Afraid so. Generally speaking, it is an absolute requirement of Regulation 53 of the Public Contracts Regulations 2015 (PCR 2015) to provide electronic access from the date of the OJEU notice. The feedback we are getting is that this represents a step change in previous practice which has often been to take a more sequential approach to the drafting of procurement documents.
Aren't there exemptions from the requirement?
We note that while Regulations 53(3) and (4) do provide limited exemptions from the requirement to make the procurement documents electronically available even if these do apply the procurement documents still need to be made available from the date of the OJEU notice via some alternative means.
What does unrestricted and full direct access free of charge mean?
We have also been asked on several occasions to advise on what ?unrestricted and full direct access free of charge? means (this is the phrase used in Regulation 53). There is no new guidance on this as yet but we note that the phrase exactly mirrors wording in the old directive for which there is some (admittedly now rather old) guidance. We advise following this old guidance (see in particular paragraph 3.2.1) until anything new is published. The old guidance suggests that although there may not be any ?intermediary stage? a simple registration requirement is acceptable prior to downloading documents (although ideally it should be possible for bidders to merely view documents without any registration).
Can you amend the procurement documents if they have already been published?
Another question we are asked a lot is how much scope there is to change the procurement documents once they have been published particularly if this had to be done at speed in order to publish the OJEU notice in compliance with Regulation 53. Obviously the ideal would be for the procurement documents to be as complete as possible on day one (obviously taking a common sense approach; in a negotiated process for example it will not be possible to disclose final and complete terms and conditions at the beginning of the procurement).
That said Recital 81 of the new Directive and Regulation 47(3) of the PCR 2015 do contemplate the possibility of significant changes to the procurement documents provided the timetable is extended appropriately so clearly some degree of change is acceptable. However changes to the award criteria or to core requirements would almost certainly require a new advertisement. The key test is whether the procurement is so changed by the supplementary information that it has moved outside of the scope of the original advertisement and suite of documents such that had they known what the procurement would eventually have looked like suppliers other than those who bid could potentially have been interested.