The introduction of mandatory e-procurement

What does this mean for procurers?

In short, for procuring authorities, this means that other forms of communication cannot be used unless:

• due to the specialised nature of the procurement, the use of electronic communication would require specific tools, devices or file formats that are not generally available or would require the submission of physical or scale models which cannot be submitted electronically;
• there has been a security breach (e.g. the authority is using an electronic portal/system and the security of that application has been compromised and therefore the authority needs to revert to paper-based submissions); or
• information contained within the documents is of a particularly sensitive nature requiring such a high level of protection that it cannot be properly managed by using electronic methods.

Where electronic communication is not used due to the above circumstances, authorities may use post or another suitable carrier or a combination of both. Authorities must also note their reasons for not using electronic communication within their 'regulation 84' report (i.e. the report which authorities are required to compile and retain in accordance with regulation 84 of the Public Contracts Regulations 2015).

Regulated utilities should also note that this requirement extends to procurements covered by the utilities regime and that the reasons for not utilising electronic communication should be included within the 'regulation 99' report (i.e. a similar report which utilities are required to compile in accordance with regulation 99 of the Utilities Contracts Regulations 2016).

It may be helpful to note that the mandatory requirement to use e-procurement will not extend to oral communication with bidders during a complex procurement process (i.e. Competitive Dialogue, the Competitive Procedure with Negotiation and Innovation Partnerships), where authorities can continue to participate in face to face dialogue/negotiation with bidders in accordance with the rules which govern those procedures. It will continue to be important, however, to document issues which are likely to have an impact on the content and assessment for tenders. For example, if authorities answer clarification questions during any dialogue/negotiation sessions, the answers to those questions should be documented and shared with the other bidders (to the extent that the answer does not divulge commercially sensitive information concerning a bidder's solution/tender submission).

Authorities are also reminded that they can require bidders to use software which may not generally be available, if the authority is willing to offer suitable alternative means of access. This will be relevant in circumstances where the authority requires a document to be created using software which the bidder would need to purchase in order to respond to the tender (i.e. it is not software which would reasonably be considered 'generally available'). Authorities should therefore consider whether bidders have the freedom to utilise other software, or there could be a risk of falling foul of this requirement.

What does this mean for bidders?

From a practical perspective, in the UK most authorities already undertake fully electronic tender processes. Bidders may wish to note, however, that this is likely to mark the end of hard copy submissions.

The introduction of this requirement is viewed by the European Commission as another helpful step towards opening up access to public contracts. Therefore, where you are participating in tender processes in other member states, the move towards mandatory e-procurement should help ease the burden in respect of submitting hard copies by the authority's deadline, which can often be challenging when bidding across borders.

Where can I find out more?

If you have any questions in respect of e-procurement, please feel free to contact any member of our team who will be happy to assist.