E-Procurement now mandatory for all

19 October 2018

Author: Niamh Magee
Practice Area: Procurement Law

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All above threshold procurement processes (including the submission of documents and bidder communications) must now be conducted electronically. These new requirements go further than simply publishing documents on your website and allowing email submissions. Whilst emails can still be used to communicate clarifications etc., the means for submitting responses must be able to record the exact time and date of submission, restrict access to responses to certain individuals and only permit access to documents after the submission deadline has passed.

This new obligation helpfully still permits oral communication in relation to “essential elements of a procurement procedure”, provided the discussions are sufficiently documented by other means. This means that it is still possible to conduct discussions in procedures which require negotiation or dialogue (and the requirement to maintain a detailed note of such discussions is certainly not new).

Now that the new obligation has taken effect, there remain only limited, specific circumstances where electronic communication is not required i.e. where:

  • it would require specific tools, devices or file formats that are not generally available or supported by generally available applications;
  • the applications that support the file formats required for the description of the tenders cannot be handled by open or generally available applications or are under a proprietary licence and cannot be made available for download or remote use;
  • it would require specialized office equipment not generally available (public sector only); or
  • the procurement requires the submission of physical or scale models.

If any of these exceptions are relevant, the reasoning behind the decision not to use electronic communication must be recorded in the post tender report (required by Regulation 84 or Regulation 99 of the public or utilities regime respectively).

Comment

Whilst most contracting authorities and utilities use electronic means of communication and established portals throughout the procurement process (e.g. for clarifications), some buyers, particularly in the utilities sector, currently still request hard copy submissions from bidders. This approach will need to change going forward.

One further point to note is that this requirement has come into force for both public and utilities sector at the same time. This is somewhat unusual given that, as the public sector directive was implemented a year earlier than the utilities directive, the utilities sector has traditionally benefitted from longer timescales to introduce certain elements of the new regime.

If you have any queries in relation to these new obligations, please do not hesitate to contact a member of our procurement team, who will be happy to help.

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