Electronic catalogues under Reg.36 Public Contracts Regulations 2015

Reg.36 of the Public Contracts Regulations 2015 (PCR2015) transposes the rules of Art 36 of Directive 2014/24 on electronic catalogues, which are one of the novelties of the 2014 rules in relation with the use of electronic means of communication and ultimately aimed at simplifying the process for the submission of tenders and their assessment. Indeed, they have been introduced in order to boost the development of eProcurement or, at least, to provide minimum guidelines concerning this already used technique [see European Dynamics, Report on Electronic Catalogues in Electronic Public Procurement (2007)]. 

It is important to stress that the use of electronic catalogues does not imply a different type of procedure, but rather ‘a format for the presentation and organisation of information in a manner that is common to all the participating bidders and which lends itself to electronic treatment’ (rec (68) dir 2014/24). 

Functionally, eCatalogues are intended for use in relation to framework agreements of dynamic purchasing systems. The rules in reg.36 PCR2015 are fundamentally oriented towards the transparency requirements linked to the use of eCatalogues [reg.36(5) PCR2015] and their technical features, with a clear stress towards the obligation of tenderers to adapt their ‘general’ eCatalogues to the specific requirements of the contracting authority [regs.36(3) & (4) PCR2015]. Indeed, recital (68) of Directive 2014/24, indeed stresses that ‘the use of electronic catalogues for the presentation of tenders should not entail the possibility of economic operators limiting themselves to the transmission of their general catalogue’. 

However, there are other concerns linked to the need to standardise eCatalogues in order to avoid imposing an excessive administrative burden on tenderers: ‘in order to participate in a procurement procedure in which use of electronic catalogues ... is permitted or required, economic operators would, in the absence of standardisation, be required to customise their own catalogues to each procurement procedure, which would entail providing very similar information in different formats depending on the specifications of the contracting authority concerned. Standardising the catalogue formats would thus improve the level of interoperability, enhance efficiency and would also reduce the effort required of economic operators’ [rec (55) dir 2014/24]. 

This is an area where, indeed, standardisation would alleviate participation costs and would reduce barriers to access the relevant procurement procedures, given reluctance as investment in eCatalogues is concerned [see C McCue and AV Roman, ‘E-Procurement: Myth Or Reality?’ (2012) 2 Journal of Public Procurement 212–38; and M Rahim and S Kurnia, Understanding E-Procurement System Benefits Using Organisational Adoption Motivation Lens: A Case Study (PACIS 2014 Proceedings, 80)].

The rules applicable to eCatalogues also specify clear requirements governing the reopening of (mini-)competitions in framework agreements and dynamic purchasing systems and, in particular, rules on the specific moment when the information available in the eCatalogues will be frozen and used to award the given contract [regs. 36(4) to (13) PCR2015]. Pedro has taken issue with the limited rules concerning time-limits (see here).

The use of eCatalogues per se does not seem to create significant scope for distortions of competition, other than the eventual imposition of the use of exceedingly demanding or non-compatible IT solutions. However, that risk should be excluded on the basis of the requirement that ‘electronic catalogues shall comply with the requirements for electronic communication tools as well as with any additional requirements set by the contracting authority in accordance with article 22’ [reg.36(4) PCR2015]—which expressly requires that tools and devices ‘used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure’ (see comments here and here).