S.L. 601.3 Art. 48Rules applicable to communication.

(1) All communication and information exchange under these regulations, including electronic submission, shall be performed using electronic means of communication in accordance with the requirements of this regulation.

(2) The tools and devices to be used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure.

(3) Notwithstanding the provisions of sub-regulations (1) and (2), contracting authorities shall not be obliged to require electronic means of communication in the submission process in the following situations:

(a) due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;

(b) the applications supporting file formats that are suitable for the description of the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting authority;

(c) the use of electronic means of communication would require specialised office equipment that is not generally available to contracting authorities;

(d) the procurement documents require the submission of physical or scale models which cannot be transmitted using electronic means.

(4) In respect of communications for which electronic means of communication are not used pursuant to sub-regulation (3), communication shall be carried out by post or other suitable carrier or by a combination of post or other suitable carrier and electronic means.

(5) The authority responsible for the tendering process is not obliged to require electronic means of communication in the submission process to the extent that the use of means of communication other than electronic means is necessary either because of a breach of security of the electronic means of communications or for the protection of the particularly sensitive nature of information requiring such a high level of protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access within the meaning of sub-regulations (5) and (6).

(6) It shall be the responsibility of the authority responsible for the tendering process requiring, in accordance with sub-regulation (3), means of communication other than electronic means in the submission process to indicate in the individual report referred to in regulations 29 or 241, as the case may be, the reasons for this requirement. Where applicable, the authority responsible for the tendering process shall indicate in the individual report the reasons why use of means of communication other than electronic means has been considered necessary in application of sub-regulation (5).

(7) 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 this purpose, the essential elements of a procurement procedure include the procurement documents, requests for participation, 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.

(8) In all communication, exchange and storage of information, the authority responsible for the tendering process shall ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved. It shall examine the content of tenders and requests to participate only after the time limit set for submitting them has expired.

(9) For public works contracts and design contests the authority responsible for the tendering process require the use of specific electronic tools, such as of building information electronic modelling tools or similar. In such cases the authority responsible for the tendering process shall offer alternative means of access, as provided for in sub-regulations (10) and (11), until such time as those tools become generally available within the meaning of sub-regulation (2).

(10) The authority responsible for the tendering process may, where necessary, require the use of tools and devices which are not generally available, provided that the authority responsible for the tendering process offers alternative means of access.

(11) The authority responsible for the tendering process shall be deemed to offer suitable alternative means of access in any of the following situations, where they:

(a) offer unrestricted and full direct access free of charge by electronic means to those tools and devices from the date of publication of the notice in accordance with Schedule 11 or from the date when the invitation to confirm interest is sent. The text of the notice or the invitation to confirm interest shall specify the internet address at which those tools and devices are accessible;

(b) ensure that tenderers having no access to the tools and devices concerned, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the tenderer concerned, may access the procurement procedure through the use of provisional tokens made available free of charge online; or

(c) support an alternative channel for electronic submission of tenders.

(12) In addition to the requirements set out in Schedule 8, the following rules shall apply to tools and devices for the electronic transmission and receipt of tenders and for the electronic receipt of requests to participate:

(a) information on specifications for the electronic submission of tenders and requests to participate, including encryption and time-stamping, shall be available to interested parties;

(b) the authority responsible for the tendering process shall specify the level of security required for the electronic means of communication in the various stages of the specific procurement procedure; that level shall be proportionate to the risks attached: Provided that the requirement established under this paragraph shall be deemed to be satisfied when electronic means of communications are carried out through government’s e-procurement platform;

(c) where the authority responsible for the tendering process acting within an overall framework concludes that the level of risks, assessed under paragraph (b), is such that advanced electronic signatures as defined by Directive 1999/93/EC of the European Parliament and of the Council are required, contracting authorities shall accept advanced electronic signatures supported by a qualified certificate, taking into account whether those certificates are provided by a certificate services provider, which is on a trusted list provided for in Commission Decision 2009/767/EC, created with or without a secure signature creation device, subject to compliance with the following conditions:

(i) the authority responsible for the tendering process shall establish the required advanced signature format on the basis of formats established in Commission Decision 2011/130/ EU and shall put in place necessary measures to be able to process these formats technically; in case a different format of electronic signature is used, the electronic signature or the electronic document carrier shall include information on existing validation possibilities. The validation possibilities shall allow the authority responsible for the tendering process to validate online, free of charge and in a way that is understandable for non-native speakers, the received electronic signature as an advanced electronic signature supported by a qualified certificate;

(ii) where a tender is signed with the support of a qualified certificate that is included on a trusted list, the authority responsible for the tendering process shall not apply additional requirements that may hinder the use of those signatures by tenderers.

(13) In respect of documents used in the context of a procurement procedure that are signed by a competent authority or by another issuing entity, the competent issuing authority or entity may establish the required advanced signature format in accordance with the requirements set out in Article 1(2) of Decision 2011/130/ EU.

(14) For the purposes of sub-regulation (13), the competent authority or entity shall put in place the necessary measures to be able to process that format technically by including the information required for the purpose of processing the signature in the document concerned. Such documents shall contain in the electronic signature or in the electronic document carrier information on existing validation possibilities that allow the validation of the received electronic signature online, free of charge and in a way that is understandable for non-native speakers.

(15) For the purposes of this Part, contracting authorities listed under Schedule 3 do not require the prior approval of the Director but shall suffice the written consent by the head of that same contracting authority.