Electronic auctions
35.—(1) Contracting authorities may use electronic auctions, in which—
(a)new prices, revised downwards, or
(b)new values concerning certain elements of tenders,
or both, are presented.
(2) Contracting authorities shall structure the electronic auction as a repetitive electronic process, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
When electronic auctions may and may not be used
(3) Public service contracts, and public works contracts, which have as their subject-matter intellectual performances (such as the design of works) which cannot be ranked using automatic evaluation methods, shall not be the subject of electronic auctions.
(4) In open or restricted procedures or competitive procedures with negotiation, contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the content of the procurement documents, in particular the technical specifications, can be established with precision.
(5) In procurements where the content of the procurement documents, in particular the technical specifications, can be established with precision, an electronic auction may be held—
(a)on the reopening of competition among the parties to a framework agreement as provided for in regulation 33(8)(b) or (c), and
(b)on the opening for competition of contracts to be awarded under a dynamic purchasing system.
(6) The electronic auction shall be based on one of the following elements of the tenders:—
(a)solely on prices where the contract is awarded on the basis of price only;
(b)on prices or on the new values of the features of the tenders indicated in the procurement documents, or on both, where the contract is awarded—
(i)on the basis of the best price-quality ratio, or
(ii)to the tender with the lowest cost using a cost-effectiveness approach.
Preliminary requirements
(7) Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice or in the invitation to confirm interest.
(8) Where contracting authorities have decided to hold an electronic auction, the procurement documents shall include at least 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-matter 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.
Admissibility of tenders
(9) Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criteria and with the weighting fixed for them.
(10) A tender shall be considered admissible where—
(a)it has been submitted by a tenderer which has not been excluded under regulation 57 and which meets the selection criteria; and
(b)it is in conformity with the technical specifications without being irregular, unacceptable or unsuitable.
(11) In particular, tenders—
(a)which do not comply with the procurement documents,
(b)which were received late,
(c)where there is evidence of collusion or corruption, or
(d)which have been found by the contracting authority to be abnormally low,
shall be considered irregular for the purposes of paragraph (10)(b).
(12) In particular—
(a)tenders submitted by tenderers which do not have the required qualifications, and
(b)tenders whose price exceeds the contracting authority’s budget as determined and documented prior to the launching of the procurement procedure,
shall be considered unacceptable for the purposes of paragraph (10)(b).
(13) For the purposes of paragraph (10)(b)—
(a)a tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents; and
(b)a request to participate shall be considered not to be suitable where the economic operator concerned—
(i)is to be or may be excluded under regulation 57, or
(ii)does not meet the selection criteria.
Commencement and structure of the auction
(14) All tenderers that have submitted admissible tenders shall be invited simultaneously to participate in the electronic auction using, as of the date and time specified in the invitation, the connections in accordance with the instructions set out in the invitation.
(15) The electronic auction may take place in a number of successive phases.
(16) The electronic auction shall not start sooner than 2 working days after the date on which invitations are sent out.
(17) The invitation shall be accompanied by the outcome of a full evaluation of the relevant tender, carried out in accordance with the weighting provided for in regulation 67(9).
The formula to be used
(18) The invitation shall also state the mathematical formula to be used in the electronic auction to determine the automatic re-rankings on the basis of the new prices or new values submitted, or both.
(19) Except where the most economically advantageous offer is identified on the basis of price alone, that formula shall incorporate the weighting of all the criteria established to determine the most economically advantageous tender, as indicated in the notice used as a means of calling for competition or in other procurement documents.
(20) For the purposes of paragraph (19), any ranges of weightings shall be reduced beforehand to a specified value.
(21) Where variants are authorised in accordance with regulation 45, a separate formula shall be provided for each variant.
Communication of information
(22) 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.
(23) Contracting authorities may, where this has been previously indicated, communicate other information concerning other prices or values submitted.
(24) Contracting authorities may also at any time announce the number of participants in the current phase of the auction.
(25) In no case, however, may contracting authorities disclose the identities of the tenderers during any phase of an electronic auction.
Closing the auction and awarding the contract
(26) Contracting authorities shall close an electronic auction in one or more of the following manners:—
(a)at the previously indicated date and time;
(b)when they receive no more new prices or new values which meet the requirements concerning minimum differences, provided that they have previously stated the time which they will allow to elapse after receiving the last submission before they close the electronic auction; or
(c)when the previously indicated number of phases in the auction has been completed.
(27) Where contracting authorities intend to close an electronic auction in accordance with paragraph (26)(c), whether or not in combination with paragraph (26)(b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
(28) After closing an electronic auction, contracting authorities shall award the contract in accordance with regulation 67 on the basis of the results of the electronic auction.