Recourse to e-Certis under Reg. 61 Public Contracts Regulations 2015

Reg. 61 of the Public Contracts Regulations 2015 (PCR2015) is really straightforward and transposes the requirement to have recourse to e-Certis in the same terms as Article 61(2) of Directive 2014/24

It is worth stressing that the UK has availed itself of the possibility to defer the use of e-Certis until 18 October 2018 under Art 90(5) Dir 2014/24 [see reg.1(5) PCR2015], but that does not preclude contracting authorities from using it already. Pedro considers this general delay a shame, and I agree.

Reg.61(1) indeed determines that 'contracting authorities shall have recourse to e-Certis and shall require primarily such types of certificates or forms of documentary evidence as are covered by e-Certis'. And reg.61(2) PCR2015 clarifies that  “e-Certis” means the online repository established by the Commission and referred to as “e-Certis” in Dir 2014/24.

It is important to stress that, under Art 61(1) Dir 2014/24, Member States shall ensure that the information concerning certificates and other forms of documentary evidence introduced in e-Certis established by the Commission is constantly kept up-to-date. 

The bit that the Directive assumes and the PCR2015 do not tackle is that contracting authorities need training in order to gain an understanding of the information available in e-Certis and the ways to retrieve it. There is an online tutorial available (here), but more training will certainly be needed before the full roll-out of e-Certis use.

In that regard, the legal consequences of failing to use e-Certis could have been clarifies. In my view, reg.61 PCR2015 could have clarified to what extent contracting authorities need to have procedures in place to avoid requiring any documentation available on e-Certis, and in particular it should have clarified whether contracting authorities have a positive duty to check e-Certis when candidates and tenderers fail to supply documentation that, if existing, should be available via e-Certis. In my view, this is the case, but the vagueness of reg.61(1) PCR2015 (contracting authorities shall have recourse to e-Certis') does not necessarily allow for such a conclusion.

Overall, then, there is a need for further development of the actual implementation of e-Certis use under PCR2015.