Never put off till tomorrow that which could be done the day after tomorrow ... (Mark Twain) - the 2015 Regulations and e-procurement.
Last time in our "Countdown to Law-nch" series, we looked at the interplay between the 2015 Regulations and the NHS (Procurement, Patient Choice and Competition)(No.2) Regulations 2013. This week we are looking at e-procurement, an area that could cause headaches for practitioners on the ground. Given the amount of preparation needed for contracting authorities to get themselves into position to run a procurement fully by electronic means as contemplated by the new Dirctive, we have been eagerly awaiting news on the likely timetable for the introduction of the new requirements. The news is mixed: certain requirements have been delayed for as long as possible, while other requirements will be introduced in advance of the deadline imposed by the Directive.
The main focus for contracting authorities at present needs to be on meeting the requirements around providing electronic availability of procurement documents. Regulation 53 (which will come into force as soon as the 2015 Regulations “go live”, probably in the first half of 2015) requires that contracting authorities shall provide unrestricted, full, direct access (via the internet) free of charge to the “procurement documents”, from either the date of the publication of the OJEU (which must be despatched electronically) or the invitation to confirm interest. “Procurement documents” is widely defined to capture the PIN, OJEU, specification, contract, ITT etc. This is a mandatory requirement which, for many, will require a step change in current working practices and a good deal more up front preparation to have all the procurement documents prepared and ready by the date of issuing the OJEU.
The Directive also introduces a couple of new e-procurement requirements intended to lessen the burden on bidders to provide information to contracting authorities. For example, the Directive will make it obligatory for contracting authorities to use e-Certis (an online certificates database) when running the selection process, and also to accept the new European Single Procurement Document, effectively a "supplier passport" which will prove there are no grounds for excluding that supplier. However, practitioners may be relieved at the news that mandatory use of these tools will be delayed until the latest time possible under the Directive (which is April 2017 for central purchasing bodies and October 2018 for all other contracting authorities).
The UK had certain policy choices around some of the electronic procurement provisions and, consistent with the general approach taken in drafting the 2015 Regulations, the government has opted to take a flexible rather than prescriptive approach wherever possible. The Government will not, for example, centrally set the levels of security or mandate the circumstances in which electronic signatures or electronic catalogues should be used. These matters will be left to each contracting authority, with the government intending to provide an umbrella set of guidance to contracting authorities in due course.
Next time in our Procurement Regulations 2015 - Ready For Law-nch? series, we'll be looking at the changes the 2015 Regulations will bring for under-threshold contracts, where the Regulations actually go further than what was required by the directive itself.