Rules applicable to communication under Reg. 22 Public Contracts Regulations 2015 (II)

Following yesterday's discussion (on Pedro's blog and here) on the first part of reg.22 of the Public Contracts Regulations 2015 (PCR2015), we are bound to continue the assessment of the transposition of the rules of Article 22 of Directive 2014/24 as electronic communications are concerned (Pedro's further views are available here). I will pick up on the issue of oral communications, which Pedro discussed extensively yesterday and on which he raised some important issues concerning equality, non-discrimination and traceability of the communication. He also mentioned in passing the difficulties derived from language barriers to communication (oral or otherwise), which are of course the elephant in the room.

Reg.22(8) to (10) PCR2015 deals with the novelty of an (express) authorisation to carry on oral communications. Reg.22(8) establishes the authorisation, which covers communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented to a sufficient degree. Reg.22(9) then determines what is not an essential element of the procedure, or rectius, indicates that the essential elements of a procurement procedure include the procurement documents, requests to participate, confirmations of interest and tenders. Reg.22(10) also makes the record-creation and record-keeping requirements more specific by stressing that oral communications with tenderers which could have a substantial impact on the content and assessment of the tenders shall be documented to a sufficient extent and by appropriate means, such as written or audio records or summaries of the main elements of the communication.

Looking at the provisions as a whole, I struggle to see how oral communications can actually be used properly. There are certain things that should not be done orally, such as providing clarification on the tender documents or requirements, or accepting clarifications on the documents or tenders submitted by bidders. Equally, it is hard to see how negotiation can be carried out orally when, under reg.22(9) PCR2015, the tenders themselves are an essential element of the procedure on which oral communications are not allowed. Of course, this does not square with the rule in reg.22(10) PCR2015, which aims to set a minimum threshold (or expectation) of record-creation when negotiations are conducted if they could have a substantial impact on the content and assessment of the tenders. All in all, I find this set of rules very confusing and internally contradictory, and I would be £0.05 to any takers that there will be significant litigation in the near future--that is, if contracting authorities dare to use oral communications to any significant degree.

Use of tools and devices not generally available

Reg.22(13) to (15) deal with the issue of means of electronic communication not generally available and builds an exception to the general rule established by reg.22(2) PCR2015. In order to allow contracting authorities to require the use of tools and devices which are not generally available, the regulation demands that that the contracting authorities offer suitable alternative means of access. These are then further specified in reg.22(14), which offers three alternative ways of ensuring alternative means of access: (a) offer unrestricted and full direct access free of charge by electronic means to the tools and devices concerned from the date of publication of the call for competition or from the date when the invitation to confirm interest is sent [in which case the further rules of reg.22(15) need to be respected]; (b) ensure that tenderers having no access to the tools and devices concerned, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the tenderer concerned, may access the procurement procedure through the use of provisional tokens made available free of charge online; or (c) support an alternative channel for electronic submission of tenders.

Given that the last option is the only one likely not to impose a cost on the contracting authority and given that it avoids having to enter into the licences and authorisations that one would expect under options (a) and (b), my view is that most contracting authorities that insist on the use of means of communication not generally available will also end up supporting an alternative channel for electronic submission of tenders. This creates the same difficulties that we witnessed in the past (only?) regarding technical specifications set according to standards and the mandatory requirement to accept functionally equivalent solutions. Moreover, this creates significant issues of justification of the use of not generally available means of communication. If the alternative channels (supported or otherwise) work, what is the reason not to use them? Consequently, this is another area where the set of rules does not seem to make much internal sense and the availability of funds to sponsor use of not generally available means of communication (or its lack) may end up deactivating the provision in any case.

Technical requirements, security requirements and electronic signatures

Reg.22(16) to (21) set out rather precise requirements concerning the technical and security-related features of the electronic means of communication to be used, as well as specific rules concerning the use of electronic signatures. To be honest, the technicalities may create issues that I fail to see, but these requirements seem relatively uncomplicated to me. It is worth stressing that in determining the security level applicable to the electronic communications, contracting authorities are required to consider the need for proportionality between the expected benefits of any particular security requirements and the costs, burdens and obligations which those requirements may impose on economic operators. This seems like a reasonable requirement but, once more, effectively putting it in practice may be complicated, particularly if judicial review of that type of decision is based on a formal assessment of the contracting authority's decision.

Rules applicable to communication under Reg. 22 Public Contracts Regulations 2015 (I)

Reg.22 of the Public Contracts Regulations 2015 (PCR2015) deals with the rules applicable to communication and transposes the requirements of Article 22 of Directive 2014/24. It introduces important novelties in terms of electronic communications and includes specific safeguards intended to prevent technological exclusion and gold-plating. 

The comment to this reg.22 PCR2015 would take too long to be done at once, so Pedro and I have decided to split it in three parts. We discuss paragraphs 1-12 today, and two more entries will follow.

General rules applicable to communication

(A) As a point of departure, reg.22(1) PCR2015 establishes that all communications shall be performed using electronic means of communication in accordance with the requirements of that regulation. 

(B) However, this general rule is riddled with exceptions that allow contracting authorities not to require the use of electronic means of communication, such as:

1.  Specific circumstances foreseen in reg.22(3) PCR2015, where it is accepted that the use of electronic means of communication would be either impracticable or counterproductive from a technical perspective, such as where : (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.
2. Specific circumstances established in reg.22(5) PCR2015, where the use of means of communication other than electronic means is necessary either (a) because of a breach of security of the electronic means of communication, or (b) for the protection of information of a particularly sensitive nature requiring such a high level of protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access[see reg.22(14) PCR2015].

In the first case, the exceptions under reg.22(3) PCR2015 are complemented with two additional rules. On the one hand, where contracting authorities require other than electronic means of communication  in the submission process, they shall indicate in a reg.84(1) report the reasons for that requirement [as per reg.22(6) PCR2015]. This suggests that contracting authorities do not have a fully-free choice and, in any case, such decision is open to judicial review.

And, on the other hand, the exception must not be understood as an all or nothing concerning electronic means of communication, since reg.22(4) PCR2015 determines that where those are not used, communication shall be carried out by post or by other suitable carrier, or by a combination thereof.  Consequently, under proportionality, the limitation of use of electronic communication means should only be completely excluded where they are absolutely unfit for a specific (and probably rather out of the ordinary) procurement process.

(C) Reg.22 PCR2015 establishes two general requirements in the management of electronic communications that are worth stressing. 

First, contracting authorities shall ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved in all communication, exchange and storage of information [reg.22(11) PCR2015]. This should be put in relation to reg.21 PCR2015 on confidentiality (see comments here and here). In my view, the difficulty with this rule is that it seems to impose an objective obligation on contracting authorities "shall ensure" rather than a best effort/reasonable means obligation, which can trigger important issues of liability in tort should the confidentiality of communications be jeopardised (or hacked) at any specific point in time. 

Consequently, a clarification on the level of liability imposed on the contracting authorities would reduce their incentives to resort to the exceptions under reg.22(5) PCR2015. On that note, it is important to stress that, however, contracting authorities do not seem to have a fully-free choice, as reg.22(7) PCR2015 clearly sets out that they shall indicate in a reg.84(1) report the reasons why the use of means of communication other than electronic means has been considered necessary--which, in my view, is again open to judicial review.

Secondly, in order to avoid an important issue of time advantages or time shifting, reg.22(12) PCR2015 clarifies that contracting authorities shall examine the content of tenders and requests to participate only after the time limit set for submitting them has expired. This will require the implementation of additional security measures that allow for a time-related (and manipulation-related) audit of the procurement process. However, the discussion on technical security measures is best left for the discussion of paras 16 and ff of reg.22 PCR2015).

(D) Finally and in order to avoid technological barriers derived from the use of electronic communications, reg.22(2) PCR2015 determines that the tools and devices to be used and their technical characteristics shall be non-discriminatory, generally available and interoperable with the information and communication technology products in general use and shall not restrict economic operators’ access to the procurement procedure [for some previous discussion, see M Varney, ‘E-Procurement—current law and future challenges’ (2011) 12(2) ERA Forum 185–204].

This comes to set a requirement of technological neutrality that must be welcome in general terms. The only exception to this rule  is established in reg.22(13) PCR2015, which allows contracting authorities to require the use of tools and devices which are not generally available provided they offer suitable alternative means of access--and this is further regulated in reg.22(14) and ff PCR2015, which will be discussed tomorrow.