) and 56(1))
but if they are allowed, they must be organised in strict conformity with the
requirements of the Directives.
5.1.
Conditions for the use of electronic auctions
Electronic auctions can be used under most procedures12 but because they include
automatic evaluation, they cannot be used for certain service contracts and certain
works contracts having as their subject-matter intellectual performances, such as the
design of works, (Art. 1(7) second indent and 1(6)).
The e-auction can be based either solely on prices (whether award criteria is the
lowest price or the most advantageous tender) or on prices and/or new values for
other features that are indicated in the specification. The features have to be
quantifiable and expressed in figures. "2nd price" auctions, where the auction is won
by the lowest price bidder but at the price of the second lowest one, are not allowed.
The e-auction must be based on the award criteria published in the contract notice or
tender documents. What can be offered in the auction are new technical
characteristics in terms of values referring to features that can be expressed in figures
or percentages, and/or new prices. The criteria and their relative weighting stay the
same; before the start of the auction any range must be reduced to a specific value.
Contracting authorities have to announce their intention to hold e-auctions in the
contract notice (Art. 54(3) and 56(3)). Once the e-auction has been announced it
becomes mandatory to hold it, unless only one valid tender is received.
12
In open, restricted, negotiated procedures with prior publication of a contract notice justified by the
presence of irregular or unacceptable tenders in the case of Article 30(1)(a), on the reopening of
competition among the parties of a framework agreement and on the opening of competition under a
DPS if it is possible to establish the contract specifications with precision (Art. 54(2) of Directive
2004/18/EC); in open, restricted or negotiated procedures with a prior call for competition and on the
opening for competition of contracts to be awarded under a DPS (Article 56(2) of Directive
2004/17/EC).
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5.2.
Information to be provided in the specifications
The specification shall indicate those features, whose values will be the subject of the
auction, information about the electronic equipment used and the arrangements and
technical specifications for connection (Art. 54(3) and 56(3)).
It shall also contain the main rules of the auction, in particular:
- whether there are any limits on the new values which may be submitted,
(limitations are inherent to the technical characteristics indicated in the specification
which cannot be modified);
- what information will be made available to the tenderers in the course of the
auction, and the relevant timetable, (the minimum requirement should be to ensure
equal treatment by providing the same information to all participants at the same
time);
- relevant information on the process,
- the bidding conditions (in particular the minimum amount by which a bid must be
higher or lower to qualify as a new bid).
Finally the specification should also indicate how the invitations to auction will be
sent.
5.3.
Information to be provided in the invitation to submit new prices/values
A full evaluation of the tenders based on the award criteria published in the notice or
in the specification and their relative weighting must precede the auction. At the end
of the full initial evaluation, all tenderers who have submitted admissible tenders
shall be invited simultaneously to submit new prices and/or values (Art. 54(4) and
56(4)). Rejected tenderers shall be informed in conformity with Articles 41(2) and
49(2).
Invitations shall be sent individually by electronic means to each admissible tenderer.
The use of e-mail with acknowledgement of receipt and compliance with the
requirement of traceability can provide the necessary certainty. In comparison, the
posting of the invitation on an internet site is not sufficient.
The invitation shall indicate the result of the full initial evaluation (Art. 54(5) and
56(5)) by communicating the notation (i.e. the number of points allocated to the
individual tenderer). There is no obligation to communicate at this stage the precise
ranking (i.e. the relative position of the individual tenderer compared to the other
participants) so long as this is done when the auction starts.
The invitation shall also provide the mathematical formula (if it has not already been
announced in the specifications) which will be used to determine new rankings on
the basis of new values submitted. The formula shall incorporate the weighting of all
the criteria used to determine the most advantageous tender. To this purpose any
ranges must be reduced to a specified value beforehand and a separate formula
provided for each variant. Making the formula available to interested parties
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constitutes the minimal safeguard against potential distortions in the application of
the award criteria.
The invitation shall also contain all the details of the auction:
- the date and time of the start of the auction (no sooner than 2 working days after the
date the invitations are sent) (Art. 54(4) and 56(4));
- how and when the auction will close(Art. 54(7) and 56(4));
- the timetable for each phase of the auction (Art. 54(7) and 56(7))
Finally the invitation shall indicate all relevant information concerning individual
connection to the electronic equipment being used (Art. 54(4) and 56(4)).
Thus, while the specification indicates the general rules for the auction, the invitation
should state practical details that could not be or were not fixed beforehand. For
example, if the specification indicates the general number and duration of rounds to
be completed before the end of the auction, the invitation should indicate the exact
time and date for each round.
5.4.
Auction device and running of the auction
Contracting authorities shall communicate instantaneously to all tenderers sufficient
information to enable them to ascertain their relative ranking at any moment
(Articles 54(6) and 56(6)). The ranking shall be provided at least as from the
beginning of the auction but the contracting authority may also communicate this
information before it starts.
Contracting authorities shall not disclose the identities of the tenderers at any point in
the auction.
Apart from these mandatory requirements contracting authorities may choose to
communicate other information provided this was stated in the specification, i.e. the
number of participants, prices or values provided by all other participants or only by
some of them, their relative ranking.
The rules of the auction can change if this possibility has been announced and
precisely specified in the specifications.
If the device for running the auction is technically incapable of dealing with the
number of admissible tenders, the auction must be postponed and participants must
be informed. If the device runs out of capacity during the auction, it must be
cancelled and postponed as well.
Secure transmission of data, confidentiality of communication, authentification and
identification of participants, as well as traceability of communications and of
processing/calculations must all be ensured appropriately.
The contracting authority could in theory require advanced signatures for each bid
where this is technically feasible; however at this stage, the process takes place in a
closed environment and this appears to be neither required nor necessary.
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Incorrect or unacceptable entries should be registered for reasons of traceability but
not taken into account and appropriate feedback provided to the participants.
If everything has been correctly organised there is no need to foresee any
communications during the auction other than the submission of prices/values. In any
case no human intervention by the contracting authority side should be allowed
during the running of the auction. In case of errors, violations of the rules of the
game or abnormal behaviour13, traceability shall ensure that events can be re-
constituted.
In case of system failure it is the responsibility of the contracting authority to decide
if either the entire auction or one of its phases must be postponed to a later date; only
if it is possible to provide timely and appropriate information to each participant, can
extension of deadlines and re-submission of bids be envisaged.
Contracting authorities must organise the closure of the auction by choosing one of
the options given by Articles 54(7) and 56(7) or by combining them: on the date and
time fixed in the invitation; when no more new prices/values are received after the
time indicated in the invitation has elapsed; or when the number of phases fixed in
the invitation has been completed.
The contracting authority must award the contract to the best tender following the
auction, according to the criteria of the specification. This does not impede the
application of Articles 55 and 57 on abnormally low tenders. Contracting authorities
may not have improper recourse to e-auctions nor may they use them to prevent,
restrict or distort competition or to change the subject-matter of the contract as
indicated in the contract notice and in the specification (Article 54(7) and 56(9).
6.
DYNAMIC PURCHASING SYSTEMS
By deciding to resort to a dynamic purchasing system (DPS), contracting authorities
place themselves and the purchasing process in an entirely electronic context. This
means contracting authorities shall use solely electronic means to set up the DPS and
to award the contracts, according to Articles 33 and 15.
Member States may regulate and limit the resort to DPSs (Art. 33(1) and 15(1)) but if
they are allowed, they must be organised in strict conformity with the requirements
of the Directives.
Contracting authorities may decide to set up a DPS in order to purchase over several
years (maximum 4, except in duly justified cases) commonly used goods or services
which are generally available on the market (i.e. off-the shelf products for which the
evaluation can be quick).
The DPS is an open electronic multi-supplier system, which allows for repetitive
purchases while granting tenderers the possibility to join throughout its duration. To
13
National legislation on the behaviour in auctions, if any, is applicable provided it does not conflict with
the rules and principles of the Directives. The Commission services have launched a "Legal study on
unfair commercial practices within B2B e-markets" in order to assess the need for further action.
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join the DPS, economic operators shall satisfy the selection criteria and submit an
indicative tender which is evaluated for compliance with the specification. Based on
their indicative tender, which may be renewed at any time during the DPS life cycle,
admitted economic operators can then submit tenders for the specific contracts
advertised in a simplified procedure.
No charges may be billed to the interested economic operators or to parties to the
DPS (Articles 33(7) and 15(7))) and the rules of the open procedures must be
followed during all steps necessary to set up, to manage, and to award each single
contract under the DPS (Articles 33(2) and 15(2)).
6.1.
Admission to the DPS
To set up the DPS contracting authorities have to publish a contract notice that must
indicate that a DPS is involved, how long it will last and the Internet address at
which the specification and any additional documents may be consulted. Direct and
full access to the specification and any additional documents shall be made available
on publication of the notice and remain available as long as the DPS lasts. Award
criteria have to be indicated already at this stage even if they can be formulated more
precisely later in the invitation to tender. The possible use of electronic auctions shall
also be indicated at this stage.
The specification must describe the nature of the purchases envisaged as well as the
necessary information concerning the DPS, the electronic equipment and the
technical connection arrangements and specifications used.
To be admitted to the DPS tenderers shall satisfy the selection criteria and submit an
indicative tender which complies with the specification. At any time during the entire
period of validity of the DPS indicative tenders can be submitted and be evaluated
within a maximum of 15 days. (The period for evaluation can be extended in which
case no invitation to tender may be issued in the meantime).
Upon setting up of the DPS, the time limit for submitting the indicative tenders is
that of the open procedure (which may be shortened because of the electronic
transmission of the contract notice accompanied by the unrestricted and full and
direct access to the specification). However, as the evaluation of indicative tenders is
continuous against the selection criteria and the specification of the DPS, they can be
opened progressively as they arrive. In this case therefore the device for the receipt
of indicative tenders does not need to comply with the requirements of Annex X and
XX related to the date for opening tenders.
6.2.
Opening for competition of contracts to be awarded under the DPS
Each time contracting authorities want to award a contract under the DPS, they must
publish a simplified contract notice inviting all interested economic operators (both
those which are already part of the DPS and those who are not) to submit an
indicative tender. The time limit for this may not be less than 15 days from the date
the simplified notice is sent, to allow new tenderers to join the DPS.
All indicative tenders received by that deadline, either received in response to the
simplified contract notice, or previously submitted, shall be evaluated before issuing
the invitations to tender.
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After evaluating all indicative tenders, contracting authorities send the invitation to
tender to all the admitted tenderers (both those already in the DPS as well as those
newcomers who satisfy the selection criteria and have submitted indicative tenders
which comply with the specification) and set an appropriate deadline for the
submission of tenders. At this stage, the award criteria which were already stated in
the contract notice setting up the DPS may be formulated more precisely.
After full evaluation of the tenders received, contracting authorities have two
possibilities to proceed: either they award the contract to the tenderer who submitted
the best tender on the basis of the criteria set out in the contract notice setting up the
DPS or the more precisely formulated ones indicated in the invitation to tender;
alternatively, if they had announced in the contract notice setting up the DPS that
they would run an auction, they determine the admissible tenders and start the
auction..
The result of the award of the contracts based on the DPS shall be published. To this
end, contracting authorities either send each contract award notice to the Publications
Office within 48 days from the award of each contract, or they group such notices on
a quarterly basis and send them within 48 days of the end of each quarter.
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Document Outline