Public Contracts Regulations 2015 - Regulation 53

Regulation 53 - Electronic availability of procurement documents

Regulation 53 establishes specific rules that need to be followed regarding the availability of procurement documents. As per this Regulation, the general rule is that procurement documents have to be made available electronically free of charge since the date of publication in the Official Journal or the date where an economic operator confirmed its interest.

The subsequent paragraphs of Regulation 53 introduce two smallish exceptions to this general rule: one for confidentiality reasons (based on Regulation 21(3)) and another where either the digital formats involved are not generally well supported or we are talking about physical "documents" such as models (based on Regulation 22(3)).

The first exception is an obvious one. In case there are confidentiality issues involved, the contracting authority can refuse electronic access but will have to provide access to them. I suspect that the same reasons that would render an electronic transmission impossible would also bar any kind of transmission even via traditional mail. The consequence is that probably access to the documents will have to be physical, thus meaning economic operators based in another Member State will be at a disadvantage. In consequence this exception will have to be interpreted very narrowly. In my view it would always have to due to being an exception, but more so for the cross-border implications it raises.

For the second example, access should still be free in case the documents cannot be made available "by means of the internet" and the contracting authority needs to define what are the other means it will use to transmit the documents. Interestingly enough, there appears to be no indication that contracting authorities are entitled not to transmit the documents, In consequence it appears that the contracting authority cannot impose a restriction whereby documents needed to be consulted in situ.

It is important for contracting authorities for take notice that the use of either of these exceptions automatically extends the period to receive tenders by 5 days, except in cases of urgency where the deadline would not be extended at all. Edit: On my original post I got my wires crossed between paragraphs 5 and 6, wrongly interpreting 4 day extension as referring to an accelerated procedure. I stand corrected. Thanks Albert.

Paragraph 6 repeats the rule of Regulation 47(3) on the minimum time limits to answer requests by economic operator, thus requiring a minimum of 6 days after the documentation is provided.