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last updated: 17th August 2018

The Public Contracts Regulations 2015 requires electronic submission of OJEU notices, electronic availability of procurement documents at the time of notice publication, and electronic communication and information exchange for all communication under the Public Contracts Regulations, subject to specified exclusions.

For procurements commenced on or after 26 February 2015, institutions will need to offer unrestricted and full direct access free of charge to the procurement documents through an internet URL immediately on publication of the OJEU contract notice.  The OJEU notice needs to specify the internet address at which bidders can access these documents.  Procurement documents are as defined in The Public Contracts Regulations 2015 and include the specification, descriptive documents, proposed terms and conditions, instructions to bidders and any additional documents. The Crown Commercial Service guidance takes a “purposive” view to the definition of procurement documents and suggests that what is meant by “procurement documents” changes based on the different stages of the process that has been reached.

However it may be prudent to get the key documents ready pre-OJEU publication, in particular the Specification, Pre Qualification Questionnaire, Invitation to Tender and Terms and Conditions of Contract, and if a document is finalised and ready, consider publishing it to avoid any risk of a supplier challenge for breach of Regulation 53(1).  Although its important to note, the greater amount of information published upfront, the more important it is that you reserve the right to amend the documents or to issue additional documents and require bidders to take this into account when preparing any responses.  NB you are not permitted to make any changes that are sufficiently material so as to change the nature of the procurement or the specification.

Institutions won’t have to exchange all communication and information (including tender submissions) in a tender process electronically until 18 October 2018.  However, if they choose to do so now, they can make use of time limit reductions in the open and restricted tender procedures.

Institutions must ensure that the tools and devices used for electronic communication meet certain requirements set out in The Public Contracts Regulations 2015 (Regulation 22(16)).  Contracting authorities must decide and apply to those communications, appropriate electronic security, guided by a high level framework in the Regulations.

In all communication, exchange and storage of information, institutions shall ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved.

Invitations to candidates

In restricted procedures, institutions shall simultaneously and in writing invite the selected candidates to submit their tenders.

The invitations shall include a reference to the internet URL at which the procurement documents have been made directly available by electronic means.

Oral communication

Oral communication may be used in respect of communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented to a sufficient degree.

For that purpose the essential elements of a procurement procedure include the procurement documents, requests to participate, confirmations of interest and tenders.

In particular, oral communications with tenderers which could have a substantial impact on the content and assessment of the tenders shall be documented to a sufficient extent and by appropriate means, such as written or audio records or summaries of the main elements of the communication.

Institutions shall examine the content of tenders and requests to participate only after the time limit set for submitting them has expired.

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