The Public Contracts (Scotland) Regulations 2012

Means of communication

44.—(1) A contracting authority may specify that any communication referred to in these Regulations may be made—

(a) by post;

(b) by facsimile;

(c) by electronic means in accordance with paragraphs (4) and (5);

(d) by telephone in the circumstances referred to in paragraph (8); or

(e) by a combination of the means of communication.

(2) The means of communication specified by a contracting authority must be generally available and must not restrict economic operators’ access to the contract award procedures specified in these Regulations.

(3) A contracting authority must ensure that the specified means of communication and of information storage enable—

(a) the integrity of data provided by economic operators and the confidentiality of tenders and requests to be selected to tender for or to negotiate the contract to be maintained; and

(b) tenders and requests to be selected to tender for or to negotiate the contract to be opened only after the time limit for their submission has expired.

(4) The equipment used for communications made by electronic means must be—

(a) non-discriminatory;

(b) generally available; and

(c) interoperable with information and communication technology products in general use.

(5) Where a contracting authority requires that tenders and requests to be selected to tender for or to negotiate the contract are to be transmitted by electronic means, it must ensure that—

(a) details of the equipment including any software which is necessary for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract, including encryption, are available to all interested economic operators; and

(b) the equipment for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract complies with the requirements of paragraph (6).

(6) The requirements referred to in paragraph (5)(b) are—

(a) electronic signatures relating to tenders and requests to participate must comply with national provisions adopted in accordance with Directive 1999/93/EC of the European Parliament and of the Council of 13th December 1999 on a Community framework for electronic signatures(1);

(b) the exact time and date of the receipt of tenders and requests to participate must be capable of being determined precisely;

(c) it may reasonably be considered that—

(i) data is not capable of being accessed before the time limits specified by the contracting authority; and

(ii) any such unauthorised access is clearly detectable;

(d) only authorised persons can set or change the dates for opening data received from economic operators;

(e) access to any data must be possible only through simultaneous action by authorised persons and only after the prescribed date; and

(f) data received and opened in accordance with these requirements must remain accessible only to authorised persons.

(7) A contracting authority may require any documents, certificates and declarations referred to in regulations 23 to 27 which do not exist in electronic format to be submitted before the time limit has expired for the receipt by it of tenders or requests to be selected to tender for or to negotiate the contract.

(8) Requests to be selected to tender for or to negotiate the contract may be made—

(a) in writing; or

(b) by telephone.

(9) Where a request to be selected to tender for or to negotiate the contract is made by telephone, an economic operator must confirm the request in writing before the deadline for receipt of such requests has expired.

(10) Where a request to be selected to tender for or to negotiate the contract is made by facsimile, a contracting authority—

(a) may require that the request be confirmed by post or by electronic means where this is necessary for the purposes of legal proof; and

(b) must specify any requirement for such confirmation and the time limit for sending it in the contract notice.

(1)

OJ L 13, 19.1.00, p.12. The Directive was amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council, OJ L 311, 21.11.2008, p.1.