A noticeable aspect of the 2014 European Public Procurement Directive was the emphasis placed on the use of electronic communication in order to provide efficiencies in tendering. On 18 October 2018, a number of additional regulations come into force for all contracting authorities subject to EU procurement rules.

Firstly, from Thursday, all communication or information exchange (and in particular submission of tenders) must be by electronic communication. This means that all dialogue, queries, tender documentation and clarifications must be made by electronic communication. The regulations further stipulate that any means of communication should be non-discriminatory and should be easily accessible to tenderers.

While the spirit of the rules is for exclusive use of electronic communication, there are some exemptions:

  • If the nature of the procurement is specialised such that electronic communication would require “specific tools, devices or file formats” that are not generally available or not generally accessible
  • If the applications (or viewers) which are required to open a file containing a tender document are not widely available or are under a specific proprietary licence and cannot be made available to the contracting authority
  • If the use of electronic communication would require specialised office equipment which would not be generally available to the contracting authority
  • If the tender submission required a scale model
  • Where there has been a breach in the security system of the authority
  • Where the information is of such a high level of sensitivity that its security cannot be assured by use of electronic communication. 

If any of these exemptions are used, the reasoning must form part of the Regulation 84 report (the report that a contracting authority must draw up in relation to the award of every contract subject to the regulations).

Secondly, there is no requirement for tenderers to submit supporting documentation in circumstances where the contracting authority is already in possession of the documentation having awarded the contract or concluded the framework agreement. This will hopefully reduce the needless repetition of sending the same documents multiple times.

Finally, to improve the capability of tenderers to tender for contracts in other EU Member States, contracting authorities must now utilise the e-Certis platform which aims to standardise the documents required by contracting authorities in other member states. It is intended that e-Certis will provide tenderers with greater visibility of the type of documents that may be required by various authorities in different member states.

It is hoped that by streamlining the tendering process and utilising technology to provide greater accessibility, it will become easier and less expensive for small and medium sized enterprises to tender for public contracts. These requirements are mandatory from 18 October 2018.