The European Union has long recognised the outstanding rewards of e-Communication within the procurement sector and so has Marketplanet.
EU legislator defines Electronic public procurement as “…the use of e-communication and execution of transactions by public sector organisations procuring products, services or commissioning construction works,”.
e-Communication at all stages of procurement is now mandatory and this was first proposed a few years ago in the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 20 April 2012. COM (2012) 179 “E-Procurement Strategy”.
Subsequently, the use of electronic means of communication for public procurement was formally introduced by the Directive 2014/24 / EU of the European Parliament and the Council on 26 February 2014.
Of particular interest is Article 22, which advocates e-Submission of tenders by the Member States shall ensure any communication and exchange of information under this Directive, is carried out using “electronic means” of communication.
Let’s take a moment to make this clearer; the “written” Directive means any expression of words or numbers that can be read, duplicated and transmitted – this includes information that is transmitted and stored electronically – a service that Marketplanet offers too.
“Electronic means” is outlined in Article. 2 sec. 1 point 19 which states” the electronic equipment for processing, storing, digitally compressing, and transmitting/receiving information via wires, radio waves, optical means or other electromagnetic transmissions.
Moving forward, there are caveats within the Directive. Specifically, the tools and devices used for e-Communication, which includes technical characteristics. Such tools must be non-discriminatory, generally available and compatible with commonly used ICT products, and allow access to contract award procedures to a bidding contractor.
There are also prerequisite tech-guarantees, as illustrated in Annex IV of Directive 2014/24 / EU. This Directive advocates that tools and devices for the electronic receipt of tenders, requests to participate, plans and projects in competition must:
- Determine the exact time and date of tender receipt, requests to participate, and submission of plans and projects
- A prerequisite guarantee that there is no access to transmitted data before the deadline
- Access to the data on a specified date and can only be set or changed by authorised personnel
- Only authorised personnel have access to the data throughout the procurement procedure
- Only after a specified date, authorised personnel may grant access to the data
- Any data received or accessed is only accessible to those with granted permission
- If the aforementioned security rules are breached or there is such an attempt, then security detection and monitoring of such breaches or attempts is on-going.
But what if contracting authorities need technology or tools that are not publicly available?
According to Art. 22 sec. 5 contracting authorities in this situation must be offered an alternative means of access.
An interesting point is contracting authorities offer free, unlimited access via electronic means to these tools and devices. This starts from the notice publication date, or alternatively, from the date the interest was confirmed.
Regarding public work contracts and competitions, Member States may also require the use of specific e-Tools, such as e-Data modeling or equivalent. In this situation, contracting authorities must offer alternative means of access under the aforementioned conditions, until such tools become publicly available.
Tender Confidentiality and Data Integrity
Marketplanet advocates the utmost importance of security – this echoes the Directives legislation which supports the notion of contracting authorities ensuring tender confidentiality and data integrity, which includes requests for participation in any communication, exchange and information storage is respected. Contracting authorities may review the content of tenders and requests to participate only after the set submission deadline.
Safety Level Proportions
The Directive also illustrates the safety rules for electronic means of communication. The Member States should examine and ensure the security of correctly identifying the message sender. This includes eradicating the risk of correspondence from an unidentified sender without security clearance.
When Member States or contracting authorities find advanced e-Signatures are required, the contracting authorities will accept advanced e-Signatures with a valid certificate. Whether these certificates are issued by the certification service provider from the Trusted List for Commission Decision 2009/767 / EC, or whether filed with or without a secure signature device, the following conditions must be met:
- Contracting authorities shall establish the required advanced e-Signature format based on those set out by Commission Decision 2011/130 / EU (29) and shall introduce technology to process these formats.
- Where a different e-Signature format is used, such signature or e-Document must contain information on the existing verification methods. They enable the contracting authority to verify the e-Signature received based on a qualified certificate. This must be online, free of charge and in a manner that is understandable to non-native language users.
If the offer is signed using a qualified certificate that is placed on a trusted list, the contracting authorities may not apply additional requirements that may hinder the use of such signatures by tenderers.
Overcoming the Obligation to Communicate Electronically
There may be exceptional situations when the contracting authorities should be allowed to waive the obligatory use of e-Communication. Such circumstances may be:
- Seeking more security information.
- Technical considerations, such as offered items or documents requiring specific tools that are not available or supported by public applications.
- When a physical model or scale is needed, thus preventing e-Transmission.
For other appropriate communication formats such as mail should be restricted to the parts of the offer where e-Communication is not required.
Verbal communication may be used to share information concerning non-essential elements of procurement, This, however, requires documentation.
The obligation to use electronic means of communication applies primarily to central purchasing entities. Central purchasing entities should, therefore, be obliged to use e-Communication no later than 18th April 2017 (if the Member State decides to postpone the set date, which is the same as the date of implementation of the Directive – 18th April 2016.
All other contracting authorities should have such an obligation no later than 18th October 2018.