The EC (EU) Procurement Directive 2004/18/EC defines electronic means in Article 1.13:
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Electronic equals writing
In the preceding post, EU procurement: Written or in writing, we saw that electronic information is included in the definition of written and in writing.
We also saw that a public contract must be in writing and that written communication is essential throughout the award process.
Here is the EC (EU) Procurement Directive 2004/18/EC definition of written and in writing in Article 1.12, which we looked at yesterday:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Use of electronic means
We have seen that electronic means have been put on an equal footing with other written communication, but the bare definition of electronic means does not even begin to convey the importance attached to the concept.
We look at just a few of the many examples in the Procurement Directive of electronic communication used in procurement procedures.
***
Electronic auctions
The Recitals present the background and the reasons for the new Procurement Directive or Classic Directive.
Recital 14 describes electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Advantages
Recital 35 describes the potential advantages of electronic information exchange:
(35) In view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.
***
Electronic signatures
Recital 37 mentions the aim to encourage the use of advanced electronic signatures:
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (3) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) should, in the context of this Directive, apply to the transmission of information by electronic means. The public procurement procedures and the rules applicable to service contests require a level of security and confidentiality higher than that required by these Directives. Accordingly, the devices for the electronic receipt of offers, requests to participate and plans and projects should comply with specific additional requirements. To this end, use of electronic signatures, in particular advanced electronic signatures, should, as far as possible, be encouraged. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.
***
SIMAP
Beyond the definitions, we turn to European public procurement practice and projects aiming at reaping the benefits of electronic communications, important for the future of procurement and government services in general.
SIMAP describes itself as the gateway to European public procurement. The following greeting refers to electronic means:
Information system for European public procurement
The SIMAP portal provides access to most important information about public procurement in Europe.
Tender notices are published on TED website, the single official source of public contracts in Europe. Most of public procurement notices are sent for publication through an electronic channel. A web-based tool — eNotices — simplifies and speeds up preparation and publication of tender notices. eSenders service allows qualified organisations to submit notices directly as XML files.
http://simap.europa.eu/index_en.html
***
TED – Tenders Electronic Daily
TED (Tenders Electronic Daily) is the online version of the 'Supplement to the Official Journal of the European Union', dedicated to European public procurement. This is the meeting place for notices from contracting authorities and businesses looking for opportunities in the procurement markets:
http://ted.europa.eu/Exec?Template=TED/editorial_page.htm&DataFlow=ShowPage.dfl&StatLang=EN
***
IDABC
Further proof of the EU’s drive towards electronic services is IDABC.
The IDABC Programme stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. It takes advantage of the opportunities offered by information and communication technologies:
http://ec.europa.eu/idabc/en/chapter/3
***
ePractice.eu
ePractice is a web portal dedicated the development of eGovernment services, with news and information:
http://www.epractice.eu/home
Ralf Grahn
Showing posts with label ePractice. Show all posts
Showing posts with label ePractice. Show all posts
Tuesday, 23 December 2008
Wednesday, 17 December 2008
EU procurement: Electronic auction
What is an electronic auction in EU procurement? What we see is typically an automated Dutch auction (reversed auction) of standard goods.
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
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