Electronic Procurement Law

eProcurement law

Public procurement authorities and companies in the upper threshold area shall already principally use electronic means of communication (see § 97 (5) GWB, § 9 (1) VgV).

The electronic procurement (E-Vergabe) makes it possible to handle procurement proceedings completely via the Internet and especially through other particular procurement platforms. This is extremely advantageous for both the contracting authority and the private contractors as the e-procurement is more efficient due to its uniform procedures and the lower costs.

Legal foundations of electronic procurement

For procurement in the sub-threshold area, the respective procurement and contractual regulations (VOL/A and VOB/A) are legally relevant. For instance, the VOL/A 1st section (following the provisions on electronic procurement):

  • § 11 VOL/A regulates some principles of information transmission. For example, this provision in paragraph 2 states that the programs used must be widely accessible and compatible with commonly used ICT products. ·         § 12 para. 1 p. 2 VOL/A requires contracting authorities to ensure that announcements in Internet portals must be centrally ascertainable via the search function of www.bund.de. ·
  • § 13 VOL / A makes provisions for the use of electronic signatures and data protection. ·
  • § 5 VOL / A defines and regulates the so-called dynamic electronic procedure.

For procurements in the upper threshold area, the Restriction of Competition Act – Gesetz gegen Wettbewerbsbeschränkungen – (§ 97 sect. 5) and the Procurement regulation – Vergabeverordung – (§9 and followings) are legally extremely relevant.

At every stage of a public procurement process, principals and companies use electronical instruments.  In particular, electronic communications concern the electronic production and notice of the bid documentation, electronic tendering and the electronic preparation of the contract.

Nowadays, the transition into electronic communication is mandatory, regardless of the delivery and service subject of the award. Contracting authorities shall use (apart from specific special cases, see § 12 VgV) electronic means of communication which are non-discriminatory, generally available as well as compatible with the widely used information and communication technology (ICT) products and which do not restrict the economic operators access to the procurement procedure (see § 11 Abs.1 VgV). This obligation concerns only the exchange of data between contracting authorities ad businesses.

EU-wide e-procurement in the upper threshold area

Since April 2016, EU-wide notices can only be submitted electronically to the Publications Office of the European Union. The notices must include an internet address under which all procurements documents can be downloaded free of charge, without restriction and completely using the ICT. Exemptions apply only to those parts of the procurement documents that shall not be electronically mapped using commonly available ICT or that have to respect particular security provisions that are clearly defined by the new EU- Procurement Directives.

By October 2018, all contracting authorities and contracts must have completely switched over to electronic processing of procurement proceedings. Until that time, offers, participation applications, expressions of interest and confirmations of interest may still be sent by post or by any other appropriate means.

The Central Procurement Offices of the Federation as well as of the Federal States and municipalities must already completely switch over to e-Procurement by April 2017. After October 2018 (with exception for electronic offers) participation applications, expression of interest and confirmation of interest – except in very few exceptional cases – may no longer be accepted and taken into account in the awarding proceeding.

The public contracting authorities set the required level of security for the electronic means used to be used in the various stages of the procurement procedure (see § 10 sect. 1 VgV).

 

The procurement platform of the Federal Government: e-Procurement

On the website www.evergabe-online.de, procurement procedures can be handled completely electronically. Here, tender documents are freely accessible thanks to the extremely comprehensive search function of the platform. There is no need for post correspondence anymore!

The portal:  www.bund.de

Current public tenders can be found on the website www.bund.de. In addition, for instance, (pursuant § 12 (1) ph. 2 VOL/A) electronic tenders which have been published on other portals, must be ascertainable over the search function of this website. This guarantees a high hit rate by a targeted use of the possible search criteria.

European developments related to electronic procurement

On 27th May 2014, the Directive 2014/55/EU on the so called “e-invoicing” came into force: European standardization body CEN has been developing and testing a European standard for e-invoices. According to the EU-Directive, this new norm should be released at the latest by the 27th of May 2017 at the latest. Germany and the other EU Member States must implement the Directive by the 27th of November 2018. In a not so far future, contracting authorities will be obliged to accept and process invoices issued electronically that comply with the new European Directives. All companies are assured that their electronic invoices will be accepted if they comply with the European standards.