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.