The Public Contracts (Scotland) Regulations 2012

Electronic auctions

21.—(1) A contracting authority which holds an electronic auction must comply with this regulation.

(2) Subject to paragraph (3), the contracting authority may hold an electronic auction when using—

(a) the open procedure;

(b) the restricted procedure;

(c) the negotiated procedure in the circumstances referred to in regulation 13(a) and 14(1)(a)(i);

(d) the procedure set out in regulation 19(7)(b) on the re-opening of competition among the parties to a framework agreement; or

(e) the procedure set out in regulation 20 on the opening of competition for contracts to be awarded under a dynamic purchasing system.

(3) The contracting authority must not hold an electronic auction to precede the award of a public services contract or a public works contract having as its subject matter intellectual performance, such as the design of works.

(4) The contracting authority may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

(5) The contracting authority must base an electronic auction on—

(a) price alone where the contract is to be awarded on the basis of the lowest price; or

(b) price or the values of quantifiable elements of tenders indicated in the contract specification, where the contract is to be awarded on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a).

(6) When the contracting authority intends to hold an electronic auction it must state this in the contract notice.

(7) A contract specification prepared by the contracting authority in relation to a contract the award of which is to be preceded by an electronic auction must include—

(a) the quantifiable elements of tenders capable of expression in figures or percentages which will be the subject of the electronic auction;

(b) any limitations on the values for the quantifiable elements of tenders (resulting from the contract specification) which may be submitted in the electronic auction;

(c) the information to be made available to economic operators during the electronic auction and, where appropriate, an indication of when it will be made available to them;

(d) a description of the electronic auction process;

(e) the conditions under which the economic operators will be able to bid and, in particular, the minimum differences which may be required when bidding; and

(f) all relevant information concerning—

(i) the electronic system to be used in the electronic auction; and

(ii) the arrangements for and technical specifications relevant to connection to the electronic system to be used.

(8) Before proceeding with an electronic auction, the contracting authority must—

(a) make an initial evaluation of the tenders in accordance with the award criteria specified and with any weighting fixed for them; and

(b) by electronic means simultaneously invite all the economic operators which have submitted admissible tenders to submit new prices or new values in the electronic auction.

(9) Where the contracting authority is to award a contract on the basis of the offer which is the most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) must include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

(10) The contracting authority must include in the invitation referred to in paragraph (8)(b)—

(a) all relevant information concerning individual connection to the electronic system to be used in the electronic auction;

(b) the date and time of the start of the electronic auction;

(c) the number of phases in the electronic auction;

(d) the mathematical formula to be used in the electronic auction to determine automatic reranking of tenders on the basis of the new prices or new values submitted by economic operators and incorporating the weighting of all the criteria set to determine the most economically advantageous tender;

(e) where variant bids are authorised by the contracting authority, a separate mathematical formula for each variation; and

(f) the basis on which the electronic auction is to be closed and the appropriate additional information specified in paragraph (16).

(11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria must be set at a specified value before the invitation is sent to economic operators.

(12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

(13) During each phase of an electronic auction, the contracting authority—

(a) must instantaneously communicate to all economic operators participating in the auction at least sufficient information to enable them to ascertain their relative rankings in the auction at any time;

(b) may communicate to each economic operator other information concerning prices or values submitted by other economic operators provided that this has been stated in the contract specification; and

(c) may disclose the number of economic operators participating in that phase of the auction.

(14) During any phase of an electronic auction, the contracting authority must not disclose the identity of any economic operator participating in the auction.

(15) The contracting authority must close an electronic auction—

(a) at the date and time fixed for closure in the invitation referred to in paragraph (8)(b);

(b) when it receives no further new prices or new values which meet the requirements concerning minimum differences; or

(c) when the number of phases in the electronic auction specified in the invitation referred to in paragraph (8)(b) has been completed.

(16) Where a contracting authority intends to close an electronic auction—

(a) as described in paragraph (15)(b), it must state in the invitation referred to in paragraph (8)(b) the period which it intends to allow to elapse before it closes the auction after receiving a submission from an economic operator participating in the auction; or

(b) as described in paragraph (15)(c), it must state in the invitation referred to in paragraph (8)(b) the timetable for each phase in the auction.

(17) After closing an electronic auction the contracting authority must award the contract in accordance with regulation 30 on the basis of the results of the electronic auction.

(18) The contracting authority must not use an electronic auction improperly or in such a way as to prevent, restrict or distort competition or to change the subject matter of the contract as referred to in the contract notice and defined in the specification.

(19) The references to values in paragraph (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) must be interpreted as including price.