Public Contracts Regulations 2015 - Regulation 36

Regulation 36 - Electronic catalogues

Is it just me who finds the expression "electronic catalogues" as having a vaguely 90s feel to it? Something along the lines of "multimedia" or "the world wide web"? It also brings to mind the idea of a La Redoute catalogue, but online. Nonetheless, we are in 2015 and the Public Contracts Regulations 2015 makes good use of "electronic catalogues". Albert's detailed entry about electronic catalogues can be found here.

Regulation 36 transposes into England, Wales and Northern Ireland Article 36. As usual, the structure is slightly different although the content is very similar. Electronic catalogues are to be used in procurement procedures where electronic communications are used, allowing participating economic operators to supply their prices or characteristics on an electronic format. In other words, they are exist to facilitate communication of tender information, reducing timescales, transaction and opportunity costs.

Electronic catalogues can apparently be used in any procedure, but it is no surprise that a good part of Regulation 36 is dedicated to the specific situations of framework agreements (multi-supplier) and dynamic purchasing systems, both areas where updatable catalogues. This makes perfect sense as they tend to last for a good period of time and result in multiple purchases. In both cases Regulation 36 includes some vague indications on how to electronic catalogues are to be run. The most troublesome point in my view is paragraph 9 where "[c]ontracting authorities shall allow for an adequate period between the notification and the actual collection of information." I know there is a strong feeling against imposing hard limits when the Directive did not mandate those, but this is a situation where mistakes (and abuse) can easily occur. My preferred option would always be a minimum time limit (maybe 5 or 10 working days) but absent that it would probably be enough to force the contracting authority to inform in the procurement documents what will be the minimum time limit it will require for information collection. If 24 hours is reasonable for a contracting  authority, then perhaps it should be reasonable to expect decisions by it within those "adequate periods", but I digress. 

Article 36 of the Directive 2014/24/EU gives Member States the possibility of making electronic catalogues mandatory for certain types of procedures. Keeping in track with the "bare minimum transposition" prevalent in the Regulations, it is no surprise the law maker did not invest time and effort in considering what areas electronic catalogues could be made mandatory. For example, it is possible to envisage a scenario where all framework agreements would have to be done electronically and multi-supplier frameworks made to use electronic catalogues. Ditto for dynamic purchasing systems which have to be electronic anyway and are designed for common repetitive spend. If we ever see guidance saying where electronic catalogues should be used I will be asking why the Government forgot to include such provisions in the Regulations...