Electronic availability of procurement documents under Reg. 53 Public Contracts Regulations 2015

Reg.53 of the Public Contracts Regulations 2015 (PCR2015) establishes requirements for the electronic availability of procurement documents in line with the rules of Article 53 of Directive 2014/24. I had previously made some comments on reg.53 PCR2015 to the effect that the requirements for electronic availability of documents does not limit the possibility of conducting a restricted procedure with two clearly differentiated phases, where full documentation would only be made available after selection and only to the invited candidates (see here). 

In my view, the requirements derived from reg.53 are strictly formal and relate to the extension of time limits for the submission of offers when some documents are not made available for different reasons, or when candidates or interested tenderers require additional documentation.

(A) General rule
The general rule established in reg.53(1) PCR2015 is that contracting authorities shall offer unrestricted and full direct access, by means of the internet and free of charge, to the procurement documents. Such access needs to be effective from the date of the publication in the Official Journal of a notice sent in accordance with reg.51 PCR2015 or the date on which an invitation to confirm interest is sent. In order to ensure transparency and traceability of the documents, the text of the notice or the invitation to confirm interest shall specify the internet address at which the procurement documents are accessible [reg.53(2)].

(B) Special rules
There is first a special rule in reg.53(3) PCR2015 for the extension of time limits when the use of electronic means of communication would be either impracticable or counterproductive from a technical perspective under the limits of reg.22(3) PCR2015. In that regard, where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet for one of the reasons set out in reg.22(3), contracting authorities may indicate in the notice or the invitation to confirm interest that the procurement documents concerned will be transmitted by means other than the internet. It is important to stress that the contracting authorities are under the general requirements of the principle of transparency in reg.18, so they must make the communication method clear to the tenderers and candidates. In my view, there would have to be very good reasons for them to do so other than through an explicit indication in the notice or the invitation to confirm interest. In any case, the transmission of documents by means other than the internet will be conducted "in accordance with paragraphs (6) and (7)", which refer to the submission of additional information requested by the candidates and tenderers (discussed below).

There is a second special rule in reg.53(4) PCR2015 for the extension of time limits when some of the procurement documents are declared confidential in accordance with reg.21(3) PCR2015, whereby contracting authorities can impose confidentiality duties on candidates and tenderers aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure. In this case, where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet because contracting authorities intend to apply reg.21(3), contracting authorities shall indicate in the notice or the invitation to confirm interest which measures aimed at protecting the confidential nature of the information they require and how access can be obtained to the documents concerned. 

In case one of the special rules applies, the time limit for the submission of tenders shall be prolonged by 5 days, except in the cases of duly substantiated urgency referred to in regs. 27(5), 28(10) and 29(10) PCR2015, in which case there will be no extension of the time limit. 

(C) Requests for additional information
Reg.53(6) PCR2015 covers the eventuality that not all the relevant documentation is actually disclosed by the contracting authority from the beginning. In that case, provided that it has been requested in good time, contracting authorities shall supply to all tenderers taking part in the procurement procedure additional information relating to the specifications and any supporting documents not later than 6 days before the time limit fixed for the receipt of tenders, or four days in the event of an accelerated procedure [under regs. 27(5), 28(10)]. In my view, it is also possible for the contracting authority to do it motu proprio (that is, without a specific request by any tenderer or candidate), provided that the same requirements are met and no economic operator is advantaged.

(D) General remarks
When in doubt about the need/desirability of disclosing procurement documents not initially made electronically available by the contracting authority, particularly under the special rules and the potential requests for additional information, it will be worth taking into consideration that as emphasised by the Crown Commercial Service in its advice following direct enquiries, the general standard should be that "the procurement documents that are required to be accessible are all those that an economic operator needs to make the decision on whether they should express an interest/bid and to enable them from the beginning of the procedure to start preparing for submission of bids". Hence, contracting authorities need to be particularly reactive to the expressed difficulties derived from lack of access to specific documents, and need to respect the general principles of reg.18 PCR2015, mainly proportionality and equal treatment in this case.

(E) Pedro's views--some disagreements
Pedro has already discussed the rules under reg.53 PCR2015 here, where he comments on the effects of non-electronic distribution of documents and the time limits applicable. I see things different than him in some aspects:

(1) Regarding the confidentiality exception, Pedro suspects "that the same reasons that would render an electronic transmission impossible would also bar any kind of transmission even via traditional mail. The consequence is that probably access to the documents will have to be physical, thus meaning economic operators based in another Member State will be at a disadvantage. In consequence this exception will have to be interpreted very narrowly. In my view it would always have to due to being an exception, but more so for the cross-border implications it raises." In my view, this will only happen in very limited cases, as the general rules of reg.53 PCR2015 are concerned with transmission "by means of the internet", which I understand to mean a general publication on-line. Hence, the rules of reg.22 regarding special security measures should work as first safeguard and only when they are insufficient, could physical access be required. Hence, I agree with his view that this exception needs to be interpreted narrowly, but in conjunction with reg.22 PCR2015, which may diminish the practical effects if alternative technical solutions are avaialble.

(2) Regarding the extension of the time limits, Pedro had initially considered that "the use of either of these exceptions automatically extends the period to receive tenders by 5 days, except in cases of urgency where the deadline would not be extended at all or an accelerated procedure, where the extension would be for 4 days (paragraphs 5 and 7)" (emphasis added). I think that this is inaccurate and probably the result of a lapsus, since paragraph 7 explicitly mentions that the period of four days that applies in accelerated procedures is a modification of the time limit in paragraph 6 (ie time limit resulting from requests for additional information). Hence, as time limits are concerned, the exceptions for technical or confidential reasons trigger an extension of 5 days or 0 days for urgent procedures, whereas the provision of additional information needs to be requested not later than six days before the time limit fixed for the receipt of tenders, or four days in the case of accelerated procedures. Pedro has, indeed, now fixed this glitch.