eProcurementRef. Ares(2017)936511 Phase - 21/02/2017II

Study on the evaluation of the Action Plan for the implementation of the legal framework for electronic procurement (Phase II) Country Profiles

__

European Commission Internal Market Directorate-General

Brussels __

Version:...... v3.1 Page: 1 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

AUSTRIA 5

BELGIUM 20

BULGARIA 36

CROATIA 47

CYPRUS 58

CZECH REPUBLIC 71

DENMARK 83

ESTONIA 97

FINLAND 108

FRANCE 119

GERMANY 132

GREECE 146

HUNGARY 154

ICELAND 163

IRELAND 171

ITALY 182

LATVIA 196

LIECHTENSTEIN 206

LITHUANIA 213

LUXEMBOURG 225

MALTA 234

NETHERLANDS 245

NORWAY 255

POLAND 265

Version:...... v3.1 Page: 2 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

PORTUGAL 276

ROMANIA 290

SLOVAKIA 300

SLOVENIA 309

SPAIN 319

SWEDEN 333

TURKEY 344

UNITED KINGDOM 357

Version:...... v3.1 Page: 3 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Introductory note

The information presented in these country profiles has been collected in the course of 2009-2010 by the study team, consisting of Siemens and time.lex, to support their analysis in the “Study on the evaluation of the Action Plan for the implementation of the legal framework for electronic procurement”, conducted for the European Commission – Internal Market Directorate-General.

The information was initially collected from pre-existing sources, notably earlier studies conducted on behalf of the European Commission and specific websites operated by the Member States and/or by eProcurement service providers. To improve the reliability and comprehensiveness of the reports, draft versions of these were then sent to public procurement experts in each country, notably the designated members of the eProcurement Expert Group Meeting, who were given the opportunity to provide suggestions for improvement and additional information for their profile. Feedback was received from all countries, with the exceptions of Latvia, Malta, Croatia, Iceland and Liechtenstein.

The study team would like to thank all contributors to the reports for their kind cooperation and support.

Version:...... v3.1 Page: 4 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Austria

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Federal Procurement Agency (Bundesbeschaffung GmbH) URL www.bbg.gv.at Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Qualified signatures are required. Austrian signatures based on a citizen card are requirement accepted, as well as a limited number of non-Austrian qualified signature solutions (e.g. Belgium, Italy, Slovenia, etc.)

Here are the DG INFSO Benchmarking report scores:

Austria is part of the PEPPOL project.

The following main platforms have been identified:

Platform Name Platform URL

Version:...... v3.1 Page: 5 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Federal Procurement Agency http://www.bbg.gv.at/ Austrian Register of Tenderers/Contractors - ANKÖ http://www.ankoe.at/ Pep-online http://www.pep-online.at/ Austrian Federal Railways and ASFINAG (Highway Company) https://www.ava-online.at/ Procurement Portal of St Pölten city http://stpoelten.vemap.com/ Federal State of Lower Austria (Land Niederösterreich) http://noe.vemap.com/

Holding of companies of the city of Vienna (Wiener http://wstw.vemap.com/ Stadtwerke)

1.2 Laws and policies

1.2.1 Laws The primary act with respect to public procurement in Austria is the Public Procurement Act 2006 (Bundesvergabegesetz (BVergG), 2006); see http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=2000454 7

1.2.2 Legally supported tools

 eSignatures: the law requires the use of ‘qualified electronic signatures’ (Qualifizierte elektronische Signatur §43.4 and 204.4).  DPSes: supported through §§157ff and 288ff of the BVergG.  eAuctions: supported through §§147ff and 281ff of the BVergG.  Buyer’s profiles: supported through §§48 and 208 of the BVergG.

1.2.3 Permissibility of using eProcurement §91 (1) and §243 (1) of the BVergG explicitly notes that the permissibility of submitting electronic offers/tenders must be announced at the latest in the procurement publication, and that in the absence of any indications, offers/tenders may not be submitted electronically.

Usage of the central framework contracts offered via the portal of the Federal Procurement Company is mandatory for federal agencies for specific goods and services (See Ordinance of the Minister of Finance BGBl II 2001/2008), but several Federal Provinces and a large number of municipalities have joined voluntarily.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Version:...... v3.1 Page: 6 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Austria has one of the most advanced infrastructures in place with respect to eGovernment in general, including via its eID card (citizen card) initiatives, its eDocuments policies, and its legal framework, which provides a very solid foundation on which eProcurement initiatives can be built.

The portal provided by the Federal Procurement Company establishes a very effective eProcurement infrastructure which leverages the impact of framework agreements to realize sufficient savings in a cost effective manner. The portal is accessible to all Austrian administrations and is mandatory for federal bodies, which ensures its impact.

1.3.2 Weaknesses of the national situation

Few weaknesses can be identified, with the main observation being that the threshold for security is set relatively high (e.g. with qualified signatures being a basic requirement for eTendering), which may prove to be a barrier for economic operators established in countries which do not have an equally mature infrastructure at their disposal.

Version:...... v3.1 Page: 7 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Federal Chancellery (Bundeskanzleramt Österreich) is the body responsible for public procurement policy making and implementation of all EU Directives into national legislation. In addition, the Federal Economic Chamber (Wirtschaftskammer Österreich) coordinates all e- Procurement activities in Austria. The Chamber also initiated the implementation of the er@t tender service, which since January 2003 has been continued under http://www.auftrag.at, a private (100% federal state)-owned e-tendering website (Wiener Zeitung).

The Austrian Standards Institute (Österreichisches Normungsinstitut) creates contractual and procedural standards for public e-Procurement (see ONR 12050 from 1.11.2009).

Finally, the Chief Information Office/ICT Board creates, coordinates and supports the implementation of e-Government across sectors. It is composed of some member of ministries and a chief information officer1.

Federal Procurement Company Ltd. (Bundesbeschaffung GmbH - FPC, www.bbg.gv.at) organizes the field of procurement, excluding works. The Federal Procurement company is a central purchasing body according to Art 1 (10) EU Directive 2004/18/EC, mainly to the federal state administration and may offer its services also to the regional governments and municipalities. Its responsibility lies in realizing a large number of enumerated services and supplies procurements for the federal state defined by a ordinance of the Ministry of Finance, whereas the regional and local levels do not have a central procurement facility and procurement is mostly done by the individual institutions. However, regional governments and municipalities may choose to use the central purchasing body as well2.

2.1.2 Action plans and strategies

Advanced action plans in relation to promoting e-government are available, highly advanced and are broadly promoted at the national and European level (see e.g. http://www.epractice.eu/files/media/media2208.pdf), but these Action Plans are not specifically targeted towards eProcurement.

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 2 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/2004-12-country- reviews_en.pdf

Version:...... v3.1 Page: 8 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The existing general policy documents show that eProcurement initiatives in Austria strongly promote the role of SMEs as stakeholders, including e.g. through the promotion of eCatalogues (see http://www.epractice.eu/files/media/media2208.pdf, p.48 and following).

Specifically with respect to the eProcurement system at the Austrian Federal Procurement Company (FPC), policies are much better targeted and are aimed towards leveraging the impact of framework agreements to support eProcurements. The FPC is tasked with negotiating framework contracts and making them available to federal and other administrations. Use of the central framework contracts is mandatory for federal authorities for specific goods and services, but several states (Bundesländer) and a large number of municipalities have joined. The systems serve 12.000+ users; in 2009, the combined purchasing volume of FPC amounted to EUR 830m with savings of EUR 178m in procurement prices alone. The annual costs to maintain the e-shop system amount to EUR 500.000/year, which is not even 0,3% of the annual savings (the annual costs related to the operation of FPC as such amount to 4,2 Mill €/year). FPC also supports authorities and agencies by holding regular trainings both in the usage of the systems as such and on the details of new framework contracts3.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The primary act with respect to public procurement in Austria is the Public Procurement Act 2006 (Bundesvergabegesetz (BVergG), 2006), which transposed the Directives into Austrian law. See http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=2000454 7

2.2.1.2 Secondary Acts

Ordinance of the Federal Chancellor laying down the media in which notices according to the BVergG 2006 have to be published, BGBl II 2006/300 (see: http://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2006_II_300/BGBLA_2006_II_300.pdf)

Ordinance of the Minister of Finance laying down the goods and services which have to be procured via the Federal Procurement Company, BBG, BGBl II 2001/2008 (see: http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=2000135 2)

2.2.1.3 Regulatory autonomy

3 Source: http://www.epractice.eu/en/cases/fpa

Version:...... v3.1 Page: 9 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The aforementioned legal framework is applicable to all public procurements. Local administrations thus have no regulatory autonomy. However, the Länder have substantial autonomy to develop their own eProcurement solutions within the federal regulatory framework. In practice however, eProcurement infrastructure is largely developed at the federal level and made available to regional/local authorities.

2.2.1.4 Permissibility of using eProcurement

§91 (1) and §243 (1) of the BVergG explicitly notes that the permissibility of submitting electronic offers/tenders must be announced at the latest in the procurement publication, and that in the absence of any indications, offers/tenders may not be submitted electronically.

Other (electronic) features of the Austrian Federal Public Procurement Law 2006 (BVergG 2006):  Possibility to use the online register for the proof of eligibility (§70 and §231 of the BVergG);  Exchange of information between contracting authorities/entities and tenderers/candidates electronically/via fax, and only in exceptional cases via regular post (§§ 43.1 and 204.1);  Obligation to provide tender documents electronically; only in exceptional cases via regular post possible (§ 88);  Obligation to publish federal tender notices electronically on a central portal (§§52.1, 55.1, 216.1 and 219.2 BVergG 2006 in connection with ordinance of the Federal Chancellor BGBl II 2006/300, see: http://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2006_II_300/BGBLA_2006_II_300.pdf)  Provisions concerning basic rules for the electronic submission of tenders (§§ 91ff, 243 and 244), rules for electronically submitted tenders (regarding permissible formats of documents, electronic signature, permissible encryption techniques a.s.o.; §§ 113ff, 261 and 262) and rules governing acceptance and opening of electronically submitted tenders (§§119ff, 265 and 266). Evidences must be submitted in paper form if they are unavailable in an electronically signed form (‘sofern diese nicht in elektronisch signierter Form übermittelt werden’), i.e. use of electronic signatures (not necessarily advanced electronic signatures) is also required of evidences

Usage of the central framework contracts offered via the portal of the Federal Procurement Company is mandatory for federal agencies for specific goods and services (See Ordinance of the Minister of Finance BGBl II 2001/2008), but several Federal Provinces and a large number of municipalities have joined voluntarily.

2.2.1.5 Thresholds

Direct award with no advertisement obligations is permissible for contracts under the value of 40.000 € (classical sector) and 60.000 € (utilities sector). Because of the financial crisis the threshold for direct award has temporarily been raised to 100.000 € (till 31.12.2010).

Further national “sub thresholds” exist for procedures without prior publication (see for details §§ 37 and 38 BVergG 2006). However, contracting authorities may decide to publish the relevant notices

Version:...... v3.1 Page: 10 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

voluntarily. For contract over 120.000 €, publication is obligatory on the website of the National Official Journal or other regional journals.

2.2.2 Specific tools 2.2.2.1 eSignatures

The law requires the use of ‘qualified electronic signatures’ (Qualifizierte elektronische Signatur §§43.4 and 204.4).

2.2.2.2 eCommunication

As a basic rule contracting authorities/entities have to communicate with tenderers and candidates (or interested parties) electronically or via fax (§§43.1 and 204.1). For further information see 1.2.3.

2.2.2.3 DPSes

The BVergG builds on the provisions of the Directives and contains extensive rules with respect to DPSes, and incorporates small clarifying elements that are not contained in the Directives, including:

 A slightly modified definition of the DPS as such, in which a clearer distinction is made between the accession to the DPS via the indicative tender (unverbindliche Erklärung), and the subsequent submission of offers within the DPS (§25 (8))  §§157f and 289f on the setup and operation of a DPS also contain more extensive provisions with respect to the decision to allow or reject an economic operator’s participation in a DPS, including obligations to justify this decision under certain circumstances.

2.2.2.4 eAuctions

As was also the case for DPSes, the BVergG builds on the provisions of the Directives, notably by including:

 An additional justification for the closing of an auction, namely when objective causes (“sachliche Gründe”) justify this (§§147.4 and 282.4). Furthermore, if several auction phases are used, contracting authorities may eliminate bids after each phase from candidates whose changes did not meet the minimum difference requirements (§§147.5-6 and 282.5-6)  After the conclusion of the auction, all candidates must be notified simultaneously, and the winning bidder must be immediately announced on the website of the eAuction (§§147.7 and 282.7)  Introduction of a general documentation obligation for all communications in the course of an eAuction (§§147.10 and 282.10)

Version:...... v3.1 Page: 11 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Specific rule for lowest price auctions: currently lowest price must be continuously made available; other information (like the number of bidders) may be revealed if the contracting authority wishes to do so and has announced this in the original notice (§§148.2 and 283.2)  Specific rule for economically most advantageous auctions: economic operations must be informed of the relative positions of their bids compared to other candidates during the auction. Other information (like currently lowest price) may be revealed if the contracting authority wishes to do so and has announced this in the original notice (§§149.2 and 284.2)

Thus, a certain degree of gold plating4 has taken place.

2.2.2.5 Lists of economic operators

The BVergG 2006 (sec. 70 para. 5 and 231 para. 5) stipulates that the documents (evidences) pertaining to selection criteria can be verified electronically by submission and registration of these in the tender register “Auftragnehmerkataster Österreich-ANKÖ” (see on-line version http://www.ankoe.at), a private association.

ANKÖ contains the enterprise data necessary for contract award procedures. Companies (potential tenderers and candidates) submit the company data to ANKÖ once, instead of submitting them for every single contract award procedure to contracting authorities or contracting entities. ANKÖ files and updates the data and offers online access for contracting authorities/entities.

Standard company data and documents filed and updated by ANKÖ are the registration with the Commercial Register including affiliated undertakings, registration with professional registers, economic and financial standing, ability and technical capacity and the proof of reliability concerning the payment of taxes and social security contribution (see Annex).

The system currently serves 4.500 users at the contracting authorities’ side and 7.700 users at the tenderers’ side (February 2010).

The Austrian Register of Tenderers is integrated in the public sector Austrian Portal Federation.

2.2.2.6 Buyer’s profiles

Buyer’s profiles are supported through §48 and §208 of the BVergG, in similar terms as in the Directives.

4 Gold-plating refers to the practice of national bodies exceeding the terms of European Community directives when implementing them into national law (see Commission Communication on simplification; see http://ec.europa.eu/governance/better_regulation/glossary_en.htm#top. In the case of eAuctions the supplementary provision in the AUT legislation fill gaps of the European Directives or contain clarifications, but no obligatory add-ons in the sense of gold-plating which would be additional technical requirements.

Version:...... v3.1 Page: 12 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.7 Framework agreements

Framework agreements are explicitly permitted under Austrian law, notably via §150 and following of the BVergG, which specify the requirements for signing a framework agreement and the award of contracts based on framework agreements.

As was already noted above, frameworks agreements are also used in practice to a significant degree, including notably via the services of the Federal Procurement Company and its eProcurement platform.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the BVergG 2006 (sec. 68 sqq.). A lack of a requested attestation or certificate must by necessity lead to exclusion from the tender.

For foreign tenderers, the BVergG 2006 provides that equivalent documents issued by the relevant judiciary or governmental authorities from the tenderer’s country of origin will also be accepted if they adequately demonstrate that the objective of the Act was met. When the tenderer’s country of origin does not issue such documents, in some cases an attestation of a relevant court or administrative body, a public notary or a competent professional organisation will also be deemed acceptable, if it is properly given before placing the bid.

It is worth noting that the documents pertaining to selection criteria mentioned above are usually5 not originals in the sense that they carry no original signature or seal demonstrating their authenticity. Copies of such documents (which carry no original signature or seal themselves) are often submitted in procurement proceedings, and such copies are typically accepted by the contracting authority according to sec. 70 para. 3 BVergG 2006. If evidence/documentation is submitted electronically (esp. together with the tender) - as a rule - a qualified electronic signature is required. Electronic databases for evidences/documents (esp. ANKÖ, see 2.2.2.5.) play an important role.

As was already noted above, the BVergG 2006 (sec. 70 para. 5 and 231 para. 5) stipulates that the documents pertaining to selection criteria can be verified electronically by submission and registration of these in the tender register “Auftragnehmerkataster Österreich-ANKÖ” (see on-line version http://www.ankoe.at), a private association.

Finally and as also noted above, document formats must also be specified in the specifications, and these must allow the appropriate signature type to be used. Evidences must be submitted in paper form if they are unavailable in an electronically signed form (‘sofern diese nicht in elektronisch signierter Form übermittelt werden’), i.e. use of electronic signatures (not necessarily advanced electronic signatures) is also required of evidences (see 1.2.3).

5 Notwithstanding the contracting authority’s right to request original documents, e.g. balance sheets or revenue statements which have been certified by an independent auditor.

Version:...... v3.1 Page: 13 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction The Federal Government founded Bundesbeschaffung GmbH (Federal Procurement Company, FPC) in 2001 by the Federal Procurement Company Act (BBG Gesetz) to provide central procurement services to federal authorities and agencies, in particular to negotiate framework contracts and make them available to the authorities and agencies. Its primary tasks are to bundle requirements to obtain better prices and terms from suppliers and to standardise public purchasing to reduce processing costs and legal risks. From the beginning it was clear that only e-enabled services would lead to consistent usage of the framework contracts and would also strengthen the complete audit ability of the procurement process. The e-procurement-solution hence comprises of an electronic publication and notification platform, a desktop purchasing system, a travel booking tool and a data warehouse and analysis tool where the purchase data is saved for analysis and reporting. The FPC is a non-profit organisation providing free services to their mandatory clients. Federal Ministries are obliged to order from these contracts - unless they are able to obtain the same product to better conditions. Other public sector organisations like universities, communities, states, state- owned organisations may take advantage of FPC's contracts and services for a modest fee. Delivery and payment is done directly between supplier and requesting public body. Within the scope of the applicable EU and national regulations, the processes underlying the e- services were designed by FPC. However, FPC does not develop software or run a data centre. Wherever possible, standard software solutions were used which were to some extent adapted to the needs of the public sector, for instance, to support complex approval and proxy workflows and the enforcement of budget constraints. The IT services as such were outsourced to the Federal Computing Center (BRZ). This enables FPC to focus on its core competences in procurement, its processes, the processes of its customers (=the agencies using the e-services), and the management of its application portfolio to ensure optimal fit to the processes supported. FPC also supports agencies by holding regular trainings both in the usage of the systems as such and on the details of new framework contracts if their complexity is high. Extensive hotline and customer support centre services are available to the users and a system of regular user satisfaction surveys is in place covering both the services of FPC itself and the service deliveries of the vendors that were awarded the contracts. Via the BBG Portal, users in agencies are offered single sign on, in a next step the applications will be integrated in the public sector Austrian Portal Federation, which will enable the delegation of rights and access management to the participating institutions (eg, ministries deciding themselves what a certain civil servant may order from the desktop purchasing system offered by FPC). Usage of the central framework contracts is mandatory for federal agencies, but several Federal Provinces and a large number of municipalities have joined. From a technology point of view, standardisation and risk control were key elements of Federal Procurement Company (FPC) on all levels, technically and organisationally. All solutions in FPC are based on industry standard Microsoft platforms, which ensure customer support, patches and further development. However, for all solutions absolute compatibility with all widely used operating and browser systems including reasonable backward compatibility was realised. This facilitated rapid dissemination and minimised user resistance. The eShop is based on standard software by Healy Hudson which ensures constant development and maintenance as well as a strong 2nd level support. The solution had to be adapted to the public sector and the role of FPC as a mere mediator that offers framework contracts to buyers in other organisations. This adaptation entailed the handling of complex organisational assignments, release workflows, budget checks, proxy rules and SME friendly quota systems, most of which are irrelevant to private sector applications. Most of the adaptations, however, were included in the standard product of

Version:...... v3.1 Page: 14 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Healy Hudson and have become part of the vendor's standard release and quality assurance measures. Prior to the awards procedure for the e-Shop solution, a simple e-Shop was piloted for one year with a very limited range of products, which enabled FPC to enter into the final selection of a solution with much more knowledge and discrimination. The future outsourcing partner (the Federal Computing Center) was involved in the awards procedure to ensure seamless integration of organisation, software and operations. On the same token, the system was audited in advance by the General Accounting Office and the Internal Revenue Service for compliance with the applicable legislation and the application is run in an ISO 27001 certified operations environment. Offering a standard technical interface to the eShop based on BMEcat and standardised procedures facilitates the participation of SME with limited IT know-how; for many participating SME the eShop was the first contact with eProcurement and in conjunction with the training offered contributed to the "efitness" of Austrian SME. It also ensures that the FPC interfaces are compatible with the industry standard. All agencies order from the same catalogue and use the same ordering interface to the vendors. Also, reporting on the orders issued via the e-Shop is centralised and hence standardised across agencies. This does not only concern the technical interface, but above all the use of unified semantics as far as products, product classes, regional codes etc. are concerned. This makes transactions by government agencies comparable and hence strengthens transparency and accountability of agencies. The roll-out of Travi was a challenge as the software was originally designed as a specialist tool for travel agencies. However, adaptations to the software and user education contributed to the success of the booking tool in the public administration. In all applications user training and support play an important role as they do not only facilitate usage of the applications, but they also ensure that agency staff knows and follows standard procedures as implemented in the software. Since due to price and processing cost savings more and more states (Bundesländer) and municipalities (which are not legally obliged to use the system) increasingly join FPC, this standardisation is disseminating beyond federal authorities and agencies. Standardisation not only reduces costs, it also leverages experience and existing investments and hence reduces risks considerably.

3.2 Main platform

The following applications are part of the BBG main site:  e-Shop : The managed infrastructure e-Shop is an e-procurement-solution that allows customers of the FPC to call off from electronic framework agreements and contracts. The purchasing process – from raising a purchase requisition, approval workflows, completing the purchase order to dispatching the PO to the vendor – is covered within the e-Shop. Main results: o The e-Shop simplifies and speeds up the internal processes by using flexible, customer-orientated electronic workflows. o It improves the quality of business process documentation for users and their organisations: o The e-Shop brings an improvement of the FPC-Service-Architecture. Standardised interfaces enable integration in several ERP systems on buyer and supplier side. o The system provides better information for customers about the product assortment covered by FPC-contracts.

Version:...... v3.1 Page: 15 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

o As a "one stop shop" the e-Shop represents on face to the customer. In the past the customer had to handle several different supplier shops and with the increasing number of contracts - around 380 so far - supplier shops would not be practical anymore o The system achieves processing costs savings. o The implementation of e-Shop is not only a change of a tool, it also influences the work in the public administration and brings better regulations for procurement processes. o All information is transparent and traceable at any time in the purchasing process to any stakeholder involved. o The e-Shop makes suppliers "e-fit". It provides a platform to create an approve e- catalogues and handles in particular the subject of small- and medium-sized companies, who are often not aware of these technologies. o It establishes a reporting and evaluation module for the fulfilment of a procurement controlling in the case of the FPC. o The e-Shop is an outstanding and unique project on European level so far, what is also demonstrated by its figures. o Suppliers can download their orders as PDF documents or have them sent to their ERP system as XML documents. o Approvals can be handled purely electronically within the application. However, the application also provides a printout for traditional paper approval. o Suppliers may submit their electronic catalogues in BMEcat standard or simply enter the data in an Excel like template. o End user support & training is provided via help functions within the applications, eLearning tutorials, classroom trainings, telephone helpdesk. Facts & figures: o 14.000 users o 2500 registered organisations (federal, country, regional level, state-owned organisations, etc.) o 5000 orders per month o Order volume of about 15 Million Euro per month o A growth rate of volume and number of orders of about 25 percent per year o The shop contains more than 300.000 items from about 380 contracts with different suppliers in 30 product categories. o 80 percent level of use of service within the contracts that are placed in the e- Shop o The remaining 20 percent are managed traditionally. A circumstance for example is that the ministry of defence doesn't have a comprehensive IT Infrastructure. o Approximately 63 Euro processing costs savings per order o 3.5 Million Euro processing costs saving per year

Version:...... v3.1 Page: 16 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 e-Reisen: The managed infrastructure Travi is an online booking tool that allows FPC's customers to organise their travel planning including flight booking, hotel reservation and rental car reservation. Main results: o The system evaluates a best-buy recommendation that the user can easily select instead of comparing offers manually. o Travel arrangements can be administrated in the system on organisational level and are compulsive for booking (e.g. only economic class is allowed). o Sophisticated easy search and professional search o "All in one" booking tool for public authorities Facts & figures: o 5000 users o 21.000 tickets per year o Reduction of booking service costs to the range of 90 cent to 9.90 Euro instead of 18.17 Euro o Approximately 14 Euro processing costs savings per order

3.3 Additional platforms

The following platforms have been found:

 pep-online portal is the entry point for procurement services targeted to both public contracting authorities (http://www.pep-online.at/lieferanzeiger/) and economic operators (http://www.pep- online.at/auftrag/).

The “lieferanzeiger” part of the site has been established to provide public procurement bodies and companies commissioned by them with the possibility to publish, manage and communicate their public procurements to different media (national sheets, Wiener Zeitung, EU). So this platform only offers a possibility for the contracting authorities to insert their procurements (e-notification). Additionally, the contracting authorities can also manage the entire tendering process (etendering functionality): The application offers possibilities for secure and transparent communication; management of bidders in open or not public procedures, tender opening, tender awarding… The current registration process (which is a low security username/password system and additional security token after release of application) allows public procurement bodies to publish, manage and communicate their public procurements.

The “auftrag” part of the site provides all interested entrepreneurs and future tenderers with the ability to search for public procurements in all countries, on the national and on the European level. A simple search function has currently been integrated in the platform. The current registration process (which is a low security username/password system) allows tenderers to register their contact details (name, address, phone, e-mail, etc.) and indicate specific fields of interest, including e.g. by category of procurement (works, supplies or services), or in more detail by CPV codes or by NUTS codes. The platform can then automatically notify the tenderer when a new procurement of potential interest becomes available. Direct download of tender documents is also available. As this registration does not

Version:...... v3.1 Page: 17 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

require information which is specific to Austrian entities, registration is open to foreigners. Bidders can also submit tenders and post questions to the contracting authorities via this platform. Normally, tenders have to be signed with qualified signature. If the application detects a signature it is checked automatically by the server. The bidder gets information about the status of signature during the tender submission. During the tender opening process, after decryption, the contracting authority gets also information about the signature status.

 www.ankoe.at: ANKÖ acts as an information interface for public procurement procedures between economic operators and contracting authorities/entities. It contains a list of “appropriate” (as defined in the legislation) entrepreneurs. Austrian and foreign tenderers can register with ANKÖ in order to get included in this list by sending appropriate documents that will be saved by ANKÖ so that contracting authorities can contact ANKÖ to obtain confirmation of compliance of the tenderer with Austrian procurement law. ANKÖ will also initiate update processes yearly with registered entrepreneurs in order to keep the information accurate and up to date. ANKÖ’s Vergabeportal and ANKÖ’s Eingabeportal provide e-procurement support and are run by a limited liability company (ANKÖ Service G.m.b.H.) o Vergabeportal (www.vergabeportal.at): offers to subscribed contractors, suppliers and service providers online access to Austrian and EU contract notices. Effective search criteria by field of activity and region enable the enterprise to quickly find the corresponding contract notices. The user receives an e-mail with all new contract notices corresponding to his personal search profile on a daily basis. Enterprises pay 325,00 EURO per year for the use of the ANKÖ Vergabeportal. o Eingabeportal (www.eingabeportal.at): contracting authorities have access to online forms prepared by ANKÖ for prior information notices, contract notices, corrections of contract notices, recalls of contract notices, contract award notices etc. These forms meet EU and Austrian standards. Proof systems and warning messages integrated in the forms minimize the possibility of input errors. Pop up windows allow a fast search for and input of CPV and NUTS Codes. The program offers effective communication of the contract notice within the structure of the contracting authority/entity prior to dispatch. This allows that one person fills in the form and sends it to the superior for check and release. Only when the release button is activated the contract notice will be dispatched by e-mail to the Official Journal of the EU and national journals at the time predefined in the form. Tender documents may be attached to the contract notice. ANKÖ is a registered e-sender.  e-submission: enables the electronic submission of tenders by the entrepreneurs, using a qualified signature (qualifizierte elektronische Signatur). (Roll-out in March 2010.)  www.ava-online.at: The Austrian Federal Railways and the Highway Company (ASFINAG) have developed a public procurement platform since 2002 in order to facilitate procurement of construction work by fully electronic processes. It offers free download of tender documents, signature support (qualified signature required), time stamping, automation of encryption, integration with ANKÖ, statistics…  stpoelten.vemap.com: This is the procurement portal of the city of St. Pölten. The portal is available in in German only and requires a simple username/password mechanism to log on. The portal is built on vemap software including several modules like eNotification, eTendering, eAuctions, eCatalogues, eBilling…

3.4 Figures

Version:...... v3.1 Page: 18 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The central aim of the FPC is the reduction of costs of public procurement by standardisation and bundling of needs. Since its establishment in 2001 the FPC bought products and services with an accumulated volume of 4.2 Billion Euro and saved a total amount of 705 Million Euro, which means an averaged saving rate of 13.4 percent. The systems serve 12,000+ users. In 2008 the FPC reported procurements of 830 Million Euro and savings of 17.64 percent (178 Million Euro). According to the DG INFSO Benchmarking study6, Austria achieves a score of 62% for the availability benchmark while the European average is 56%. It scores 67% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper or electronic natural persons absence of conviction for Paper or electronic legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper or electronic security obligations compliance with fiscal Paper or electronic obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Paper or electronic technical and/or professional Usually paper only ability adequate insurance Paper only quality assurance Usually paper only environmental compliance Usually paper only

6 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 19 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Belgium

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The main eProcurement platform is the Belgian federal public procurement portal, which was launched in 2008.

Name Belgian federal public procurement portal URL http://www.publicprocurement.be Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Only the Belgian eID card is presently supported; registration requires a Belgian enterprise requirement number. Since December 2009, the eTendering application also accepts a certificate from Certipost allowing foreign economic operators to sign their tender documents.

Here are the DG INFSO Benchmarking report scores:

While Belgium has a non-mandatory public eProcurement platform as reported in the DG INFSO Benchmarking report, eNotification will become the official (mandatory) publication platform in Belgium in 2011.

Version:...... v3.1 Page: 20 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The Belgian regions and communities have a certain autonomy to implement their own eProcurement systems. Especially the region of Wallonia has used this competence of implementing separate eProcurement solutions to develop its own public procurement system1. The Flemish region has recently initiated a comparable project2. Both regions build on the modules developed in the federal eProcurement infrastructure. Since November 2009, the French region sends its notices to the eNotification module where they are further forwarded to the BDA (Bulletin des Adjudications) and to TED.

The following platforms have been identified:

Platform Name Platform URL Belgian federal public procurement portal http://www.publicprocurement.be/ Walloon public procurement portal http://marchespublics.wallonie.be/ Flemish public procurement portal http://www.kanoo.be/

In addition to these, the “Federal Procurement Central” (Centrale de Marchés de l'Administration fédérale - Federale Opdrachtencentrale) is a central purchasing body for IT material, cars, office stationery, and furniture, used by some federal authorities.

1.2 Laws and policies

1.2.1 Laws There are currently two overlapping laws in Belgium: the principal law remains the Act of 24 December 1993, with the two new acts of 15 and 16 June 2006 (transposing both European Directives) having been published in the Official Journal on 15 February 2007, but largely not yet having entered into force. The Acts of 2006 will not enter into force until the required Royal Decrees executing these laws have been put in place. Meanwhile, the binding elements of the Directives have been implemented via several acts, including the Programme Act of 23 December 20053, the Royal Decree of 23 November 2007, and the Programme Act of 8 June 2008; and via secondary regulation, including notably the Royal Decree of 23 November 2007, and the Programme Act of 8 June 2008.

1.2.2 Legally supported tools

 eSignatures: when electronic signatures are required, they must be qualified signatures.

1 See http://marchespublics.wallonie.be/fr/index.html 2 See http://www.kanoo.be/html/watiskanoo.html 3 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=41&pdf_file=http://www.eju stice.just.fgov.be/mopdf/2005/12/30_2.pdf

Version:...... v3.1 Page: 21 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 DPSes: no legal framework yet for DPSes (foreseen in the 2006 Act, which has not yet entered into force).  eAuctions: no legal framework yet for eAuctions (foreseen in the 2006 Act, which has not yet entered into force).  Buyer’s profiles: no specific provisions in the legal framework, but used in practice within the national procurement portal.

1.2.3 Permissibility of using eProcurement The contracting authority may decide on a case by case basis to forbid, allow or require the use of electronic means. If no instructions to the contrary are provided, the use of electronic means is forbidden.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Belgian eProcurement approach can benefit from a generally well developed eGovernment infrastructure, including specifically the Belgian eID card. The fact that the common Belgian eProcurement infrastructure is also used at the regional level ensures a degree of professionalism and consistency. In addition, the phased approach to development and deployment of eProcurement modules should ensure that any problematic issues can be more easily identified and addressed.

1.3.2 Weaknesses of the national situation

The regulatory framework is highly complex at this time, consisting of two Acts of 2006 which were envisaged to replace the Act of 1993, but which have not entered into force. Provisionally, the Act of 1993 is being maintained and continuously updated, but this does not cover all options foreseen by the Directives, and its legibility is hampered due to the many changes it has undergone in recent years. In that respect, it is meaningful to note that the law can be modified through Royal Decrees insofar as this is needed to ensure compliance with obligations resulting from international or European laws.

In addition, actual usability of the eProcurement infrastructure is largely dependent on the Belgian context, including e.g. with respect to eSignature requirements, with only Belgian signature solutions currently being supported. This means that the Belgian eProcurement infrastructure is often very difficult to use for non-Belgian economic operators. However, since December 2009, the eTendering application also accepts a certificate from Certipost allowing foreign economic operators to sign their tender documents.

Finally, according to PEPPOL4, usage of the eProcurement infrastructure so far appears to be limited in practice, with identified barriers being the relatively passive attitude of both public officials and contracting authorities, and difficulties in integrating existing eProcurement modules (eNotification,

4 Source: http://www.peppol.eu/Download/presentations/2008-12-11-2nd-peppol-reference-group- meeting/belgium

Version:...... v3.1 Page: 22 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

eTendering and eCatalogues). This is however no longer true with respect to eNotifications: 96% of all national notices are currently published on eNotification. From March 2010 all national notices (more than 20.000 per year) will have to be published on eNotification. Actions at different levels to make eTendering mandatory are in the pipeline.

Version:...... v3.1 Page: 23 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

At the federal level, coordination of public procurement policy is generally in the hands of the Federal Steering Group on Joint eProcurement5, in which major federal organisms are represented. The regulatory framework is maintained entirely at the federal level by the Procurements Section of the Federal Public Service Chancellery of the Prime Minister6. The legal framework thus remains the federal one7.

The regions and communities have a certain autonomy to implement their own eProcurement systems. Existing initiatives will be described in the technical and infrastructural framework. The risk of fragmentation is however limited, as these regional initiatives leverage the infrastructure created at the federal level.

In summary, eProcurement activities are coordinated at the federal level, including via:

 The Procurements Section of the Federal Public Service Chancellery of the Prime Minister (responsible for regulations);  The Federal Procurement Central of the Federal Public Service Personnel and Organisation (responsible for framework procurements)  The Purchasing Policy and Advice Cell of the Federal Public Service Personnel and Organisation (responsible for awareness and training)  The eProcurement Service of the Federal Public Service Personnel and Organisation (responsible for technical implementation, in coordination with the Federal Public Service for ICT (FEDICT))

Regional initiatives are also under continuous development, and build on the federal infrastructure to reduce the risk of fragmentation.

5 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/2004-12-country- reviews_en.pdf 6 See http://www.publicprocurement.be/portal/page/portal/pubproc/beep%20algemeen/over%20de%20horiz ontale%20diensten%20overheidsopdrachten 7 As noted also at http://marchespublics.wallonie.be/fr/informations-generales/reglementations/bases- legales/index.html and http://www2.vlaanderen.be/overheidsopdrachten/wetgeving.htm, respectively for Wallonia and Flanders.

Version:...... v3.1 Page: 24 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.1.2 Action plans and strategies

While it did not include quantifiable milestones in relation to eProcurement, an Action Plan was first created by the Federal Public Service Personnel and Organisation in 2004. It consists mainly of a roadmap that not only details the planning and deliverables of the Belgian eProcurement project, but also specifies the way-to-go concerning technical choices, open source strategy, procurement planning, collaboration with other authorities, etc8.

The roadmap is based on the step by step deployment of the scheduled eProcurement modules, thus also allowing the integrating of lessons learnt in other EU countries and ensuring that the functionalities are well aligned with business requirements.

A presentation of the Action Plan (in English) has been made available via the PEPPOL website, through http://www.peppol.eu/Download/presentations/2008-12-11-2nd-peppol-reference-group- meeting/belgium. Key milestones in the roadmap were:

 End 2006 : Pilot eTendering  Mid 2007 : New eNotification platform needed  End 2007 : Pilot eCatalogue  May 2008 : Go-live new e-Notification ( JEPP offline )  September 2008 : Communication campaign  2009 : eAuctions & eAwarding

However, the 2009 milestone has suffered some delay, as eAuctions are not yet supported in Belgium, largely due to the fact that the relevant provisions of the 2006 eProcurement Act have not yet entered into force, as will be noted below. The main realisations so far are thus the eNotification, eTendering and eCatalogue modules.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The legal framework in Belgium is currently quite complicated, as the existing laws of 1993 are set to be replaced by newer laws adopted in 2006, which have however not yet entered into force for the most part.

8 Source : http://www.epractice.eu/en/cases/enotbel

Version:...... v3.1 Page: 25 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The main laws are9:

 The Act of 24 December 1993 regarding public procurements and certain procurements of works, goods and services ((FR) loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services; (NL) wet van 24 december 1993 betreffende de overheidsopdrachten en sommige opdrachten van werken, leveringen en diensten) ;  This act is to be replaced by the Acts of 15 and 16 June 2006 on public procurements and certain procurements of works, goods and services ((FR) Loi relative aux marchés publics et à certains marchés de travaux, de fournitures et de services; (NL) Wet overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten;  The new Act of 16 June 2006 was modified by the Act of 8 June 2008 regarding various provisions ((FR) Loi portant des dispositions diverses; (NL) Wet houdende diverse bepalingen).

Thus, there are currently two overlapping laws in Belgium: the principal law remains the Act of 24 December 1993, with the two new acts of 15 and 16 June 2006 (transposing both European Directives) having been published in the Official Journal on 15 February 2007, but not yet having entered into force (except for a limited number of articles related to central purchasing bodies (art. 2, 4°) and their functioning (article 15), social building construction (art. 31), recognition of contractors (art. 77, 3°) and certain procedural provisions. The Acts of 15 and 16 June 2006 will not enter into force until the required Royal Decrees executing these laws have been put in place.

None the less, despite the fact that the Acts of 2006 have not yet entered into force, the binding elements of the Directives have been implemented via several acts, including the Programme Act of 23 December 200510, the Royal Decree of 23 November 200711, and the Programme Act of 8 June 200812; and via secondary regulation, including notably the Royal Decree of 23 November 200713, and the Programme Act of 8 June 200814.

9 Source: http://chancellerie.belgium.be/16procurement/, or for a direct link to the law http://kanselarij.belgium.be/nl/binaries/lois_marches_publics_wetten_overheidsopdrachten_tcm171- 30291.pdf (French and Dutch) 10 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=41&pdf_file=http://www.eju stice.just.fgov.be/mopdf/2005/12/30_2.pdf 11 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=6&pdf_file=http://www.ejusti ce.just.fgov.be/mopdf/2007/12/07_1.pdf 12 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n

Version:...... v3.1 Page: 26 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.2 Secondary Acts The law of 24 December 1993 was detailed and executed through a number of Royal Decrees, including in particular15:

 The Royal Decrees of 9 January 1996 relating to rules for assignment and of 26 September 1996 regarding general execution ((NL) Koninklijk besluit van 8 januari 1996 – gunningsregels; Koninklijk besluit van 26 september 1996 – algemene uitvoeringsregels; (FR) Arrêté royal du 8 janvier 1996 – règles de passation; Arrêté royal du 26 septembre 1996 – règles générales d'exécution), as frequently modified and maintained.The aforementioned Royal Decrees were notably substantially amended through the Royal Decree of 18 February 2004 to permit the use of electronic means in public procurements.  Royal Decree of 23 November 2007 modifying the Act of 24 December 1993 ((NL) Koninklijk besluit tot wijziging van de wet van 24 december 1993 en van sommige Koninklijke besluiten tot uitvoering van deze wet; (FR) Arrêté royal modifiant la loi du 24 décembre 1993 et certains arrêtés royaux pris en exécution de cette loi)  Royal Decree of 29 September 2009 modifying the Act of 24 December 1993 ((NL) Koninklijk besluit tot wijziging van de wet van 24 december 1993 en van sommige Koninklijke besluiten tot uitvoering van deze wet; (FR) Arrêté royal modifiant la loi du 24 décembre 1993 et certains arrêtés royaux pris en exécution de cette loi)

For procurements in the utilities sectors (notably covering water, energy, transportation and postal services) (Directive 2004/17/EC), partially different Royal Decrees apply16:

m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=56&pdf_file=http://www.eju stice.just.fgov.be/mopdf/2008/06/16_2.pdf 13 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=6&pdf_file=http://www.ejusti ce.just.fgov.be/mopdf/2007/12/07_1.pdf 14 See http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl?chercher=t&language=nl&dt=WET&choix1=EN&choix2 =EN&numero=4&table_name=WET&fromtab=wet_all&nl=n&imgcn.x=34&DETAIL=1993122437/N&n m=1994021012&imgcn.y=12&sql=dt+contains++%27WET%27+and+dd+=+date%271993-12- 24%27and+actif+=+%27Y%27&ddda=1993&rech=6&tri=dd+AS+RANK+&trier=afkondiging&dddj=24& cn=1993122437&row_id=1&caller=image_a1&dddm=12&la=N&pdf_page=56&pdf_file=http://www.eju stice.just.fgov.be/mopdf/2008/06/16_2.pdf 15 Source: http://chancellerie.belgium.be/16procurement/, or for a direct link to the law http://kanselarij.belgium.be/nl/binaries/lois_marches_publics_wetten_overheidsopdrachten_tcm171- 30291.pdf (French and Dutch) 16 Source: http://chancellerie.belgium.be/16procurement/, or for a direct link to the law http://kanselarij.belgium.be/nl/binaries/lois_marches_publics_wetten_overheidsopdrachten_tcm171- 30291.pdf (French and Dutch)

Version:...... v3.1 Page: 27 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Royal Decrees of 10 January 1996 and 18 June 1996 relating to rules for assignment and of 26 September 1996 regarding general execution  Royal Decrees of 23 November 2007 and 29 September 2009

As noted above, the Decrees of 23 November 2007 and 29 September 2009 transposed certain parts of the Directives, while awaiting the entry into force of the Acts of 15 and 16 June 2006.

2.2.1.3 Regulatory autonomy This legal framework is in principle applicable to all public procurements, including the federal government, communities, regions, provinces, communes, and any associations established by these. Local administrations thus have no regulatory autonomy; any contracting authority wishing to organise a public procurement must adhere to the federal framework.

2.2.1.4 Permissibility of using eProcurement Art. 81quater of the Royal Decree of 8 January 1996 (as most recently modified by the Royal Decree of 29 September 2009) allows the contracting authority to decide on a case by case basis to forbid, allow or require the use of electronic means. If no instructions to the contrary are provided, the use of electronic means is forbidden.

2.2.1.5 Thresholds The Belgian thresholds are defined through Royal Decree, currently the Royal Decree of 27 December 2007. The following thresholds apply17:  Classical regime: publication is mandatory starting from the threshold of 67.000,01 € (works, supplies, services) and EU threshold for the services A6, A8 and B21.  Utilities (public): thresholds of 125.000 € (works, supplies, services) and of 193.000 € for the services A6, A8 and B21.  Utilities (private): EU thresholds

Electronic notification is free of charge if the contracting authority uses the centralized notification service (https://enot.publicprocurement.be/).

17 See http://www.publicprocurement.be/portal/page/portal/pubproc/beep%20algemeen/handleiding%20overh eidsopdrachten2/manuel%2018n.docx

Version:...... v3.1 Page: 28 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2 Specific tools 2.2.2.1 eSignatures

Article 81quater of the Royal Decree of 8 January 1996 (as modified by the Royal Decree of 18 February 2004 and the Royal Decree of 29 September 2009) requires that the electronic means to be used in eProcurement rely on electronic signatures meeting the requirements of advanced signatures based on qualified certificates created using a secure signature creation device (i.e. a so-called qualified signature). Thus, when electronic signatures are required, they must be qualified signatures.

2.2.2.2 eCommunication In order to ensure the reliability of eCommunications in general, the Belgian legal framework contains several provisions which are absent in the Directives to improve security and integrity, e.g. the requirement that any electronic offers showing signs of malicious macros or viruses are placed in a security archive; in this case, they may be considered as not having been received. Article 66quater §3 of the Royal Decree of 10 January 1996, as amended contains a series of measures that can be taken ‘to resolve certain problems that can present themselves’ when using eProcurement. Specifically, the contracting authority may allow economic operators to submit extensive electronic documents via a double submission process, with the first phase containing only signed basic information (identity, date, price etc), and the second containing all relevant information (again electronically signed). Alternatively, the economic operator may be allowed to submit a back-up copy (security copy) of the tender, either electronically or in a paper format, which will only be opened in case of issues with the electronic version.

2.2.2.3 DPSes

There is no legal framework yet for DPSes. This is foreseen in the Acts of 2006, but these provisions haven’t entered into force yet.

2.2.2.4 eAuctions

As with DPSes, a legal framework for eAuction is foreseen in the Acts of 2006, but these provisions haven’t entered into force yet.

2.2.2.5 Lists of economic operators

An official list for approved economic operators exists under the Act of 20 March 1991 pertaining to the recognition of building contractors, i.e. separate from the generic legal framework for eProcurement. It is managed by the Federal Public Service of the Economy – Section accreditation of contractors. General guidelines for inclusion are made available online18.

18 See http://economie.fgov.be/organization_market/construction_quality/construction_quality_fr_001.htm and http://mineco.fgov.be/organization_market/construction_quality/home_fr.htm.

Version:...... v3.1 Page: 29 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.6 Buyer’s profiles

While no specific provisions for buyer’s profiles exist in the legal framework, they are still occasionally but not yet systematically used in practice. Through the national procurement portal (www.publicprocurement.be), they can be accessed directly (if used by the contracting authority), as a URL to the buyer profile is included in contract notifications (see e.g. https://enot.publicprocurement.be/enot-war/preViewNotice.do?noticeId=46784). However, use of this portal is not mandatory.

2.2.2.7 Framework agreements

Framework agreements are not yet legally possible in Belgium, as they were only introduced by the two aforementioned acts of 15 and 16 June 2006, which have not yet entered into force (except for a limited number of articles as noted above). In contrast, framework contracts have been possible for several years. The difference lies in the scope: framework contracts are concluded between a single contracting authority and a single economic operator for a limited duration of time, whereas framework agreements can involve one or more contracting authorities and one or more economic operators. To improve the efficiency of public procurements, framework contracts have been used in Belgium already prior to the introduction of the new Directives. The federal central procurement office is the government body dealing with crossdepartmental framework contracts (Contrats-cadre multi-SPF (CMS) - FOD-overschrijdende raamcontracten (FOR)). In a 2008 evaluation of framework contracts in Belgium, the Court of Audits noted that: “The market penetration of the various procurement offices varies from 2,6 % (federal office in Belgium) to 30 % (Italy). […] The various procurement offices offer a wide product range, but telecommunications, photocopiers, energy, ICT, office supplies, catering, furniture and transport are considered to offer most value for money. Customers’/public bodies’ input is essential to work out contracts dealing with new products. The survey also showed that customers profiles differ widely and that purchase obligations exist in five procurement offices out of eight. With the exception of the Belgian federal procurement office and the Walloon Region office, all procurement offices enjoy a certain degree of autonomy.”19

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Royal Decree of 8 January 1996 and the Royal Decree of 10 January 1996. Only a lack of a social security attestation (if requested) must by necessity lead to exclusion; the other requirements only allow (but don’t require) the contracting authority to exclude a tenderer. When the tenderer cannot present the required documentation with regards to economical and financial suitability for valid reasons, this may be demonstrated through any other documents which the contracting authority deems suitable.

A noteworthy initiative in the field of (e)Procurement is the Royal Decree of 20 July 2005 modifying the three aforementioned Royal Decrees with regard to public procurement. This Royal Decree aimed at

19 Source: http://ccrek.be/docs/Reports/2008/2008_07_FrameworkAgreements_ComparativeSummary.pdf

Version:...... v3.1 Page: 30 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

simplifying administrative procedures in public procurements, by requiring contracting authorities to electronically obtain the commonly required certificates itself, if it is possible to do so without expense.

The Decree inserts a blanket obligation in the affected procedural decrees, and states that when a contracting authority can access electronically and without expense the information or documents required to determine the personal situation and capability of the tenderers, then it must exempt tenderers of presenting such information or documents and acquire them itself. In this case, the contracting authority must also notify the tenderers of this exemption in the original call.

In practice, this means that Belgian tenderers (national and legal persons) are exempt from providing a number of documents, including:

 Social security attestations;  VAT-registration;  Annual accounts;  Global revenue over the last three accounting years.

This is a requirement incumbent on all contracting authorities, both on a federal and on a regional level. Through this Decree, the practical problem surrounding the delivery of those 4 authentic certificates and attestations is solved for Belgian tenderers.

Finally, as a general principle the contracting authority may only request information of the tenderer insofar as this is useful for the purposes of this tender. To ensure that this principle is observed in practice, a ministerial circular letter20 was issued on 14 April 2007, establishing the principle that a submission of an offer constitutes an implicit declaration on honour confirming compliance with the exclusion criteria of art. 17 – 43 – 69 of the Royal Decree of 8 January 1996. Thus, no further warranties would be required in this regard. After choosing the best candidate for the procurement, the contracting authority examines the implicit declaration, including by requesting additional information if necessary. the exclusion criteria.

Thus, in principle only the best candidate needs to provide any information. In this way electronic tendering becomes substantially easier, including for foreign tenderers.

20 See http://www.belgium.be/eportal/application?pageid=contentPage&docId=45838 (Dutch version) or http://www.belgium.be/eportal/application?pageid=contentPage&docId=45840 (French version)

Version:...... v3.1 Page: 31 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

While the legal framework is managed at the federal level, from a technical perspective however, there is a larger degree of decentralisation.

3.2 Main platform

At the federal level, a common eProcurement architecture is developed by the eProcurement Service of the Federal Public Service Personnel and Organisation, in coordination with the Federal Public Service for ICT (FEDICT)21. The main Belgian federal public procurement portal22 was launched in 2008. Public procurement initiatives in Belgium started earlier under the form of the so called JEPP (Joint Electronic Public Procurement) platform that allowed public procurement announcements to be published using the standard XML format. This platform is now totally deprecated and being replaced by the new federal portal, but references to the acronym JEPP are still used at many locations.

The federal portal (available in French and Dutch) provides general information on public procurement and some more specific information for enterprises and public buyers (manual, contact addresses, help desk, list of relevant services…). Short free training sessions are organized monthly either for enterprises or public servants which is a worth being mentioned as a good practice.

The portal acts also as an entry point towards more specific eProcurement tools: eNotification, eTendering and eCatalog. All these sites are available in English, French, Dutch and German and an online test version is also provided so that users can freely discover the functionality and practice without any risk. The platform is being developed from scratch by an external contractor based on open source components, J2EE, apache, tomcat, mysql…and open standards/protocols such as HTML, XML, SSL, OCSP, PKCS12…

With respect to electronic signatures, the applications implement the use of the Belgian eID card which gives Belgian public servants the possibility to easily sign and certify their documents using qualified signatures. With respect to signatures created by economic operators, currently only the Belgian eID card appears to be supported, which constitutes a barrier to most foreign economic operators.

The 3 currently provided components are:

21 See http://www.publicprocurement.be/portal/page/portal/pubproc/beep%20algemeen/over%20de%20horiz ontale%20diensten%20overheidsopdrachten 22 See http://www.publicprocurement.be

Version:...... v3.1 Page: 32 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 The eNotification23 platform is a secure web-based application where contracting authorities and economic operators can perform multiple tasks related to the Electronic preparation, publication, management and retrieval of business opportunities. The contracting authorities can manage online the preparation of documents and publication notices using any of the 14 forms defined by the European Commission. The system also implements signing mechanisms and supports the electronic submission towards national (BDA) and, if necessary, European (TED) publication offices. During the preparation of their publication, the contracting authorities can also decide to activate the use of eTendering (see below) which supports the submission of electronic tenders and the electronic opening. Searching for publications is possible according to a large list of criteria (status, CPV code, contracting authority, TED publication number, type of contract or service, publication date and language …). It’s also possible to activate an automatic e-mail notification based on a search profile.

 The eTendering platform24 is a secure platform where contracting authorities and economic operators can perform their daily eProcurement activities, Contracting authorities will get support for the visualisation, modification, submission, qualification and opening of a tender while economic operators will be supported in the process of carrying out automated, transparent and safe preparation and submissions of tenders. Since December 2009, eTendering application also accepts a certificate from Certipost allowing foreign economic operators to sign their tender documents.

 The eCatalogue platform25 is a secure platform that offers possibilities to manage contractual activities relating to electronic catalogues such as the electronic order. Contracting authorities can consult catalogues, place purchase orders and perform follow up of the orders. Economic operators will be able to upload their catalogues, receive and manage purchase orders. Validation and translation of catalogues are also supported. There are plans to link the eCatalogue platform with the Belgian federal accounting system. The electronic catalogue format is based on the UBL 2.0 standard.

3.3 Additional platforms

As stated previously, the regions and communities have a certain autonomy to implement their own eProcurement systems.

Especially the region of Wallonia has used this competence of implementing separate eProcurement solutions to develop its own public procurement system26, which has won a Public Tender Award in 2009. The site, available in French only, can be used to search for tenders and execute online submissions. Like the federal portal, the site provides general and specific information, user guides, live recording demonstrating the submission of an offer and a test system.

23 See https://enot.publicprocurement.be 24 See https://eten.publicprocurement.be 25 See https://ecat.publicprocurement.be 26 See http://marchespublics.wallonie.be/fr/index.html

Version:...... v3.1 Page: 33 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The Flemish region has recently initiated a comparable project27. The Flemish policy for eProcurement means a roll out of three modules: eSourcing and eNotice (summarized as eNotification), eTendering and eContract. For the front office modules the Flemish administration is using the federal applications. Flemish effort is focused on the development of eCcontract (a contract management system). The site, available in Dutch only, provides some general and specific information on public procurement, trainings and refers then to the federal portal.

In addition to the official federal and regional portals, we can also mention the “Federal Procurement Central” (Centrale de Marchés de l'Administration fédérale - Federale Opdrachtencentrale)28, a central purchasing body, which organises grouped purchases (IT material, cars, office stationery, and furniture). Its services are being used by some federal authorities and are accessible through the federal Intranet.

3.4 Figures

According to the DG INFSO Benchmarking study29, Belgium achieves a score of 34% for the availability benchmark while the European average is 56%. It scores 79% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only (although for Belgian service providers, Belgian contracting authorities can security obligations request the information directly with the Federal Service of Social Security, thus decreasing the need for an attestation for the purposes of public procurement) compliance with fiscal Paper only (although for Belgian service providers, Belgian contracting authorities can obligations request the information directly with the Administration of Direct Taxation, thus decreasing the need for an attestation for the purposes of public procurement)

27 See http://www.kanoo.be/html/watiskanoo.html 28 See http://www.publicprocurement.be/portal/page/portal/pubproc/ondernemingen/for/ 29 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 34 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Electronic information can be looked up via http://kbo-bce- ps.economie.fgov.be/ps/kbo_ps/kbo_search.jsp?lang=fr&dest=ST. Enterprises and entrepreneurs can be looked up via their name and enterprise number technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

Version:...... v3.1 Page: 35 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Bulgaria

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The primary eProcurement platform is the Public Procurement Portal; however, at this time it is only used for the publication of notices and for eAcces to tender documents, not for actual eTendering.

Name Public Procurement Portal URL http://www.aop.bg Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication An universal electronic signature is required for: requirement  the automatic import of documents into Public Procurement Register through the specialised software application “Procurement Form Editor”;  on-line publication of a tender dossier;  the authentication of the Authorised Procurement Agents (a special kind of registered users).

Here are the DG INFSO Benchmarking report scores:

Version:...... v3.1 Page: 36 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified:

Platform Name Platform URL Public Procurement Portal www.aop.bg Electronic market for small public procurement smallsrv.minfin.bg

1.2 Laws and policies

1.2.1 Laws

Public procurement legal matters in Bulgaria are regulated by the Public Procurement Law (PPL) and the relevant secondary legislation. The national legislation in the field has been brought in line with the EU Directives 2004/17/EC and 2004/18/EC on public procurement with the Law for amendments and supplements to the PPL, adopted by the National Assembly on 20 April 2006 and entered into force on 1 July 2006. Since then the Law has undergone additional modifications. The draft law for the transposition of the New Remedies Directive 2007/66/EC is to be approved in the very near future. The English version of the PPL is available on the Public Procurement Portal: http://rop3-app1.aop.bg:7778/portal/page?_pageid=173,1106253&_dad=portal&_schema=PORTAL

1.2.2 Legally supported tools

 eSignatures: in accordance with the regulations of the Law for the electronic document and the electronic signature (LEDES), a so called universal signature must be used;  DPSs: regulated under Chapter VIIB, Art. 93e – 93k of the PPL;  eAuctions: regulated by PPL and the Rules for the Implementation of PPL (RIPPL);  Buyer’s profiles: there is a legal definition in Para. 1, p. 20 of the Additional provisions to the PPL;

1.2.3 Permissibility of using eProcurement

In accordance with article 57 (5) of the PPL, the tender may also be presented by electronic means under the conditions and following the procedure of the Law for the electronic document and the electronic signature. In addition, in the course of the procedure the exchange of information may also be accomplished by electronic means under the conditions and following the procedure of the Law for the electronic document and the electronic signature (Art. 58a, par. 2 of PPL). The chosen means of communication must be accessible to all. Thus, in principle economic operators may freely choose to use eProcurement.

Version:...... v3.1 Page: 37 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Bulgarian eProcurement approach can benefit from a clear and well developed legal framework, which ties in well with other regulations, specifically the Law for the electronic document and the electronic signature. With the establishment of the Public Procurement Register, the first important infrastructural steps have been taken. In addition, with the launch and the upgrades of the Public Procurement Portal new functionalities have been introduced. The most important of them is electronically submission for tender documents via the Portal. The exchange of information between the contracting authorities/entities and candidates/tenderers is also realized and visualized through the Portal.

1.3.2 Weaknesses of the national situation

The available structure is still at a relatively early stage, with the emphasis being on eNotification and eAccess. Online submission of tenders does not yet appear to be supported via the portal. In addition, the legal requirement for the usage of “universal electronic signature” may pose some obstacles to cross border procurement. This means that foreign economic operators may have difficulties in submitting electronic tenders.

Version:...... v3.1 Page: 38 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

In Bulgaria, the Minister of Economy, Energy and Tourism carries out the state policy in the field of public procurement. The Public Procurement Agency (PPA) assists him in implementing the state policy in the sphere of public procurement.

One of the main functions of the Agency is to maintain the Public Procurement Register. The Register is an electronic database which includes full information for all announced public procurement and the information for the awarded contacts after conducted public procurement procedures. The Register is the main tool ensuring the principles of the publicity, transparency and fair competition. Access to it is free of charge through the Portal. No central purchasing body (CPB) functions at present. The contracting authorities/entities are in principle responsible for their own procurement needs. The procurement mechanism in place however, follows a relatively centralised approach where all notices are published on the PPA website (http://www.aop.bg, main structure also available in English), on the site of Bulgarian State Gazette (http://dv.parliament.bg/DVWeb/porachkiList.faces) and on the Official Journal website for the contracts that reach European thresholds. On the 10th of February 2010 Bulgarian Council of Ministers made a decision appointing the Vice Prime Minister and Minister of Finance to act as central purchasing body for the public administration. The secondary legal framework for the new central purchasing body has to be drafted up to the middle of 2010.

2.1.2 Action plans and strategies

The current Public Procurement Law provides many of the elements required in a modern procurement system in order to ensure fair competition and professional handling of tenders. However, further work to upgrade the legislation, the administrative procedures, the efficiency of the system at operational level and the mechanisms for monitoring/controlling procurement activities is necessary. In particular, it is estimated that further development of the organization and capacity of the PPA is required with respect to the changes introduced with the implementation of the new EU Directives and enhancement of the role of the PPA as a controlling body.

Although efforts geared towards the modernization of the public procurement sector in Bulgaria are relatively new, it is considered that the strategy and action plan on public procurement should, inter alia, include:

 The creation of a nationwide training and information programme for the procurement community;  Increased operational support to contracting authorities (operational guidelines);

Version:...... v3.1 Page: 39 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 The elaboration of plans to support long-term capacity building in procurement by strengthening the operational competence of contracting authorities;  The development of plans and measures to organize systems for coordinated and centralized purchasing, including the use of framework agreements;  The development of plans and further measures on the implementation of e-Procurement.

2.2 Legal framework

2.2.1 General regulations 2.2.1.1 Primary and Secondary Acts The national legislation in the sphere of public procurement comprises:  Public Procurement Law;  Rules for Implementation of the Public Procurement Law;  Ordinance on the Award of Small Public Procurement Contracts (OASPPC);  Ordinance on the Award of Special-Purpose Public Procurement Contracts (OASPPPC);  Ordinance on Exerting Ex-ante Control over procedures for the award of public contracts financed in whole or in part with European funds;  Ordinance for the conduct of urban development contests and investment design. All acts in the field of the public procurement can be seen on http://rop3- app1.aop.bg:7778/portal/page?_pageid=173,1106253&_dad=portal&_schema=PORTAL .

2.2.1.2 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.3 Permissibility of using eProcurement

In accordance with article 57 (5) of the PPL, the tender may also be presented by electronic means under the conditions and following the procedure of the Law for the electronic document and the electronic signature.

In addition, in the course of the procedure the exchange of information may also be accomplished by electronic means under the conditions and following the procedure of the Law for the electronic document and the electronic signature (Art. 58a, par. 2 of PPL). The chosen means of communication must be accessible to all. Thus, in principle economic operators may freely choose to use eProcurement. The same paragraph of the law also indicates that when economic operators submit their offers electronically, they must also submit to the contracting authority all documents which do not exist in electronic format according to the procedure established by Paragraph (1) (i.e. on paper) before expiry of the time limit for the receipt of tenders. Thus, allowance is made for the possibility of electronic original documentation not being available.

Version:...... v3.1 Page: 40 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.4 Thresholds

The Public Procurement Law is applicable to:  public works contracts above the threshold value of 2,15 million BGN,  public supply contracts above the threshold value of 180.000 BGN,  public service contracts above the value 110.000 BGN and  design contracts above the value of 110.000 BGN. Certain industries are excluded from the public tender process.1. Article 12 of the Public Procurement Law regulates these exclusions.

The Ordinance for the award of small public procurement contracts defines following thresholds:  public works contracts – above 200.000 BGN and below or equal to 2,15 million BGN,  public supply contracts – above 50.000 BGN and below or equal to 180.000 BGN,  public service contracts - above 50.000 BGN and below or equal to 110.000 BGN,  design contracts – above 30.000 BGN and below or equal to 110.000 BGN.

2.2.2 Specific tools 2.2.2.1 eSignatures

The terms and conditions of the Law for the electronic document and the electronic signature must be followed, which means that a so called universal signature must be used. This is a type of advanced electronic signature which is supported by a qualified certificate issued by a registered Certification Service Provider (i.e. registered in Bulgaria). This has clear interoperability repercussions, as it implies only Bulgarian CSPs can meet the legal requirements. Permissibility of eSubmission must be indicated by the contracting authority.

2.2.2.2 eCommunication

No notable changes to the provisions of the Directives.

2.2.2.3 DPSs

Legal support for DPSs has been implemented under articles 93e÷93k of the Public Procurement Law. As defined in art. 93e of the PPL the dynamic purchasing system is entirely electronic process for performing customary deliveries, whose market characteristics respond to the contracting authority’s requirements. The system is operational for a period not longer than 4 years and during the term of its

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 41 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

effect is open for including every candidate, who meets the criteria for selection and has presented an advance offer, which corresponds to the specifications. As an exception the term of action of the system may exceed 4 years, provided that the contracting authority states the reasons for that in the announcement. As of January 2010, there are no published notices for DPSs on the Public Procurement Register. This kind of public procurement procedure is in practice difficult to understand and apply.

2.2.2.4 eAuctions

The concept of eAuctions is defined under § 1 (5) of the Additional provisions of the Public Procurement Law, but specific provisions with respect to eAuctions are included in a separate document, namely the Rules for Implementation of the law: articles 31÷34.

2.2.2.5 Lists of economic operators

There are no official lists of accredited economic operators. However, the Public Procurement Agency maintains list of economic operators that have been awarded a public contract at least once. Their address data are available in the published contract award notices. The list could be accessed on: http://rop3-app1.aop.bg:7778/portal/page?_pageid=173,1082250&_dad=portal&_schema=PORTAL

2.2.2.6 Buyer’s profiles

Buyer’s profiles are defined and referenced in the Public Procurement Law in similar terms as under the Directives.

2.2.2.7 Framework agreements

Framework agreements are covered by the Public Procurement Law in articles 93a÷93d and it is explicitly foreseen that a future central purchasing body would use framework agreements as one of its primary tools. Some of the biggest contracting authorities already use this tool in their public procurement practice.

They are defined as “an agreement concluded between one or more contracting authorities and one or more potential contractors of public procurement, whose purpose shall be to determine in advance the terms of the contracts, which the parties intend to conclude for certain period of time, not longer than 4 years, including with regard to the prices, and if possible – the amounts provided. As an exception the term of the frame agreement may be longer than 4 years, provided that the contracting authority shall point out the motives for that in the announcement.” (Art. 93 PPL). Other aspects are regulated in line with the provisions of the Directives.

Version:...... v3.1 Page: 42 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Public Procurement Law, the Rules for the Implementation of the Public Procurements Law and the Ordinance for the award of small public contracts.

With the amendments to the PPL in force on January 1 st, 2009, the contracting authorities/entities with regards to whom Art. 23, para 4 of the Law of the Commercial Register is applied, may not require the documents under para 9, if these documents refer to circumstances entered in the Commercial Register. If the candidate/participant is a legal entity or a sole trader a copy of the registration document or unified identification code according to Art. 23 of the Law of the Commercial Register must be provided; or a copy of the identification document where the participant is an individual (Art. 56 PPL).

Foreign tenderers shall be obliged to present documents for certifying the absence of the circumstances under art. 47, para 1 PPL and the ones, indicated in the announcement under art. 47, par. 2 PPL, issued by a competent body, or an extract from a court register or an equivalent document by a judicial or administrative body in the country where he/she is established. In case the documents under par. 2 are not issued in the respective country or if they do not include all cases under art. 47, par.1 and 2, the participant shall present an affidavit, if such is of legal value according to the law of the country where he/she is established.

If the affidavit is of no legal value according to the respective national law, the participant shall present an official application, made before judicial or administrative body, notary or competent professional or commercial authority in the country where he/she is established.

Version:...... v3.1 Page: 43 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

3.2 Main platform

The main platform, available in Bulgarian and English, is the Public Procurement Portal (PPP) – www.aop.bg. The Public Procurement Portal is a publicly accessible information system. Registration is possible using a simple username/password mechanism. User access does not require prior registration, with the exception of some functions, such as advanced search within the Public Procurement Register (PPR), creating and managing search patterns, setting automatic notification by email about new information in the PPR, corresponding to certain patterns and access to administrative interface. These functions require prior registration of the user. The most important component of the Public Procurement Portal is the Public Procurement Register, which is a single electronic database containing information about all award procedures in Bulgaria. Each public procurement procedure published in the Register gets allocated a unique procurement number in nnnnn-yyyy-xxxx format, where nnnnn is the account of the procuring authority/entity, yyyy is the year, in which the procedure has been opened, and xxxx is the consecutive number of the procurement for the respective year. The Public Procurement Register can be accessed by choosing the "Register" or "eServices" buttons. Two search mechanisms exist in the Register database – the Fast and the Advanced Search mechanisms. The Fast Search comprises the most frequently used criteria. The Advanced Search allows filtering PPR information according to vast range of criteria. The Advanced Search offers two possibilities: procurement file search and separate documents search depending on the chosen links. The other important functionality – eAccess to documentation - is accessed from the Public Procurement Register. This functionality includes online submission of documentation for participation in contract award procedure, expression of an interest in a public contract, download of documentation, clarifications (asking and answering questions), Public Procurement Portal offers some additional electronic services:  Small value contracts - provides the opportunity of publishing notices about small value public contracts. This type of public procurement is not subject to the provisions of the Public Procurement Law, but only requires collecting no less than three offers. The Small value Contracts service allows users to see the full list of announcements and search through it according to various criteria.  Virtual clerk - an online service which facilitates users to send digitally signed documents, as well as to receive replies from Public Procurement Agency.  On-line forms - a service for online completion of public procurement notices. It is available only to contracting authorities/entities having an authorised procurement agent and is activated by an internal website for document management. This e-service is an alternative to PPA-freely provided specialized software product Form Editor.  eSender - a free e-service, by which PPA forwards to the Official Journal of the European Union public procurement notices for publication.

Version:...... v3.1 Page: 44 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Procurement Planner - a tool for calculating and scheduling the time needed to conduct a public procurement procedure.

3.3 Additional platforms

The following platform has additionally been identified:  smallsrv.minfin.bg: The purpose of this site is to provide a universal, transparent and competitive operating environment for more effective interaction between suppliers and buyers for small contracts. The site, available in Bulgarian only provides a search engine for small contracts according to simple criteria like category, contracting authority and status. When available, documents can be downloaded electronically. This platform is used by the Ministry of Finance and its agencies only.

3.4 Figures

According to the DG INFSO Benchmarking study2, Bulgaria achieves a score of 67% for the availability benchmark while the European average is 56%. It scores 50% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Not applicable (legal persons cannot be convicted) legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper or electronic security obligations compliance with fiscal Paper or electronic obligations economic and financial Usually paper only standing

2 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 45 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

professional qualification Usually paper only technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

Version:...... v3.1 Page: 46 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Croatia

(No validating or corrective feedback was received from Croatia concerning this profile)

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

An eProcurement portal has been created in Croatia, but it appears to support information distribution only at this point.

Name Portal of Public Procurement URL http://www.javnanabava.hr Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication N.A. requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Portal of Public Procurement http://www.javnanabava.hr/

Version:...... v3.1 Page: 47 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Electronic procurement search ads http://ponuda-jn.nn.hr/

1.2 Laws and policies

1.2.1 Laws The relevant legislative source in the field of public procurement in Croatia is the Public Procurement Act (hereinafter PPA, Official Gazette 110/07), as amended by the Act on Amendment to the Public Procurement Act (Official Gazette 125.08). An unofficial consolidated version of the applicable Act is available online (http://www.javnanabava.hr/userfiles/file/ZAKONODAVSTVO%20RH/ENGLESKI/ZAKONI/Public_Proc uremet_Act_CONSOLIDATED_%20OG%20110_07_&_125_08.pdf).

1.2.2 Legally supported tools

 eSignatures: Article 30 (7) of the Public Procurement Act requires the use of an advanced electronic signature.  DPSes: supported through art.103-104 of the Public Procurement Act.  eAuctions: supported through art. 97 and following of the Public Procurement Act.  Buyer’s profiles: not referenced in the Public Procurement Act.

1.2.3 Permissibility of using eProcurement Art. 30 (6) of the Public Procurement Act notes that the permissibility of the electronic submission of tenders shall be published in the tender documents at the latest. While ambiguous, this seems to suggest that permissibility is dependent on a prior decision, and thus that eProcurement is only possible when permitted in the tender documents.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The assessment of the Croatian situation shall be necessarily limited to the legal and policy framework, given the fact that no full and mature implementation of these principles has followed yet in practice. Croatia is showing a great effort to modernise its e-Government system in general and its e- Procurement system in particular.

Croatian legislation is fully consistent with EU Directives in the field of e-Procurement, and the awareness of public institutions about (together with the growing ability of State officers to deal with) e- Procurement is certainly a positive factor.

1.3.2 Weaknesses of the national situation

Version:...... v3.1 Page: 48 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The main weakness relates to the lack of the implementation of an e-Procurement system in Croatia. The Portal of Public Procurement (http://www.javnanabava.hr/defaulteng.aspx) is very helpful in providing information about public procurement policies and legislation, but it is not yet a portal where suppliers and public authorities can buy and sell goods.

Version:...... v3.1 Page: 49 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Responsibilities in the field of e-procurement in Croatia are split among different institutions, namely:

 The Ministry of Economy, Labour and Entrepreneurship as regards the public procurement policies (http://www.mingorp.hr/defaulteng.aspx), together with the Ministry of Finance (for concessions), the Public-Private Partnership Agency for Public Procurement Procedures and the State Commission for the Supervision of Public Procurement Procedures;  The Directorate for the Public Procurement System (within the Ministry of Economy) as regards legal aspects and compliance with EU legislation, together with other activities of legal and technical character (listed at the website of the Directorate: http://www.javnanabava.hr/page.aspx?pageID=130);  The Central State Office for e-Croatia is the institution responsible for the coordination of all ICT activities being financed through the state budget. The head of this Office is the State Secretary directly reporting to the Prime minister.

According to the information available at the moment of writing (January 2010), there is no central purchasing body in Croatia and e-Procurement in general is at a preliminary stage with limited or no implementation in practice.

2.1.2 Action plans and strategies

Since Croatia is currently preparing accession to the EU, the country is in the process of modernising its public procurement practices in order to align them with the EU standards. This includes a revision of the existing legislation in order to make it compliant with applicable EU Directives and Regulations. In order to achieve these objectives Croatia has been conducting the CARDS Twinning Project “Strengthening the Croatian Public Procurement System”, launched in 2005.

The main of the project is to set up a reliable and transparent public procurement system, in light of the following goals:

 Strengthening the legal, institutional and methodological framework of the Croatian public procurement system;  Strengthening the professional skills of the public procurement officers, the staff of the authorities involved, the personnel employed by procuring entities and potential suppliers;  Promoting awareness about the new public procurement system.

Version:...... v3.1 Page: 50 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

One of the main results of the project has been the adoption of a new legislation in the field of public procurement, as will be discussed below. Relevant documents are the “Strategy for the Development of the Public Procurement System in the Republic of Croatia” (available at http://www.javnanabava.hr/UserFiles/STRATEGY%20FOR%20THE%20DEVELOPMENT%20OF%20 THE%20PUBLIC%20PROCUREMENT%20SYSTEM%20IN%20THE%20REPUBLIC%20OF%20CRO ATIA(3).pdf) and the “Action Plan for the Implementation of the Strategy for the Development of the Public Procurement System” (available at http://www.javnanabava.hr/UserFiles/Action%20Plan%20for%20the%20implementation%20of%20the %20Strategy%20for%20the%20Development%20of%20the%20Public%20Procurement%20System(2 ).pdf).

In the field of e-Government in more general terms, it has to be said that in 2008 the “Strategy for the Development of e-Government in the Republic of Croatia for the period 2009-2012” (“Strategija razvoja elektroničke uprave u Republici Hrvatskoj za razdoblje od 2009. dov2012. godine”) was prepared by a working group established in the Central State Office for e-Croatia. It was adopted by the Government in January 2009. The strategy is focused on the implementation of e-Government in the state administration.

Version:...... v3.1 Page: 51 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The relevant legislative source in the field of public procurement in Croatia is the Public Procurement Act (hereinafter PPA, Official Gazette 110/07), as amended by the Act on Amendment to the Public Procurement Act (Official Gazette 125.08). An unofficial consolidated version of the applicable Act is available online (http://www.javnanabava.hr/userfiles/file/ZAKONODAVSTVO%20RH/ENGLESKI/ZAKONI/Public_Proc uremet_Act_CONSOLIDATED_%20OG%20110_07_&_125_08.pdf).

Other legal sources to take into account are the Concessions Act (Official Gazette 125/08), the Act on Public-Private Partnership (Official Gazette 129/08) and the Act on State Commission for Supervision over Public Procurement Procedure (Official Gazette 117/03). 2.2.1.2 Secondary Acts

The PPA has been followed by several implementing regulations (secondary legislation), whose list can be retrieved at http://www.javnanabava.hr/page.aspx?pageID=30.

2.2.1.3 Regulatory autonomy

Public procurement in Croatia is entirely regulated at the central level, with no powers granted to local authorities.

2.2.1.4 Permissibility of using eProcurement Art. 30 (6) of the Public Procurement Act notes that the permissibility of the electronic submission of tenders shall be published in the tender documents at the latest. While ambiguous, this seems to suggest that permissibility is dependent on a prior decision, and thus that eProcurement is only possible when permitted in the tender documents.

2.2.1.5 Thresholds

As regards thresholds for public contracts (obligation of publication in the Official Journal of the European Union), they are the object of a specific regulation (Regulation on public procurement notices and records, available at http://www.javnanabava.hr/userfiles/file/ZAKONODAVSTVO%20RH/ENGLESKI/PODZAKONSKI/JAV NA%20NABAVA/RegOnPPNoticesAndRecords-OG-13-08.pdf). National thresholds amount to (I) 40.000 euro for goods and services and (II) 70.000 euro for works.

Version:...... v3.1 Page: 52 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2 Specific tools 2.2.2.1 eSignatures

As regards means of communication between contracting authorities and economic operators and e- signature issues, Art. 30(1) of the PPA says that all communication and information exchange may be made by post, telephone, fax, electronic means or by a combination of these, according to the choice of the contracting authority. Paragraph 7, however, clearly states that “The electronic submission of tenders and documents connected with the evaluation of the tender shall be accompanied by an advanced electronic signature or made in such a way as to ensure that the integrity and originality of the content of the submitted electronic document is preserved.”

In other words, in the field of e-procurement, an e-signature is always required and it shall be an advanced e-signature.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Croatia.

2.2.2.3 DPSes

Dynamic Purchasing Systems are recognised by the PPA, that defines a DPS as “a completely electronic method of implementing public procurement procedures. It is used for commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.” The setting up of a dynamic purchasing system and the awarding of contracts under the dynamic purchasing system is regulated by Article 19, that states only that “Contracts may be awarded under the dynamic purchasing system if such a dynamic purchasing system has been set up following the rules of the open procedure.” The relevant provisions of the Public Procurement Act (specifically article 103-104, see http://www.oecd.org/dataoecd/7/19/40507800.pdf) appear to be materially identical to the provisions of the Directives.

2.2.2.4 eAuctions

A specific section of the PPA is devoted to electronic auctions (Art. 97 and following). First of all, it has to be said that an e-auction is defined as “a repetitive process in a part of the procedure and/or method of public procurement involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full

Version:...... v3.1 Page: 53 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. Certain public service contracts and certain public works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions” (Art. 2, no. 7). According to Art. 17, then, “Electronic auctions are an additional stage in the open procedure, the restricted procedure or the negotiated procedure.”

The relevant provisions of the Public Procurement Act (specifically article 97, see http://www.oecd.org/dataoecd/7/19/40507800.pdf) expand on several aspects of the Directives, including by expanding the communication with economic operators (article 97 (1): required communication includes e.g. registration and identification requirements, the web site where the winner will be announced, any required guarantees, and any other relevant information. General notice obligations therefore have been integrated into the specific eAuction provisions. Other provisions of the Croatian Act (articles 98 and following) are more similar to the corresponding provisions in the Directives.

Publication of the winner must be done on-line directly, which will be considered sufficient to meet announcement requirements, and which will initiate the objection period for other participating economic operators (article 98 (6)). Full records of the auction and all communications must be kept (article 98 (9)).

2.2.2.5 Lists of economic operators

The possibility to have lists of economic operators is not provided for by the PPA nor by any other legal source.

2.2.2.6 Buyer’s profiles

Buyer profiles are recognised by the PPA (see Art. 34 and Annex V), in a way fully consistent with the applicable EU legislation.

2.2.2.7 Framework agreements

According to Art. 2(5) “A framework agreement is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.”

The procedure for concluding a framework agreement is set forth by Art. 100 and following: these provisions are fully consistent with the applicable EU legislation.

2.2.2.8 Electronic certificates / electronic evidences

The PPA sets forth, following the EU rules and standards (implemented by the Member States), that contracting authorities must (or may, according to the cases) require to the economic operator

Version:...... v3.1 Page: 54 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

certificates attesting the following facts (for the list of situations when the economic operator shall be excluded from the public procurement procedure please refer to Art. 46 of the PPA):

 absence of convictions for natural and legal persons;  non-bankruptcy and financial status;  compliance with fiscal obligations;  compliance with social security obligations (payment of contributions for pension and health insurance);  economic and financial standing;  professional qualifications (i.e. certificate of registration of the business and certificate of membership in a professional organisation when relevant – in alternative, appropriate statement with the signature certified by the competent authority);  technical and/or professional ability;  quality assurance and environmental compliance.

In principle all these certificates are only available in a paper-based format.

Version:...... v3.1 Page: 55 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

The Republic of Croatia is currently preparing for the accession to the EU. It will therefore need to Harmonize its public procurement practices with those in the EU as well as align its national legislation with the so-called acquis communautaire.

In order to achieve these goals the Public Procurement Office has been conducting a CARDS Twinning Project "Strengthening the Croatian Public Procurement System" with its twinning partner - a consortium of German and Slovenian consultants. The Project which is worth 1,000,000€ was launched in June 2005 and its implementation is presently in its final stages.

The main goal of the Project is to contribute to the development of a reliable and transparent public procurement system in the Republic of Croatia. This goal is to be achieved through the ever increasing level of alignment of national legislation with the EU legislative framework, the Public Procurement Office's institutional strengthening, and raising the transparency and competitiveness of the Croatian public procurement system.

Croatia is running the “Mandatory National eProcurement Portal” model: it is mandatory to publish tenders on a single National Portal. This obligation can be bound to certain criteria: European tenders, or tenders above a national threshold, or tenders within a specific sector such as ICT. Portals normally do not provide for eProcurement services beyond publication. Notice that countries in this group may also have a national eProcurement platform in place which can be used by authorities on a voluntary basis.

3.2 Main platform

The main platform is available in Croatian and a more limited version is available in English. In addition to the publication of tenders, the site provides training information, publications about eProcurement and statistics on past and current publications and contracts.

3.3 Others platforms

The following private platform has been identified:

 ponuda-jn.nn.hr : The site, available in Croatian only, is an electronic procurement searching platform containing all Croatian public procurement tenders. It’s possible to subscribe to an automated daily email notification system and directly download the tender documentation. The site is however not free of charge and provides different subscription options with different levels of service (number of search criteria, number of free downloads per month…).

Version:...... v3.1 Page: 56 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.4 Figures According to the DG INFSO Benchmarking study1, Croatia achieves a score of 38% for the availability benchmark while the European average is 56%. It scores 50% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper and signed original document legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper and unsigned electronic document standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

1 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 57 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Cyprus

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

As of November 2009, Cyprus has a fully operational eProcurement Platform and a linked subsystem for electronic catalogues and electronic ordering.

Name Cyprus eProcurement System (CyePS) URL http://www.eprocurement.gov.cy Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication requirement

Here are the DG INFSO Benchmarking report scores:

The following platform has been identified:

Platform Name Platform URL Cyprus eProcurement System (CyePS) http://www.eprocurement.gov.cy

Version:...... v3.1 Page: 58 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws The main acts are presently:  Law 11(I)2006 concerning the co-ordination of the contracting process for supplies, work and services in the water, energy, transport and postal services sectors and other related subjects; see: http://www.treasury.gov.cy/treasury/publicpro/ppro.nsf/dmllegislation_gr/4038CB04A1EBF4A0 C2257405002A4A1A/$file/N%2011(I)%20%202006.pdf  Law 12(I)2006 concerning the co-ordination of the contracting processes for commissioners, projects and services and other related subjects; see: http://www.treasury.gov.cy/treasury/publicpro/ppro.nsf/dmllegislation_gr/45B013E0EF8D6A91 C2257405002AC468/$file/N%2012(I)%20%202006.pdf).

1.2.2 Legally supported tools

 eSignatures: legally supported under Law 188(I)/2004. Use of a qualified signature may be required by the contracting authority, but this is not mandatory (and indeed presently not a requirement for using the CyePS platform). For the purposes of the CyePS, identification of users is carried out via a username and password which form their signature in the system. Advanced electronic signatures are not yet applied in Cyprus.  DPSes: legally supported under Section 2 of Law 11(I) of 2006 and section 2 of Law 12(I) of 2006.  eAuctions: legally supported under Section 60 of Law 11(I) of 2006 and section 60 of Law 12(I) of 2006.  Buyer’s profiles: there is no need for special legal requirements. The CyePS allows all contracting authorities to maintain a buyers profile.

1.2.3 Permissibility of using eProcurement According to Article 50 of Law 11(I) of 2006, Article 48 and 77 of Law 12(I) of 2006, all communication and information exchange may be carried out by post, by fax, by electronic means or by a combination of those means, according to the choice of the contracting entity. In the absence of specific guidelines from the contracting entity, there appear to be no legal barriers to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Cyprus has allocated significant resources in the development of its eProcurement platform, especially since 2008. The project for the introduction, application and deployment of a total solution for conducting public procurement competitions in Cyprus using electronic means has now been successfully completed within the set timeframe and budget. As of November 2009, Cyprus has a fully

Version:...... v3.1 Page: 59 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

operational eProcurement Platform and a linked subsystem for electronic catalogues and electronic ordering that can be used by economic operators all over the world, without the need to make any country specific arrangements to obtain an electronic signature. The CyePS portal is currently available in both Greek and English.

A promotion contract was signed with a public relations firm to promote the use of the eProcurement System and ensure the appropriate user uptake. This effort entailed the publication in newspapers and magazines of articles relating to the Cyprus eProcurement System, the use of television, radio, internet and press advertisements and the issue of user guides and the organisation of open seminars for both Contracting Authorities and Economic Operators. The combination of a relatively advanced and comprehensive solution in addition to the promotion campaign (completed in November 2009) should probably bear fruits in the near future.

1.3.2 Weaknesses of the national situation

The main weakness relates to the current limited security offered by the present solution due to the unavailability of qualified signatures in Cyprus. However, alternative security mechanisms were applied to render the use of CyePS as secure as possible.,

Also, even if CyePS is available in both Greek and English, the content of the information is displayed only in the language inserted by each contracting authority (mainly Greek).

Version:...... v3.1 Page: 60 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Public Procurement Directorate, Policy and Development Unit takes a central role in leading public procurement policy making in Cyprus. It is responsible for setting up a national legal framework fully harmonized with Community Directives on public procurement, as well as for issuing circulars concerning the appropriate application of public procurement laws and policies, the European Commission’s announcements and the local and European Courts decision on procurement issues1. eProcurement policy is relatively strongly centralized in Cyprus, with the Public Procurement Directorate of the Treasury of the Republic ensuring a homogeneous application of the law and availability of infrastructure.

2.1.2 Action plans and strategies

The introduction of an electronic procurement system for Government and public institutions in the Republic of Cyprus is an integrated part of the Cyprus Government strategy on modernizing public procurement procedures. The aim is to achieve generalised e-Procurement by 2010. The Cyprus Government has set an objective to design an electronic system making Government institutions capable of purchasing by electronic means2.

A key outcome of this is the CyePS portal site (http://www.eprocurement.gov.cy), for which development was initiated in 20083. Managed by the Public Procurement Directorate, it has already grown into a comprehensive eProcurement platform4, and was recognized as a Good Practice in the framework of the 4th European eGovernment Awards 2009 The platform provides advanced functionality for all procurement phases, comprising eRegistration, eNotification, ePreparation of Calls for Tenders, eTendering, eAwarding and eStatistics as per the initial schedule. Furthermore, the system supports the use of eAuctions, used as an extension to the eAwarding module. The system supports the use of Open, Restricted and Negotiated procedures, as well as procedures involving Competitive Dialogue. In addition, it supports repetitive purchases through Framework Agreements, as well as the Simplified Procedure for low-value contracts, as prescribed under the national law of the Republic of Cyprus on public procurement. In addition to the above, the CyePS supports the built-up of electronic catalogues and allows all Contracting Authorities in Cyprus to shop electronically using the

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 2 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 3 Source: http://www.epractice.eu/en/news/284572 4 See also http://www.epractice.eu/files/documents/workshops/11651-1235734606.pdf

Version:...... v3.1 Page: 61 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

eCatalogues and eOrdering Modules.. The system is being actively promoted as a good practice via http://www.epractice.eu/en/cases/cyprusepsawards5.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The legislation that is applicable in Cyprus to the award of government contracts consists mainly of the following:  Law 11(I)2006 concerning the co-ordination of the contracting process for supplies, work and services in the water, energy, transport and postal services sectors and other related subjects; see: http://www.treasury.gov.cy/treasury/publicpro/ppro.nsf/dmllegislation_gr/4038CB04A1EBF4A0 C2257405002A4A1A/$file/N%2011(I)%20%202006.pdf  Law 12(I)2006 concerning the co-ordination of the contracting processes for commissioners, projects and services and other related subjects; see: http://www.treasury.gov.cy/treasury/publicpro/ppro.nsf/dmllegislation_gr/45B013E0EF8D6A91 C2257405002AC468/$file/N%2012(I)%20%202006.pdf

2.2.1.2 Secondary Acts

Regulations 149/2009 and 150/2009 were issued, governing the conducting of Public Procurement Competitions in Cyprus and the use of electronic means in Public Procurement (relevant information can be found on the CyePS). In addition, the regulations provide a framework for the collection of statistical data, as required by the EU Directives.

2.2.1.3 Regulatory autonomy

Public procurement in Cyprus is entirely regulated at the central level.

2.2.1.4 Permissibility of using eProcurement

According to Article 50 of Law 11(I) of 2006 and Article 48 and 77 of Law 12(I) of 2006, all communication and information exchange may be carried out by post, by fax, by electronic means or by a combination of those means, according to the choice of the contracting entity. In the absence of specific guidelines from the contracting entity, there appear to be no legal barriers to the use of electronic means.

5 See http://www.epractice.eu/en/cases/cyprusepsawards

Version:...... v3.1 Page: 62 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As of November 2009, it was reported that usage of the CyePS portal to submit electronic notifications had become mandatory in Cyprus6.

2.2.1.5 Thresholds

Double publication of procurement notices at the national level and in the OJEU is obligatory. The publication of notices at the national level is compulsory for both below and above the threshold contracts. The thresholds, above which advertising of contracts in the OJEU is obligatory, are in line with European legislation. The CyePS is an accredited eSender by SIMAP and as of 1 November 2009, all publications of Public Procurement competitions are effected via the CyePS.

2.2.2 Specific tools 2.2.2.1 eSignatures

Usage of a qualified signature may be required by the contracting authority, but this is not mandatory. For the purposes of the CyePS use, identification of users is carried out via a username and password which forms their signature in the System (users are required to accept a relevant user agreement). Advanced electronic signatures are not yet applied in Cyprus.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Cyprus.

2.2.2.3 DPSes

DPSes are legally supported by the laws of Cyprus, specifically under Section 2 of Law 11(I) of 2006 and section 2 of Law 12(I) of 2006. However, due to their limited application, Cyprus has opted to exclude them from the CyePS and thus their usage is not yet supported by the CyePS platform.

No implementation details are available at this time.

2.2.2.4 eAuctions eAuctions are legally supported by the laws of Cyprus, specifically under Section 60 of Law 11(I) of 2006 and section 60 of Law 12(I) of 2006, and their usage is supported by the CyePS platform. However, due to the reluctance of the contracting authorities no real eAuction has taken place.

6 Source : http://www.thefreelibrary.com/E-procurement+Now+Reality+in+Cyprus.-a0212512398

Version:...... v3.1 Page: 63 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.5 Lists of economic operators

A list of for works contractors exists, which is managed by the Council for Registration and Control of Building and Civil Engineering Contractors.

2.2.2.6 Buyer’s profiles

There is no need for special legal requirements. The CyePS allows all Contracting Authorities to maintain a buyer’s profile.

2.2.2.7 Framework agreements

Framework agreements are supported under Cyprus law, and are promoted to become one of the pillars of the CyePS platform. Framework Agreements are also used as the ground on which eCatalogues are set-up.

2.2.2.8 Electronic certificates / electronic evidences

Evidentiary requirements are set out in article 51 and following of the Acts, noting that contracting authorities must (or may, according to the case) require the economic operator to provide certificates attesting several personal situations such as:

 absence of convictions for natural and legal persons;  non-bankruptcy and financial status;  compliance with fiscal obligations;  compliance with social security obligations (payment of contributions for pension and health insurance);  economic and financial standing;  professional qualifications (i.e. certificate of registration of the business and certificate of membership in a professional organisation when relevant – in alternative, appropriate statement with the signature certified by the competent authority);  technical and/or professional ability;  quality assurance and environmental compliance.  etc…

In principle all these certificates are only available in a paper-based format. The CyePS has the eCertificates module, where Economic Operators have the opportunity to upload their certificates and then participate in public procurement competitions for a specified period of time without having the need to make any manual certificate submissions in the framework of a particular tender procedure.

Version:...... v3.1 Page: 64 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

In October 2007, a contract for the implementation of a total solution for conducting public procurement competitions in Cyprus, using electronic means was signed. The project, cofounded by the European Commission under the Transition Facility of 2006 became fully operational in November 2009. Owner of the system is the Public Procurement Directorate (PPD) of the Treasury of the Republic of Cyprus7.

The project achieved the deployment of a state-of the-art, web-based, eProcurement system, based on the e-PPS platform, for fully exploiting the efficiencies that the use of electronic means can offer in public procurement. The system provides advanced functionality for all procurement phases, comprising eRegistration, eNotification, and ePreparation of Calls for Tenders, eTendering, eAwarding and eStatistics. Furthermore, the system supports the use of eAuctions, used as an extension to the eAwarding module.

Further to the above, in 2008 the Public Procurement Directorate (PPD) of the Treasury of the Republic of Cyprus decided to extend its eProcurement project (CyePS) for the inclusion of additional functionality through the use of eCertificates, electronic catalogues and electronic ordering8. CyePS is a secure and interoperable web-based application of the Republic of Cyprus, which constitutes a total solution for the implementation of electronic procedures in conducting public procurement competitions. The system is compliant with the provisions of the European and Cypriot Law of public procurement. Amongst its provisions, it supports the procurement of contracts through one-off and repetitive procedures. The system is managed by the Public Procurement Directorate of the Treasury of the Republic of Cyprus.

The integrated CyePS is compliant with the provisions of the European and national legislation on Public Procurement and was completed within the initial time-plan which is consistent with the EU Action Plan for Public Procurement.

The complementary modules assist the participants in public procurement competitions (Contracting Authorities and Economic Operators) to maximise the efficiency and effectiveness gains from the use of the electronic means in conducting public procurement competitions. The modules are furthermore expected to streamline the procurement of low-value items. In parallel, the use of electronic catalogues and electronic orders is expected to prepare the ground for further modernising the public procurement environment in the Republic of Cyprus.

In this direction, the project is supported by a team of procurement experts with experience in carrying out the full cycle for the establishment of Framework Agreements (FAs) and the operation of electronic catalogues within FAs. These complementary services of the experts concluded with the establishment of a number of real FAs based on which electronic catalogues were set up and are currently operated.

7 http://www.eprocurement.gov.cy 8 http://www.epractice.eu/en/news/285030

Version:...... v3.1 Page: 65 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.2 Main platform

As mentioned on ePractice.eu, the Cyprus eProcurement System (CyePS) provides a comprehensive, state-of-the-art solution that is available free of charge to all stakeholders in the Cypriot Public Procurement Market and which constitutes a total solution for the implementation of electronic procedures in conducting public procurement competitions. The system is compliant with the provisions of the European and Cypriot Law of public procurement. Amongst its provisions, it supports the procurement of contracts through one-off and repetitive procedures. The system is managed by the Public Procurement Directorate of the Treasury of the Republic of Cyprus. Recently, in the framework of the 4th European eGovernment Awards 2009, the CyePS system was recognised as Good Practice. The site is available in Greek and English.

As usual, the site contains a part dedicated to contracting authorities and another part for the economic operators.  Contracting Authority services provide a collaborative e-Procurement environment for organising Call for Tender-related activities. These services provide the tools for supporting the management of electronic competitions, providing amongst others the means for the electronic preparation and transmission of procurement notices to the Official Journal of the European Union. Advanced services include the electronic and automated evaluation of tenders, the automated notification of economic operators when addenda/corrigenda for competitions are published and the support for electronic auctions.  Economic Operator services provide the tools for carrying out automated, transparent and secure preparation and electronic submissions of requests for participation and tenders to public procurement competitions. It provides a non-discriminatory solution on fundamental procurement aspects, allowing economic operators to carry out efficiently their procurement activities.

The CyePS supports the electronic preparation and execution of public procurement competitions and has been ranked first amongst the EU eProcurement Platforms in the 2009 Benchmarking Study concerning the area of pre-Awarding and has also been awarded the Good Practice Label by ePractice. The CyePS is transparent, non-discriminatory, is reliable and interoperable, provides unhindered access, is secure, easily accessible, supportive of fair competition and facilitative for equal market access. The system covers the full range of public procurement procedures in Cyprus, while it also supports the electronic submission of notices to the EU Publications Office as an e-Sender and collects online statistics.

Economic Operators (EOs) and Contracting Authorities (CAs) are granted access to the CyePS via a username and a password which is common for the eProcurement Platform and the linked eCatalogue and eOrdering subsystem. Every EO in Cyprus and abroad is enabled to register free of charge from his own office. For their validation they have to send offline to the administrators a signed declaration confirming their details as prepared by the CyePS. CA registration is restricted and managed by the administrators. Currently the system has registered all the Cypriot CAs and more than 1.000 EOs from Cyprus and Abroad. As of 1 November 2009 all procurement competitions are published on the

Version:...... v3.1 Page: 66 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

CyePS and registered EOs are notified automatically via an email for every public procurement opportunity that might be of interest to them, using the CPV matching. This has given a great boost to the CyePS adoption as EOs in Cyprus and abroad now that there is a single place to look for Public Procurement opportunities in the Republic of Cyprus.

From there on, CAs can upload their tender documents on the CyePS and EOs can access the documents and ask for clarifications electronically, Contracting Authorities can respond to clarification requests or issue addenda whilst the interested Economic Operators are automatically notified. The EOs can submit their tenders electronically and the CA can prepare electronic documents to have the system conduct an automatic preliminary evaluation of Tenders received. Then the awarding process is carried out electronically and the statistics module records the competition results.

The electronic market subsystem is linked to the core eProcurement system and hosts electronic catalogues under framework agreements for unlimited electronic ordering whilst free electronic catalogues can be published for small value electronic orders. This subsystem manages the creation of electronic catalogues and the placement of electronic orders, providing the facility for product comparisons, creation of wish lists, approval of orders, acceptance or rejection of orders, order delivery information, delivery confirmation, acceptance of goods and invoicing details.

In addition to a promotion campaign (completed in November 2009) that should ensure appropriate user uptake, the eProcurement System is also responsible for the preparation of the part of the Official Gazette of the Republic of Cyprus that contains all publications of Public Procurement Competitions in Cyprus. Therefore, there is no way that a competition of any kind is procured by a Cypriot Contracting Authority without being published on the Cyprus eProcurement System website. This also guarantees the 100% system uptake by Contracting Authorities and will eventually result in 100% uptake by the Economic Operators. Having secured the system operation and user uptake, the Public Procurement Directorate of the Treasury has organised a Helpdesk facility to provide immediate support and specialised trainings to the users of the system.

From a technology point of view, the standards/technologies used in the project comprise amongst others, UML language, J2EE, XML. HTML, LDAP, JDBC, time stamping, data encryption (symmetric & asymmetric) and JAVA script. To ensure non-discrimination, all tenders received electronically are time-stamped by an external Time-Stamping Authority. All notices created through the system abide to the DTD 2.0.6 specifications of the EU Publications Office and are submitted through an e-Sender implementation, in line with the communication standards set by the Office.

The system is accessible by end-users through Internet-enabled workstations, by the use of a standard web-browser application, ensuring that all users require minimum system configuration for using the e-Procurement system. In addition, the e-Procurement system provides a desktop, offline application, implemented in the Java language, guaranteeing that its users can use the offline application in any operating system, further promoting the equality of treatment of users.

The architecture of the system is intended to provide security/confidentiality of data, access and communications allowing no single-point-of-failure. Availability metrics were set at 24X7 with 99% uptime and expandability is set to cover for an anticipated increased volume of system use of around 30%.

Version:...... v3.1 Page: 67 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following modules are reported on ePractice.eu as being available:  eNotification module The productivity is increased for Economic Operators (EOs) as they can find all procurement opportunities regardless of their value, published in one web place. Taking this one step further, the eProcurement System (CyePS) notifies automatically the registered EOs for every competition published and might be of interest to them through CPV matching. EOs are saving money and man-hours that are currently wasted in searching for procurement opportunities everywhere. Furthermore, the Tender Documents are available for free download allowing EOs to access all information about a competition from the comfort of their own office limiting the unnecessary travelling to/from Contracting Authority offices. Another beneficial functionality for EOs is the clarification request that is available online in a very simple manner. A very important qualitative benefit stemming from the use of the eNotification module is the increase of competition as all information is available 24X7 free of charge and can be easily accessed from everywhere. The productivity is also increased for Contracting Authorities (CAs) as they have only one procurement notice to complete and the CyePS undertakes the dispatch of Notices to the Official Gazette of the Republic and the Official Journal of the European Union. In addition, the publication of tender documents electronically saves both time and money wasted on printing and copying tender documents. Administrative costs are further reduced due to the CyePS handling of clarification and addenda communications as the system keeps a registry of all interested EOs in the competition and notifies them automatically upon the issue of any clarification or addendum. Users of the CyePS have found the eNotification Module as highly satisfactory and have quickly adopted the use without any significant resistance to change. It is estimated that the savings in the non-value adding transactional costs associated with the notification phase of a competition is in the area of 60 to 70%.

 eTendering module The CyePS supports the electronic submission of tenders with validation mechanisms to assist EOs to avoid making logical mistakes or omissions that could cost the rejection of their tenders. EOs are alerted when there is a problem in the submission of their tenders and are given a confirmation upon the timely submission of a tender. Another significant benefit associated with the use of the eTendering Module is the enhancement of the level of transparency, non discrimination and security as perceived by the participating EOs. The increase in the competition is further enhanced as a qualitative benefit as the electronic tender box is available 24X7 and can be easily accessed from everywhere. It is estimated that the transactional costs to be saved by EOs when using this module will be in the area of 80%.

 eAwarding and eAuction modules The whole procurement procedure is benefited from the use of the automated notification as the lead time is significantly shortened. The CAs are saving time and money as the CyePS undertakes most of the non-value adding activities associated with the evaluation of tenders including the communications for the notification and announcement of the end results. It is estimated that the transactional cost savings will be in the area of 40 to 70% depending on the degree of automation a Contracting Authority is applying. The use of eAuctions is expected to give a further cost saving of 5% on prices due to increased competitiveness.

Version:...... v3.1 Page: 68 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 eCatalogues and eOrdering modules The operation of a framework agreement based electronic marketplace, within which all CAs in Cyprus are enabled to click-and-shop to satisfy most of their common use item needs (such as photocopy paper, stationery, computers, laptops, printers etc), eliminates a significant amount of non value adding activities associated with the procurement of similar competitions from various CAs. A qualitative aspect that adds value to the whole procurement process is that these common use items will be available to CAs to cover their requirements immediately as the need arises which renders them more productive and allows to shift focus on their core area of operations. EOs are also greatly benefited from the operation of this electronic market as they do not have to respond to numerous tender procedures for similar items and they are relieved from time consuming and costly procedures associated with receiving and delivering orders offline. It is estimated that the transactional cost savings associated with the operation of the electronic marketplace will exceed 90% for the CAs placing electronic orders from the available electronic catalogues and successful EOs will be benefited by an increase in demand of about 20%. The nature of framework agreement operation also secures an increase in the quality of goods the CAs are purchasing. All of the above justify the estimation of a further cost saving in the area of 10% in the quoted prices. Last but not least, the introduction by the public sector of this electronic marketplace is expected to give eGovernment and eBusiness application in a significant boost which coincides with a strategic goal set by the Government of the Republic of Cyprus.

 eStatistics module The quality of statistics is enhanced with the immediate availability of a wide range of reliable data and information which is a very productive tool in the hands of the policy and decision making centres in the area of public procurement. More specifically, eStatistics provides better management of information, reduction of data entry errors and repetition of information, highly detailed and easily accessible data through electronic documents, as well as advanced searching and auditing facilities. Thus, the expansion of management reporting, monitoring, financial analysis and forecasting capabilities are greatly enhanced.

3.3 Additional platforms

There are no other eProcurement platforms in the Republic of Cyprus.

3.4 Figures

According to the DG INFSO Benchmarking study9, Cyprus achieves a score of 58% for the availability benchmark while the European average is 56%. It scores 93% for the Pre-Award Process Benchmark while European average is 59%.

9 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 69 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

The Cyprus eProcurement System, via its eCertificates module, supports the operation of a central certificate repository. Currently, the Public Procurement Directorate of the Treasury of the Republic is in discussions with other stakeholders to organise in the best possible manner the application of this central eCertificates module. Economic Operators shall submit the relevant documents to the Certification Authority and they will be enabled to use this reference for a specific period of time to participate in one or more public procurement competitions.

Version:...... v3.1 Page: 70 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Czech Republic

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

While several eProcurement platforms exist, the primary site is the “Official Site of Public Contracts” ('Informační systém o veřejných zakázkách').

Name Official Site of Public Contracts URL http://www.isvzus.cz Supported pre-award phases eNotification eAccess to tender eSubmission1 eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering2 eInvoicing ePayment through (green=supported; red=not eCatalogues supported) Supported tools DPS eAuctions3 Buyer’s Profiles (green=supported; red=not supported) Signature / authentication advanced signature based on qualified certificate required requirement

1 eSubmission is randomly supported by individual electronic tools of particular contractors, e.g. tool E- ZAK for The Ministry for Regional Development (https://ezak.mmr.cz/) 2 eOrdering and eInvoicing: these two are not yet supported 3 eAuctions are supported for below EU threshold contracts through government electronic marketplace (http://www.portal-vz.cz/GEM---elektronicka-trziste-verejne-spravy) but are not practically used.

Version:...... v3.1 Page: 71 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Official site of public contracts http://www.isvzus.cz/ Public procurement of the Ministry for Regional Development http://ezak.mmr.cz/ Public Procurement and Concessions Portal http://www.portal-vz.cz/ Czech Post -Auction http://www.centralniadresa.cz/cadr

1.2 Laws and policies

1.2.1 Laws The primary law is the Act on Public Procurement (Act 137/2006), that modernized the national system of public procurement and brought it in line with the provisions of the Directives. An informal translation can be found here: http://www.oecd.org/dataoecd/36/23/39641304.pdf

1.2.2 Legally supported tools

 eSignatures: advanced signatures based on qualified certificates must be used; the contracting authority may also require that an electronic mark based on a qualified system certificate is used; the latter option is a type of signature under Czech law which can be considered as an electronic signature created directly by/on behalf of a legal entity, and which meets specific requirements.  DPSes: supported through §93-94 of the Act on Public Procurement.  eAuctions: supported through §97 of the Act on Public Procurement.  Buyer’s profiles: defined in § 17(g) of the Act on Public Procurement.

Version:...... v3.1 Page: 72 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.3 Permissibility of using eProcurement Under Art.69 (5) of the Act, all tenders shall be submitted in writing, which includes electronic means. The freedom to use electronic means is affirmed in article 148 (2) , noting that ‘any documents under this Act may be delivered by hand, through another person that performs delivery of consignments (courier service), through a holder of a postal license pursuant to special legislation, via electronic means or in any other manner.” However, contracting authorities may only use electronic tools that have been duly attested by the Ministry of Interior.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Czech Republic can be included in the list of countries that are particularly active in exploiting the opportunities introduced by e-Procurement. The national legal framework is modern and extends the EU legislation, e.g. via more detailed eSignature provisions, extensive rules for extracts of lists of economic operators, and procedures for the accreditation of electronic tools to ensure their reliability. Furthermore, the Czech Republic can build on an advanced eGovernment infrastructure in general, where key building blocks (including eSignatures and eDocuments) have been progressively deployed in past years.

1.3.2 Weaknesses of the national situation A possible weakness is the fact that the eProcurement framework builds on the national strengths in the Czech Republic, which could cause interoperability challenges. Both the eSignatures provisions and the national accreditation of electronic tools are examples of this: accreditation of electronic tools is done at a purely national level, and the eSignatures rules introduce the concept of an electronic mark, which does not have an equivalent in other Member States. This may make it harder for foreign economic operators to participate in procurements in the Czech Republic.

Version:...... v3.1 Page: 73 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The responsibilities in the field of public procurement and e-Procurement in Czech Republic are split among the central government and the Czech Post. As regards the former, three institutions are particularly active:

 the Ministry of Regional Development;  the Office for the Protection of Competition, which creates conditions for the promotion and protection of competition and executes surveillance over public procurement and control over provision of state aid;  the Ministry of Interior that, together with the Ministry of Regional Development, deals with ICT technologies and telecommunications, co-ordinates the development of e-Government in the Czech Republic, is in charge of developments of e-commerce and support to computer literacy in the Czech Republic, represents the Country in EU bodies and international organizations, and co-ordinates the development of a unified secure communication infrastructure for public authorities;  finally, the Ministry of Finance leads several activities in the area of eInvoicing (national treasury twinning program).

The Czech Post manage the portal “Central Address” ('Centrální adresa'), whose website is available in English: http://www.centralniadresa.cz/cadr/index.jsp?language=change. “Central Address” is the official site of public auctions and other offers, i.e. a database of all auctions that take place in the country (thus the scope of the database is definitely broader than public procurement, since the auctioneers are usually private entities).

As regards public contracts, there is a dedicated site, the “Official Site of Public Contracts” ('Informační systém o veřejných zakázkách'), whose website is available at http://www.isvzus.cz/usisvz/index.jsp?language=change. This portal is managed by the Czech Post and is, in practice, the main existing gateway to the Czech e-Procurement system.

At the present time, the Ministry for Regional Development is working on a project (accepted by the Czech government) to develop infrastructure to support eProcurement. Part of this project is also the development of an electronic tool to support all pre-award procedures in eProcurement. This tool will be provided to all public contractors free of charge. For contracts under the EU threshold, an electronic government marketplace will be used, with new regulations and rules. This will support fully electronic eProcurement procedures up to the post-award phase.

2.1.2 Action plans and strategies

Version:...... v3.1 Page: 74 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Czech authorities are committed to improve the national e-Procurement system. Beyond the portals “Central Address” and “Official Site of Public Contracts”, the Czech government intends to further automate ordering and invoicing procedures, with the aim to build an integrated e-Procurement system to be used for repeated and bulk purchases in the entire field of public administration.

Another notable strategy of Czech authorities is that of enhancing the efficiency and transparency of the system with the involvement of the national Office for the Protection of Competition.

From a more general perspective, the State Information and Communications Policy (e-Czech 2006) was adopted on 24 March 2004 for the period 2004-2006. The strategy complies with the priorities of the EU while at the same time reflecting the specific situation of the Czech Republic. Concretely, the priorities set out were, inter alia, affordable and secure communications services; information literacy; modern online public services and dynamic e-business environment. The four priority areas for action were e-Learning; e-Government services on-line; e-Health and e-Procurement. A New Strategy for the development of Information Society services for the period 2008-2012 has been published, but this does not identify new goals with respect to eProcurement4.

The National Plan for the Introduction of Electronic Public Procurement assumes that in 2010, 50 % of all public orders will be electronically commissioned. That should save 10.99 billion CZK (366 million euro) through lower prices and another 1.46 billions CZK (49 million euro) through lower costs for public procurement administration5.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The main legal sources to take into account are:

 Act on Public Procurement (Act 137/2006), that modernised the national system of public procurement. The Act establishes an option of fully electronic Procurement processes, and includes the new notions of ‘Dynamic Purchasing System’ and ‘Electronic Auction’ of the EU Directives on Public Procurement. Furthermore, it introduced competition dialogue, simplified procedure for below-limit tenders, centralised procurement, master agreements for all contracting authorities and the establishment of evaluation commissions;  Act on Electronic Auctions and Authorized Document Conversion (into force as from 1 July 2009), that states that electronic and hard-copy documents have the same legal value, and

4 See http://www.epractice.eu/en/document/288197 5 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf and http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/compliance- final-report_en.pdf.

Version:...... v3.1 Page: 75 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

that e-documents must have an authenticated and certified e-signature and a time stamp (see below for further information).

An informal translation can be found here: http://www.oecd.org/dataoecd/36/23/39641304.pdf

2.2.1.2 Secondary Acts

No known secondary acts.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

Under Art.69 (5) of the Act, all tenders shall be submitted in writing, which includes electronic means. The freedom to use electronic means is affirmed in article 148 (2) , noting that ‘any documents under this Act may be delivered by hand, through another person that performs delivery of consignments (courier service), through a holder of a postal license pursuant to special legislation, via electronic means or in any other manner.”

However, contracting authorities may only use electronic tools that have been duly attested by the Ministry of Interior.

2.2.1.5 Thresholds

Thresholds are regulated by Art. 8 of the Public Contracts Regulations 2006 and by Art. 11 of the Utilities Contracts Regulation 2006. Due to the fact that they are regularly modified, please refer to the abovementioned provisions for up-to-date information.

2.2.2 Specific tools 2.2.2.1 eSignatures

As regards e-Signatures, all e-Procurement documents must be signed with a “valid guaranteed electronic signature pursuant to a qualified certificate”, according to § 149(5) of the Act on Public Procurement. Furthermore, pursuant to this provision, “The contracting entity may require that such data message should also be furnished with electronic signature pursuant to a qualified certificate or electronic mark pursuant to a qualified system certificate, in the case of any data messages sent over via electronic means.” The latter option is a type of signature under Czech law which can be considered as an electronic signature created directly by/on behalf of a legal entity, and which meets

Version:...... v3.1 Page: 76 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

specific requirements. This has clear interoperability repercussions for foreign tenderers, where this concept may not be known.

These rules shall be read and interpreted together with other legal provisions. In particular, the Act on Electronic Auctions and Authorized Document Conversion points out that e-documents, in order to have the same value as hard-copy documents, must have a certified e-signature and a time stamp. Furthermore, the Electronic Signatures Act states that only certified electronic signatures and qualified certificates issued by accredited providers of certification services can be used for electronically exchanging information with the public authorities.

2.2.2.2 eCommunication

§143 of the Public Procurement Act states that electronic tools may only be used in public procurements ‘if they have been duly attested by the Ministry of Interior Applications for attest shall attract a fee. The fee shall amount to CZK 100,000. Details about the attestation, provisions of the application for attestation, and the amount of the application fee, shall be stipulated in implementing regulations.’ Electronic tools are defined in the act as ‘the hardware or software, and/or their parts, linked to the electronic communication networks or services and facilitating the performance of acts in electronic format under this Act through such electronic communication networks or services, including processing, such as digital compression, and data storage.’

2.2.2.3 DPSes

Dynamic Purchasing Systems, whose definition according to § 17(b) of the Act on Public Procurement is fully consistent with that provided for by the EU Directives, are recognized by the national legal framework and are regulated by § 93 and following of the Act on Public Procurement.

Gold plating has occurred in several instances. Interestingly, the definition of DPSes in the Czech Act (http://www.oecd.org/dataoecd/36/23/39641304.pdf) explicitly notes that DPSes can be used for purchases of goods, services and works (whereas the Directive only refers to ‘purchases’ in general). Czech law also specifies that (unlike other open procurements) when DPSes are used, no judging committee needs to be established and assessment/ranking/judging of the offers will be done by the contracting authority itself (§79(2) and §80 (4)).

Czech law also stipulates explicitly that DPSes cannot be used to set up framework agreements (§93(4)).

Additional information to be included in contract notices for the establishment of DPSes is specified, including requirements with respect to possible qualification requirements applicable to suppliers. Admission or rejection decisions must be duly justified (§94(4)).

Some additional information to be included in specific contract notices under a DPS must also be specified, including (a) information of access to the tender documentation; (b) information of publication of a simplified notice; (c) the time limit for submitting tenders; (d) the place for submitting tenders; (e) information of contract award criteria pursuant to § 78; and (f) information of the language of the tenders.(§95(5)). The invitation to tender may not be sent before the assessment of

Version:...... v3.1 Page: 77 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

all indicative tenders, and the contracting entity shall stipulate in the invitation to tender the time limit for submitting tenders that shall not be shorter than seven days.

2.2.2.4 eAuctions

Electronic Auctions (defined by § 17(c) of the Act on Public Procurement consistently with the EU Directives) are regulated by § 96 and following of the Act on Public Procurement. In open procedure, restricted procedure, and negotiated procedure with publication or in simplified below-the-threshold procedure, the contracting entity may use electronic auction as a means of evaluation of tenders. In negotiated procedure with publication, the contracting authority may use the e-Auction as a means of evaluation of tenders only in specific cases. E-Auctions shall not be used in the case of public works contracts or public service contract the subject-matter of which involves performances relating to intellectual property rights.

Relatively minor gold plating has occurred in the transposition, through the explicit reference to the right of economic operators to require the contracting entity to provide them with information about auction values submitted by other tenderers, if the contracting entity has allowed for such right in the tender requirements or in the invitation (§97 (8)).

2.2.2.5 Lists of economic operators

Official lists of economic operators are used in Czech Republic. A list is held by the Ministry of Regional Development (http://www.isvz.cz/isvz/). Also the system 'Central Address' contains a list of auctioneers (http://www.centralniadresa.cz/cadr/cadr03001Prepare.do), although the scope of this portal is broader than public procurement (see above).

The Act on Public Procurement, then, recognises (see § 1) the lists of qualified suppliers ('List of Approved Economic Operators') and the system of certified suppliers ('System of Certified Economic Operators'), further regulated by § 125 and following of the Act (see below for further information). In particular, the following information shall be contained in the List of Approved Economic Operators:  business name or name and address of the supplier, if it is a legal entity;  name and surname, and/or business name, and the place of business, and/or permanent residence, if it is a natural person;  legal form of a legal entity;  registration number, if assigned;  name and surname of the statutory body or all of its members or name and surname of the statutory body or all members of the statutory body of the person that acts as the statutory body or a member of the statutory body of the supplier, and/or also name and surname of any other person, if the supplier so requests, and the manner of their acting for and on behalf of the supplier;  object of business or any other activity applicable to the registration in the list;  a list of documents by which the supplier has proven compliance with both basic and professional qualification requirements;  date of submission of the application for registration in the list;

Version:...... v3.1 Page: 78 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 date of registration in the list;  date of the latest update of the information in the list;  eventually other information.

Explicit rules are also provided for the provision of electronic extracts from the list (§ 128), noting that “Extracts can be issued in a hard copy or in electronic format guaranteed with an electronic signature based on a qualified certificate or electronic mark based on a qualified system certificate.”

2.2.2.6 Buyer’s profiles

According to § 17(g) of the Act on Public Procurement “‘contracting entity profile’ means the Internet address of the contracting entity used by the contracting entity to publish information relating to public contracts”. Buyer profiles are used in the e-Procurement system “Official Site of Public Contracts”.

2.2.2.7 Framework agreements

Framework agreements are regulated by § 11 of the Act on Public Procurement, with further rules set forth by § 89 and following. This provision states also that “The contracting entity shall not require proving compliance with the qualification requirements for the tenderer during awarding public contracts under a framework agreement.”

2.2.2.8 Electronic certificates / electronic evidences

The tenderer has to meet a set of qualification requirements in order to participate in the public procurement process. The contracting authority may only request proof of qualification that is directly related to the procured contract. The tenderer may either prove its qualification by submitting individual documents and information required by the contracting authority and law or by submitting an extract from the List of Approved Economic Operators or a Certificate issued within a System of Certified Economic Operators. Generally, equivalent foreign extracts and Certificates are accepted if they were issued in a country that (i) is an EU country or a country with which the Czech Republic has a relevant agreement, and (ii) is the country where the tenderer has its registered address.

Unless the contracting authority sets a lower standard, the documents and information submitted have to be provided as originals or as verified copies. Generally, there is no limit with regard to the date of issue of the documents, except for the documents proving the basic qualification requirements – these may not be older than 90 days. The contracting authority has to accept documents in the Czech language, but it may state that the documents also have to be provided in another language. Documents have to be provided in hard copy or in an electronic version, provided that, according to the Act on Electronic Auctions and Authorised Document Conversion (entered into force in 2009), electronic and hard-copy documents have the same legal value if the e-documents have a valid e- signature and a time stamp.

A tenderer may choose to register in the List of Approved Economic Operators – to do so, it must meet basic qualification requirements and at least some of the professional qualification requirements. Similarly, it can choose to register in the System of Certified Economic Operators. To do so, it has to

Version:...... v3.1 Page: 79 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

meet basic qualifications requirements and some of the professional, economic and financial and/or technical qualification requirements. The tenderer may then prove the relevant requirements by submitting a Certificate or an extract from the List and the contracting authority has to accept it.

A foreign tenderer proves the requirements to the extent required by Czech law and the contracting authority by submitting appropriate documents according to the laws of the country of the tenderer’s registered address. Such documents have to be translated officially into the Czech language unless the contracting authority states otherwise. The contracting authority has to review the documents submitted and may require appropriate statements when it is not clear whether the submitted documents prove the required qualification or when the required documents are not issued by the foreign authority.

Version:...... v3.1 Page: 80 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Czech Republic is running the “Mandatory National eProcurement Portal” model: it is mandatory to publish tenders on a single National Portal. This obligation can be bound to certain criteria: European tenders, or tenders above a national threshold, or tenders within a specific sector such as ICT. Portals normally do not provide for eProcurement services beyond publication. Notice that countries in this group may also have a national eProcurement platform in place which can be used by authorities on a voluntary basis.

3.2 Main platform The Portal is available at www.portal-vz.cz and is a main information website for public procurement. It provides detailed information in the Czech and English languages on the public procurement framework in the Czech Republic. It contains links and information on the applicable legislation, judicial decisions and guidelines, links to and information about other related websites, a separate section on information about e-procurement, a section with public procurement e-education and e- training materials, links to related websites, and a questions and answers section. The information on the portal is provided solely by public authorities and is useful especially for tenderers that wish to understand how the public procurement framework works. The Portal is operated by the Ministry for Regional Development. The Information System is available at www.isvz.cz and it contains following features: • Publication Subsystem, • List of Approved Economic Operators, • List of the Systems of Certified Economic Operators, • statistical data, • data required to complete the public procurement forms. The Information System is operated by the Ministry for Regional Development. The Publication Subsystem is a section of the Information System on Public Contracts and has a separate location at www.isvzus.cz/usisvz. It serves solely as a publication site for information that the contracting authority must publish according to law (that includes tender notifications, notifications about cancelled tenders, list of successful tenderers etc.). The tenderers may submit the information in the Publication Subsystem using special forms via regular mail, fax or electronically. The Publication Subsystem is operated by Czech Post. Based on TED contract award notices only (i.e. confirmations that e-auctions were used), 18 e- auctions were reported in 2008. TED data shows that between 2006 and 2008, 537 contract awards notices (forms 3 and 6) were filed indicating that a DPS was established. However, no simplified notices indicating the possibility to use a DPS (form 9) were received in that same period. Thus, there are no indications of effective use.

3.3 Others platforms As explained in the section above, the e-procurement framework is not centralized. There are software applications that allow either partial e-procurement actions or a complex e-procurement procedure. Software applications used for electronic procurement must be approved by the Ministry of Industry and Trade to verify that their use constitutes no discrimination and that they are generally accessible and that they are in compliance with Annex XXIV of the Directive 2004/17/EC and Annex X of the

Version:...... v3.1 Page: 81 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Directive 2004/18/EC. The Decree of the Ministry of Informatics no. 326/2006 Coll. sets the details of the approval procedure. The attestation fee ranges from CZK 10,000 to CZK 50,000 (around EUR 350 to EUR 1,700), depending on the number of procurement procedure types that the software application can be used for. The Ministry of Industry and Trade has only recently acquired the authority in this matter from the former Ministry of Informatics (dismantled in June 2007). The approved software applications have been listed in the Journal of the Ministry of Informatics and the practice will continue in the near future.

3.4 Figures According to the DG INFSO Benchmarking study6, Czech Republic achieves a score of 50% for the availability benchmark while the European average is 56%. It scores 57% for the Pre-Award Process Benchmark while European average is 59%. Czech Republic is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: epSOS, BEST Energy and In-Time.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper and unsigned electronic document status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper and unsigned electronic document standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

6 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 82 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Denmark

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Public procurement portal (SKI + DOIP) URL http://www.ski.dk/ + http://www.doip.dk/ Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Advanced signature required requirement

Here are the DG INFSO Benchmarking report scores:

Denmark is part of the PEPPOL project.

Version:...... v3.1 Page: 83 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified:

Platform Name Platform URL Public procurement portal – SKI www.ski.dk Public procurement portal – DOIP - DOIPEI www.doip.dk SKI electronic catalogue www.netindkob.dk SKI electronic catalogue www.netkatalog.dk Mercell www.mercell.dk udbudsavisen.dk www.udbudsavisen.dk Amgros www.amgros.dk

1.2 Laws and policies

1.2.1 Laws In Denmark the EU Directives on public procurement are directly applicable since they are incorporated tels quelles by Government orders. The EU Directives are printed as an annex to the respective Government orders (Governmental order number 937 of 16 September 2004 implements the Directive 2004/18/EC and the Governmental order number 936 of 16 September 2004 implements the utilities Directive 2004/17/EC).

1.2.2 Legally supported tools

 eSignatures: no changes to the binding provisions of the Directives, due to the transposition tels quelles. Therefore, there is no binding signature requirement under Danish law, although contracting authorities may impose specific signature requirements for specific procurements.  DPSes: supported through the direct application of the Directives.  eAuctions: supported through the direct application of the Directives.  Buyer’s profiles: supported through the direct application of the Directives.

1.2.3 Permissibility of using eProcurement

As the Directives apply directly, there appears to be no barrier to the free use of eProcurement.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Danish approach has a number of very strong points, including the clear approach to the legal framework, and its comprehensive policy of developing a full ecosystem around eProcurement rather

Version:...... v3.1 Page: 84 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

than simply focusing on a single central eTendering platform (including e.g. its efforts surrounding eInvoicing and eCatalogues). In that respect, Danish authorities have also sought to collaborate with private sector parties to ensure that its approach was well aligned with business practices, and has also endeavored to work with other Member States (especially other Nordic countries) to minimize interoperability barriers. In each of these cases, incentives have also been provided to ensure take-up.

1.3.2 Weaknesses of the national situation

Due to the strongly decentralised approach, some divergences can arise in the practical interpretation and application of the legal framework (e.g. the question of using eSignatures, and if so what type), and it has taken some time for the centralised platform to be taken up by a larger number of contracting authorities. However, neither of these issues appears to have presented a significant problem. A remaining challenge is that the central platform relies exclusively on the Danish OCES signature, a type of advanced signature that complies with specific Danish requirements, which may pose interoperability problems to non-Danish economic operators.

Version:...... v3.1 Page: 85 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies1

The main policy body is the Danish Competition Authority, which:

 Strives to ensure the development of effective and free competition in the field of public contracts.  Administers EU rules on public procurement and the Danish Act on Tender Procedures for Public Work Contracts (Consolidation Act No. 1410 of 7th December 2007).  Contributes to the proper understanding and application of procurement rules (offers guidance concerning the interpretation and the application of rules on public procurement).  Participates in EU cooperation and ensures the implementation of EU procurement rules into Danish law.

It is supported by the Ministry of Finance, which:

 Provides a decision-making basis upon which to implement sound economic policies.  Analyses macroeconomic developments.  Is responsible for administrative policy contributing to ensuring efficient public institutions.

With respect to technical aspects, the Ministry of Science, Technology and Innovation leads the development of IT policy and infrastructure through its IT-Policy Centre and through the National IT and Telecom Agency, which has responsibility for the implementation of specific elements of the e- Government environment such as the Government’s PKI. Other responsibilities include the compilation of standards and policies, as well as the public sector's information policy.

A central purchasing body has also been established, specifically National Procurement Ltd (SKI). SKI is tasked with ensuring the highest possible procurement efficiency in public organizations, specifically by negotiating (drafting, validating and submitting procurement notices) framework agreements on behalf of Danish governmental organizations. SKI has more than 8500 public organization subscribers, around 250 suppliers on framework agreements many with distributors and totaling more than 1200 order addresses in Denmark. SKI runs the e-tendering systems ETHICS, Netindkøb and Netkatalog (see below).

1 Source : Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 86 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.1.2 Action plans and strategies

There is an action plan in the form of the Public Procurement Action Plan-2006 (agreement between the State and local authorities)2. A major objective of the action plan was the creation of the new platform for the publication of notices, which became operational in 2007. This resulted in the ETHICS e-tendering platform, developed in coordination with SKI. Shortly thereafter, SKI developed an eCatalogue viewer known as Netkatalog (www.netkatalog.dk), thus continuing its focus on establishing supporting infrastructure for eProcurement.

More recently, SKI has worked on establishing a full eProcurement platform known as DOIP (Den Offentlige Indkøbsportal – www.doip.dk), which aims to integrate all of these components, including more complicated functionalities such as eAuctions. DOIP was developed in collaboration with private sector parties, including notably Gatetrade.

So far however, eProcurement in Denmark remains largely decentralized, with recent initiatives focusing on the OIOUBL initiative3, which created a Danish implementation of the international UBL 2.0 standard from OASIS specifically with a view to facilitate eProcurement4. This is more or less a continuation of the previous Danish emphasis on establishing and promoting the framework of processes surrounding the public procurement, as best exemplified by the obligation5 to use eInvoicing towards public sector bodies, which was already introduced in 2005. In this manner, initiatives are not focused exclusively on public procurement, and can be expected to have a broader beneficial eBusiness impact.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts In Denmark the EU Directives on public procurement are directly applicable since they are incorporated tels quelles by Government orders. The EU Directives are printed as an annex to the respective Government orders and constitute the actual legislation in the field of public procurement. Denmark transposed the new EU Directives (2004/17/EC and 2004/18/EC) on public procurement into national legislation in January 2005. The Governmental order number 937 of 16 September 2004 implements the Directive 2004/18/EC and the Governmental order number 936 of 16 September 2004 implements the utilities Directive 2004/17/EC6.

2 Source : Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf 3 See http://www.iec-iab.be/nl/leden/tools/e-Invoice-Bridging/e-invoice/Doc._12.2._-_2008-02-28_E- billing_PS4_Country-Denmark.pdf 4 See http://www.epractice.eu/en/cases/oioubl 5 Rather, the public body is allowed to refuse payment if an invoice is sent on paper. 6 Source: "http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf"

Version:...... v3.1 Page: 87 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.2 Secondary Acts

There are no known secondary acts.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is applicable to all public procurements. Local administrations thus have no regulatory autonomy, but are free to decide which procedures they wish to apply within the limits of the regulatory framework.

2.2.1.4 Permissibility of using eProcurement

As the Directives apply directly, there is no barrier to the free use of eProcurement.

2.2.1.5 Thresholds

Both contracts above and below the EU-threshold values must be awarded according to the principles of equality and transparency. Apart from publication in the OJEU for above-threshold contracts, publication at national level (for above and below threshold contracts) takes place in national newspapers, buyer profiles and electronic websites. There is hence no obligation to publish in the National Official Journal. However, the new e-Notification platform being prepared will introduce such a publication obligation at national level.

The current national thresholds for procurement contracts below the EU-thresholds are established by law (Consolidation Act No. 1410 of 7th December 2007) and have the following values:

 500.000 DKK (approximately 67.000 €) for supply and service contracts. For contracts above this value the contracting authority shall publish the procurement notice either in the written press or by electronic means.  The main rule for all public works contracts is that the procuring entity must publish a procurement notice either in the printed press or by electronic means. If the contract value is below 3 mio. DKK (approximately 403,000 €) the contracting authority may appoint the contract by private negotiation.

However there are exceptions to this access. The tender, which has to be written, may be delivered electronically unless the procuring authority has denied this possibility beforehand. The authority can also decide that the tender has to be submitted electronically.

Version:...... v3.1 Page: 88 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2 Specific tools 2.2.2.1 eSignatures

As the Directives apply directly, there appears to be no barrier to the free use of eProcurement.

2.2.2.2 eCommunication

As the Directives apply directly, there are no differences between Danish law and the Directives.

2.2.2.3 DPSes

As the Directives apply directly, there are no differences between Danish law and the Directives.

2.2.2.4 eAuctions

As the Directives apply directly, there are no differences between Danish law and the Directives.

2.2.2.5 Lists of economic operators

No known lists of economic operators.

2.2.2.6 Buyer’s profiles

As the Directives apply directly, there are no differences between Danish law and the Directives.

2.2.2.7 Framework agreements

As the Directives apply directly, there are no differences between Danish law and the Directives.

2.2.2.8 Electronic certificates / electronic evidences The public procuring entity may require that the tenderer submits a solemn declaration, a statement by which the tenderer guarantees that the information submitted is correct. The solemn declaration is typically a standard formula enclosed by the contracting authority in the procurement material. The tenderer must fill in the solemn declaration and send it back to the contracting authority along with the bid. At the same time the solemn declaration is a power of attorney for the contracting entity to have the submitted information confirmed by the relevant authority. The relevant authority will often be the Danish Commerce and Companies Agency (Erhvervs- og Selskabsstyrelsen) or the Danish Taxation Department (Skat).

Version:...... v3.1 Page: 89 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Another often required document is a Declaration of Service (“Serviceattest”). This standardised document is issued by the Danish Commerce and Companies Agency on paper or electronically. The Declaration of Service gives information about the tenderers’ financial situation, possible convictions, whether the tenderer has fulfilled its obligations relating to the payment of taxes, etc. This document is a very useful tool since the issuing authority gathers information from all the other relevant public authorities.

Since the Danish system thus often relies on self-declarations or on the Declaration of Service, there is no real barrier to providing these electronically.

Version:...... v3.1 Page: 90 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

In Denmark, the complete procurement process is split among several platforms. The National Procurement Ltd – called SKI – issues public tenders and administers Frame Contracts on behalf of central and local authorities in Denmark. After winning the procurement procedure, the goods and services on the framework contract are catalogued and presented on a number of electronic marketplace platforms used by public purchasers. Some platforms are used exclusively by public purchasers and other platforms are open to private purchasers as well. But framework contracts provided by SKI can only be used by public purchasers connected to SKI. The primary e-procurement platform is the DOIP (Den Offentlige Indkøbsportal www.doip.dk – The public procurement portal).

3.2 Main platform

 The SKI portal The Danish Public Procurement Portal (SKI) is an electronic marketplace to which both private and public purchasers and their suppliers have access and whose functionality, interface, security and transaction costs are regulated by the public sector. Launched on 3 January 2002, it was among the first public procurement portals in Europe. The main task of SKI is to provide framework agreements through tendering on behalf of the public sector. SKI concludes framework agreements in a lot of areas but especially IT equipment, tele and data communications, electricity, fuel and food has accounted for much of the turnover. The advantage of SKI for the public purchaser is that tendering is done centrally and that this large scale procurement has the potential to generate better prices and services than the local purchaser could obtain on his own. SKI helps buyers avoid the complicated work involved in issuing their own tenders as mandated by the European Union (EU) rules for public procurement. All framework agreements are established according to the EU directives for public procurement. The conclusion of the tendering procedure is achieved through a selection of suppliers among the tenders. The selection is based on criteria published in the tender material and the offers are not open for renegotiation. Only the public purchasers connected with SKI can procure through the framework contracts. Framework agreements were also provided before 2002 – but the introduction of e- Procurement has rationalised the process considerably for all the involved parties: the suppliers, SKI and the public purchasers. Since January 2007 the framework agreements have been accessible for public purchasers at the Public Procurement Portal (DOIP - www.doip.dk) on the Internet. The Danish public procurement portal is a web-based marketplace with e-auctions, e-catalogues and integration with back-office systems. It is established and owned by private companies. The SKI site is a web-based system automating the tendering process and called ETHICS (Electronic Tender Handling, Information and Communications System). ETHICS – which works with any Java-supported browser – is an open, secure Web-based procurement system enabling agencies to plan, execute and evaluate public tenders in compliance with EU-defined legal guidelines. The solution covers all aspects of operating a

Version:...... v3.1 Page: 91 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

public procurement process, including the annual planning cycle, tender selection and timing, plus:  Official pre warning and external tender announcement procedures  Daily management issues with work in progress, including online communications with bidders  Online, secure tendering using digital signatures  Transparent decision making based on a questionnaire design tool  Tool for creating questionnaires and integrating them into vendors’ own systems  Reuse of knowledge and templates, contractual terms, questionnaires and forms  A comprehensive tracking and exception reporting system that helps control simultaneous tenders  Concurrent and multiple language support SKI has benefited substantially from the solution. ETHICS has speeded up processes and made the organization work more efficiently. SKI doubled the number of frame agreements in the portfolio with the same headcount [of specialized consultants], even in a situation with a 50 percent turnover rate of staff. At the same time, since ETHICS has addressed transparency issues, it has virtually eliminated the need for bidders to complain about the outcome of a tender, which helps eradicate potential legal issues. Every step in the procurement process, including approvals, documents, or suggestions, is now logged and nothing can be hidden away. If a vendor wants a thorough explanation of why they were not chosen, for instance, SKI is now in a position to explain that in detail. Ethics is the system handling the tendering procedures in a transparent way. After the selection of the next e-procurement system, which meets the suppliers, is the electronic catalogues. An important element of the services of SKI is the transformation of the result of the procurement process into an electronic catalogue of goods. The e-catalogues are primarily XML files, which makes the framework contracts accessible on different e-procurement platforms used by public purchasers. After being catalogued at SKI the information hits the electronic marketplace. The e-catalogues can be viewed by SKI customers at www.netkatalog.dk (username and password is needed). Netkatalog is a viewer to the catalogues but actual procurement is not possible at the site. www.netkatalog.dk can be viewed as the shopping centre for catalogues – not for the actual goods.

 The DOIP portal

www.doip.dk is the result of a close collaboration between the public and private sectors: the public sector hasn't invested anything in the system but solely pays for using it. The agreement entails that the public sector generates the demands for the portal and that gatetrade.net makes the system available against payment per transaction. www.doip.dk is operated by "gatetrade.net", which is established and owned by the private companies Maersk Data, Danske Bank, Post Denmark and telecoms company TDC. The Ministry of Science, Technology and Innovation is responsible for the establishment, which is taking place in co-operation with the Ministry of Finance, that through the Agency for Governmental Management will be in charge of the continued operation. The Agency for Governmental Management coordinates state interests in the public procurement portal. The use of the portal is recommended for all public bodies, but is not mandatory. The Public Procurement Portal is based on a framework agreement with Gatetrade. This agreement implies that the public sector defines their demands to the system/portal and that

Version:...... v3.1 Page: 92 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Gatetrade provides a system/portal based on these demands. Gatetrade already hosts the procurement portal www.gatetrade.net - a market place for private companies. E-Auctions is a novelty in public purchasing offered on DOIP. Public purchasers with a single order of 500.000 Dkr (aprox. 67.000 €) are advised by SKI to make a “mini-tender” among the suppliers already on the framework contract at SKI. This allows the suppliers to offer prices even lower than the prices in the framework contract. If the purchase criteria is “lowest price” the tender can be made at an e-auction where the lowest price wins. Public purchasers can even pool their procurement with other public purchasers. A coordinated procurement can result in better prices. Using e-Auctioning on the DOIP is relevant in relation to  Procurement of all goods and service (excluding building and construction)  Tendering of framework agreements  Mini-tender on existing framework agreements  Public and limited tendering as an extension of framework agreements. E-auctions are only open to vendors already on the framework agreements. To the vendors this insures that no fictive vendor can lower the prices artificially. The interest in eActions is increasing but new regulation and new purchase methods means that it takes time before the potential of this novelty in public procurement is fully exploited. But according to gatetrade there is no rational reason for holding back on using e-auctions. E-auctions:  Increase competition among vendors  Better prices and quality for the public purchasers  Optimize price negotiations with the vendors  Insures transparency and equal access among vendors  are in line with recommendations from the EU Commission.

The public procurement portal is a web-based system based on Oracle exchange software. The current version supports: e-auctions, e-catalogues and integration with back-office systems. Buyers can be both public and private sector customers. When an order is submitted at the marketplace portal, the workflow is controlled in relation to that order. Furthermore the portal enables all parts to integrate the companies' buy-, sales- and payment terms into their underlying financial systems. This makes it possible for the companies to save money on administration since manual check- ups and other time consuming procedures can be considerably reduced. With a public sector procurement of goods and services for approx. DKK 100 billion per year, even modest improvements in efficiency will be of great value for the Danish society. By virtue of the public sector's purchasing volume, increased use of e-commerce will furthermore contribute to the penetration of e-commerce in Denmark in general. The suppliers will get accustomed to ecommerce and an infrastructure will be established. To secure small suppliers' access, particularly favourable conditions have been made for them. www.doip.dk will facilitate the purchasers and suppliers' exchange of data, and provide better possibilities for electronic management of purchases and invoices. Common standard solutions are advantageous for both purchasers and suppliers, as the Public Procurement Portal gives the user one common IT infrastructure with one common set of standards for the trade, to which the public sector units and the suppliers can hook up. The portal includes the processes in the procurement work, during which a company and its supplier exchange electronic data in the forms of orders, invoices, payments, etc. In addition,

Version:...... v3.1 Page: 93 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

there are the processes that include the companies' search in purchasing contracts and list prices in electronic forms.  Reduced procurement costs are obtained by better utilisation of framework agreements and by ensuring simple access to qualified information about suppliers and their products.  Reduced transaction costs for suppliers and purchasers can be obtained by complete or partial automation of the information flow between procurement/financial systems and the suppliers' order and payment systems.  Simpler access routes, as both purchasers and suppliers only have to integrate with one portal. A supplier can reach the whole public sector by presenting his product catalogues on the portal, and the purchaser can access the suppliers on the same portal. Everybody shares the catalogue this way, but has only access to own agreements. Since this is a completely browser based solution all that is needed to get access to DOIP is an Internet connection. Users sign the agreement granting access to DOIP and shortly after receive a username and a password giving immediate access to DOIP. DOIP provides:  Overview of the purchase with regards to supplier and goods through statistics  Easy way to see the price by showing examples  Improved purchase control with the help of central agreements with decentral buyers  One catalogue containing all suppliers  Easy method of searching for specific goods - through a good overview of suppliers/goods and a reorder functionality  Possibility of seeing which goods carry the environmental label  IT-supported transfer of disposal rules  Please note that DOIP functionality provides a variety of possibilities to access both historical and statistical data - for example statistics on accomplished transactions and purchases of the previous quarter. DOIP can be integrated into almost any financial system thereby improving the automation of the purchasing processes - for example invoicing and payment. Gatetrade is offering an extended version of www.doip.dk. DOIPEI is marketed as the complete solution to e-procurement with integration into the back office ERP systems at both the supplier and the purchaser. The integration is adaptable to existing systems and includes eNegotiations and eAuctioning. DOIPEI opens for letting the economic back office system follow all the way from an order to the supplier to the delivery of the goods. The electronic invoice is automatically registered in the system. Navision is the most common ERP back office system in the Danish government and DOIPEI integrates readily. DOIPEI is made as an ASP solution hosted by Gatetrade, so no new hardware is required. DOIPEI is developed in cooperation with the The Agency for Governmental Management in accordance with Danish government electronic standards such as OIOXML, OCES digital signature, EAN numbers and so forth. As of 1 February 2005, all public institutions in Denmark may only accept invoices from suppliers in electronic format. Thus, all public-sector entities have been required to convert all systems and administrative processes from physical to digital handling of invoices, credit notes and other transactions. This reform affects approximately 15 million invoices a year, and

Version:...... v3.1 Page: 94 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

applies to the entire public sector, from government ministries to nursery schools. It is expected to save the public EUR 100 million annually, in addition to savings in internal administrative processes. Electronic invoicing requires a transportation system which is the VANS network and an electronic postal address which is an EAN number that identifies each public-sector entity. Suppliers who cannot, or do not wish to, submit electronic invoices can still send them in paper format, with the EAN number, to a so-called Read-In bureau, which converts them to digital XML format and forwards them to the correct public institution. By definition, an electronic invoice is a bill converted to a particular format, which can be read directly by the public sector’s accounting systems. This particular format is called an "OIOXML electronic invoice." The project is based on proven market solutions, including the VANS infrastructure and the systems that can receive and process electronic invoices. The compulsory transition ensures a modernisation of the entire payment infrastructure so the old-fashion 'paper channel' is closed for good. It provides security and convenience for the supplier, because all invoices to public-sector customers can be sent in a single, standard format, and it enables the individual public institution to immediately begin the digitalisation of all internal work processes and systems.

3.3 Additional platforms

The following private platforms have been identified:

 http://www.mercell.dk: Private portal publishing contracts from government agencies, organisations and businesses in all industries, both private and public sector, providing supplier search functionalities, contract monitoring and education. Suppliers have access to all the published prices and bid requests. Buyers can write and publish bid requests and write contracts with tender winner. Additionally, it offers tender writing and review, help in providing documents, legal advices. The site for Denmark is only available in Danish but the company has also other sites in Germany, Estonia, Lithuania, Latvia, Norway and Sweden which are in their respective language.

 www.udbudsavisen.dk: The purpose of this website is to make public procurement in Denmark more transparent by publishing all EU-procurement from Denmark and from other countries, smaller Danish public procurements which are under the European threshold value and other procurements not included in the EU directives (generally within the senior citizens area).  www.amgros.dk: Amgros is a tender system that automates most of the routine tasks associated with the bidding process. As a supplier, it is now not necessary to produce thick offer folders with printouts of all materials. Instead, the supplier can send all information to Amgros via a secure server on the Internet. This saves both suppliers and Amgros for quite a while. There is a built-in quality assurance part of the system which can prevent some - but not all - errors in the submission of tenders. It is the responsibility of the supplier that the proposed offer is regular and compatible with the procurement material. The supply system provides quick and easy access to all information on tenders - Tender documents, deadlines, etc. All questions from suppliers, and Amgros' replies are published on the supply system's website in an anonymised form. Information about current offerings can be viewed by clicking on the "Tender Notices" in the left menu. For further information and an opportunity for submission of bids, one must be a registered user.

3.4 Figures

Version:...... v3.1 Page: 95 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

National Procurement Ltd. (SKI) brings together public purchasers and suppliers by negotiating large frame contracts for their customers–including approximately 11,500 institutions, ministries and public agencies across Denmark. The supplier’s totals 300 suppliers on framework agreements, several with distributors, totalling more than 1200 order addresses in Denmark. The National Procurement Ltd. (SKI) has offered e-Procurement for its public users since 2002. SKI is owned jointly by the state (55%) and the National Association of Local Authorities in Denmark (45%). According to the DG INFSO Benchmarking study7, Denmark achieves a score of 75% for the availability benchmark while the European average is 56%. It scores 69% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper or electronic natural persons absence of conviction for Paper or electronic legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper or electronic security obligations compliance with fiscal Paper or electronic obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Electronic information can be looked up via http://www.cvr.dk/Site/Forms/CMS/DisplayPage.aspx?pageid=0 technical and/or professional Paper or electronic ability adequate insurance Paper or electronic quality assurance Paper or electronic environmental compliance Paper or electronic

7 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 96 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Estonia

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities eProcurement in Estonia is strongly decentralised. There is no single dominant eProcurement platform, other than the Public Procurement State Register, a portal where all public procurement notices are published electronically. The register is using CPV standards in the catalogue, and all the information in the register is publicly accessible over the Internet free-of-charge.

Name State Procurement Register - Riigihangete register URL https://riigihanked.riik.ee/ Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication N.A. (the platform does not require eSignatures) requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL

Version:...... v3.1 Page: 97 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

State Procurement Register https://riigihanked.riik.ee/ Mercell http://www.mercell.ee/

1.2 Laws and policies

1.2.1 Laws Directives 2004/17/EC and 2004/18/EC on public procurement were transposed by the “National Public Procurements Act” (Riigihangete seadus) of 24 January 2007 (text of the Act available in English at the following URL: http://www.legaltext.ee/text/en/XXX0005.htm). This Act has been amended in 2008. The translation of the amendment act is available on the Ministry of Finance home page at the following URL: http://www.fin.ee/index.php?id=79427

1.2.2 Legally supported tools

 eSignatures: if electronic signatures are required, they must comply with the provisions of the e-Signatures Directive (and of the national law enacted to implemented this European source, i.e. the Digital Signatures Act). While their usage is not mandatory (Art. 55 (5)1° of the Act), they are commonly asked for in practice.  DPSes: supported through §8 of the Public Procurement Act.  eAuctions: supported through §51 of the Public Procurement Act.  Buyer’s profiles: not referenced in the Public Procurement Act.

1.2.3 Permissibility of using eProcurement In accordance with §44.1 of the Act, eProcurement is always permissible provided that the requirements of the Act are respected.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Estonian situation can certainly be assessed in a positive way. Estonia has a very well developed e-government infrastructure in general (notably the very mature eID card infrastructure), with also an above average level of ICT skills with public sector personnel. A considerable amount of financial resources is invested in the advancement of electronic public procurement. Furthermore, a reasonable level of security for the submission of notices is presented.

From a regulatory perspective, Estonia has a relatively light legal framework, which allows sufficient margin for flexibility. The lack of a signature requirement (both for paper procurements and e- procurements) is a key example of this.

Version:...... v3.1 Page: 98 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Furthermore, Estonia is one of the top performers for the Pre-Award Process Benchmark. It is also worth noting that Estonia, as it has been pointed out above, has a national e-Procurement platform that is mandatory, for the publication of contract notices and contract award notices.

1.3.2 Weaknesses of the national situation

The main weakness of the Estonian situation in the field of e-Procurement lies in the strongly decentralised approach: apart from the central notification platform, most other decisions (including e.g. the decision to require signatures) rely upon the public authority concerned. While allowing for great flexibility, this also means there is a greater risk of inconsistencies, which could impair take-up and may make e-procurement less transparent, especially for foreign economic operators.

Version:...... v3.1 Page: 99 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Ministry of Finance, which plays a central and pivotal role in the field of e-Procurement in Estonia, cooperates with the Public Procurement Office (PPO) and other ministries. The Ministry is responsible for public procurement policy, for drafting legislative acts, for organising training in the field of public procurement and for representing Estonia in the Advisory Committee of Public Procurement and relevant working groups.1

In particular, the Ministry of Finance is responsible for the development of a centralized system for filling and publishing notices, as well as for forwarding them to the OJEU (Official Journal of the European Union). The Ministry is also responsible for software development and technical support to the electronic State Public Procurement Register. An important task of the Ministry is the further processing and maintenance of the State Register.1

Estonia does not have a central purchasing body, but instead the country has developed a decentralized system of procurement (including e-Procurement). The supervisory authority in the field of public procurement is the Public Procurement Office (PPO) which supervises the implementation of the Public Procurement Act (PPA, see below). However, PPO does not coordinate procurement policy activities. Individual public institutions are responsible for the selection of their suppliers independently. There is no central body in charge of framework agreements etc. However, there are several examples of cooperation between different authorities and coordination incentives in several ministries and their areas of governance.

Currently the Estonian Parliament is processing a Public Procurement Amendment Act under which the supervisory role currently held by the Public Procurement Office is planned to be transferred to the Ministry of Finance as of July 1 2010, as the Public Procurement Office is to be liquidated.

Furthermore, Estonia has also a rather decentralized policy concerning the development of information systems which falls mostly under the responsibility of IT managers in Ministries, County Governments, Boards and Inspectorates. Nevertheless, the Department of State Information Systems has assumed a central coordination role in dealing with strategic planning, the setting of priorities and financing issues. This Department drafts IT legislation, elaborates IT standards and creates cooperation networks1.

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 100 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.1.2 Action plans and strategies

The situation in Estonia is rather interesting, given the fact that, while extensive e-Government Action Plans exist, they do not pertain specifically to e-Procurement1. However, the general Estonian government programme noted that by 2010 the submission of tenders should be made electronically only. Thus, the Estonian government shows political will and support towards eProcurement2.

At the same time, Estonia has established a clear and light legal framework that can be easily implemented and that can open interesting and efficient scenarios, resulting in an advanced level of development despite strong centralised involvement.

As regards the infrastructural framework, there exist e-Procurement websites, like the Public Procurement Registry (PPR) (Riigihangete register – https://riigihanked.riik.ee/). The importance of this website should not be be neglected, since the PPR is the national e-Procurement platform, and its use is mandatory for the publication of contract notices and contract award notices. It has to be said, however, that the site is only in Estonian and therefore not very accessible for foreign companies if they have no agent or representative in the country.

In addition, it should be noted that Estonia does not appear to have any specific e-Procurement applications supporting on-line submission. However, there is a strongly developed signature infrastructure which is universally usable (irrespective of application field), and plans exist for the development of a fully automated e-procurement infrastructure3.

In 2009 the Ministry of Finance has started a project to further develop eProcurement services. In addition to already existing and operable eNoticing and eAccess services offered by the Public Procurement Registry, the eSubmission, eEvaluation and Award, eAuction and DHS will also be centrally available to Estonian contracting authorities at the end of 2010. The platform will be united with the Public Procurement Registry thorough a central gateway. Although eNoticing at the Registry is obligatory, the other eProcurement services will be available free of charge and on a voluntary basis. The environment will be at least in two languages – Estonian and English. eSignature facility is available and widely used in Estonia and will also be incorporated into the system.

2 Source: http://www.riso.ee/en/book/export/html/2 3 See http://www.riigikantselei.ee/failid/MTTK_2008_2011_EN_kujundusega2.pdf

Version:...... v3.1 Page: 101 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts Directives 2004/17/EC and 2004/18/EC on public procurement were transposed by the “National Public Procurements Act” (Riigihangete seadus) of 24 January 2007 (hereinafter, the “Act”), whose Art. 1 states that “The objective of this act is to ensure the transparent, purposeful and economical use of financial resources of the contracting authority, the equal treatment of the participants and effective use of existing competition in public procurements”. This Act was amended in 2008. The translation of the amendment act is available on the Ministry of Finance home page at the following URL: http://www.fin.ee/index.php?id=79427

2.2.1.2 Secondary Acts

The Act is supplemented by various Government Decrees.

 Statute of Public Procurements Dispute Committee, Regulation No. 28 of the Minister of Finance dated August 18 April 2007 (Riigihangete vaidlustuskomisjoni põhimäärus, Rahandusministri 18. aprilli 2007. a määrus nr 28);  Evaluation of procurement procedures of procuring entities related to utilities and requirements to evaluation officers, Government of the Republic Regulation No. 167 dated 31 May 2007 (Võrgustikega seotud hankija hankemenetluste läbiviimise korra hindamine ja nõuded atesteerijatele, Vabariigi Valitsuse 31. mai 2007. a määrus nr 167);  Statute of the state register of public procurements, Government of the Republic Regulation No. 158 dated 18 May 2007 (Riikliku riigihangete registri põhimäärus, Vabariigi Valitsuse 18. mai 2007. a määrus nr 158);  Procedure of handling the information submitted to the Public Procurement Office subject to a communication of the Commission of the European Communities and communicating thereof to the Commission of the European Communities, Government of the Republic Regulation No. 114 dated 26 April 2007 (Euroopa Komisjoni teate alusel Riigihangete Ametile esitatava informatsiooni käsitlemise ja Euroopa Komisjonile edastamise kord, Vabariigi Valitsuse 26. aprilli 2007. a määrus nr 114).  Statute of the Public Procurement Office, Regulation No. 27 of the Minister of Finance dated 18 April 2007 (Riigihangete Ameti põhimäärus, Rahandusministri 18 aprilli 2007. a määrus nr 27).  Requirements for the Tenderers Active in the Field of Public Works for Submitting them into the List of Recognized Tenderers of Public Procurement, the Requirements and Procedure for Compiling the List and the Procedure of Informing of the List, Government of the Republic Regulation, Government of the Republic Regulation No. 305 dated 6 October 2004 (Nõuded ehitustööde riigihangete tunnustatud pakkujate ametlikku nimekirja kantavatele isikutele, nimekirja koostamise nõuded ja kord ning nimekirjast teavitamise kord, Vabariigi Valitsuse 6. oktoobri 2004. a määrus nr 305) only in Estonian language.

Version:...... v3.1 Page: 102 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Several decrees which must be adopted under the Act have not yet been adopted.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement In accordance with §44.1 of the Act, eProcurement is always permissible provided that the requirements of the Act are respected.

2.2.1.5 Thresholds

Concerning the national thresholds for public contracts, they are below the EU thresholds established by the applicable European Directives on public procurement. The national thresholds provided for in the Act are for supplies and services 625.864 EEK (40.000 €) and for construction works 3.911.650 EEK (250.000 €). For entities operating in the utilities sectors, international thresholds apply.

2.2.2 Specific tools 2.2.2.1 eSignatures

Concerning e-Signatures, if electronic signatures are used, they must comply with the provisions of the e-Signatures Directive (and of the national law enacted to implemented this European source, i.e. the Digital Signatures Act). While their usage is not mandatory (Art. 55 (5)1° of the Act), they are commonly asked for in practice.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Estonia.

2.2.2.3 DPSes

Dynamic purchasing systems are provided for by the Act. Art. 8, in fact, states that “a dynamic purchasing system is an electronic process for award of public contracts, during which all interested persons meeting the qualification requirements and who submit an indicative tender which complies with the technical specification prepared by the contracting authority, may join with it and the contracting authority may award the public contracts with the tenderers having joined the dynamic purchasing system within this period of usage according to simplified procedure.”

Version:...... v3.1 Page: 103 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The transposition of the Directives is only partial; the Estonian Public Procurement Act (http://www.legaltext.ee/text/en/XXX0005.htm) dedicates a single article (§8) to DPSes, containing only: - The definition, which differs slightly from the definition provided in the Directives. Notably, there is no reference to ‘commonly used purchases’ in the Estonian transposition. (§8(1)) - A limitation to four years maximum, as per the Directive (although phrased in an opposite manner, noting that the duration is restricted if a longer duration is not necessary and justified (i.e. a greater length is presented as the general rule). (§8(2)) - The indicative tender is defined separately, as “the expression of will of the person for joining the dynamic purchasing system which complies with the technical description prepared by the contracting authority. The indicative tender is not the expression of will for awarding the public contract.” Thus, a clear distinction is made between the indicative tender (as being the formality to join a DPS) and the later submission of actual bids. (§8(4)) Reference is made in the Estonian Act to the need for secondary regulations to implement more specific procedures (§8 (3)).

The relevant secondary regulation is being prepared by the Government and is planned to enter into force in the second quarter of 2010 at the latest.

2.2.2.4 eAuctions

Electronic auctions are regulated by the Act, namely by § 51, that defines them as follows: “Electronic auction is the final stage of tender evaluation for finding out the successful tender, during which the contracting authority evaluates and compares the quantitatively measurable values of the terms provided in the tenders in the electronic environment pursuant to the procedure stipulated in this section.”

However, the transposition is not complete: the Estonian Public Procurement Act incorporates:  In §31 (8), the information clauses of article 54 (3) of Directive 2004/18/EC; and  In §54, the provisions of article 54 (1)-(2).

However, article 54 (4) to (8) do not appear to have been transposed completely. There do not appear to be explicit provisions for the communication of formulas for the calculation of rankings, for the communication of relative positions of the economic operators during the tender, or for the closing possibilities of the tender.

The relevant secondary regulation is being prepared by the Government and is planned to enter into force in the second quarter of 2010 at the latest.

Version:...... v3.1 Page: 104 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.5 Lists of economic operators

There is a list of accredited works contractors, managed by the Ministry of Economic Affairs and Communications.

2.2.2.6 Buyer’s profiles

Up to now, there is no indication of use of buyer's profile in Estonia. They are not mentioned in the primary eProcurement Act.

2.2.2.7 Framework agreements

Framework agreements are regulated by the Act, namely by Title 12. According to Art. 70, § 4, “The framework agreement is awarded, if possible, with at least three tenderers, provided the sufficient number of qualified tenderers submit the tender compliant with the requirements stipulated in the contract documents”. The award of public contracts based on the framework agreement is regulated by Art. 71 of the Act.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Act. The conditions must be proportionate. The Act lists several criteria (Art. 38-42) regarding the qualification of the tenderer. For foreign tenderers equivalent documents delivered by the competent judiciary or governmental body from the country of origin will also be accepted if they meet the requirements of the Act. For several of the conditions the exception is listed that if the tenderers/authorities do not issue corresponding documents this may be replaced by a sworn confirmation according to certain conditions.

Often the contracting authorities do not require original copies of the documents. Normally signatures are expected. Originals may be requested by the contracting authority.

The contracting authority is relatively free in determining the verification and language approach.

Version:...... v3.1 Page: 105 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

Due to strong decentralization model of eProcurement in Estonia, there is only one main platform managed by the Ministry of Finance, the State Procurement Register. In addition, some private operators provide additional services to deal with weaknesses of the main platform, like the possibility of subscribing to daily notifications.

3.2 Main platform

The main platform in Estonia is the State Procurement Register that publishes electronic public procurement notices. Any contracting authority must accede to it, which brings the direct benefit for them of cost free publication of procurements. The economic operators have access to a search engine where they can find tenders according to criteria like reference number, type, status, CPV code, contracting authority, publication date… and then download tender documents. Users with a national ID-card can register online and a password will be sent via email. Foreign users cannot register online but will receive a username and password after having sent information about themselves and their company. The site is available in Estonian only but provides a small guide in English that helps foreign user to register and access tender documents.

3.3 Others platforms

The following private platforms have been identified:

 www.mercell.ee : Private portal publishing contracts from government agencies, organisations and businesses in all industries, both private and public sector, providing supplier search functionalities, contract monitoring and education. Suppliers have access to all the published prices and bid requests. Buyers can write and publish bid requests and write contracts with tender winner. Additionally, it offers tender writing and review, help in providing documents, legal advices. The site for Estonia is only available in Estonian but the company has also other sites in Germany, Denmark, Lithuania, Latvia, Norway and Sweden which are in their respective language.

3.4 Figures

The State Procurement Register has handled 5729 procurements in 2009 for a total amount of 42,335 million EEK. In 2008, there were 6909 procurements for a total amount of 25,287 million EEK.

Version:...... v3.1 Page: 106 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

According to the DG INFSO Benchmarking study4, Estonia achieves a score of 100% for the availability benchmark while the European average is 56%. It scores 93% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper or electronic natural persons absence of conviction for Paper or electronic legal persons non-bankruptcy and financial Paper or electronic (via an on-line database) status compliance with social Paper or electronic (via an on-line database) security obligations compliance with fiscal Paper or electronic (via an on-line database) obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply. professional qualification Requirements are specified by the contracting authority at its own discretion. technical and/or professional Usually paper only ability adequate insurance Paper or electronic quality assurance Usually paper only environmental compliance Usually paper only

Digitally signed documents are also available besides paper ones. The information on non-bankruptcy, financial status, compliance with social security obligations and fiscal obligations can be accessed by any interested person electronically through an online database provided by the Estonian Tax and Customs Board.

4 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 107 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Finland

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities eProcurement is partially decentralized in Finland and several solutions therefore exist. HILMA (http://www.hankintailmoitukset.fi) is mainly an eNotification platform and the only eSender in Finland. There is also a governmental central purchasing body, the state-owned company Hansel Ltd (http://www.hansel.fi/en), which is used mostly by central government authorities (Act concerning Hansel Ltd 1096/2008)1. KL-Kuntahankinnat Oy (http://www.kuntahankinnat.fi) is a central purchasing body, which acts on behalf of its local government clients.

Name HILMA, Hansel Ltd, KL-Kuntahankinnat Oy URL http://www.hankintailmoitukset.fi, http://www.hansel.fi/en Supported pre-award phase eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) (pilot) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not (legislation and (legislation and supported) implementation in implementation in progress) progress) Signature / authentication There is no formal requirement as to what type of electronic signature is required. Hence, requirement any electronic signature including a simple text string will be accepted as valid signature.

Here are the DG INFSO Benchmarking report scores:

1 See also http://www.ogasun.ejgv.euskadi.net/r51- 3752/en/contenidos/informacion/20_seminario_internacional/en_3seminar/adjuntos/Mikko_Saavalaine n.pdf

Version:...... v3.1 Page: 108 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Finland is part of the PEPPOL project.

The following platforms have been identified:

Platform Name Platform URL HILMA http://www.hankintailmoitukset.fi/ Hansel Ltd http://www.hansel.fi/ KL-Kuntahankinnat Oy http://www.kuntahankinnat.fi Agentum Technologies Oy http://www.agentum.com/ Edita Publishing Oy http://www.credita.fi/ Inoa http://www.inoa.fi/Julkiset+hankinnat/ Liidit.fi http://www.liidit.fi/ Nordic Commons Oy http://tarjouskilpailu.fi Tieke http://www.tieke.fi/hanketori

1.2 Laws and policies

1.2.1 Laws The Finnish legislation about public procurement consists of the following legal sources:  Act on Public Contracts (348/2007), available at http://www.finlex.fi/en/laki/kaannokset/2007/en20070348, hereinafter the 'Act';  Act on Public Contracts by Contracting Authorities in the Water, Energy, Transport and Postal Services Sector (349/2007);  Government Decree on Public Contracts (614/2007).

1.2.2 Legally supported tools

 eSignatures: any electronic signature (compliant with the Act concerning Strong Electronic Identification and Electronic Signature (617/2009)) is sufficient

Version:...... v3.1 Page: 109 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 DPSes: defined in section 5(17) of the Act. The implementation and legislation process are under discussion at the time of writing (March 2010).  eAuctions: defined in section 5(18) of the Act. The implementation and legislation process are under discussion at the time of writing (March 2010).  Buyer’s profiles: not supported by the Act.

1.2.3 Permissibility of using eProcurement In accordance with Section 51 (1) of the Act, all communication and information exchanged may be by post, by fax or by electronic means according to the choice of the contracting authority. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The main strengths of the Finnish situation are linked to the efficient organisation of the public procurement system. In other words, Finland has a tradition of several institutions committed to improve the efficiency and transparency of the national public procurement system, and particular attention has been devoted to e-Procurement. In addition, the open nature of the eSignatures approach allows a free choice of electronic communication methods, so the Finnish system is very flexible, which favours the participation in an open Internal Market.

1.3.2 Weaknesses of the national situation

Finland is one of only two EU countries (the other being Estonia) where no signature is required as regards public procurement and e-Procurement documents. While allowing for great flexibility, this also means there is a greater risk of lower security solutions being used. In practice however, there have been no known incidents or security problems related to eSignatures; therefore, the risk appears to be largely theoretical in nature.

Version:...... v3.1 Page: 110 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Competences in the field of public procurement in Finland are split among different government authorities. The Ministry of Finance (http://vm.fi/vm/en/01_main/index.jsp) has overall steering responsibility in the area of public procurement in the State government, and is responsible for setting general principles and rules. Management and development of the central government procurement system falls within the Ministry of Finance's remit.

The Ministry of Employment and the Economy (http://www.tem.fi/?l=en) also plays a pivotal role in the field of public procurement. The areas falling into the Ministry of Employment and the Economy remit include the drafting of national legislation governing public procurement (Acts and Decree on public contracts), providing information about the statutes, following the reforms and topical issues relating to public procurement, and ensuring that the internal market mechanisms are working.

Other authorities that play a role in eProcurement are:

 the Public Procurement Advisory Unit (http://www.hankinnat.fi): maintained by the Association of Finnish Local and Regional Authorities and the Ministry of Employment and the Economy, the Public Procurement Advisory Unit focuses on providing contracting authorities with information and advice on procurement. It also advices businesses on issues relating to the application of procurement legislation;  the Strategic Group on Government Procurement (http://vm.fi/vm/en/01_main/index.jsp): appointed by the Ministry of Finance, its purpose is to support and develop the strategic steering of central government procurement as well as the implementation of the state’s procurement strategy;  the Market Court (http://www.oikeus.fi/markkinaoikeus/15578.htm): a special court hearing public procurement cases, to which the tenderers may refer in writing matters concerning public contracts. Appeals against the rulings issued by the Market Court can be lodged in the Supreme Administrative Court.

In Finland there is a central purchasing body, the company Hansel Ltd (http://www.hansel.fi/en). As reported in the website of the company, “Hansel Ltd is the central procurement unit of the Finnish Government. Its tasks and roles are defined in the Public Procurement Act and the State Procurement Strategy. Hansel is a non-profit company that operates under the auspices of the Finnish Ministry of Finance.” Furthermore, Act 423/1988 requires that certain types of central governmental (i.e. initiated by the Government of Finland) public procurement contracts should be done through Hansel Ltd. Thus, Hansel Ltd plays a substantial role at the central level, especially through its use of framework agreements.

Version:...... v3.1 Page: 111 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As regards the degree of regional/organisational autonomy in public procurement, individual public authorities are free to arrange individual framework arrangements (buying through or with the help of Hansel is neither compulsory nor self-evident). To be more precise, the customers of Hansel Ltd are defined under Finnish legislation, i.e. the law regulating Hansel Ltd states that the company’s customers are public administration offices and departments, state-owned enterprises and funds outside the state budget. Other customers include the Finnish Parliament and all units that operate in subordination to it, under its supervision or in some other relation to it.

There are also other purchasing bodies, for example KL-Kuntahankinnat Oy (http://www.kuntahankinnat.fi), which is a central purchasing body for the local governments. KL- Kuntahankinnat Oy puts procurement contracts and framework agreements out to tender, conducts negotiations and manages contracts as well as offering clients expert services. Generally, local governments and KL-Kuntahankinnat Oy play a significant role in public procurement, as the value of the public procurements in Finland are much higher at the local government’s level than at the central government level.

2.1.2 Action plans and strategies

The action plans and strategies of the Finnish government in the field of public procurement are strongly linked to the role played by Hansel Ltd. Finland has had a central purchasing body since many years (more than 50 years), that went through various reforms until it assumed the actual form. Hansel Ltd was created by the Finnish government also with the specific goal of enhancing e- Procurement in Finland and to have a more environmental-friendly public procurement.

Hansel Ltd supports inter alia eInvoicing, which is compulsory in all new frameworks and also provides the possibility to send eCatalogues and receive electronic orders from central governmental organisations free of charge. Furthermore it is currently developing eAwarding, eAuctions and Rtf. These type of e-tools are already available for small competitive tenders related to vehicle service procurements (Ajoneuvopalvelu) and Total Order Management Services (Tilha).

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Finnish legislation about public procurement consists of the following legal sources:  Act on Public Contracts (348/2007), available at http://www.finlex.fi/en/laki/kaannokset/2007/en20070348, hereinafter the 'Act';  Act on Public Contracts by Contracting Authorities in the Water, Energy, Transport and Postal Services Sector (349/2007).

Version:...... v3.1 Page: 112 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.2 Secondary Acts

The primary act is supported by the Government Decree on Public Contracts (614/2007).

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with Section 51 (1) of the Act, all communication and information exchanged may be by post, by fax or by electronic means according to the choice of the contracting authority. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

As regards national thresholds, Section 15 of the Act states that national thresholds. Finland is presently modifying its thresholds and new national thresholds will be soon the following: (a) 30.000 € for public supplies, service contracts, design contests and service concessions; (b) 100.000 € for health care and social services and special labor training; (c) 100.000 € for public works and public works concessions.

2.2.2 Specific tools 2.2.2.1 eSignatures

As regards e-Signatures, the Act sets forth no requirements with respect to e-Signatures. In general, Finnish legislation does not require that tenders, documents etc. in e-Procurement scenarios are signed; thus, any electronic signature (compliant with the Act concerning Strong Electronic Identification and Electronic Signature (617/2009)) is sufficient.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Finland. However, the Finnish Parliament is reading a draft of a proposed law that will ensure the possibility to send the decision electronically.

2.2.2.3 DPSes

Version:...... v3.1 Page: 113 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

A Dynamic Purchasing System is defined by section 5(17) of the Act as “a completely electronic process for making commonly used purchases generally available on the market; the procedure is limited in duration and open throughout its validity to any tenderers which satisfy the selection criteria and which have submitted an indicative tender that complies with the specification”. According to section 86, specific rules about DPSes shall be set forth in a Government Decree. DPSes are not in use in Finland at the time of writing, but the implementation and legislation process is in progress.

2.2.2.4 eAuctions

An electronic auction is defined by section 5(18) of the Act as “a repetitive procedure involving an electronic device for the presentation of new prices, revised downwards, or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using an automatic evaluation method; public works contracts and service contracts having as their subject-matter intellectual performances may not be the object of electronic auctions”. According to section 86, specific rules about e-Auctions shall be set forth in a Government Decree. eAuctions are not in use in Finland at the time of writing, but the implementation and legislation process is in progress.

2.2.2.5 Lists of economic operators

Finnish legislation does not provide for official lists of economic operators.

2.2.2.6 Buyer’s profiles

Finnish legislation does not regulate buyer’s profiles.

2.2.2.7 Framework agreements

Framework agreements are recognised as a part of the Finnish public procurement system by section 2 of the Act. Section 15(5) defines the framework agreement as “an agreement between one or more contracting authorities and one or more suppliers, the purpose of which is to establish the terms, such as with regard to price and the quantity envisaged, of contracts to be awarded during a given period”.

Pursuant to section 11 of the Act, framework agreements can be entered into by a central purchasing body, and specific rules are set forth by sections 31 and 32 (in particular, section 31 states that contracting authorities shall choose the suppliers for the framework agreement by open or restricted procedure, as well as by a negotiated procedure or by awarding the contract directly).

Section 26 points out that contracting authorities shall make public framework agreements. Currently Hansel Ltd has 80 framework agreements (http://www.hansel.fi/en/activities/frameworkagreements). KL-Kuntahankinnat Oy has also framework agreements, as noted above.

Version:...... v3.1 Page: 114 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Act. When the tenderer cannot present the required documentation with regards to economical and financial suitability for valid reasons, this may be demonstrated through any other documents which the contracting authority deems suitable. There are also companies such as Suomen Asiakastieto (http://www.asiakastieto.fi) that provide information about economic status. Also some register information is available in Yritys- ja yhteisötietojärjestelmä (http://www.ytj.fi/english/) and Kaupparekisteri (http://www.prh.fi/fi/kaupparekisteri.html). With regard to verification and language issues, there are no formal rules for verifying the validity of an offer. The contracting authority is thus relatively free to assess the validity and value of the provided evidence. In case of foreign offers, section 57 of the Act allows the contracting authority to demand to deliver an extract proving that the tenderer has been registered in the appropriate professional or business register, a declaration under oath, a certificate that the tenderer is engaged in business, or a license or a certificate proving membership in an association that prove a right to provide services in the country of establishment. However, as for all decisions, the authority must respect the basic principles of good administrative governance. In practice, this means that any decision to reject certain evidentiary documents must be motivated and transparent. Additionally, the decision must be proportionate. When a contracting authority considers that the provided certificates are incomplete, ambiguous or unclear, it may request clarification from the tenderer rather than rejecting an offer outright. In this way, arbitrary decision making should be avoided.

Version:...... v3.1 Page: 115 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

Finland is part of the PEPPOL project. The Finnish Consortium consists of the Ministry of Finance (the national coordinator), responsible for guiding public procurement and ICT in central awarding authorities, the State Treasury, responsible for centralized financial activities including invoicing and ordering in central awarding authorities and Hansel Ltd acting as a central procurement unit for central awarding authorities.

3.2 Main platform

HILMA2 is a free electronic notification channel where the contracting authorities publish public procurement notifications. Any contracting authority must accede to the HILMA platform, which brings the direct benefit for them of cost free publication of procurements. The site is available both in Finnish and in Swedish. The current registration process, a low security username/password system, allows contracting authorities to register their contact details (name, address, phone, e-mail…).

HILMA is only a notification and search platform for national and EU procurements above the threshold and it is not possible to submit tenders through it. The state authorities have no plans to further develop HILMA into a full-fledged platform but rather rely on developments by private companies. Also, the HILMA platform does not automatically notify a tenderer when a new procurement of potential interest becomes available. The tenderers may only review the notifications on the HILMA web site.

In practice it is however possible and frequently occurring that especially for smaller procurements, a call for offers indicates that offers may be submitted electronically. Normally electronic submission is always done via e-mail, which can be electronically signed of course, but as we have described earlier, there is no formal requirement as to what type of electronic signature is required. Hence, any electronic signature including a simple text string will be accepted as valid signature by the receiver.

3.3 Additional platforms

Hansel Ltd is a non-profit organisation (with more than 50 procurement professionals) owned by the state of Finland and operating under the control of the Ministry of Finance. The main objective of Hansel is to create savings in state procurement by centralising procurement volumes and procurement expertise. Hansel has currently signed 80 state level framework agreements covering a large range of products and services so that state authorities can procure directly from roughly 600 suppliers without having to conduct their own competitive tendering process. The total value of

2 See http://www.hankintailmoitukset.fi

Version:...... v3.1 Page: 116 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

purchasing through framework agreements reached 372 M€ in 2007, 460 M€ in 2008 and 534 M€ in 2009, i.e. continuously increasing. Order, delivery and reporting as well as invoices and payments are handled directly between the economic operators and the contracting authorities in electronic form.

Hansel Ltd has established such platforms as Tilha (http://services.netwheels.fi/hansel) and Ajoneuvopalvelu (https://tilhasp.basware-saas.com/supplierportal/login.aspx). Every contracting supplier of Hansel has the possibility to provide eCatalogues through Tilha. Users of Tilha can also order products and services electronically from Hansel´s contracting supplier. These two platforms have several e-tools that provide possibility to organise small competitive tenders under framework agreement.

There is also KL-Kuntahankinnat Oy (http://www.kuntahankinnat.fi) – a central purchasing body for the local governments. KL-Kuntahankinnat Oy does not have an electronic platform for tendering at the moment, but KuntaIT is currently developing this. This platform will be available not only for the KL-Kuntahankkinat Oy but also the whole public administration.

Also, some private operators (Agentum Technologies Oy – http://www.agentum.com, Edita Publishing Oy – http://www.credita, Inoa – http://www.inoa.fi, Liidit.fi – http://www.liidit.fi, Nordic Commons Oy – http://tarjouskilpailu.fi/, Tieke – http://www.tieke.fi/hanketori) offer value added services where private economic operators may subscribe to automatically receive notifications by e-mail. These private sites are generally not only available in Finnish and Swedish but also in English. The complete list can be looked up online at: http://www.hankintailmoitukset.fi/fi/docs/ilmoitusmenettely#p6

3.4 Figures

In Finland, the value of public procurement can be estimated to € 27 billion per year and represents 15% of the GDP. According to the DG INFSO Benchmarking study3, Finland achieves a score of 36% for the availability benchmark while the European average is 56%. It scores 43% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of…

3 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 117 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

absence of conviction for Paper only natural persons absence of conviction for Paper or declarations in other forms legal persons non-bankruptcy and financial Electronic information can be looked up from electronic register YTJ status (http://www.ytj.fi/english/) and from the electronic register service of the customer data. compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Electronic information can be looked up via http://www.ytj.fi/english/yrityshaku.aspx?path=1704;1736;2052&kielikoodi=3 technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

Version:...... v3.1 Page: 118 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

France

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The main profile buyer1 is the Place de marché interministérielle, which was launched on 4 November 2008.

Name Place de marché interministérielle

URL www.marches-publics.gouv.fr Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment2 eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication advanced signature based on qualified certificate required. requirement

The objective of the Ministry of Economy, Industry and Employment is to dematerialise all procedures relative to public procurements and extends the actual dematerialisation to archiving, awarding, payments and accounting.3

1 See http://www.economie.gouv.fr/directions_services/daj/dematerialisation/definition_profil_acheteur.pdf 2 not directly supported but through another application which is linked, called Chorus 3 See: http://www.minefi.gouv.fr/performance/audit/pdf/annexe4.pdf, p.4.

Version:...... v3.1 Page: 119 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Here are the DG INFSO Benchmarking report scores:

It should be stressed that e-procurement in France is not exclusively based on the national platform but also on local ones, as it is said below.

France is a member of the PEPPOL project. The following platforms have been identified:

Platform Name Platform URL Place de marché interministérielle www.marches-publics.gouv.fr Bulletin officiel des annonces de marchés www.boamp.fr publiques Les Chambres de Commerce et www.marches.cci.fr d'Industrie Marchés publics e-bourgogne marches.e-bourgogne.fr e-mégalis Bretagne www.e-megalisbretagne.org Paris - Elaboration et Passation des www.epm.paris.fr Marchés Réseau des acheteurs hospitaliers d’Ile www.resah-idf.com de France Ministère de l’Economie de l’Industrie et www.economie.gouv.fr de l’Emploi e-marchespublics.com www.e-marchespublics.com marchés publics de Nantes Métropole marchespublics.nantesmetropole.fr Mairie de Lyon www.marches.lyon.fr Agysoft www.marco-web.fr Ville de Toulouse marchespublics.toulouse.fr La Région Limousin www.local-trust.com/regionlimousin Conseil Général des Bouches-du-Rhône marches.cg13.fr Région Provence-Alpes-Côte d’Azur achat.regionpaca.fr Région Alsace marchespublics.region-alsace.eu Conseil Régional Midi-Pyrénées marchespublics.midipyrenees.fr

Version:...... v3.1 Page: 120 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Ile-de-France4 e-marchespublics.iledefrance.fr Conseil Général du Pas de Calais www2.local-trust.com/cg62 Portail interregional de l’achat hospitalier et medico-social public www.achat-hopital.com Conseil Général de la Moselle www.marches-publics57.com Ile-de-France4 marchespublics.iledefrance.fr Marchés publics du Grand Ouest www.ouestmarches.com France Marchés www.francemarches.com Marchés Online www.marchesonline.com Achats publics / Forsup www.achatpublic.com Avenue Web www.avenue-web.com Bravosolution S.p.A. www.bravosolution.com EU Supply www.eu-supply.com

1.2 Laws and policies

1.2.1 Laws

Initiated in 2001, full transposition of the Public Procurement Directives has been finalised by Decree nº 2006-975 of 2006 approving the Public Procurement Code. Following the European public procurement directives this code (“Code des Marchés Publics”) has been amended by two Decrees in 20065 and 2007, which were (largely) abrogated and replaced by a new Decree of 14 December 20096 on the use of electronic procedures7, which came into effect on 1 January 2010. The Circular of 29 December 20098 clarifies the provisions of the Code.

Article 56 of the Public Procurement Code stipulates that the provisions of the Code which refer to written documents shall not impede their replacement by an electronic carriers or electronic exchanges. Furthermore, since the 1st of January 2005, contracting authorities are required to accept electronic tenders

4 It seems 2 different portals are existing for the region Ile-de-France 5 Arrêté du 28 août 2006 pris en application du code des marchés publics et fixant les modèles d'avis pour la passation et l'attribution des marchés publics et des accords-cadres 6 Arrêté du 14 décembre 2009 relatif à la dématérialisation des procédures de passation des marchés publics, qui précise le régime de l’achat public électronique dans la perspective de l’entrée en vigueur des nouvelles obligations au 1er janvier 2010 7 Arrêté du 14 décembre 2009 relatif à la dématérialisation des procédures de passation des marchés publics ; http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021496020&dateTexte=&catego rieLien=id 8 Circulaire du 29 décembre 2009 relative au Guide de bonnes pratiques en matière de marchés publics

Version:...... v3.1 Page: 121 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The full coordinated text of the Code can be found here: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000005627819&dateTexte=vig

1.2.2 Legally supported tools

 eSignatures: electronic offers (over the thresholds) must be signed using a certificate meeting the requirements established through the Decree of 28 August 2006 which refers to a list of supported certificates They should be compliant with the level 2 of the general security framework (referential general de sécurité, the so-called “PRIS”) and be authorised by State Reform Ministry.9 (both available at: http://www.entreprises.minefi.gouv.fr/certificats/). Level 2 of the PRIS requires a face to face registration.  DPSes: fully supported through article 78 of the Code. Article 78 of the Code introduces a new procedure in conformity with the e-procurement directives, the so-called dynamic acquisition system. The procedure is entirely based on electronic means but limited, as well as e- auctions, to common goods.  eAuctions: fully supported through article 54 of the Code. Introduced in 2001, e-auctions are regulated by article 54 of the Code. This procedure is limited to public procurement above form certain thresholds defined in article 26 of the Code for the purchase of common goods. Confidentiality is ensured through the use of pseudonyms during the procedure.  Buyer’s profiles: supported through article 39 of the Code.

1.2.3 Permissibility of using eProcurement Article 56 of the Public Procurement Code contains general rules with respect to dematerialisation. It also notes that the contracting authority will stipulate if electronic means of communication may be used. As of 1 January 2010, contracting authorities may impose the use of electronic procedures for all procurements. The Code made the use of electronic procedures mandatory for informatics purchases above EUR 90.000. And by 2012 at the latest, contracting authorities must be able to receive and process electronic tenders for procurements above EUR 90.000, i.e. they cannot reject them. In order to prevent contaminated files from being rejected, the new Public Procurement Code allows the tenderer to send, together with its tender, an electronic or paper-based back-up copy before the end of the delay for the tenders’ submission. This back-up copy should be placed in a sealed box with an explicit mention indicating that it is a back-up copy. This copy will only be opened if the original file has not been received by the contracting party or if it is contaminated. The evidence of the contamination of the file should be kept by the contracting authority. In any other case, the back-up copy should be destroyed.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The main strengths of the French situation are related to the strong maturity of its eGovernment infrastructure in general (including a well developed eSignatures framework), its long history in eProcurement (substantially predating the European Directives), and its very pro-active stance towards the introduction of eProcurement (notably through the aforementioned legal possibility to

9 MINEFI, op. cit. fn.4

Version:...... v3.1 Page: 122 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

require eProcurement, and in certain cases obligations for contracting authorities to accept eProcurements).

Furthermore, France has developed, 5 years ago, a central eProcurement infrastructure via the aforementioned portal site managed by the company atexo, which should result in cost savings and in a more consistent user experience, which could favour uptake. The publication of good practice guides (Guide des bonnes pratiques en matière de marchés publics) is an example of soft guidance/assistance provided to contracting authorities.

Similar initiatives are conducted by local authorities who have joined in order to use centralised platforms and reduce costs. Two platforms, set up as experiments and followed up by the Central government in the context of the E-administration Plan ADELE, should be mentioned: the “e- Bourgogne platform” (https://marches.e-bourgogne.fr/) set up by the Bourgogne region and the “e- megalis platform” (https://www.e-megalisbretagne.org/a1b/), set up by the region of Brittany.

1.3.2 Weaknesses of the national situation The obligation to receive electronic tenders has given way to the launch of multiple initiatives for the implementation of buying profiles via “virtual public procurement rooms” (salle des marchés publics électroniques). 30 reliable platforms are currently in use, but many more exist. Local contracting authorities must comply with the provisions of the Code. However, they are free to organize their procurement as they wish, including the choice of the buying profiles provided that it could ensure the security and confidentiality of electronic exchanges, as well as free access to the network without any discrimination for tenderers. As a consequence, the main issue is the great number of platforms. In addition, even if the access to notifications is free, as a simple registration through login/password is required, the submission of tenders is subject to the acquisition of a certificate authorised by the Ministry of State Reform which implies a face to face authentication process. Authorised certificates are mainly issued by French CSPs and no actions have been taken so far in the sense of acknowledging qualified electronic signature from other countries (except at the pilot level through the PEPPOL project). It remains to be seen whether these authorised CSPs with delegations outside France would offer such certificates. A secondary potential weakness relates to the strong dependence on French national norms (e.g. the security framework for eSignatures, meaning that only eSignatures which have been verified to comply with French national standards can be used), which results in interoperability barriers.

Version:...... v3.1 Page: 123 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The principal entity in charge of eProcurement policy coordination is the Ministry of Economy, Finance and Industry. The legal department (Direction des affaires juridiques) is in charge of the Code. At the same time, the Ministry is the central body responsible for State reform, e-Government strategy and policy. It works with the Direction Générale de la Modernisation de l’État (DGME), which coordinates modernization initiatives and assists Ministries in defining the public procurement policies.

For the organization of actual procurements, the Union des Groupements d’Achats Publics (UGAP) can be utilized by Regions and contracting authorities to facilitate the electronic submission of tender documents. None the less, regional contracting authorities retain their full competence to organize public procurements in the way that seems most suitable to them (including with respect to eProcurement).

In recent years, there is a tendency towards centralization via the DGME to realize economies of scale. The public procurement portal (www.marches-publics.gouv.fr) is an example of this trend, through which a number of technical and organizational solutions are offered to contracting authorities.

2.1.2 Action plans and strategies

The Agency for the Development of Electronic Administration (Agence pour le Développement de l’Administration Électronique – ADAE), under the direct authority of the Prime Minister has drafted the electronic administration strategy and action plan (ADELE). The ADELE program aims at accelerating the expansion of the new technologies within the public administration in order to increase the general efficiency and productivity of public services, rendering procedures much more rapid and effective. The implementation of the aforementioned public procurement portal (www.marches-publics.gouv.fr; the French e-procurement platform) is one of the outcomes of this program. It should be stressed however that public procurement is strongly decentralized: while the aforementioned platform is used by the central government, regional governments (who represent a significantly larger part of the public procurement market in France) are free to organize themselves in any way they wish.

Furthermore one of the main objectives put forward by the French Government is to publish all calls for tender electronically by 2010. Besides the development of electronic tools and platforms, the other objectives of the project are the reengineering of processes and training in order to professionalize the buyer function. In the time-frame 2004-2005 and 2005-2008, an approximate amount of 2 million € has been allocated for the introduction of operational electronic procurement at a national level. The systems developed in France are practically in total compliance with the requirements of the new EU Procurement Directives.

France has taken a proactive stance towards encouraging the use of eProcurement: as of 1 January 2010, usage of eProcurement may be required by the contracting authority, and starting from that

Version:...... v3.1 Page: 124 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

same date using eProcurement is obligatory for all ICT procurements of more than 90.000 EUR (VAT not included)10. After 1 January 2012, the contracting authority may not refuse any electronic communication in any procurement over that same threshold. So far however, this has not yet leads to massive take-up in practice, with estimates of around 4% of all public procurements being conducted electronically.

To support contracting authorities in the usage of eProcurement, a good practice guide (Guide de la dématérialisation des marchés publics) reflecting the most recent legal changes since the Decree of December 2009 will be published11.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

France has fully implemented both directives, including all e-procurement related provisions, through the new Public Procurement Code of 2006. Following the European public procurement directives this code (“Code des Marchés Publics”) has been amended by a Decree of 1 August 2006 and a Decree of 12 March 2007 (see http://www.admi.net/jo/20060804/ECOM0620003D.html and http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=ECOM0720001A). In turn, these Decrees were (largely12) abrogated and replaced by a new Decree of 14 December 2009 on the use of electronic procedures13, which came into effect on 1 January 2010. In particular14, it foresees that:

 contracting authorities must publish tender documents on their 'buyer profile' for procurements above EUR 90.000; by definition15, such a buyer profile must indicate the functionality to receive tenders electronically;  contracting authorities may impose the use of electronic procedures for procurements;  contracting authorities may impose the use of electronic procedures for all ICT procurements of more than 90.000 EUR

10 Just see the work sheet : http://www.economie.gouv.fr/directions_services/daj/dematerialisation/regles_demat_mp_informatique .pdf http://www.economie.gouv.fr/directions_services/daj/dematerialisation/liste_indicative_codes_cpv.pdf 11 See http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=6C8900AB6AFE7C8A67C0DEE1E83E454C.tp djo08v_2?cidTexte=JORFTEXT000021570204&categorieLien=id 12 With the exception of the provisions with respect to eSignatures in the Decree of 2006 ; see below. 13 Arrêté du 14 décembre 2009 relatif à la dématérialisation des procédures de passation des marchés publics ; see http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021496020&dateTexte=&catego rieLien=id

14 See also http://www.achats-collectivites.fr/pages_dnn/bulletin_visu.asp?id=470 15 Just see the work sheet http://www.economie.gouv.fr/directions_services/daj/dematerialisation/definition_profil_acheteur.pdf

Version:...... v3.1 Page: 125 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 by 2012 at the latest, contracting authorities must be able to receive and process electronic tenders for procurements above EUR 90.000, i.e. they cannot reject them. (since the 1st January 2005, contracting authorities must be able to receive and process electronic tenders for procurements above the thresholds).

The full coordinated text of the Code can be found here: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000005627819&dateTexte=vig

It is worth noting that the earlier 2004 edition of the French Public Procurement Code already provided for the “dematerialisation” of public procurement procedures (Article 56); thus, France already has a long history in this area. A new guide is about to be put on line (Guide de la dematerialisation des marches publics).

2.2.1.2 Secondary Acts

Conditions for the Code’s application were already established in two decrees (Nr. 2001-846 of 18 September 2001 on the use of electronic auctions, and Nr. 2002-692 of 30 April 2002 on the dematerialisation of public procurement procedures). However, these were abrogated by the aforementioned CMP of 2006 2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

Article 56 of the Public Procurement Code contains general rules with respect to dematerialisation. It also notes that the contracting authority will stipulate if electronic means of communication may or must be used.

As of 1 January 2010, contracting authorities may impose the use of electronic procedures for procurements; contracting authorities must impose the use of electronic procedures for all ICT procurements of more than 90.000 EUR and by 2012 at the latest, contracting authorities must be able to receive and process electronic tenders for procurements above EUR 90.000, i.e. they cannot reject them. Since 2005, this obligation is already valid for tenders above the EU thresholds i.e. roughly above 125.000 (state level ) ou 193.000(local collectivities level) EUR.

2.2.1.5 Thresholds

As regards national thresholds, since 1 January 2010 the thresholds are set at16:

 For goods and services procurements :

16 Source: http://www.achats-collectivites.fr/pages_dnn/bulletin_visu.asp?id=470

Version:...... v3.1 Page: 126 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

o At the state level (Marchés de l’Etat) : 125.000 EUR o At the collectivity level (Marchés des Collectivités) : 193.000 EUR o Other contracting authorities (Marchés des Entités Adjudicatrices (opérateurs de réseau)) : 387.000 EUR.  Alls works procurements (Marchés de Travaux) : 4.845.000 EUR

2.2.2 Specific tools 2.2.2.1 eSignatures

Electronic offers must be signed using a certificate meeting the requirements established through a ministerial decree (Art. 48, par. I). The Decree of 26 August 2006 referred to a limited list of supported certificates which meet the requirements of the security reference framework used in France for electronic signatures used in public sector applications. This list is published here: http://www.entreprises.minefi.gouv.fr/certificats/.

While the Decree of 2006 was recently largely abrogated by a Decree of 2009, the provisions with respect to eSignatures were left intact (i.e. they were not abrogated).

2.2.2.2 eCommunication

Article 56 of the Public Procurement Code contains general rules with respect to dematerialisation, which are executed through the new Decree of 200917. The contracting authority will stipulate if electronic means of communication may be used. A single mode of transmission (either all paper, or all electronic) must be used. After 1 January 2010, eProcurement may be required by the contracting authority, and starting from that same date it will be obligatory for all ICT procurements of more than 90.000 EUR (VAT not included). After 1 January 2012, the contracting authority may not refuse any electronic communication in any procurement over that same threshold. When submitting an electronic bid, economic operators may elect to submit at the same time paper or electronic (CD …) back-up copies (copie de sauvegarde).

2.2.2.3 DPSes

DPSes are supported via article 78 of the Code, and significant gold plating has occurred under French law. Specifically:

- Article 78, I, 3° notes that the evaluation period of 15 days after the receipt of an indicative tender can be extended if no new procurements can be initiated under the DPS that are relevant to the economic operator(s) being evaluated. The latter criterion (of relevance) is a minor improvement over the Directives, which specify a general ban on new procurements during the evaluation.

17 See http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021496020&dateTexte=&catego rieLien=id

Version:...... v3.1 Page: 127 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

- Article 78, II, 1° also contains a clearer phrasing than the Directives, by stating that economic operators who have not yet submitted an indicative tender to the DPS may still submit one in response to a new contract under the DPS being announced (thereby joining the DPS and submitting an offer in a single act). The phrasing is substantially clearer than the Directives, which leave some ambiguity as to the exact meaning of the indicative tender. - The choice of the economically most advantageous tender is made by the designated commission.

2.2.2.4 eAuctions

A specific decree for eAuctions has already been in place in France since 2001; see http://admi.net/jo/20010919/ECOM0100633D.html; however, this decree was abrogated by the Decree establishing the new Public Procurement Code.

In accordance with article 54 (II) of the Public Procurement Code (http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000005627819&dateTexte=vig), eAuctions may only be used for the purchase of goods over the thresholds specified in article 26 (II) of the Code (i.e. 133 000 EUR for State procurements, 206.000 EUR for procurements by the « collectivités territoriales » or by defense authorities). Thus, usage for lower cost purchases is excluded, as are all services and works contracts.

Other differences with the Directives exist as well, but are relatively minor matters of phrasing (e.g. the Directives require after each phase of the auction that relative rankings are made available, and allow other information to be made available as well (art.54 (6)); the French Act notes that relative rankings may be made available or the result of the leading bid (art. 54 (VII)).

2.2.2.5 Lists of economic operators

There are no known lists of accredited economic operators in France.

2.2.2.6 Buyer’s profiles

The usage of buyer’s profiles is enabled and even required for procurements above EUR 90.000 through article 40 CMP and followings and 2 of the new Decree of 14 December 2009 on the use of electronic procedures. This provision requires contracting authorities to indicate the applicable address of the buyer’s profile when sending electronic invitations to tender.

2.2.2.7 Framework agreements

Framework agreements are regulated via article 76-77 of the Code, in terms comparable to those of the Directives.

Framework agreements are used in practice to support eProcurements; see http://www.marchespublicspme.com/fiche-pratique-marches-publics-accords-cadres.html

Version:...... v3.1 Page: 128 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined by articles 44 to 46 of the Code and their application decrees. The tenderer is required to provide a sworn statement, duly dated and signed by the candidate, to the effect that it has met its obligations in terms of tax and contributions, and that it has not been barred from tendering according to the criteria defined by article 8 of the Ordinance nº2005-649.

It should be noted that only the awarded tenderer is required to produce attestations and certificates of compliance with fiscal and social obligations. Failure to produce such documents would exclude the tenderer from the contract awarding (article 46 of the Code).

Foreign tenderers must produce equivalent certificates, where required, issued by the institutions and departments of the country concerned. If that country does not issue such certificates, it may be replaced with a sworn statement, or, in States in which such statements do not exist, with a solemn declaration made by the person concerned before the relevant judicial or administrative authority, a notary or a qualified professional body in that country. Contracting authorities may asked tenderers to produce a translation by certified interpreter of documents not redacted in French.

This situation facilitates the use of electronic documents since Article 1316-1 of the Civil Code equals electronic to written form provided that it is possible to identifying its author and assuring its integrity through a certain period of time. As a result, the aforementioned sworn statement can be provided in an electronic format as well.

Version:...... v3.1 Page: 129 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction France is running the “Mandatory National eProcurement Platform” model: eProcurement policy is centralized and the use of the National Platform is mandatory for National contracting authorities. Such a centrally steered approach encourages centralization and coordination but does not per se exclude the development of independent regional, local platforms or private platforms.

3.2 Main platform According to 3.1, no explicit “Main platform” can be identified; only a few platforms play a “central” role, such as the Place de marché interministérielle or the Bulletin officiel des annonces de marchés publiques. The portal Les Chambres de Commerce et d'Industrie has joined the Place de marché interministérielle. These portals are providing eNotification, eAccess to tender documents, eSubmission, the Place de marché interministérielle has also the eAuctions feature, DPS.

3.3 Additional platforms The others platforms are local or regional eProcurement portals with similar functions on the one side and some commercial portals on the other side.

3.4 Figures According to the DG INFSO Benchmarking study18, France achieves a score of 58% for the availability benchmark while the European average is 56%. It scores 58% for the Pre-Award Process Benchmark while European average is 59%. Resah-idf (the Réseau des Acheteurs Hospitaliers d’Ile-de-France – Network of Hospital Buyers of the Ile-de-France region) identified an increase of contracts won by SMEs in the amount of 72% (7,2 M€) in the period 2006-200819.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper & signed electronic original natural persons absence of conviction for Paper & signed electronic original legal persons

18 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

19 See http://www.pactepme.org/docs/pacte/gc/RESAH-IDF/bilan_2006-2008.pdf

Version:...... v3.1 Page: 130 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

non-bankruptcy and financial Paper & signed electronic original status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper & signed electronic original standing professional qualification signed electronic original ( Electronic information can be looked up via http://www.infogreffe.fr/infogreffe/index.jsp.) technical and/or professional Paper & signed electronic original ability adequate insurance Paper & signed electronic original quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 131 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Germany

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Kaufhaus des Bundes & e-Vergabe Plattform des Bundes

URL www.kdb.bund.de & www.evergabe-online.de Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Supported qualified or advanced signature required requirement

Germany is part of PEPPOL. Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Kaufhaus des Bundes www.kdb.bund.de

Version:...... v3.1 Page: 132 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Beschaffungsamtes des www.bescha.bund.de Bundesministeriums des Innern1 Vergabeplattform des Bundes www.evergabe-online.de Land Nordrhein-Westfalen www.evergabe.nrw.de/VMPCenter Deutsche Rentenversicherung www.deutsche-rentenversicherung-bund.de Land Brandenburg vergabemarktplatz.brandenburg.de Stadt Stuttgart www.vergabe.stuttgart.de Stadt Frankfurt www.vergabe.stadt-frankfurt.de Land Hessen www.vergabe.hessen.de Stadt Bremen www.vergabe.bremen.de Land Niedersachsen vergabe.niedersachsen.de Land Berlin www.vergabeplattform.berlin.de Logistics Baden-Wuerttemberg www.lzbw.de Land Bayern www.vergabe.bayern.de Vergabeportal des Vergabeverbundes owl.deutsche-evergabe.de Ostwestfalen-Lippe Mercell www.mercell.de Tek Service AG www.tek-service.de

1.2 Laws and policies

1.2.1 Laws The legal framework consists primarily of the following components:  the Procurement Act (VgV, Verordnung über die Vergabe öffentlicher Aufträge), which was reformed in 2006 to implement the Directives,  the Antitrust Act (GWB, Gesetz gegen Wettbewerbsbeschränkungen), notably the fourth to sixth part,  and the contract and award terms (Verdingungsordnung für Leistungen; Verdingungsordnung für freiberufliche Leistungen and Vergabe- und Vertragsordnung für Bauleistungen - VOB/VOL/VOF). The VgV acts primarily as a general framework, with the terms containing substantive law. The amended VgV regulates the submission of electronic bids in the area of public procurement. The VgV and VOB/VOL/VOF are currently being reviewed.

A full overview of applicable laws can be found here: http://www.bescha.bund.de/cln_100/nn_663642/DE/Rechtsgrundlagen/NormenRechtsvorschriften/nod e.html?__nnn=true

1 Agency which is responsible for www.kdb.bund.de and www.evergabe-online.de

Version:...... v3.1 Page: 133 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.2 Legally supported tools

 eSignatures: electronic signatures are mandatory, and must follow the requirements specified by the contracting authority or use qualified signatures §§ 21 VOB/A and VOL/A, §§ 8 SKR VOB/A and VOL/A, § 4 VOF).  DPSes: defined in §101 (6) of the GWB, but without a substantive framework yet.  eAuctions: defined in §101 (6) of the GWB, but without a substantive framework yet.  Buyer’s profiles: supported through §§ 16 VOB, § 9 SKR VOB/A and VOL/A; § 9 VOF .

1.2.3 Permissibility of using eProcurement § 16 VOB/A, §§ 8 SKR VOB/A and VOL/A, § 4 VOfF note that the contracting authority must identify the permissible means of communication, which may include eProcurement. In the absence of any explicit indications of the contracting authority, there appear to be no legal barriers to the use of eProcurement.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Via the federal initiatives, Germany has been able to build up a strong eProcurement programme, with an advanced portal (e-Vergabe). The legal framework is also relatively comprehensive: while binding provisions with respect to DPSes and eAuctions have not been fully integrated, the fact that German public procurement law relies largely on a model of formalised self-regulation through standardised contractual terms means that contracting authorities can permit the usage of these tools on an ad hoc basis.

1.3.2 Weaknesses of the national situation

Due to the federal structure, it has taken some time to bring the e-Vergabe portal to maturity. In addition, while signature requirements have been relaxed in recent years, de facto only German eSignature solutions are used at this point, which may prove to be a barrier to cross border interoperability (albeit a limited one, since some of the advanced signature solutions should be relatively easily available to foreign economic operators as well.

There is also a risk of lower uptake of the more advanced eProcurement options (DPSes and eAuctions), given that there is no comprehensive and binding legal framework for these, meaning that these systems may be less predictable/transparent to economic operators.

Version:...... v3.1 Page: 134 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

At the German federal level, the primary policy making body is the Federal Ministry of Economics and Technology (BMWi), which drafts legislation and provides guidance and information related to public procurement procedures compliant to the law. Regulations are traditionally maintained at the federal level, whereas most initiatives for implementation and stimulus have focused on the Länder level in the past. In recent years this has changed somewhat, with a larger focus on the federal eVergabe initiative (building also on experiences at the Länder level). Thus, there is a trend towards centralization. However, some Länder still maintain their own online databases with calls for tender in addition to the e-Vergabe platform.

With respect to technical implementation, the Procurement Agency of the Federal Ministry of the Interior is responsible for the development and roll-out of the e-Vergabe system, which is the primary German eProcurement platform, and executes public procurement competitions.

There are several central procurement bodies in Germany, including the aformentioned Procurement Agency. The Procurement Agency (Beschaffungsamt - BeschA) buys goods and services on behalf of 26 federal authorities and federal institutions as well as various federally-founded foundations and organisations operating abroad2.

2.1.2 Action plans and strategies

The BundOnline 2005 initiative aimed to harmonise the different eGovernment initiatives implemented in the Länder to a certain extent, and the e-Vergabe (eProcurement) portal was one of the flagship elements of this initiative3. It received EUR 4.5 million of backing from the then Bundesministerium für Wirtschaft und Arbeit (Federal Ministry of Economics and Labour). The service permits the electronic awarding based on communications between the awarding agency and potential bidders that are comprehensive, legally binding and free from media discontinuities. The offering ranges from notification via electronic tender submission through to contract award using the contract award platform. The documents containing the contract terms can be downloaded and bids submitted with an electronic signature. The system is used by companies and by all of the federal Government’s awarding authorities as well as by a number of states and municipalities 4.

2 Source : http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 3 See http://www.epractice.eu/files/eGovernment%20in%20DE%20-%20November%202009-12.1.pdf 4 Source: http://ec.europa.eu/idabc/servlets/Doc?id=32325

Version:...... v3.1 Page: 135 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Further development and promotion of the e-Vergabe platform remains one of the key pillars behind German federal eProcurement policy, including through the establishment of separate information (http://www.evergabe-online.info/) and education portals (http://www.evergabe-schulung.de/).

As a part of its further development, the Federal Ministry of Economics together with the leading associations of German industry (BDI, DIHK and ZDH) proposed an obligation to use the platform in two stages:

 As of 1 September 2007, tenders relating to ICT should be conducted via e-Vergabe;  As of 1 October 2008, tenders relating to automobiles should be conducted via e-Vergabe;  As of 1 January 2010, all tenders should be conducted via e-Vergabe.

Compliance with this proposal varies from one contracting authority to the next. Specifically for the BeschA, it has achieved the following milestones:

 As of 1 July 2009, it conducts all of its tenders relating to ICT and automobiles via e-Vergabe;  As of 1 January 2010, it conducts all of its tenders via e-Vergabe.

As a general obligation (for all contracting authorities), starting from March 2010, all procurement opportunities must also be published on the federal portal site, www.bund.de, but only if they are made available over an internet portal.

2.2 Legal framework

2.2.1 General regulations 2.2.1.1 Primary Acts The legal framework consists primarily of the following components:  the Procurement Act (VgV, Verordnung über die Vergabe öffentlicher Aufträge), which was reformed in 2006 to implement the Directives,  the Antitrust Act (GWB, Gesetz gegen Wettbewerbsbeschränkungen), notably the fourth to sixth part, which empowers the federal government to implement the Public Procurement Directives into German law by decree, with the consent of the Bundesrat (see §127)  and the contract and award terms (Verdingungsordnung für Leistungen; Verdingungsordnung für freiberufliche Leistungen and Vergabe- und Vertragsordnung für Bauleistungen - VOB/VOL/VOF). The VgV acts primarily as a general framework, with the terms containing substantive law. The amended VgV regulates the submission of electronic bids in the area of public procurement. The VgV and VOB/VOL/VOF are currently being reviewed.

The general public procurement framework system consists of the following „cascade“ of hierarchical provisions:

Version:...... v3.1 Page: 136 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Figure: German system of regulation concerning the award of contracts based on procurements5.

The graphic shows that in Germany the subject matters of public procurements are traditionally differentiated into three fields of interests (public works; supply; professional services) and that all fields are covered by general regulation at federal level, which became more detailed by subordinated law and soft-law.

A full overview of applicable laws can be found here: http://www.bescha.bund.de/cln_100/nn_663642/DE/Rechtsgrundlagen/NormenRechtsvorschriften/nod e.html?__nnn=true and http://www.bmwi.de/BMWi/Navigation/Wirtschaft/Wirtschaftspolitik/oeffentliche-auftraege, did = 190876.html

2.2.1.2 Secondary Acts

As noted above, the contract and award terms (Verdingungsordnung für Leistungen; Verdingungsordnung für freiberufliche Leistungen and Vergabe- und Vertragsordnung für Bauleistungen - VOB/VOL/VOF) act as secondary transposition acts, which contain most substantive rules of law.

5 Source: http://ec.europa.eu/idabc/servlets/Doc?id=31578

Version:...... v3.1 Page: 137 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

A full overview of applicable laws can be found here: http://www.bescha.bund.de/cln_100/nn_663642/DE/Rechtsgrundlagen/NormenRechtsvorschriften/nod e.html?__nnn=true and http://www.bmwi.de/BMWi/Navigation/Wirtschaft/Wirtschaftspolitik/oeffentliche-auftraege, did = 190876.html

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy. However, the Länder have substantial autonomy to develop their own eProcurement solutions within the federal regulatory framework. Additionally, in the context of local self government, the municipalities have decision-making power for the development of e-procurement solutions in their competence.

2.2.1.4 Permissibility of using eProcurement

§ 16 VOB/A, §§ 8 SKR VOB/A and VOL/A, § 4 VOfF note that the contracting authority must identify the permissible means of communication, which may include eProcurement. In the absence of any explicit indications of the contracting authority, there appear to be no legal barriers to the use of eProcurement.

2.2.1.5 Thresholds

The currently applicable thresholds are:

 For works (building construction/maintenance): 5.278.000 €.  For supplies and services: 211.000 €.

Contracting authorities are not obliged to advertise public contracts of a value of less than 8.000 €. This applies only to the scope of the Federal Ministry of the Interior and therefore can not be applied to all public authorities in Germany

2.2.2 Specific tools 2.2.2.1 eSignatures

Starting from November 2006, the VgV and the standard contract terms for public procurements (VOB/VOL/VOF, which are largely self-regulatory measures) note that the use of electronic signatures is mandatory, and must follow the requirements specified by the contracting authority or use qualified signatures (§§ 21 VOB/A and VOL/A, §§ 8 SKR VOB/A and VOL/A, § 4 VOF); prior to this revision, only qualified electronic signatures were permitted. At the present time, foreign companies can only submit bids electronically if they or an authorised representative possess(es) a German signature card or the advanced signature. Especially the advanced signature is easy to obtain by foreign companies.

Version:...... v3.1 Page: 138 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Supported signature solutions are identified on-line: http://www.evergabe- online.info/cln_100/DE/Signatur/Signaturen/node__signaturen.html?__nnn=true

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Germany.

2.2.2.3 DPS

As indicated in the notes preceding the VOL/A, the optional provisions with respect to DPS were not transposed into German law, as it was considered that further debate was required on implementation choices, and this issue was therefore left for further amendment at a later stage6.

However, as the VOB/VOL/VOF are largely self-regulatory measures, there is nothing stopping contracting authorities from providing an ad hoc framework to use DPSes. In addition, it should be noted that these rules are currently under revision and that the GWB already defines the concept of DPS (without providing a substantive legal framework yet).

2.2.2.4 eAuctions

Similar to DPS, no transposition of the provisions with respect to eAuctions has been foreseen, for the same reasons: it was considered that further debate was required on implementation choices, and this issue was therefore left for further amendment at a later stage.

As with DPS, there is nothing stopping contracting authorities from providing an ad hoc framework to use eAuctions, and these rules are currently under revision.

2.2.2.5 Lists of economic operators

Specifically for the constructions sector, in 2006 a prequalification system was established for the construction sector, managed by the organization Verein für die Präqualifikation von Bauunternehmen

6 See http://www.bescha.bund.de/cln_100/nn_663884/SharedDocs/Downloads/Rechtsgrundlagen/NormenU ndRechtsvorschriften/NationaleVerordnungen/bekanntmachung,templateId=raw,property=publicationF ile.pdf/bekanntmachung.pdf: “Eine Umsetzung der optionalen Verfahren „elektronische Auktion“ und „dynamisches Beschaffungssystem“ ist nicht erfolgt. Der DVAL ist der Auffassung, dass dies weiterer Diskussion bedarfund ggf. einer späteren Änderung vorbehalten bleiben sollte. Die eufassungen der Abschnitte 2 bis 4 bedürfen zu ihrer Anwendungsverpflichtung für öffentliche Auftraggeber nach § 98 des Gesetzes gegen Wettbewerbsbeschränkung einer Änderung der Vergabeverordnung.”

Version:...... v3.1 Page: 139 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

e.V.7. Through this system; works contractors can become prequalified and listed as such, which facilitates participation in any works contract subject to the provisions of the VOB / A, specifically by eliminating the need to provide certain evidences.

Upon successful pre-qualification, the name and address of the contractor will be published on-line, via www.pq-verein.de, where general information on the scheme is also published. The concrete evidences which were submitted for prequalification are stored in a password protected area of the PQ list and can be made available to contracting authorities when authorised by the economic operator.

2.2.2.6 Buyer’s profiles

Buyer’s profiles (Beschafferprofil)are supported through §§ 16 VOB, § 9 SKR VOB/A and VOL/A; § 9 VOF, in broadly similar terms as in the Directives.

2.2.2.7 Framework agreements

Framework agreements (Rahmenvereinbarung) are defined in § 3 para 8 VgV. § 3a No. 4 VOL / A , in § 4 SKR VOL / A and §5b of the VOL/A, and regulated in similar terms as under the Directives.

2.2.2.8 Electronic certificates / electronic evidences

While German Federal law only refers to reliability, operating effectiveness and technical or professional qualification in general (§ 97 (4) GWB), appendix 1 to no.3 VOB/ lists an extensive set of sub-criteria for certificates of qualifications necessary to qualify for participation in procurement procedures.

For foreign economic operators, German contracting authorities try to achieve and evaluate equivalent evidence. The tender regularly has to be submitted in the German language. The new standard forms for tenders, which were put into effect in 2006, use only the German language. There is no existing binding law in Germany stating that the German language must be used by tenderers. But many procurements refer expressly to or imply that condition.

As noted above, to reduce administrative burdens, a prequalification system has been created for construction contractors by the Federal Minister for Traffic, Construction, and City Development, which issued a guideline ( Leitlinie) for the introduction of a pre-qualification procedures on 25 April 2005 (as amended on 30 November 2006) according to which an „Association for the Pre-Qualification of Construction Enterprises“ (a registered private organisation called „Verein für die Präqualifikation von Bauunternehmen e.V.“) has been set up by the top federations of constructing enterprises. The new association (de: Verein) acts as a trusted third party and issues certificates on the basis of criteria laid down in the guidelines if the existence of the qualifications, can be demonstrated. The association entrusted six certification agencies with the pre-controlling. After a successful procedure has been carried out the association classifies the acknowledged enterprise to the pre-qualified field by name

7 See http://www.evergabe- online.de/jsp/nachricht.jsp;jsessionid=B4BAA7EB328E2499F971F42E55A64331.node20?newsid=6

Version:...... v3.1 Page: 140 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

and address in a register. The underlying documents for the controlling of the certification agencies are made accessible electronically by registration numbers and passwords.

Version:...... v3.1 Page: 141 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Germany is running the “Non-mandatory National eProcurement Platform” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities. The National eProcurement Platform is mandatory for Central Government Contracting authorities. In Germany, the Procurement Agency of the Federal Ministry of the Interior has developed the Federal Store (KdB), offering eCatalogues and automatic ordering with similar results. Conservative calculations estimate that each electronically executed order via KdB saves at least 6hrs (equating to €195 of personnel cost) compared to the simplest form of a single tender action. In 2008 more than 32,500 order transactions were electronically processed through KdB, which was twice the amount of 2007. Yet another sharp increase was expected for 2009.

3.2 Main platform The Federal Government's eProcurement platforms (www.kdb.bund.de and www.evergabe- online.de),platform (www.kdb.bund.de), launched in May 2002, enable authorities to publish and notify call for tenders electronically, and bidders to submit offers completely and bindingly over the Internet. The e-Vergabe platform should be considered as the main platform as it covers the pre-awarding phase. Kdb is the main platform on Federal level for the post awarding phase. This system is the result of the Public Procurement Online (Öffentlicher Eink@uf Online) Programme managed by the Office of Procurement of the Federal Ministry of the Interior, and which also comprises electronic catalogues enabling public bodies to procure goods and services electronically from a series of pre-concluded framework contracts and without the need for expensive calls for tender. This special part of the programme was realised by implementing a Federal eGovernment Shop (Kaufhaus des Bundes - KdB). It is an internal system, but public information is available.

3.3 Additional platforms A multitude of additional platforms exist, operated both by public administrations and private service providers. The section below will identify some of the main platforms. The Procurement Office (www.bescha.bund.de) is the principal buyer for 26 federal authorities within the portfolio of the Federal Ministry of the Interior. In 2008 it managed an annual budget of € 705 million. This makes the Procurement Office the second largest purchasing body in Germany’s federal government sector. As such it implemented two systems for eProcurement which are mandatory for all federal agencies. The first system is the eProcurement platform for digital communication between procurement agencies and suppliers. The second is the eGovernment shop to supply common goods to federal offices via electronic catalogues. Here follows some figures:

Year Procurement Order volumes Orders 2001 1,262 259.7 Million € 2,804 2002 1,619 422.6 Million € 2,188 2003 1,658 507.2 Million € 1,759 2004 1,507 600.3 Million € 1,549 2005 1,413 611.2 Million € 1,457

Version:...... v3.1 Page: 142 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Year Procurement Order volumes Orders 2006 1,252 428.9 Million € 1,218 2007 1,350 546.2 Million € 1,256 2008 1,015 704.8 Million € 1,073

The „OWL-Vergabeportal“ (East Westphalia-Lippe Tendering Platform) is a project realised by several municipalities in the region of East Westphalia-Lippe, Germany and the private company Healy Hudson from Mainz-Kastel, Hesse, Germany. The participating communities have set up a shared publication and tendering platform which is able to process the whole tenders completely webbased.

Apart from the fact that this is an innovative way of realising enormous potential savings through a public private partnership, the business concept allows especially small and medium sized municipalities to profit from a modern and extensive tendering solution while paying just a small fee once for the implementation. Thus the expenses stay calculable without having to accept any disadvantages or limitations regarding the functionality. The running expenses will be financed by potential bidders that participate in the tenderings. Nevertheless they also benefit from using the tendering platform. The research in the database with all available calls for tenders is free of charge. If a bidder decides to use the electronic submission assistant, a small fee has to be paid. Nevertheless this amount is presumably much lower than the costs he would have to invest by printing and sending the documents in paper form via mail.

East Westphalia-Lippe wanted to offer its regional economy the best service possible. For that, several public authorities in the region have implemented a joint electronic tendering platform. By that, they not only present themselves as innovative and modern, but they also actively encourage and support the regional economy with many small and medium-sized companies.

With the OWL tendering platform, potential savings can be realised on the bidder’s side as well as on the side of the public authorities. Thereby it contributes to the optimisation and increasing efficiency of procurement processes. One main advantage of the concept is its modular structure, enabling further municipalities to join the project within just a short period of time.

Furthermore, the security is increased in several ways by using the electronic tendering procedure. If a bidder decides to place his offer electronically via the platform, an electronic assistant supports him and helps him through the process of filling out the required forms. If the bidder incidentally provides illegitimate information, the assistant remarks it instantly, prompting him to prove his data. Placed offers are automatically verified concerning their conformity with the law, their plausibility and their completeness, which subsequently leads to a higher quota of electronically placed and formally correct offers. This in turn minimizes the risk of a possible exclusion for the participating bidders and at the same time leads to a higher quota of offers the issuing public authority can choose from.

The software and service provider Healy Hudson, who is in charge of the technical realisation of the platform, offers a continuous web-based tendering workflow without any media disruption. This enables the participating communities to carry out their whole tenders electronically from the first to the last step. At the same time they still have the liberty to leave single steps in the conventional form with printed paper documents.

Another advantage is the high bidder acceptance due to very few requirements on the technical side. Users do not need to install any files on their computer – a common standard PC and an internet browser, which is available for any usual operating system, are sufficient to participate. Therefore there is no discrimination of users – publication, the call for tenders and the awarding of the contract can be handled in a tendering workflow system via the internet.

Version:...... v3.1 Page: 143 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The administration of the Landratsamt Ostalbkreis (www.tek-service.de) implemented an e- procurement-system including a just-in-time-delivery of “C-Articles” (paper, office supplies, toner and ink cartridges) from July 1st, 2006 on.

The results of the new e-government/e-procurement-strategy are very encouraging: one year after its start, it is a great success. Thanks to cost reductions, annual call for tenders, abolishment of the stockrooms, reduction of personal costs and an efficient controlling system, the annual costs for the needed “C-Articles” diminished from 300.000 € to 200.000 €. The results are economies of 100.000 €/year, but also significant improvements of service for the departments in our administration.

Cosinex (http://www.cosinex.de) offers a suite of products to support the internal processes (including communications and transactions) involved in public procurement. The product suite consists of a modular solution offering to support the essential processes. Users of the Cosinex platform include notably: the Federal Ministry of Economics and Labor; North Rhine-Westphalia; Rhineland-Palatinate; the Free State of Thuringia; Brandenburg; Energy Works North; the Confederation of the German Construction Industry / Zertbau eV; Kreis Mettmann; GKD Recklinghausen; Kreditanstalt für Wiederaufbau; the German Bank; Peter Huppertz GmbH - Logistic Partners.

3.4 Figures

According to the DG INFSO Benchmarking study8, Germany achieves a score of 71% for the availability benchmark while the European average is 56%. It scores 59% for the Pre-Award Process Benchmark, it is exactly the European average.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper or unsigned electronic original status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper or unsigned electronic original standing

8 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at 8 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 144 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

professional qualification Paper or unsigned electronic original technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 145 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Greece

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name URL Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified: No platform identified.

Version:...... v3.1 Page: 146 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws

The primary acts are currently the Presidential Decrees P.D. 59/2007 and P.D. 60/2007, which transposed into Greek law the Procurement Directives.

1.2.2 Legally supported tools

 eSignatures: article 36 (5)b of P.D. 60/2007 notes that bids must be accompanied by a qualified signature (“an electronic signature as defined in Article 5 par.1 Directive 1999/93/EC as transposed into Greek law by Presidential Decree 150/2001 (A 125)”  DPSes: legally supported under Article 27 of P.D. 60/2007.  eAuctions: legally supported under Article 28 of P.D. 60/2007  Buyer’s profiles: no known references under the aforementioned laws.

1.2.3 Permissibility of using eProcurement Under §36(1) of P.D. 60/2007, the permissible means of communication are to be determined by the contracting authority. In the absence of any indications with respect to permissible means of communication, there appear to be no legal barriers to the use of eProcurement.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to follow the provisions of the Directives relatively directly, which should minimise legal obstacles.

1.3.2 Weaknesses of the national situation

Availability and maturity of technical eProcurement infrastructure appears to be very low at this time; thus, take-up will likely also be very limited.

Version:...... v3.1 Page: 147 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Policy making and rule making competences with respect to public procurement are shared between the Ministry of Economy, Competitiveness and Shipping (supplies), the Ministry of Finance (services) and the Ministry of Infrastructures, Transport and Networks (works)1.

With respect to eProcurement, the primary responsibility for technical implementation lies with the Ministry of Development (supplies). The General Secretariat for State Supplies (GSSS) can act as a Central Purchasing/Procurement Body for any Greek contracting authority.

Public procurement is quite strongly centralized compared to most other Member States, with a substantial number of public procurements being managed through the central procurement body, including the publication of opportunities and selection of winning bidders. Centralised procurement covers 40% of procurements; the remainder is conducted by contracting authorities directly2.

2.1.2 Action plans and strategies

The implementation of a new Digital Strategy in Greece for 2006-20133 introduces structural changes so that the country can take advantage of new technologies in a dynamic way as a means to sound economic development and to a better quality of life for the citizens. The strategy involves 65 new actions of which, certain actions were scheduled to be realised by the year 2008. These actions comprise the development of a national electronic procurement system, the adoption of broadband internet connections and the provision of the top 20 services to the citizens. Priority is also given on information campaigns and the initiation of citizens to new technologies. However, as of late 2009, no advanced eProcurement infrastructure appears to be operational yet.

2.2 Legal framework

2.2.1 General regulations

1 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol- 2_en.pdf 2 Source : http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 3 See http://www.infosoc.gr/NR/rdonlyres/A13F889F-DE92-4DCF-B64A- 37351BFC69B9/3053/ktp_all.pdf

Version:...... v3.1 Page: 148 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.1 Primary Acts

The general legal framework for public procurement consists primarily of Law 2286/19954 (supplies) and the relevant bylaws. The details of the procedures followed are prescribed in the Regulation of Public Procurement, i.e. Presidential Decree 118/2007 (supplies and services)5, law 3236/05 and law 3316/05 (works).

The Presidential Decrees P.D. 59/20076 and P.D. 60/20077 transposed into Greek law the Procurement Directives8.

2.2.1.2 Secondary Acts

As noted above, the primary act is supported by Presidential Decrees, with the main ones being P.D. 59/2007 and P.D. 60/2007 which transposed into Greek law the Procurement Directives9. In more particular, Decree 59/200710 implemented the provisions of Directive 2004/17 and, therefore, applies to utility services, whereas Decree 60/200711 implements the provisions of Directives 2004/18, referring thus to conventional procurement contracts.

2.2.1.3 Regulatory autonomy

Public procurement in Greece is partly regulated at the central level, with limited powers granted to local authorities.

2.2.1.4 Permissibility of using eProcurement

4 «Προμήθειες του δημόσιου τομέα και ρυθμίσεις συναφών θεμάτων», Government Gazette Α/19, 1995. 5 «Κανονισμός Προμηθειών Δημοσίου», Government Gazette A/266, 1996. 6 See http://www.infosoc.gr/NR/rdonlyres/C84A2153-F136-4FB7-B575- 95FD7730B97F/3553/%CE%A0_%CE%94_592007.pdf 7 See http://www.infosoc.gr/NR/rdonlyres/C84A2153-F136-4FB7-B575- 95FD7730B97F/3553/%CE%A0_%CE%94_602007.pdf 8 Source: http://ec.europa.eu/idabc/servlets/Doc?id=32326 9 Source: http://ec.europa.eu/idabc/servlets/Doc?id=32326 10 «Προσαρμογή της Ελληνικής Νομοθεσίας στις διατάξεις της Οδηγίας 2004/17/ΕΚ «περί συντονισμού των διαδικασιών σύναψης συμβάσεων στους τομείς του ύδατος, της ενέργειας, των μεταφορών και των ταχυδρομικών υπηρεσιών», όπως τροποποιήθηκε και συμπληρώθηκε», Government Gazette Α/63, 2007. 11 “ Προσαρμογή της Ελληνικής Νομοθεσίας στις διατάξεις της Οδηγίας 2004/18/ΕΚ «περί συντονισμού των διαδικασιών σύναψης δημοσίων συμβάσεων έργων, προμηθειών και υπηρεσιών», όπως τροποποιήθηκε με την Οδηγία 2005/51/ΕΚ της Επιτροπής και την Οδηγία 2005/75/ΕΚ του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου της 16ης Νοεμβρίου 2005.

Version:...... v3.1 Page: 149 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Under §36(1) of P.D. 60/2007, the permissible means of communication are to be determined by the contracting authority. In the absence of any indications with respect to permissible means of communication, there appear to be no legal barriers to the use of eProcurement.

2.2.1.5 Thresholds

Procurement notices for services and supplies of a value less than 45.000 €, including VAT, do not need to be advertised in any publication outlet.

2.2.2 Specific tools 2.2.2.1 eSignatures

Article 36 (5)b of P.D. 60/2007 notes that bids must be accompanied by a qualified signature (“an electronic signature as defined in Article 5 par.1 Directive 1999/93/EC as transposed into Greek law by Presidential Decree 150/2001 (A 125)”).

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Greece via article 36 (5)b of P.D. 60/2007.

2.2.2.3 DPSes

DPSes are defined and legally supported under Article 27 of P.D. 60/2007.

No implementation details are available at this time.

2.2.2.4 eAuctions eAuctions are defined and legally supported under Article 28 of P.D. 60/2007.

No implementation details are available at this time.

2.2.2.5 Lists of economic operators

No known lists of economic operators.

Version:...... v3.1 Page: 150 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.6 Buyer’s profiles

Buyer’s profiles are legally supported under articles 29 and 30 of P.D. 60/2007 at this time.

2.2.2.7 Framework agreements

Framework agreements are supported under Article 26 of P.D. 60/2007, in largely the same terms as under the Directives.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements for the procurement of goods and services are established in the Presidential Decree 118/2007 and those for the procurement of works in the Presidential Decree 609/1985 and the Law 1418/1984. Procurement contracts which fall within the EU law underlie the provisions implementing Article 45 of Directive 2004/18.

Foreign tenderers are required to deliver equivalent documents issued by the competent administrative and judicial authorities of the country of origin, in which they are established. Legal persons established in Greece or abroad also have to meet the above mentioned requirement. Specifically, the chairman and the chief executive officer of a public company, the manager of a limited liability company and the manager of partnerships are required to provide an extract of their personal record. In case the tenderer’s country of origin does not deliver such documents, or these do not cover the aforementioned requirements, the tenderer can deliver a declaration before a judiciary or administrative body or a public notary in accordance with article 45 of Directive 2004/18.

In practice, most of the required documents are only available in a paper format.

Version:...... v3.1 Page: 151 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction There is currently no eProcurement infrastructure in Greece. The functioning of the National (Greek) System for Electronic Public Procurement (NSEP) will make eProcurement operation in Greece. An international public tender was organised in April 2006 for the National Electronic Public Procurement System and the offers were evaluated in November of the same year. An objection was raised and a relevant application was filed at the Supreme Administrative Court (Conseil d’ Etat – Συμβούλιο της Επικρατείας)12. The final contract will be signed after the Court decides on the specific case. Currently there is information on public procurement supplies and relevant forms are provided at the website of the General Secretariat for Commerce of the Ministry of Economy, Competitiveness and Shipping.

3.2 Main platform Not relevant

3.3 Additional platforms Not relevant

3.4 Figures According to the DG INFSO Benchmarking study13, Greece achieves a score of 21% for the availability benchmark while the European average is 56%. It scores 43% for the Pre-Award Process Benchmark, it is exactly the European average.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations

12 Th. Panagos, The regulatory framework on electronic public procurement, Ed. Sakkoula, Athens- Thessaloniki, 2009, p.271-272 (Θ. Πανάγος, Το θεσμικό πλαίσιο σύναψης των δημοσίων συμβάσεων με ηλεκτρονικά μέσα, Εκδόσεις Σάκκουλα, Αθήνα – Θεσσαλονίκη, 2009, σελ.271-272) 13 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 152 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 153 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Hungary

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

In accordance with a government decree adopted in 2007, Hungary has established a largely decentralized system in the field of e-procurement. Private service providers may offer e-procurement services to contracting authorities on a commercial base, if they fulfil the requirements of the law. There are several such service providers at this time; however, in practie public procurements are still carried out mostly on paper. Accordingly, other than the KSZF system mentioned below, there are some solutions which should be taken into account (and which support for instance eSubmission and eAuctions).

The following table provides a global evaluation of the supported tools and phases of eProcurement systems in this country, and does not necessarily reflect the capabilities of any particular site.

Name KSZF URL http://kszfweb.econet.hu/portal/Default.aspx?content=WebParts\BasicServices\FreeText\CAFreeText.ascx& menuID=1 Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and award documents (green=supported; red=not supported) Supported post-award phases eOrdering eInvoicing ePayment through (green=supported; red=not eCatalogues supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication eSignatures are not used in the practice, however theoretically is not excluded requirement

Here are the DG INFSO Benchmarking report scores:

Version:...... v3.1 Page: 154 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Hungary is part of the PEPPOL project.

The following platforms have been identified:

Platform Name Platform URL KSZF http://kszfweb.econet.hu/ Electool Hungary Ltd http://www.e-eljaras.hu Public Procurement Council1 http://www.kozbeszerzes.hu/

1.2 Laws and policies

1.2.1 Laws On 15 January 2006, Hungary transposed the EU Directives on public procurement into national legislation via the Act CLXXII. of 2005, which has comprehensively amended Act CXXIX. of 2003. An unofficial translation can be found here: http://www.kozbeszerzes.hu/static/uploaded/document/PPA_2009_dec_3.doc

1.2.2 Legally supported tools

 eSignatures: under the terms of the Act and the Government decree no. 257/2007, according to Art. 12 (4), if the contracting authority makes it possible to submit the bids electronically, it cannot reject electronically signed bids. No signature requirements are included in the legal framework.  DPSes: are defined in article 4. 2/C of the Act; however, detailed implementing rules are missing.  eAuctions: are defined in article 4. 3/A of the Act and in Government decree no. 257/2007 (par. 17-26).  Buyer’s profiles: not supported by the legal framework.

1 The database of call for tenders (and other tender notices). This is maintained by the Public Procurement Council which publishes all Hungarian notices (including those which are published on TED as well).

Version:...... v3.1 Page: 155 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.3 Permissibility of using eProcurement In accordance with Art.20 (1) of the Act, any procedural actions may also be carried out electronically, subject to the criteria laid down in this Act and in Government decree no. 257/2007. Thus, by default eProcurement is permitted, provided that the terms of the Act are respected.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to be complete and relatively comprehensive (albeit without the inclusion of support for DPS). In addition, there seems to be a strong commitment to develop an advanced eProcurement infrastructure, coordinated by the central government.

1.3.2 Weaknesses of the national situation

It is not clear to what extent the available infrastructure is already mature and used in practice to an appreciable extent.

In addition, there appears to be no clear national strategy, nor is it clear which body is responsible for eProcurement in general in Hungary.

Version:...... v3.1 Page: 156 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

In Hungary, the Public Procurement Council (Közbeszerzések Tanácsa) has different types of tasks, including control activities (i.e. legal remedy). However, coordination and supervision of the legal framework is in the hands of the Ministry of Justice and Law Enforcement (Igazságügyi és Rendészeti Minisztérium), which prepares laws and their amendments, and approves Government Decrees related to public procurement. Finally, the Prime Minister’s Office (ICT Government Commissioner’s Office) is in charge of IT and eGovernment, The Office is responsible for eGovernment alone (strategy making, operating the infrastructure, etc.). The PMO’s State Secretariat of ICT is responsible for IT in government in general. The Ministry of Justice and Law Enforcement has an overall responsibility for drafting the procurement law and regulation. The Council doesn’t have duties on eGovernment.

The Directorate of Central Services is responsible for centralised public procurements.

2.1.2 Action plans and strategies

Creating a modern e-Public administration is one of the top priorities of the Hungarian Government2. The strategy for introducing an operational e-Public procurement is written into an overall strategy on e-Government (eKormanyzat Strategia 2005), prepared by the ICT Government Commissioner’s Office. However, this is a high level document, which does not contain specific details, responsible bodies, deadlines, etc with respect to eProcurement.

The Hungarian Government is currently working on the establishment of a secure Government-wide communication network/infrastructure that will provide an extensive countrywide Information Provider network for the Hungarian public sector, regional operational centres and a Government intranet. In terms of user identification, a transactional gateway, called ‘Client Gate’ (Ügyfélkapu) was established on 01/04/2005. The gateway allows users to securely identify themselves online and gain access to transactional e-Government services.

There is currently no central eProcurement infrastructure in Hungary. However, the government decree 257/2007. (V. 25.) on electronic procurement and electronic auctions has established a new system for eProcurement infrastructure, which enables private service providers from the market to provide several eProcurement services for the procuring public bodies. Such service providers have to comply with the criteria laid down in the above-mentioned decree. The decree also establishes the rules of electronic auctions, enabling eAuctions in several procurement processes.

2 Source : http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 157 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The Government is currently examining the further developing possibilities of eProcurement, including the long-term possibility of establishing a central public procurement system for centralized procurements, which will support electronic catalogues, electronic auctions and dynamic purchasing for central government bodies (e.g. ministries, etc.). Hungary also takes part in the PEPPOL project, and in several EU workgroups3.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

On 15 January 2006, Hungary transposed the EU Directives on public procurement into national legislation via the Act CLXXII. of 2005, which has comprehensively amended Act CXXIX. of 2003. An unofficial translation can be found here: http://www.kozbeszerzes.hu/static/uploaded/document/PPA_2009_dec_3.doc

2.2.1.2 Secondary Acts

Detailed, technical rules are contained in the following two government decrees:

 Government decree no. 34/2004. (III. 12.) on the detailed rules of sending and publication of contract notices and notices on design contests, on the fees and checking of notices and on the fees and rules of publication in the Procurement Gazette and  Government decree no. 257/2007. (X. 4.) on the rules of procedural acts which can be performed electronically in public procurement procedures and the application of electronic auctions

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement In accordance with Art.20 (1) of the Act, any procedural actions may also be carried out electronically, subject to the criteria laid down in this Act and in separate legislation. Thus, by default eProcurement is permitted, provided that the terms of the Act are respected.

2.2.1.5 Thresholds

3 Source : http://www.epractice.eu/en/document/288264

Version:...... v3.1 Page: 158 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The financial thresholds in effect are the same as in the EU Directives4.

2.2.2 Specific tools 2.2.2.1 eSignatures

Under the terms of the Act and the Government decree no. 257/2007, according to Art. 12 (4), if the contracting authority makes it possible to submit the bids electronically, it cannot reject electronically signed bids. No requirements with respect to the type of signature are included in the legal framework.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Hungary.

2.2.2.3 DPSes

Dynamic Purchasing Systems are defined in article 4.2C of the Act; however, detailed implementing rules are missing.

2.2.2.4 eAuctions eAuctions are defined in article 4.3A of the Act. Specific rules have been provided in the Government decree no. 257/2007 (par. 17-26). According to unofficial information, some eAuctions have recently been organized5.

2.2.2.5 Lists of economic operators

There exists an official list6, which is maintained by Public Procurement Council.

4 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 5 See http://www.epractice.eu/en/cases/eauctionadoption 6http://www.kozbeszerzes.hu//nid/minositettAjanlattevok01/lid/default/nid/minositettAjanlattevoList?acti veTab=0&filterarticle_Body=&filterarticle_Category=MinositettAjanlattevo – by giving search criteria (or leaving the fields blank) and by clicking on “Keres” you can list the contents

Version:...... v3.1 Page: 159 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.6 Buyer’s profiles

Buyers' profiles are not referenced by the Act.

2.2.2.7 Framework agreements

Framework agreements are provided for in Title 7/A (in the classical sector), and Title 18 (in the utilities sector) of the Act, entitled “Framework agreement procedure”. The provisions set forth by the Act are fully consistent with the corresponding EU norms in the field of framework agreements.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in Art. 60-61 and 63 (63/A) of the Act (exclusion criteria), and 65-68 regarding the financial and professional capability. The reasons of exclusion comprise coercive and optional reasons. In case of coercive reasons the tenderer must be excluded from the procedure (ex lege exclusion), whilst the optional reasons can be applied at discretion of the contracting authority.

The contracting authority is free to indicate that it is willing to accept formal or less formal documents as evidence. Extracts from official registers provided and authenticated by the proper authority are considered to be formal documents. According to the law, when the Act, or on the basis of the Act a contracting authority requires the submission of a certificate, such a certificate may be submitted in a simple copy form. However, the contracting authority may also request the submission of the certificate in the form of an attested copy. Thus, the contracting authority cannot specify that only the original document is acceptable; it must accept the original or an “attested copy” of it.

For foreign tenderers, the Act provides that equivalent documents delivered by the competent judiciary or governmental body from the country of origin will also be accepted if they adequately demonstrate that the aim of the Act was met. When the tenderer’s country of origin does not deliver such documents, a declaration under oath or a solemn declaration before a judiciary or governmental body, a public notary or a competent professional organisation will also be deemed acceptable.

There is one type of document which exists only in electronic form: the certificate of not being blacklisted in the register of the State Labour Control Authority. There are 3 other types of commonly used documents, which exist electronically as well (beside paper): the extract of Company Register, the yearly financial reports of companies (including the balance sheet) and the database of the proof of paying taxes and social insurances. (The former 2 types of documents are not free of charge, if they are needed to submit with e-signature, as an “original”.)

Version:...... v3.1 Page: 160 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

The control and management of public procurement and electronic procurement issues are divided in Hungary. The public procurement law is attended by the Ministry of Justice and Law Enforcement, but specific electronic procurement solutions are kept by the Ministry of Justice and Law Enforcement, it has the duty to prepare draft law regarding public procurement (including e-procurement). In addition to we would mention the PMO’s State Secretariat of ICT, which is responsible for IT Government in general.

The Directorate of Central Services is responsible for centralised public procurements, but public procurement as an activity is supervised by Public Procurement Council, subordinated to the Parliament of Hungary. As electronic procurement is a part of the development of electronic government, the Prime Minister’s Office also has responsibilities in connection with the field.

According to the eSignature7 study, there is currently no central eProcurement infrastructure in Hungary. However, the Government decree No 257 of 25 May 2007 on electronic procurement and electronic auctions has established a new system for the eProcurement infrastructure, which enables service providers from the market to provide several eProcurement services for the procuring public bodies. Such service providers have to comply with the criteria laid down in the above-mentioned decree. The decree also establishes the rules of electronic auctions, enabling eAuction in several procurement processes. The Government is currently examining the further developing possibilities of eProcurement, including the long-term possibility of establishing a central public procurement system for centralised procurements, which will support electronic catalogues, electronic auctions and dynamic purchasing for central government bodies (e.g. ministries, etc.). More precisely, the Hungarian government has announced its intention to amend the current Act on Public Procurement in order to pave the way for the introduction of an electronic public procurement (EPP) system by end 2010. Hungary also takes part in the PEPPOL project, and in other several EU workgroups.

3.2 Main platform

KSZF8 is the current central public procurement platform with very limited functionality. Simple publication and search functionality has been implemented. Tenderers can register their contact details (name, address, phone, e-mail…) and indicate specific fields of interest like category of procurement (works, supplies, services) so that the platform can automatically notify the tenderer when a new procurement of potential interest becomes available. The registration does not require information specific to Hungarian entities but the site is only available in Hungarian. On the website of the Public Procurement Council (www.kozbeszerzes.hu) there is also a possibility of free registration which allows the user to save different search profiles (in order to list for instance call for tenders in a given CPV category).

7 See http://ec.europa.eu/idabc/servlets/Doc?id=32327 8 See http://kszfweb.econet.hu/portal/Default.aspx?content=WebParts\BasicServices\FreeText\CAFreeText. ascx&menuID=1

Version:...... v3.1 Page: 161 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.3 Additional platforms

An additional commercial platform has been identified, namely e-eliaras.hu9, supported by the Electool company. This platform provides electronic notification of events, permits the production of documents, allows to receive electronic bids in full, allows easy compliance with the duty of disclosure laws, allows the reporting procedure

3.4 Figures

According to the DG INFSO Benchmarking study10, Hungary achieves a score of 49% for the availability benchmark while the European average is 56%. It scores 46% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Unknown legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper or electronic security obligations compliance with fiscal Paper or electronic obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Typically paper only technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

9 http://www.e-eljaras.hu 10 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 162 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Iceland

(No validating or corrective feedback was received from Iceland concerning this profile)

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name State Trading Center (Rikiskaup) URL http://www.rikiskaup.is/utbod Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL State Trading Center www.rikiskaup.is/utbod

Version:...... v3.1 Page: 163 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws The Public Procurement Directives were transposed through the Act No. 84/2007 on Public Procurement, an English translation of which can be found here: http://eng.fjarmalaraduneyti.is/media/adrarskyrslur/Act-nr-84-2007-on-Public-Procurement.pdf

1.2.2 Legally supported tools

 eSignatures: Article 68 of the Act allows contracting authorities “to require that electronic tenders be accompanied by an advanced electronic signature”.  DPSes: supported through article 35 of the Public Procurement Act.  eAuctions: supported through article 70 of the Public Procurement Act.  Buyer’s profiles: not referenced in the Public Procurement Act.

1.2.3 Permissibility of using eProcurement In accordance with article 68 of the Act, eProcurement is always permissible provided that the requirements of the Act are respected.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to follow the provisions of the Directives relatively directly, which should minimise legal obstacles. It is also worth noting that Iceland collaborates with other Nordic countries on eInvoicing standardisation work, which should facilitate integration of this component.

1.3.2 Weaknesses of the national situation

Availability and maturity of technical eProcurement infrastructure appears to be limited at this time; thus, take-up will likely also be relatively low.

Version:...... v3.1 Page: 164 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

With respect to public procurement in general, the Ministry of Finance (MOF) formulates Government procurement policy and the legislative framework, and represents Iceland in EU-negotiations and international co-operation in the field of public procurement.

The State Trading Centre (Ríkiskaup) is a Central Procurement Body, which operates under the Ministry of Finance and is in charge of the purchasing of supplies and services for all bodies and enterprises of the Government in Iceland.

The Rikiskaup within the Ministry of Finance is responsible for the development and operation of technical solutions, which is to a large extent done through collaborations with private enterprises. The Ministry of Finance has delegated the project management of these solutions to the State Trading Centre.

All contracting authorities, Governmental departments and agencies, local authorities etc. are solely responsible for ensuring that their own procurement procedures are in line with the law. Contracting authorities can consult the Ríkiskaup for advice and guidance. However, the decision and responsibility over a given procurement remain with the contracting authorities11.

2.1.2 Action plans and strategies

The main government policy that focuses on eGovernment (but not specifically on eProcurement) was adopted in 2008 under the title “Iceland the e-Nation - Icelandic Government Policy on the Information Society 2008-2012”12. Implementation is undertaken by the Government offices (ministries) according to their role and subject.

As a matter of policy, Iceland strongly focuses on monitoring and leveraging best practices from other countries, before deciding on a specific method of implementation13.

11 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 12 See http://eng.forsaetisraduneyti.is/media/utgefidefni/Iceland_the_eNation.pdf 13 Sources: http://ec.europa.eu/idabc/servlets/Doc?id=32328 and http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 165 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Public Procurement Directives were transposed through the Act No. 84/2007 on Public Procurement, an English translation of which can be found here: http://eng.fjarmalaraduneyti.is/media/adrarskyrslur/Act-nr-84-2007-on-Public-Procurement.pdf

2.2.1.2 Secondary Acts

No known secondary acts.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with article 68 of the Act, eProcurement is always permissible provided that the requirements of the Act are respected.

2.2.1.5 Thresholds

National thresholds (without VAT) are set at14:

- Supplies: 5,5 million ISK (approx. 54.000€) - Services and Works: 10,90 million ISK (approx. 107.000€)

2.2.2 Specific tools 2.2.2.1 eSignatures

14 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 166 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Article 68 of the Act allows contracting authorities “to require that electronic tenders be accompanied by an advanced electronic signature”. In practice, no applications are available yet that support this functionality, although the ongoing deployment of an advanced PKI infrastructure under a common Icelandic root may stimulate such development in the near future.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Estonia.

2.2.2.3 DPSes

While minor language modifications were made, the main transposition provisions (notably article 35 of the Act; see http://eng.fjarmalaraduneyti.is/media/adrarskyrslur/Act-nr-84-2007-on-Public- Procurement.pdf) are a faithful transposition of the Directives.

2.2.2.4 eAuctions

While minor language modifications were made, the main transposition provisions (notably article 70 of the Act; see http://eng.fjarmalaraduneyti.is/media/adrarskyrslur/Act-nr-84-2007-on-Public- Procurement.pdf) are a faithful transposition of the Directives. The Icelandic transposition does not explicitly include the exclusion of intellectual performances from the scope of eAuctions; however, this aspect appears to be reasonably covered by the clarification that auctions can only be used “when the contract specifications can be established with precision” (art. 70, par. 3).

2.2.2.5 Lists of economic operators

Lists of approved economic operators are permitted under article 54 of the Act, but there are no know implementations of such lists at this time.

2.2.2.6 Buyer’s profiles

Up to now, there is no indications of use of buyer's profile in Iceland. They are not mentioned in the Act.

2.2.2.7 Framework agreements

Framework agreements are regulated by the Act, namely by article 34, in terms which are largely comparable to those of the Directives.

Version:...... v3.1 Page: 167 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Act. The conditions must be proportionate. The Act lists several criteria (Art. 44 and following) regarding the qualification of the tenderer. For foreign tenderers equivalent documents delivered by the competent judiciary or governmental body from the country of origin will also be accepted if they meet the requirements of the Act. For several of the conditions the exception is listed that if the tenderers/authorities do not issue corresponding documents this may be replaced by a sworn confirmation according to certain conditions.

Generally speaking, in Iceland there are very limited options of acquiring an electronic versions of certificates/attestations/declarations. While there are some instances where electronic copies of a document are provided (most often in an unsigned PDF format), typically paper documents are used. The Internal Revenue Directorate is one of few governmental authorities that has electronically signed documents available for their customers. Citizens can e.g. get an electronic copy of their tax return in the PDF format, signed with a x.509 certificate.

Many governmental authorities are currently working on electronic versions of their documents and it is expected that most of them will be ready within a few years.

Version:...... v3.1 Page: 168 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

3.2 Main platform

Most contract announcements on the State Trading Centre’s (Ríkiskaup) web are in Icelandic. Only some contract announcements that fall under the EEA regulations are in English. All contract announcements are published in the same place at the moment so it is necessary to browse through the entire column for the EEA announcements in English. Receiving further information about individual contracts is possible in English by sending an email

3.3 Additional platforms

3.4 Figures

According to the DG INFSO Benchmarking study15, Iceland achieves a score of 15% for the availability benchmark while the European average is 56%. It scores 29% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations

15 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 169 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

compliance with fiscal Paper only obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Electronic information can be looked up via http://www.rikiskaup.is technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance PDF

Version:...... v3.1 Page: 170 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Ireland

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The primary national portal is the eTenders Public Procurement.

Name eTenders Public Procurement URL http://www.etenders.gov.ie Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication The portal uses an on-line registration system, and is thereafter username/password requirement based.

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL eTenders Public Procurement www.etenders.gov.ie ORE unearth opportunities http://www.unearthore.com

Version:...... v3.1 Page: 171 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws The Directives have been implemented in Ireland through two separate acts, each corresponding to one of the Directives:

 The Public Sector Procurement Regulations 2006 were made by the Minister for Finance under SI 329 of 2006 implementing EU public procurement Directive 2004/18/EC and other minor provisions; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1481

 The European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 were made by the Minister for Finance under SI 50 of 2007 implementing EU public Procurement Directive 2004/17/EC and amending Directive 2005/51/EC; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1701

1.2.2 Legally supported tools

 eSignatures: electronic signatures must comply with the Electronic Commerce Act 2000; however, no signature types are made mandatory (Schedule 5 to the Public Sector Procurement Regulations 2006).  DPSes: supported through §36 of the Public Sector Procurement Regulations 2006.  eAuctions: supported through §67-68 of the Public Sector Procurement Regulations 2006.  Buyer’s profiles: referenced via Schedule 5, which is an Annex to the Regulations Public Sector Procurement Regulations 2006.

1.2.3 Permissibility of using eProcurement In accordance with §50 (1) of the Regulations, a contracting authority may require candidates or tenderers to submit information or tenders, via any chosen means, including electronic means. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Irish model focuses on accessibility and user friendliness, which is reflected in its policies, legal framework and eProcurement portal. Through the systematic elimination of formalities which are deemed excessive, the Irish framework is arguable the most flexible and accessible in the EU, with virtually no barriers to cross border eProcurement.

Version:...... v3.1 Page: 172 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3.2 Weaknesses of the national situation

Arguably, the aforementioned flexibility is the result of a risk/benefit analysis that may not be transposable to other Member States, as it may result in less security guarantees (e.g. the non-use of advanced signatures, and the elimination as far as possible of certificates/attestations as evidences).

Version:...... v3.1 Page: 173 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Policy issues are relatively strongly centralized: the National Public Procurement Policy Unit (NPPPU) is responsible for public procurement matters in Ireland. In 2009 the National Public Procurement Operations Unit (NPPOU) was established and is now responsible for the management, promotion and enhancement of the e-Tenders procurement website and the hosting of a network for those involved in e-Procurement throughout the public sector. The NPPOU is also a central procurement body.

Contrary to policy making, the public procurement process itself is quite strongly decentralised. Government departments and other public bodies and utilities perform the function independently and are solely responsible for ensuring their compliance to the wide range of EU/national laws and national guidelines. However, they may use the common portal http://www.etenders.gov.ie to facilitate this.

The aims of the NPPOU are as follows:  To integrate whole-of-Government policy issues (e.g. S.M.E.'s environment, sustainability) in public procurement policy and practice , working closely with the NPPPU;  To organise procurement of common goods and services throughout the Public Service e.g. office equipment, print, vehicles, fuel, electricity, uniform clothing etc.;  To develop a best practice model for each market;  To operate with full corporate governance, probity and accountability including fully transparent, non-discriminatory and proportionate tendering processes;  To operate and further develop and deploy an appropriate and cost effective e-procurement system.

2.1.2 Action plans and strategies

Following in the footsteps of the 2001 Strategy for the Implementation of e-Procurement in the Irish Public Sector, a National Public Procurement Policy Framework has been published, focused on four strands of the procurement reform agenda - i.e., aggregating public sector demand, building procurement capacity/capability in the public sector, developing procurement training and education and incremental development of eProcurement systems. See http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1103

Irish eProcurement policy is strongly focused on reducing barriers for participation by reducing or eliminating administrative barriers and thus improving the participation of SMEs in public

Version:...... v3.1 Page: 174 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

procurements. Fresh guidance on promoting SME participation will be circulated and published shortly.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Directives have been implemented in Ireland through two separate acts, each corresponding to one of the Directives:

 The Public Sector Procurement Regulations 2006 were made by the Minister for Finance under SI 329 of 2006 implementing EU public procurement Directive 2004/18/EC and other minor provisions; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1481

 The European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 were made by the Minister for Finance under SI 50 of 2007 implementing EU public Procurement Directive 2004/17/EC and amending Directive 2005/51/EC; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1701

2.2.1.2 Secondary Acts

No known secondary acts.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with §50 (1) of the Regulations, a contracting authority may require candidates or tenderers to submit information or tenders, via any chosen means, including electronic means. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

Version:...... v3.1 Page: 175 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The main advertising thresholds with effect from 1 January 2010 to 31 December 2011 are as follows1:

For works contracts:

 Contract Notice €4,845,000 (applies to Government Departments and Offices, Local and Regional Authorities and other public bodies). For supplies and services contracts:

 Contract Notice €125,000 (applies to Government Departments and Offices)

 Contract Notice €193,000 (applies to Local and Regional Authorities and public bodies outside the Utilities sector) For the utilities sector:  Works Contracts / Prior Indicative Notice: €4,845,000 for entities in the utilities sectors covered by GPA  Supplies and Services € 387,000 for entities in Utilities sectors covered by GPA

2.2.2 Specific tools 2.2.2.1 eSignatures

Electronic signatures must comply with the Electronic Commerce Act 2000; however, no signature types are made mandatory (Schedule 5 to the Public Sector Procurement Regulations 2006).

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in the Irish.

2.2.2.3 DPSes

While minor language modifications were made, the main transposition provisions (notably par. 36 of the Public Procurement Regulations; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1481) are a faithful transposition of the Directives.

2.2.2.4 eAuctions

1 Source : http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=2784

Version:...... v3.1 Page: 176 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

While minor language modifications were made, the main transposition provisions (notably par. 67 and 68 of the Public Procurement Regulations; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=1481 ) are a faithful transposition of the Directives.

It is interesting to note that the Irish transposition does not explicitly include the exclusion of intellectual performances from the scope of eAuctions; however, this aspect appears to be reasonably covered by the clarification that auctions can only be used “if the contract specifications can be established with precision” (par. 67 (3)).

2.2.2.5 Lists of economic operators

Official lists of economic operators are supported by Art. 61 of the Regulations. Irish law recognises also the lists of other EU countries, where the economic operator is established.

However, there are no known lists maintained in Ireland.

2.2.2.6 Buyer’s profiles

Buyers' profiles are provided for by the applicable national legislation, notably via Schedule 5, which is an Annex to the Regulations, in similar terms as in the Directives.

Buyer’s profiles are also supported through the aforementioned portal site (see http://www.etenders.gov.ie/authority/authority_view.aspx), although TED data shows limited usage (only a single form 8 was received from Ireland in 2008, and none prior to that)..

2.2.2.7 Framework agreements

Framework agreements are provided for by Art. 33 of the Regulations. Apart from the general regulations in article 33, separate articles are dedicated to framework contracts concluded with a single economic operator (art.34) and multiple economic operators (art.35).

In practice, framework agreements are used and supported via the aforementioned portal site; see http://www.etenders.gov.ie/guides/Guide_Download.aspx?id=2181.

2.2.2.8 Electronic certificates / electronic evidences

Evidences that may be required are specified in article 52 and following of the Regulations, which are structured along the same lines as the Directives. The production of specific evidences is not mandatory unless the contracting authority requests them. In practice, these leaves a large margin of flexibility for the contracting authority to determine the formalities that it considers to be suitable, and also allows the possibility to use electronic evidences.

Version:...... v3.1 Page: 177 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

The Department of Finance published a Strategy for the Implementation of E-Procurement in the Irish public sector in 2001. It contained a number of targets to be achieved before the end of 2007, including:

D. 90% of tender competitions (above EU threshold) to be carried out electronically; DI. 80% of payment to be carried out electronically.

In 2002 of a National Public Procurement Policy Unit (NPPPU) in the Department of Finance was established. The NPPPU is charged with the formulation of policy, dissemination of best practice and guidance in public procurement and the delivery of the government’s e-procurement strategy. A new operations unit has been established within the Office of Public Works - the National Public Procurement Operations Unit (NPPOU) which has taken over the management of the eTenders portal. The eTenders (www.etenders.gov.ie) public procurement portal provides online access to public sector procurement opportunities, through the online publishing of notices and the online submission of tenders. The eTenders service is centrally funded and is provided free to both publishing authorities and suppliers. The NPPPU will retain responsibility for all policy and related matters. At the moment, purchasing authorities are not obliged to use the eTenders service. In the case of suppliers, while they are not obliged to use the service, they must register to record their interest in a tender or to receive tender documents via the portal. The 2004 Public Procurement Guidelines state that publication on the eTenders website generally meets national advertising and publicity requirements.

3.2 Main platform eTenders (www.etenders.gov.ie) is a public procurement portal which provides online access to public sector procurement opportunities. The eTenders website provides information and tools for electronic public procurement for central government, local authorities, the Health Service Executive, hospitals, universities, schools and commercial state bodies. Information is updated daily. To gain full access to the site, purchasing authorities and suppliers can register on-line by clicking on the Register link, and then completing the registration form (name, address, email, phone, password etc.). They are then contacted by email to verify their details after which they receive confirmation of their sign in name and password by email. Therefore full access to the site is by way of simple electronic signature. There are no barriers to the use of the eTenders portal by non-nationals. A facility (known as the electronic postbox) enables purchasers to publish notices online and suppliers to submit tenders online. In terms of submission of certificates and attestations, current practice is that these documents are scanned and submitted electronically to the postbox in the eTenders website. In 2008, a new pilot scheme was rolled out on the eTenders website – an online Pre-Qualification Questionnaire (PQQ). The National Public Procurement Operations Unit (NPPPU) aims to have the final elements of a full tendering system in place by late 2010. In particular, the next major step is to introduce tools that will allow awarding authorities to record the details of their evaluation markings online.

Version:...... v3.1 Page: 178 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As of May 1 2009, 48,787 suppliers were registered with eTenders along with 2,093 awarding authorities..[1] According to the Department of Finance, about 95% of tender competitions are carried out electronically to some extent, depending on the nature of the tender and the experience of the tenderer. A survey is currently being undertaken to determine the figure for electronic payments and this is due to be completed at the end of May. 81% of tender notices have the RFT/ITT documents attached. Delays in the roll out of broadband in Ireland are viewed as having an impact on the inclusion of such documents since a significant proportion of suppliers are still reliant on dial-up internet access services which impose a limit of 2MB on each file attachment. The NPPOU is seeking a solution for all types of access in the new contract being developed for their website. The Department of Finance has noted an increase in supplier numbers which they attribute, at least to some extent, to the economic downturn in Ireland with suppliers appearing to be increasingly looking more to the public sector for contracts. A corresponding decease in contracts of offer has also been noted – down from an average of 1,000 contracts on offer at any one time to between 750 – 800. As usual, the site contains a part dedicated to buyers and another part dedicated to sellers. The eTenders site is used by public sector authorities to publish their prior information notices (PIN), Request for Tender notices (RFT) and contract award notices (CAN). In 2005 the percentage of CAN's published against those of tender notices was 14.72%. In 2006, this increased to 17.35%. Tender notices and documents are prepared by publishing authorities in the normal way and are then posted on the site. Any notice that a publishing authority publishes on eTenders.gov.ie will also be published on OJEU, if the notice meets the required criteria. Ireland was the first country to have its own national OJEU eSender capability within the eTenders website (since 28th April 2004). Ireland is still ahead of most countries when it comes to submitting OJEU notices electronically. Based on recent figures from the Publications Office (OPOCE) Ireland is now in fifth place for online submission of notices, averaging over the 12 months up to the end of May 2007, 93.3%. In addition, OJEU notices are uploaded on the eTenders website daily after publication in the OJEU. An email is sent to the awarding authority contact given in the notice when/if the notice is published on the eTenders website. At present the eTenders website does not support the running of e-auctions but it is on the agenda for the NPPOU. Currently, eAuctions can take place through facilitation by private service providers. The NPPOU makes available a list of known service providers, for this purpose.

Suppliers can search for and view the notices that are published on the eTenders site. Once registered on www.etenders.gov.ie suppliers can express an interest in any tender notice published by a public sector organisation. Once an interest has been expressed, the supplier is sent a copy of the tender notice, which includes contact details of the publishing authority, in electronic form. Suppliers can also obtain any additional documents or files – in electronic form - which support the tender notice. Suppliers will also be notified if the tender notice is changed in any way during the process.

A record of everyone who has registered an interest in a particular notice is available to the purchasing authority who can subsequently contact suppliers for any further communication.

A facility (known as the electronic postbox) enabling suppliers to submit tenders electronically for the open procedure and the first stage of the restricted procedure has been available since 2002 as a pilot scheme. Suppliers outside the pilot group could also request access to this pilot scheme. In 2005, the scheme was opened to all suppliers. The electronic postbox allows suppliers to submit tenders directly and securely online.

To guarantee confidentiality of all responses, data is encrypted during transmission to the online postbox, which cannot be unlocked before a set date and time.

Version:...... v3.1 Page: 179 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

However, the contracting authority is able to access a summary list of responses that have been received. When the tender has been submitted, suppliers will be notified on screen that it has been posted successfully. If a response is late, the supplier will be notified accordingly, and the response will not be accessible by the contracting authority.

There is an online Q & A facility associated with the tender notice on the eTenders website and all questions and answers are available to new interested parties as part of the notice (and those who have already expressed an interest are automatically alerted to the questions and answers. In terms of submission of certificates and attestations, current practice is that these documents are scanned and submitted electronically to the postbox in the eTenders website.

3.3 Additional platforms

The following private platform has been identified:

1. www.unearthore.com: ORE® is an information service. We work tirelessly to extract the most salient details from the wide range of reliable sources we have built up over many years. When researched and compiled this raw data is a huge bank of valuable information, full of potential ore.

ORE® gathers raw data from a variety of sources.

We research all Planning Applications, from every planning authority in Ireland. Planning information is immediately made available to you through our website, and includes links to planning documents and maps. This level of detail is invaluable to any business where early awareness of new opportunities is of paramount importance to securing new contracts.

Public Sector Tenders are treated to the same level of refinement. We dig through all sources of tenders, unearthing every nugget of opportunity on your behalf. The status of each of these tenders is continuously updated and where tender documents are available, they can be reached from the ORE® website.

ORE® can also be found in the News. Our team have unrivalled access to every newspaper publication in Ireland. Retrieving this information allows you to remain one step ahead of the competition in winning new business.

Most importantly, ORE® digs through all this raw data on your behalf and only shows you project leads that match your specific criteria. You can look forward to knowing that each and every content update you receive is relevant.

www.unearthore.com is the quickest way to search through all the up to date information, but this method may not suit everyone. With this in mind we have created a very adaptable system to distribute our valuable opportunities to you in a variety of ways.

You can choose to receive a report by post every week; get the content delivered by email in

Version:...... v3.1 Page: 180 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

adobe® PDF or Microsoft® Excel formats; or receive the information in a format designed to work seamlessly with all the major CRM systems.

3.4 Figures

According to the DG INFSO Benchmarking study2, Ireland achieves a score of 100% for the availability benchmark while the European average is 56%. It scores 86% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper or electronic natural persons absence of conviction for Paper or electronic legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper or electronic security obligations compliance with fiscal Paper only obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Paper or electronic technical and/or professional Paper or electronic ability adequate insurance Paper or electronic quality assurance Usually paper only environmental compliance Usually paper only

2 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 181 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Italy

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities The main eProcurement platform is the public procurement portal Acquisti in Rete, which was initiated already in 2000125

Name Acquisti in Rete URL http://www.acquistinretepa.it/ Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through 126 eInvoicing ePayment (green=supported; red=not eCatalogues supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not

supported) Signature / authentication A valid e-signature is required to execute a transaction (order, proposal, participation to a tender). requirement The digital signature certificate must be issued by an Italian certificate service provider.

Here are the DG INFSO Benchmarking report scores:

125 See http://www.epractice.eu/en/news/284249 126 Suppliers are responsible for the creation of eCatalogues, based on predefined eCatalogue spreadsheet templates. eCatalogues take the form of MS Office Excel spreadsheets which are digitally signed. Tools are provided to suppliers to check quality of content. The upload platform will perform additional quality checks.

Version:...... v3.1 Page: 182 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Italy is part of the PEPPOL project.

The following platforms have been identified:

Platform Name Platform URL

Acquisti in Rete http://www.acquistinretepa.it/ Friuli Venezia Giulia http://www.acquisti.regione.fvg.it/ Piedmont http://portal.sistemapiemonte.it/ Municipality of Florence Marketplace http://www.comune.fi.it Central Shared Services (Udine) http://www.csc.sanita.fvg.it/ Marche http://www.emarche.it/ Autonomous Province Bolzano (contracts http://www.provincia.bz.it/ Intercenter http://www.regione.emilia-romagna.it/ Umbria region http://88.61.35.136/regione/interfaccia/ EmPULIA - Shopping Center For Public Service http://www.empulia.it/ Campania region www.sitar-campania.it

1.2 Laws and policies

1.2.1 Laws The legal framework applicable to e-Procurement in Italy is particularly rich and complex. For an overview, please refer to the list of primary and secondary legislation published by the Ministry of Economy and Finance (MEF) on http://www.mef.gov.it/dag/programma_di_razionalizzazione_degli_acquisti_nella_p.a/riferimenti_norm ativi/default.asp; and by CONSIP on http://www.consip.it/on- line/Home/Chisiamo/Normativadiriferimento.html. As regards, in particular, the contracts entered into between an Italian public administration and private businesses, Italy transposed the new EU Directives on public procurement into national legislation through the Legislative Decree ('Decreto Legislativo') 12 April 2006, no. 163 (Code of public contracts - 'Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE ')127, which came into force at the beginning of July 2006. Furthermore, the Financial Bill for the year 2007 introduced a compulsory use, on behalf of state central administrations, of the framework contracts and the emarketplace (MEPA) handled by MEF and Consip.

1.2.2 Legally supported tools

 eSignatures: when electronic signatures are required, they must be digital signatures as defined and regulated by Legislative Decree 7 March 2005 No 82 (firma digitale). This is a special type of qualified electronic signature with extra requirements (art.77.6(c)).  DPSes: supported through art.60 of the Dlgs 163/06.

127 Dlgs 163/06; see http://www.camera.it/parlam/leggi/deleghe/06163dl.htm

Version:...... v3.1 Page: 183 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 eAuctions: supported through art.85 of the Dlgs 163/06.  Buyer’s profiles: supported through art.3.35 of the Dlgs 163/06.

1.2.3 Permissibility of using eProcurement The contracting authority may decide on a case by case basis to forbid, allow or require the use of electronic means. If no instructions to the contrary are provided, the use of electronic means is forbidden (for DPS and MEPA this is of course not the case as they are totally electronic tools).

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Italy is one of the fore-runners within Europe with regard to the development of its e-Procurement systems. The country has gained extensive experience in the field of e-procurement and it is worth mentioning that the legal framework is very advanced and takes into account the whole spectrum of possibilities now offered by ICT tools, such as DPSes, e-Auctions, Buyer's profile etc.

This goes together with the consideration that Italy is devoting a great effort in the adoption of e- government tools in all sectors of the complex national, regional and local public administration. With regard to available infrastructure, Italy can be considered a frontrunner in most respects. Italy plays a relevant role in the Peppol project and is leading work package 3 dedicated to eCatalogues.

In fact, since the year 2007, the Financial Act for 2007 established the creation of a national network system among central and regional purchasing bodies in order to foster cooperation both on a technological, infrastructural and content level.

1.3.2 Weaknesses of the national situation

One of the main problems regarding the Italian situation is the complexity of the public administration and of the State's structure. This is particularly evident if we take into account the division of duties between the central State, the regions, the provinces and the municipalities. As regards, in particular, the regions, some of them are very active in the area of e-Procurement and already set up adequate tools, while other regions simply do not invest enough resources in this area. Among the more committed regions, we can mention Lombardy, Emilia-Romagna and Friuli Venezia-Giulia. Especially as regards e-Procurement in the health field (mainly supplies of products to hospitals) this issue is very urgent and sensitive, since the management of hospitals is one of the main regions' competence.

A second weakness could be the fact that Italy’s head start in developing advanced e-government infrastructure (including e.g. very mature e-signature services, including eID cards and registered e- mail) has led to an infrastructure that may be less accessible to foreign undertakings, who may not have access to equally advanced means and may therefore not be able to use the Italian eProcurement services.

Version:...... v3.1 Page: 184 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

As regards the responsible institution for eGovernment , the duty to define guidelines and policies for the implementation of eGovernment and to coordinate the implementation efforts has been allocated at the level of the Cabinet of the Prime Minister (‘Presidenza del Consiglio dei Ministri’)128. This is due to the specific nature of the Cabinet of the Prime Minister that acts as coordination point of various different national administrations and authorities, including the Ministry of Public Administration and Innovation ('Ministero per la pubblica amministrazione e l'innovazione' - http://www.innovazionepa.gov.it/)129, which is in charge of the legal and technical aspects of the implementation of the national eGovernment plan.

The Ministry has the duty to coordinate the policies implemented by different ministries in the field of Information Society and ICT, with the primary goal to promote innovation in the public sector. Basically the Ministry, functionally located at the Cabinet of the Prime Minister, was created in order to improve the efficiency of the public authorities, together with the penetration of ICT-based tools in the public sector.

As regards, more specifically, public e-Procurement, the Ministry of Economy and Finance (MEF) started a Programme for implementing e-procurement practices within the public administration as an important branch of the Italian e-government program. The two main objectives of the initiative were to achieve spending savings and simplify the procurement processes.

A specific company has been created by the MEF with the aim to act as IT consultant for the public administrations and support them in conducting procurement procedures. This company is CONSIP (public company entirely controlled by the MEF - http://www.consip.it/on-line/Home.html) and it develops and operates electronic public procurement solutions. CONSIP is also responsible for research activity and publication of scientific and practical papers on e-Procurement auction theory and other relevant issues130.

A very important mission of CONSIP is to operate as the Central Purchasing Body (Procurement Body) for Italian public administrations. At regional level, some regions have established local procurement bodies (acting as Regional Purchasing Bodies) as well. CONSIP acts as the national

128 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf 129 From the technical point of view it is necessary to highlight the notable role played by CNIPA (National Centre for ICT in the Public Administration, 'Centro Nazionale per l'Informatica nella Pubblica Amministrazione', http://www.cnipa.gov.it/site/it-IT/), that is very active in keeping the Italian public authorities updated from the technological point of view. 130 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 185 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Central Purchasing Body, in principle, for administrations of the State, i.e. for administrations of the central government. Furthermore it has to be said that every public administration, at local, regional or national level, can develop and implement specific e-Procurement systems. Local (including regional) administrations, which are not obliged to buy through the central system (CONSIP), are responsible for carrying out their procurement activities and were the first to introduce electronic tools in the purchasing process (i.e. Lombardy region in 1997). Regional initiatives still exist, but central infrastructure through the Program for the Rationalization of public spending on goods and services (- http://www.acquistinretepa.it/) have harmonized the different systems with the aim to reduce regional differences to some extent.

2.1.2 Action plans and strategies

Italy is undoubtedly one of the most advanced countries in Europe in the field of e-government. There is, in fact, a strong political support to the implementation of ICT-based tools in the public sector and there is a general perception that 'new' technologies may improve the public administration, traditionally perceived as costly and not always perfectly efficient. Since many years (at least 15) the Italian government is promoting the diffusion of ICT in the public sector, and e-Procurement is one of the fields where this intervention is stronger and more efficient.

In particular, as one of the main action plans and strategies, the Government (more precisely the MEF), as we said above, created a dedicated company (CONSIP) whose mission is to develop and manage the ICT systems of the MEF by providing technical and managerial consultancy131. Furthermore, MEF with the support of CONSIP manages the Program for the rationalization of public spending on goods and services for the entire Italian public administration (thus not only within the MEF). Such a Program was introduced by art. 26 of the Financial Bill for the year 2000. The article stated that the MEF had to stipulate national framework contracts with Italian suppliers in order provide the public administrations with goods and services. Through the ministerial decree dated 24 February 2000 MEF entitled Consip to carry out the Program under its coordination.

State central administrations are obliged to use the framework contracts stipulated by Consip. The procurement system that was thus set up is based on an organizational model that links the needs of public authorities with the market trends, in order to assure transparency and efficiency. The procurement process is in many cases run on line through the use of the national e-procurement portal www.acquistinretepa.it.

CONSIP organizes training programs, seminars and conferences for transferring knowledge to procurement officers on public procurement aspects related mainly to the rules imposed by law.

In the context of its numerous tasks, CONSIP promotes the training and best practice sharing activities undertaken on public procurement: examples are the opening of 143 training desks (“Sportelli in Rete”) spread all over the country for the training of the SMEs, the setting up together with the MEF of

131 See http://www.oecd.org/dataoecd/57/31/36238443.pdf

Version:...... v3.1 Page: 186 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

eProcurement desks (“Sportelli eproc”) to train the public buyers, a yearly Prize to reward the best users of the MEPA. As said above, and as it will be further specified below, the most notable project set up by the MEF and CONSIP and the core of the national e-procurement services is the website www.acquistinretepa.it. This website functions both (i) as a way for e-tenders and (ii) as a marketplace where the public administrations buy products from lists provided by suppliers or make specific requests if and when they need products or services. With this regards, the authorised personnel of the public authority signs with digital signature (see below) the tender/request/proposal.

 http://www.acquistinretepa.it/portal/page?_pageid=173,2354332&_dad=portal&_schema=PORTAL&fir sttab=Iniziative_e_Servizi&secondtab=Sportelli_in_Rete; 132 http://www.acquistinretepa.it/portal/page?_pageid=173,2880855&_dad=portal&_schema=PORTAL&fir sttab=Iniziative_e_Servizi&secondtab=Sportelli_e-proc ; http://www.acquistinretepa.it/portal/page?_pageid=173,2356687&_dad=portal&_schema=PORTAL&fir sttab=Iniziative_e_Servizi&secondtab=Premio_Mepa

Version:...... v3.1 Page: 187 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Some regions are also very active in the field of e-Procurement and set up their own systems, within the framework established by the central authorities. Examples of the regional interventions in the field are:

 Lombardy: the Region created a company, Lombardia Informatica S.p.a. (http://www.lispa.it/home.htm), with the mission to create ICT infrastructures for the access of citizens to e-government applications and to manage the e-procurement services;  Emilia Romagna: the Region created an entity, Intercent-ER (http://www.intercent.it/portal/page?_pageid=201,1&_dad=portal&_schema=PORTAL), aimed to manage the e-Procurement services inside the Region.

Version:...... v3.1 Page: 188 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The legal framework applicable to e-Procurement in Italy is particularly rich and complex. For an overview, please refer to the list of primary and secondary legislation published by the Ministry of Economy and Finance (MEF) on http://www.mef.gov.it/dag/programma_di_razionalizzazione_degli_acquisti_nella_p.a/riferimenti_norm ativi/default.asp; and by CONSIP: http://www.consip.it/on- line/Home/Chisiamo/Normativadiriferimento.html. As regards, in particular, the contracts entered into between an Italian public administration and private businesses, Italy transposed the new EU Directives on public procurement into national legislation through the Legislative Decree ('Decreto Legislativo') 12 April 2006, no. 163 (Code of public contracts - 'Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE ')1, which came into force at the beginning of July 2006.

2.2.1.2 Secondary Acts

The primary regulation was detailed and executed through a number of Decrees, as published by the Ministry of Economy and Finance (MEF) on http://www.mef.gov.it/dag/programma_di_razionalizzazione_degli_acquisti_nella_p.a/riferimenti_norm ativi/default.asp; and by Consip on http://www.consip.it/on- line/Home/Chisiamo/Normativadiriferimento.html. These primarily ensure the appropriate linking between public procurement regulations and the State’s financial and budget regulations.

In addition, the eMarketplace (MEPA) is supported through the decree 101/2002; as noted above, state central administrations are required to make use of the framework contracts and the eMarketplace (MEPA) handled by MEF and Consip.

2.2.1.3 Regulatory autonomy

As regards regional and local authorities, the central State has exclusive competence to set rules in the field of ICT and Civil Law. In other words only the central lawmaker (national Parliament and central government) can legally establish when, and to what extent, public authorities can buy items and services online and to what extent such contracts are valid and enforceable. At the same time, in the frame of the national regulation, according to chapter 5 of the Italian Constitution, local authorities can define and issue detailed regional/local rules in order to perform public procurement and apply eProcurement.

1 Dlgs 163/06; see http://www.camera.it/parlam/leggi/deleghe/06163dl.htm

Version:...... v3.1 Page: 189 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Nevertheless, some regions have developed advance experience with e-Procurement, as we said above and as it will be pointed out later.

2.2.1.4 Permissibility of using eProcurement The contracting authority can decide on a case by case basis to forbid, allow or require the use of electronic means. If no instructions to the contrary are provided, the use of electronic means is forbidden (for DPS and MEPA this is not the case as they are totally electronic tools).

2.2.1.5 Thresholds

The National Publication Thresholds require the publication to be as follows, according to the applicable national legislation (namely the Code of Public Contracts Art. 66, 122, 124):

 Contracts above Thresholds for Public Works and for supply of goods and services: Official Journal of the European Union, National Official Journal, 2 regional newspapers, 2 daily newspapers of national distribution, contracting authority website, Ministry of Infrastructures website (http://www.serviziocontrattipubblici.it/) and Osservatorio website (Authority for the Supervision of Public Contracts for Work, Services and Supplies);  Contracts below Thresholds for Public Works (starting from € 500.000): National Official Journal, 1 regional newspaper, 1 daily newspaper of national distribution, contracting authority website, Ministry of Infrastructures website (http://www.serviziocontrattipubblici.it/) and Osservatorio website (Authority for the Supervision of Public Contracts for Work, Services and Supplies);  Contracts below € 500.000 for Public Works: Notice Boards of Municipalities and contracting authority website;  Contracts below Thresholds for Supply of Goods and Services: National Official Journal, Ministry of Infrastructures website (http://www.serviziocontrattipubblici.it/), Osservatorio website (Authority for the Supervision of Public Contracts for Work, Services and Supplies) and Notice Boards of contracting authority.

2.2.2 Specific tools 2.2.2.1 eSignatures

Only the digital signatures as defined and regulated by Legislative Decree 7 March 2005 No 82 are permitted (firma digitale). This is a special type of qualified electronic signature with extra requirements (art.77.6(c)).

2.2.2.2 eCommunication As regards e-Communications in general, the observance of some specific laws is required, namely of the Legislative Decree 7 March 2005, no. 82 (Digital Administration Code, 'Codice dell'Amministrazione Digitale') and of Legislative Decree 28 February 2005, no. 42 (establishment of a public system of connectivity and of an international network of public administration, under Article 10 of Law 29 July 2003, no. 229). In particular, the exchange of communications between contracting authorities and economic operators must be made by certified e-mail ('Posta Elettronica Certificata',

Version:...... v3.1 Page: 190 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

PEC), pursuant to Article 48 of the Digital Administration Code, to the Decree of President of the Republic of 11 February 2005, no. 68 and to other sources of secondary legislation (for an overview of the applicable laws and regulations, please visit http://www.cnipa.gov.it/site/it- IT/Normativa/Raccolta_normativa_ICT/Comunicazione_nell'ambito_della_Pubblica_Amministrazione_ e_posta_elettronica_certificata_(PEC)/). PEC is a particular kind of e-mail with a very strong effect: its legal value, in fact (according to the abovementioned legal sources), is the same as that of a traditional registered letter with notification of delivery.

2.2.2.3 DPSes

The DPS is recognised and regulated by the Code of public contracts, namely by Art. 3, no. 14, and by Art. 60. While minor language modifications were made, the main transposition provisions (notably art.60 of the Dlgs 163/06; see http://www.camera.it/parlam/leggi/deleghe/06163dl.htm) appear to be a faithful transposition of the Directives. The definition of the DPS in Italy explicitly excludes any type of goods or services where specifications are defined by the contracting authority which cannot be assessed automatically by the DPS.

2.2.2.4 eAuctions

While minor language modifications were made, the main transposition provisions (notably art.85 of the Dlgs 163/06; see http://www.camera.it/parlam/leggi/deleghe/06163dl.htm) appear to be a faithful transposition of the Directives. E-auctions are defined as “a process with different phases based on an electronic system of presentation of new prices, lowered every time, or of new values regarding some elements of the offers, that intervene after a first complete evaluation of the offers allowing that their classification may be done on the basis of an automatic treatment. The outsourcing of services and of works that have as object deliveries of intellectual nature, such as projects, cannot be object of e- auctions.”

2.2.2.5 Lists of economic operators

Lists of economic operators may be made and kept by public authorities according to Art.45 and Art. 232 of the Code of public contracts; however, no such lists are known at this time.

2.2.2.6 Buyer’s profiles

Buyer’s profiles are used in Italy. According to official statistics, Italy is the biggest user of buyer’s profiles in the EU2. Given that the legal framework explicitly supports buyer’s profiles (defined in art.3.35 of the Dlgs 163/06 and occasionally referenced therein; see http://www.camera.it/parlam/leggi/deleghe/06163dl.htm) and that other reports confirm the use of

2 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 191 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

buyer’s profiles by large contracting authorities (and taking into account the structure of the abovementioned system 'Acquisti in rete della pubblica amministrazione'), this seems credible.

2.2.2.7 Framework agreements

Framework agreements are used to improve cost effectiveness of e-Procurement, specifically through the Program for the Rationalization of public spending on goods and services (http://www.acquistinretepa.it/), through which contracting authorities have been able to benefit from existing framework agreements on goods and services as from the year 2000. From the legal point of view, framework agreements are regulated by Art. 59 of the Code of public contracts that states that these agreements are allowed only for maintenance works, goods and services and not for projects and for other deliveries of intellectual nature (e.g. projects). Framework agreements can be entered into between a public authority and one or several economic entities. Furthermore, the time-length of a framework agreement cannot be longer than 4 years (unless in particular and exceptional cases) and it cannot never limit or distort competition between economic operators.

2.2.2.8 Electronic certificates / electronic evidences

According to Art. 38, §§ 4 – 5, of the Code of public contracts administrations may ask foreign tenderers to provide relevant certificates. In case such certificates are not available under the legislation of the EU Country concerned, an affidavit is considered suitable. If such an instrument is not available, a declaration made in front of a judiciary authority or a competent administrative authority is equally accepted, or it is allowed a declaration made to a notary or to a professional entity entitled to receive it under the legislation of the Country concerned. Other articles, like those from 39 to 44 of the Code, recognise Member States’ certificates. In general, there is no obstacle to the acceptance of a certificate issued in the EU.

Certificates and other formal attestations of compliance with given requisites are indicated in Art. 38 to 50 of the Code of public contracts. As to certificates in electronic format, they are certainly allowed, in application of Art. 15 of the Law 15 March 1997, no. 59 (the so-called “legge Bassanini”) and of Directive 95/46/EC, implemented in Italy by the abovementioned Digital Administration Code. Note, specifically, that under Italian legislation, in order to make an electronic document equivalent to a paper-based one, it is requested to sign it with a digital signature ('firma digitale'). Most Italian administrations currently dispose of and use such PKI based instruments.

Version:...... v3.1 Page: 192 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction The Government (more precisely the MEF) created a dedicated company (Consip3) whose mission is to develop and manage the ICT systems of the Ministry by providing technical and managerial consultancy. Furthermore, MEF and Consip manage the Programme for the rationalization of public spending on goods and services. Such a Programme was introduced by art. 26 of Financial Bill for the year 2000. The article stated that the MEF had to stipulate national framework contracts with Italian suppliers in order provide the public administrations with goods and services. Through the ministerial decree dated 24 February 2000 the MEF entitled Consip to carry out the Program under its coordination. State central administrations are obliged to use the framework contracts stipulated by Consip. The Program is realised through an organisational model that links the needs of public authorities with the market trends, in order to assure transparency and efficiency. The work of Consip is regulated by many legal provisions4. Italy is running the “Mandatory National eProcurement Platform” model: eProcurement policy is centralized and the use of the National Platform is mandatory for National contracting authorities. Such a centrally steered approach encourages centralization and coordination but does not per se exclude the development of independent regional, local platforms or private platforms.

3.2 Main platform The most notable project and the core of the national e-procurement services is the website "Acquisti in Rete"5. This website functions both (i) as a way for e-tenders and (ii) as a marketplace where public administrations buy products from lists provided by suppliers or make specific requests if and when they need products or services. With this regard, the authorised personnel of the public authority will sign the tender/request/proposal with a digital signature. The application allows companies to register, search for public procurement opportunities (listed periodically in the above website) and submit a bid electronically. The application functions also as a marketplace where public administrations buy products from lists provided by suppliers or make specific requests if and when they need products or services. The negotiations are then performed electronically as well. Cross-border accessibility: System is accessible to non-nationals; provided that they have a digital signature and that the legal representative of the company has a valid Italian ‘Fiscal Code’ (to be requested to the tax authorities). Furthermore, in principle, the application is accessible only to users with smartcard/software issued by an Italian certificate service provider. Access to the application to non-nationals is managed on a case-by-case basis.

3.3 Other platforms Italy is interesting as it highlights the emerging network of central and regional eProcurement Agencies. The most important Regions (Emilia Romagna, Lombardy, Piemonte) have launched Regional Procurement Agencies aggregating all regional spending needs. Emilia Romagna's agency

3 http://www.consip.it/on-line/Home.html 4 http://www.consip.it/on-line/Home/Chisiamo/Normativadiriferimento.html MEF http://www.mef.gov.it/dag/programma_di_razionalizzazione_degli_acquisti_nella_p.a/riferimenti_norm ativi/default.asp 5 www.acquistinretepa.it

Version:...... v3.1 Page: 193 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Intercenter is now the reference point for 539 administrations (90% of local agencies), and processed transactions for € 419mln in 2008, with a 122% increase on 2007.

3.4 Figures Italy was one of the pioneers of eProcurement since 2001. The volume of eProcurement transactions reached € 3.22 B in 2008, corresponding to 2.5% of the total public spending, according to the public eProcurement report issued by the Politecnico di Milano. Half of this is transacted on the National eProcurement Platform "Acquisti in Rete" which is mandatory for central administrations. Growth rates are very high (+233% for the national platform from 2007). The platform offers all eProcurement services, including eTendering, eMarketplace, eCatalogues and eAuctions. Intercenter reports efficiency benefits of € 67.5mln in 2008, and 45 man-years savings. The key success factors of the agency are a clear vision, a strong political support, and a constant activity of training and support for the Contracting Authorities and Suppliers. According to the DG INFSO Benchmarking study6, Italy achieves a score of 53% for the availability benchmark while the European average is 56%. It scores 56% for the Pre-Award Process Benchmark while European average is 59%. Italy is engaged in the EU policy development and activities. Italy participates in the CIP ISP PSP programme and particularly in: epSOS, PEPPOL, SPOCS, STORK, BEPMS, CLEAR, Dreaming, DTV4All, ECRN, eGOS, FREILOT, In-Time, iSAC6+, ISIEMD, NEXES, REACH112, SOCIABLE and T-SENIORITY.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper or unsigned electronic original As this is not a formal attestation but rather standing documentation provided by the service provider, it is up to the contracting authority to specify its reasonable requirements. professional qualification Signed electronic original technical and/or professional Paper only ability

6 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 194 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 195 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Latvia

(No validating or corrective feedback was received from Latvia concerning this profile)

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Procurement Monitoring Office (IUB) URL www.iub.gov.lv Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Electronic Certificate. requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Procurement Monitoring Office (IUB) www.iub.gov.lv Latvian public procurement www.eiepirkumi.gov.lv

Version:...... v3.1 Page: 196 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Mercell www.mercell.lv

1.2 Laws and policies

1.2.1 Laws

The main acts in Latvia are:

 The Public Procurement Law (Publisko iepirkumu likums (spēkā no 2006.gada 1. maija), effective as of 1 May 2006) http://www.iub.gov.lv/iub/images/modules/items/item_file_1542_pil_ar_grozijumiem.doc  The Law On Procurement for the Needs of Public Service Providers (Par iepirkumu sabiedrisko pakalpojumu sniedzēju vajadzībām (spēkā no 2004. gada 10. novembra), effective as of 10 November 2004) http://www.ttc.lv/export/sites/default/docs/LRTA/Likumi/Procurement_for_the_Needs_of_Publi c_Service_Providers.doc

1.2.2 Legally supported tools

 eSignatures: an electronic signature in accordance with the Electronic Documents Law must be used, under article 54 (5.2) of the Public Procurement Act. This law defines both the electronic signature and the qualified signature, so that there is a relatively large freedom to choose an appropriate signature type.  DPSes: supported through section 66 and following of the Public Procurement Act.  eAuctions: supported through section 67 and following of the Public Procurement Act.  Buyer’s profiles: not referenced in the Public Procurement Act.

1.2.3 Permissibility of using eProcurement In accordance with Article 54 (1) of the Act, any information exchange between a service provider and suppliers shall be carried out by post, by fax, by electronic means or by phone, or by any combination thereof, depending on the choice of the public service provider. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to follow the provisions of the Directives relatively directly, which should minimise legal obstacles.

Version:...... v3.1 Page: 197 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3.2 Weaknesses of the national situation

Availability and maturity of technical eProcurement infrastructure appears to be very low at this time; thus, take-up will likely also be very limited.

Version:...... v3.1 Page: 198 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Procurement Monitoring Bureau (PMB) of the Ministry of Finance plays a central role with respect to public procurement policy, as it prepares all the draft Regulations relating to public procurement matters(although final responsibility belongs to the Ministry of Finance). It also organises educational workshops to raise awareness on public procurement legislation.

In addition, the PMB was also responsible for the introduction of e-Procurement in Latvia. After the first system became operational and its development was finished under the auspices of the PMB, a separate specialised agency (the Electronic Procurement State Agency) was created to manage the eProcurement system1.

Finally, the Corruption Prevention and Combating Bureau should also be mentioned as a key policy body, since both the PMB and the Bureau are Central Procurement Bodies, as was the more recently (2006) established Electronic Procurement State Agency, up until later 2008. Since then, these functions have been transferred to the Secretariat of the Special Assignments of the Minister for Electronic Government Affairs.

While procurement has traditionally been a decentralized competence, there is a notable trend towards centralization through the establishment of the Electronic Procurement State Agency, and more recently the Secretariat of the Special Assignments, and through the development of a common eProcurement platform. While local authorities retain their autonomy in principle, with respect to eProcurement the emphasis is on centralized infrastructure.

2.1.2 Action plans and strategies

In January 2004, the Government adopted the conception “Use of Information Technology in the Improvement of a Public Procurement System” that defined Latvia’s public e-Procurement strategy. The conception has three objectives2:

 The development of a public procurement portal with the possibility of electronic notification.  The implementation of electronic catalogues and electronic auctions is included in the Latvian Government strategy.

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf and http://ec.europa.eu/idabc/servlets/Doc?id=32344 2 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 199 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 The setting up of a new body, the Electronic Procurement State Agency. The Agency will be responsible for providing a single national procurement system for all Latvian public sector bodies, both at central and local Governments.

It is projected that:

 The Government will save 1 million € per year after 2009 by automating procurement procedures in the public sector  One third of all public procurement procedures will be completed electronically by 2009.  The State Chancellery which is directly subordinated to the Prime Minister organises public procurement training programmes for public servants.  The methodology department of the Procurement Monitoring Bureau provides methodological assistance and consultations and organises training for contracting authorities, for suppliers of goods, providers of services and performers of construction work. In 2003, the PMB organised 95 procurement legislation workshops, attended by over 2.000 participants, to raise awareness. Training is a lifelong process and the PMB plans to organise a large number of training sessions within 2006, aiming to acquaint all parties involved in the procurement chain with the new EU Directives, e-Procurement and new procedures for procuring. The Latvian Government considers that realisation of the real benefits of e-Procurement by the contracting authorities and enterprises will allow for greater visibility and transparency over the whole e- Procurement process.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The main acts in Latvia are:

 The Public Procurement Law (Publisko iepirkumu likums (spēkā no 2006.gada 1. maija), effective as of 1 May 2006) http://www.iub.gov.lv/iub/images/modules/items/item_file_1542_pil_ar_grozijumiem.doc  The Law On Procurement for the Needs of Public Service Providers (Par iepirkumu sabiedrisko pakalpojumu sniedzēju vajadzībām (spēkā no 2004. gada 10. novembra), effective as of 10 November 2004) http://www.ttc.lv/export/sites/default/docs/LRTA/Likumi/Procurement_for_the_Needs_of_Publi c_Service_Providers.doc

2.2.1.2 Secondary Acts

Cabinet Regulation No. 257 (Procurement Regulations for the Needs of Public Services Providers), adopted on 8 April 2004, specifies procedures for granting contracts for services, supplies and construction works for public services providers (e.g. water works, electricity, gas, public transport and postal services). These Regulations, issued by the Cabinet of Ministers, meet the requirements of EU Directive 2004/17/EC.

Version:...... v3.1 Page: 200 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with Article 54 (1) of the Act, any information exchange between a service provider and suppliers shall be carried out by post, by fax, by electronic means or by phone, or by any combination thereof, depending on the choice of the public service provider. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

The financial thresholds of the new Public Procurement Law are in line with those set by the EU Directives. A contracting authority has no national adverting obligations for public contracts the amount of which does not exceed 10.000 LVL (~14.300 €) for supplies and services and 50.000 LVL (~71.800 €) for construction works. On tenders from 1.000 LVL (~1.400 €) to 10.000 LVL (~14.300 €) the only requirement is that the relevant procurement notice be published on the home page of the contracting authority or in a local newspaper3.

2.2.2 Specific tools 2.2.2.1 eSignatures

An electronic signature in accordance with the Electronic Documents Law must be used, under article 54 (5.2) of the Public Procurement Act. This law defines both the electronic signature and the qualified signature (but not an advanced electronic signature), so that there is a relatively large freedom to choose an appropriate signature type.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Latvia.

2.2.2.3 DPSes

3 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 201 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The main transposition provisions (notably section 66 and following of the Latvian Procurement Act; see http://www.ttc.lv/export/sites/default/docs/LRTA/Likumi/Procurement_for_the_Needs_of_Public_Servic e_Providers.doc) appear to be a faithful transposition of the Directives. As a form of minor gold plating, the Latvian legislation contains an explicit definition of an indicative tender, describing it as “a tender that characterises the range of goods offered by a tenderer in the dynamic purchasing system, but is not binding on the tenderer and a public service provider”.

2.2.2.4 eAuctions

The main transposition provisions (notably section 65 of the Latvian Procurement Act; see http://www.ttc.lv/export/sites/default/docs/LRTA/Likumi/Procurement_for_the_Needs_of_Public_Servic e_Providers.doc) appear to be a faithful transposition of the Directives.

2.2.2.5 Lists of economic operators

There are no known lists being maintained in Latvia.

2.2.2.6 Buyer’s profiles

Up to now, there is no indications of use of buyer's profile in Latvia. They are not mentioned in the primary eProcurement Act.

2.2.2.7 Framework agreements

Framework agreements are regulated by the Act, namely through section 23. The provisions of Latvian law appear to be materially identical to those of the Directives.

2.2.2.8 Electronic certificates / electronic evidences

Both laws prescribe certain administrative requirements that must be satisfied by the tenderer. It must If a tenderer does not meet all of these requirements a contracting authority must the offer. In the tender regulations a contracting authority must clearly indicate which certificates and/or statements must be included with the tender offer. This is regulated in Sections 40 – 46 of the Public Procurement Law, whereas the law on Procurement for Needs of Public Service Providers allow more freedom for the contracting authorities to choose documents that will be accepted.

Foreign tenderers may submit certificates issued by relevant institutions in their countries of registration. If the tenderer’s country of origin does not issue such certificates the requirement is met when any other statement is issued according to laws of the country of origin of the tenderer. The contracting authority has an obligation to check the fulfilment of these mandatory requirements.

Version:...... v3.1 Page: 202 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

In practice, such evidences are only available in a paper format.

Version:...... v3.1 Page: 203 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Latvia is running the “Non-Mandatory National eProcurement Platform/Portal” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities.

3.2 Main platform In accordance with the Public Procurement Act amendments of 2009 which came into force on 1 November, a subscriber shall prepare, submit for publication and publish tender notices through the Procurement Monitoring Bureau's website available by electronic means - Publications Management System (PVS). When a customer has filed an application for registration PVS and the designated electronic mail box has received the identification tools, customer authorized the PVS and prepare procurement notices.

3.3 Additional platforms Not relevant.

3.4 Figures According to the DG INFSO Benchmarking study4, Latvia achieves a score of 34% for the availability benchmark while the European average is 56%. It scores 50% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations

4 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 204 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 205 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Liechtenstein

(No validating or corrective feedback was received from Liechtenstein concerning this profile)

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name URL Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication requirement

Lichtenstein is not part of the DG INFSO Benchmarking report.

No platform has been identified:

1.2 Laws and policies

1.2.1 Laws

The Directives have been transposed into Liechtenstein law through:

o An update of the Public Procurement Act of 1998 (Gesetz vom 19. Juni 1998 über das Öffentliche Auftragswesen (ÖAWG); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=1998&Nr=135; the update was adopted on 2 September 2008; o The 2005 Act on Procurement in the Utilities Sectors (Gesetz vom 21. September 2005 über das Öffentliche Auftragswesen im Bereich der Sektoren (ÖAWSG); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=2005&Nr=220

Version:...... v3.1 Page: 206 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.2 Legally supported tools

 eSignatures: usage of a signature in accordance with the eSignatures Act (Signaturgesetz) is required, but no specific signature type is required. Contracting authorities are thus free to specify this.  DPSes: supported through article 34(a)) of the Act and art. 33(a) of the Decree.  eAuctions: not supported by the legal framework.  Buyer’s profiles: supported through art. 14 and following of the Decree.

1.2.3 Permissibility of using eProcurement In accordance with article 19a of the Public Procurement Regulation of 1998, submission of tender documents below the threshold may be determined by the contracting authority, whereas above the threshold documents may be sent by mail, fax, electronic means or otherwise, or by a combination of those means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to follow the provisions of the Directives relatively directly, which should minimise legal obstacles.

1.3.2 Weaknesses of the national situation

Availability and maturity of technical eProcurement infrastructure appears to be very low at this time; thus, take-up will likely also be very limited. In addition, eProcurement does not appear to be a policy priority at this time.

Version:...... v3.1 Page: 207 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Public Procurement Unit is the responsible institution for policy making in the field of public procurement. It prepares all Draft and Government Bills for the Government which then decides to submit the former to the Parliament. The Public Procurement Unit is a Central Procurement Body but it is neither a Central Purchasing Body nor an OJS e-Sender.

The EEA Committee of the Parliament, Government and Public Procurement Unit is responsible for the technical solutions provided for in the field of public procurement. This is a shared task, along with the modernisation efforts.

Although the country has an advanced economy, Liechtenstein is a small country where contracting authorities generally procure via the Public Procurement Unit.

2.1.2 Action plans and strategies

Due to the small size of the country, the modernisation of the public procurement field is not set as a Governmental top priority at the moment. At the moment there are no concrete strategies/time frames for the modernisation of public procurement. This is due to the size of the country (160 km2 total area and 34.600 residents) which makes it harder to justify the expense of eProcurement. No plans to introduce e-Procurement are yet envisaged1.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Directives have been transposed into law through:

o An update of the Public Procurement Act of 1998 (Gesetz vom 19. Juni 1998 über das Öffentliche Auftragswesen (ÖAWG); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=1998&Nr=135; the update was adopted on 2 September 2008;

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 208 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

o The 2005 Act on Procurement in the Utilities Sectors (Gesetz vom 21. September 2005 über das Öffentliche Auftragswesen im Bereich der Sektoren (ÖAWSG); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=2005&Nr=220

2.2.1.2 Secondary Acts

The relevant secondary regulations are mainly: o An update of the Public Procurement Regulation of 1998 (Verordnung vom 3. November 1998 über das Öffentliche Auftragswesen (ÖAWV); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=1998&Nr=189; the update was adopted on 2 September 2008; o The 2005 Regulation on Procurement in the Utilities Sectors (Verordnung vom 8. November 2005 über das Öffentliche Auftragswesen im Bereich der Sektoren (ÖAWSV); see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=2005&Nr=223

2.2.1.3 Regulatory autonomy

Regulations are entirely centralised.

2.2.1.4 Permissibility of using eProcurement

In accordance with article 19a of the Public Procurement Regulation of 1998, submission of tender documents below the threshold may be determined by the contracting authority, whereas above the threshold documents may be sent by mail, fax, electronic means or otherwise, or by a combination of those means.

2.2.1.5 Thresholds

The relevant threshold values in force for publication in Liechtenstein at the moment are the following (in Swiss Francs)2:  Single tender action o Works 50.000 CHF (31.377 €) o Supplies 50.000 CHF (31.377 €) o Services 50.000 CHF (31.377 €)  Negotiated procedures o Works 100.000 CHF (62.754 €) o Supplies 100.000 CHF (62.754 €) o Services 212. 242CHF (133.192 €)  Open/ restricted procedures o Works 100.000 CHF (62.754 €) o Supplies 100.000 CHF (62.754 €)

2 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 209 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

o Services 212.242 CH (133.192 €)

2.2.2 Specific tools 2.2.2.1 eSignatures

Usage of a signature in accordance with the eSignatures Act (Signaturgesetz) is required, but no specific signature type is required. Contracting authorities are thus free to specify this. (art. 31 1a. of the relevant Decree; see http://www.gesetze.li/get_pdf.jsp?PDF=2005223.pdf)

2.2.2.2 eCommunication

No known notable changes to the binding provisions of the Directives.

2.2.2.3 DPSes

The relevant provisions of the main act (see http://www.gesetze.li/DisplayLGBl.jsp?Jahr=2005&Nr=220, particularly article 34(a)) and of the decree (http://www.gesetze.li/get_pdf.jsp?PDF=2005223.pdf, particularly article 33(a)) implement the Directives faithfully.

2.2.2.4 eAuctions

The optional provisions with respect to eAuctions have not been transposed in Liechtenstein.

2.2.2.5 Lists of economic operators

There are no known lists of accredited economic operators in Liechtenstein.

2.2.2.6 Buyer’s profiles

Buyer’s profiles (Beschafferprofil) are supported through art. 14 and following of the Decree, in broadly similar terms as in the Directives.

2.2.2.7 Framework agreements

Framework agreements (Rahmenvereinbarung) are explicitly permitted under Liechtenstein law, notably via article 22a and following of the Decree, which specify the requirements for signing a framework agreement and the award of contracts based on framework agreements.

Version:...... v3.1 Page: 210 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

Article 35a and 35b ÖAWG contain the basic rule that contracting authorities are in principle free to stipulate in each invitation to tender which evidence documents need to be provided. Failure to provide such documents will result in exclusion (article 35b 1). If no such certificates are issued in the tenderer’s country of origin, then the document in question can be replaced by a declaration under oath before the competent authority of the country of origin of the tenderer.

Thus, the legal framework in Liechtenstein is relatively flexible, since the contracting authority is relatively free to request the documents that it sees necessary, and as foreign tenderers can replace these by declarations under oath if no suitable documents are available. It is worth noting that the contracting authority is free to indicate that it is willing to accept less formal documents as evidence, including declarations on honour.

With regard to verification and language issues, there are no formal rules for verifying the validity of an offer; the only language related provision is article 19, i) ÖAWV, which stipulates that the invitation to tender will stipulate the languages which the tenderer may use; the announcement itself is always in German.

Version:...... v3.1 Page: 211 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction No eProcurement.

3.2 Main platform

3.3 Additional platforms

3.4 Figures No figure available.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper or unsigned electronic original standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 212 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Lithuania

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Central Public Procurement Information System URL pirkimai.eviesiejipirkimai.lt Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Qualified signature requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Central Public Procurement Information System pirkimai.eviesiejipirkimai.lt Central Public Procurement Portal www.cvpp.lt

Version:...... v3.1 Page: 213 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Public Procurement Office www.vpt.lt Electronic Catalogue (supported nationwide by Central purchasing organization) www.cpo.lt Mercell (private initiative for private sector only) www.mercell.lt

1.2 Laws and policies

1.2.1 Laws

Lithuania has transposed the EU Directives (2004/17/EC and 2004/18/EC) on public procurement into national legislation via the Law on Public Procurement, No. X-471, and the Law on Concessions No. I- 1510. For an informal translation, see http://www.oecd.org/dataoecd/7/22/39645903.pdf.

1.2.2 Legally supported tools

 eSignatures: under article 17 of the Public Procurement Act, advanced electronic signatures must be used.  DPSes: supported through article 64 of the Public Procurement Act.  eAuctions: supported through article 65 of the Public Procurement Act.  Buyer’s profiles: defined and referenced via article 23 (1) of the Public Procurement Act.

1.2.3 Permissibility of using eProcurement In accordance with the Act, any information exchange between a service provider and suppliers shall be carried out by post, by fax, by electronic means or by phone, or by any combination thereof, depending on the choice of the public service provider. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The legal framework appears to follow the provisions of the Directives relatively directly, which should minimise legal obstacles. Furthermore, development of the centralised portal www.cvpp.lt has advanced well in recent years, and is now seeing reasonable uptake.

1.3.2 Weaknesses of the national situation

Version:...... v3.1 Page: 214 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

It is not clear to what extent the available portal site is currently accessible to foreign end users, given its reliance on qualified signature certificates at this time. It appears that there may be some interoperability challenges (as there is no procedure to verify if a signature certificate issued in another country (EU or not EU) is trusted; from a purely technical perspective, the whole family of x.509 format signatures is supported) in this respect, as is also the case in other comparable portals in other Member States.

Version:...... v3.1 Page: 215 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Public Procurement Office under the Government of the Republic of Lithuania coordinates and supervises the compliance of procurement activities with the Law on Public Procurement and the implementing legislation. The regulations themselves are drafted by the Ministry of Economy .

The Public Procurement Office under the Government of the Republic of Lithuania also administers the central public procurement portal (www.cvpp.lt), forwards notices of contracting authorities for publication, and creates necessary measures to perform electronic procurement procedures1.

The Central Project Management Agency (CPMA) was appointed by the Lithuanian Government as the central purchasing body (www.cpo.lt)3.

In practical terms, public procurement is organized in a largely decentralized manner. The Government of the Republic of Lithuania has adopted a protocol decision appointing the Central Project Management Agency to be Central Purchasing Body in a pilot project on procurements, financed by EU structural funds.

2.1.2 Action plans and strategies

The creation of a new public procurement information system which would allow the transition of public procurement to an electronic environment constituted one of the key measures and objectives of the Government plan (2004-2008). The allocated budget amounted to approximately 3,7 million € and was expected to provide, inter alia, e-Notices integration with e-Tendering, e-Catalogues, e-Auctions, external time stamping and PKI infrastructure, improved security, better technical and internet infrastructure, better and more user friendly interface, free access and multilingual services (LT, EN).

In 2005 the PPO implemented the central public procurement portal which integrates part of the functions of the public procurement monitoring system and where each contracting authority may publish its procurement documents and additional documents in electronic form. The implementation of this portal was linked to the priority set in the project of the Government namely, the ‘Development of information and knowledge society”, funded from the EU structural funds as well as the national budget, as part of the Government plan 2004-2008.

1 Source : http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 2 Source : http://ec.europa.eu/idabc/servlets/Doc?id=32345 3 Source : http://ec.europa.eu/idabc/servlets/Doc?id=32345

Version:...... v3.1 Page: 216 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Since that time, the policy emphasis has been on the continuous development and extension of this portal4. By way of example, in 2009, the web based project eCatalogue (https://www.cpo.lt/central- purchasing-body.html) which centralizes the administration of public procurements was successfully launched. eCatalogue helps to conduct public procurement in electronic format in full without a single paper document. Qualified signature certificates are used in these procedures.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

Lithuania has transposed the EU Directives (2004/17/EC and 2004/18/EC) on public procurement into national legislation via the Law on Public Procurement, No. X-471, and the Law on Concessions No. I- 1510. For an informal translation, see http://www.oecd.org/dataoecd/7/22/39645903.pdf.

2.2.1.2 Secondary Acts

Several decrees exist, including the Decree No 196 of 18 March 2009 on public procurements using Central Public Procurement System, which obliges all government institutions in the year 2010 to conduct at least 50% of the organized public procurements by electronic means using eSignatures and via the Central Public Procurement System. The Decree also provides that in the subsequent years public procurements should be conducted only by electronic means5.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with article 17 (1) of the Act, any information exchange between a service provider and suppliers shall be carried out by post, by fax, by electronic means or by phone, or by any combination thereof, depending on the choice of the public service provider. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

4 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 5 Source : http://ec.europa.eu/idabc/servlets/Doc?id=32345

Version:...... v3.1 Page: 217 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Contracting authorities are obliged to advertise all their contracts above the EU thresholds at the OJEU. The estimated values of contracts enforced by the legislation are identical with the public contracts Regulations (Service and Supplies Contracts). The financial thresholds for the various types of contracts are almost identical with the ones described in the EU Directives. The publication in the supplement to the National Official Journal is not required if the contract value net of VAT is below 75.000 LTL (Approx. 21.722 €) for supplies and services, or less than 300.000 LTL (Approx. 86.886 €) for works6.

2.2.2 Specific tools 2.2.2.1 eSignatures

Under article 17 of the Public Procurement Act, advanced electronic signatures must be used.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Lithuania.

2.2.2.3 DPSes

The relevant provisions (notably article 64) of the Lithuanian Public Procurement Act (http://www.oecd.org/dataoecd/7/22/39645903.pdf) appear to be a faithful transposition of the Directives.

2.2.2.4 eAuctions

The relevant provisions (notably article 65) of the Lithuanian Public Procurement Act (http://www.oecd.org/dataoecd/7/22/39645903.pdf) appear to be a faithful transposition of the Directives.

2.2.2.5 Lists of economic operators

The public procurement office maintains an officially approved suppliers list; the legal framework is defined in article 38 of the Public Procurement Act.

2.2.2.6 Buyer’s profiles

6 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 218 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Buyer’s profiles are defined and referenced in article 23(1) of the Public Procurement Act. Up to now, there is no indications of their use in Lithuania.

2.2.2.7 Framework agreements

Framework agreements are regulated by the Act, namely through section VI (article 63). The provisions of Lithuanian law appear to be materially identical to those of the Directives.

Framework agreements are used in practice, specifically to support procurements via the aforementioned CPMA (see https://www.cpo.lt/central-purchasing-body.html).

2.2.2.8 Electronic certificates / electronic evidences

The Law establishes that the contracting authority must verify whether a tenderer is competent, reliable and capable of executing the contract. Therefore, the contracting authority may define in the contract documents the minimum requirements for the qualification of tenderers (right to engage in a certain activity, financial, economic, technical and production capability) and request that tenderers provide the information and documents proving their qualification as specified in the contract documents.

If a tenderer for any valid reason is not able to provide the documents requested by the contracting authority, the tenderer may prove its economic or financial standing by any other documents or evidence to the satisfaction of the contracting authority. In the event the tenderer provided incomplete and imprecise qualification information, the contracting authority may request, without prejudice to the public procurement principles, that the tenderer supplement or explain the data within a reasonable period of time.

It is worth noting that according to the Methodical Recommendations on Assessment of Qualification of Suppliers7, approved by the Order No. 1S-25 of the Director of the Office on 21 June 2007 (the new version of recommendations was approved), it is recommended to request copies of the documents, but not originals8. In practice, copies of such documents, approved by an authorized person of a tenderer, are often submitted in procurement proceedings, and such copies are typically accepted by the contracting authorities. Notwithstanding, the contracting authority retains a right to require submission of original documents.

With regard to verification and language issues in case the documents are issued by foreign institutions, there are no formal rules established in the legislation. In practice, tender documents usually establish that all documents have to be submitted in local language (except for technical documentation). In cases of major tenders, documents in other languages are accepted (as a rule, in English language). Documents issued by official foreign institutions, should be legalized or bear an apostille (according to Hague Convention adopted in 1961).

7 In Lithuanian Tiekėjų kvalifikacijos vertinimo metodinės rekomendacijos. 8 Please note that this document is of recommendatory nature and not mandatory to the contracting authorities.

Version:...... v3.1 Page: 219 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Version:...... v3.1 Page: 220 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

The development of a modern public procurement system is one of the main objectives of the Government in Lithuania. In 2001 the first initiative was put forward, and the so called Public Procurement Monitoring Information System (PPM IS) was launched. As of 2003, contracting authorities may submit contract notices and procurement reports to the Public Procurement Office in digital format using PPM IS. Any contracting authority willing to get access to PPM IS, first of all, must submit an application to the Public Procurement Office. Only registered users are able to post notices through PPM IS. In 2004 the information system, Central Portal of Public Procurement (CPPP), was created. The main purpose of it was to enable execution of public procurement in electronic environment. Monitoring functions, notices, reports, electronic catalogue of goods and services, contract documents and the possibility to purchase in accordance with common commercial practice by electronic means was integrated into CPPP. In 2008 CPPP was developed. Currently CPPP provides electronic means for submitting and managing procurement notices and reports, for conducting all procurement procedures, publishing information about procurement on the Internet. CPPP is managed by the Public Procurement Office The Law on Public Procurement provides for the possibility to perform all communication and information exchange between the contracting authority and suppliers using electronic means (fax, telephone, e-mail and etc.). Mandatory requirements are established with regard to the electronic means which are used for transmission and acceptance of tenders and applications. They must ensure that electronic tenders would be submitted using a secure electronic signature in accordance with the requirements set forth in the Law on Electronic Signature. The amendments of the Law on Public Procurement adopted in 22 July 2009 obliges contracting authorities and entities to conduct at least 50% of the organized public procurements by electronic means using eSignatures and via the Central Public Procurement System during each year.

In 2007, the web based project eCatalogue (https://www.cpo.lt/central-purchasing-body.html) which centralizes the administration of public procurements was successfully launched. The Central Project Management Agency (CPMA) was appointed by the Lithuanian Government as the Central purchasing body (www.cpo.lt). eCatalogue helps to conduct public procurement in electronic format in full without a single paper document. Contracting authorities are able to organise public procurements in electronic environments and suppliers are able to participate. Qualified certificates are used in these procedures. In the meantime, state public institutions can buy office stationary, computer equipment, fuel, mobile telecommunications and other products via eCatalogue. The sellers of these products who have signed a framework agreement with CPMA are allowed to put their product specifications in the eCatalogue. The state public institutions can place their orders for products specified in eCatalogue online. The eCatalogue system is conceived to eliminate the need of complex public purchase procedures for commonly purchased products, decrease the time and cost needed to complete the purchase, cut prices and increase public procurement transparency.

3.2 Main platform

The Central Public Procurement Portal (www.cvpp.lt) publishes all procurement with related documents but also planned purchases. The use can search both procurement and planned purchases through a simple or advanced search using criteria like the contracting authority, CPV code, type, date… The site provides some statistics for the last year and allows the user to register and even subscribe to RSS feeds with new procurement opportunities. There is also a discussion forum

Version:...... v3.1 Page: 221 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

maintained by the Public Procurement Office (www.vpt.lt). The site also provides information on procurement results (list of participating suppliers and their offered prices, reason of proposal rejection, awarding information like the name, the price and expected completion date. There is also a dedicated section to provide general news about procurement, new services offered by the portal, new publications… The portal itself is freely available to all users but they need to register on the portal before using the real procurement platform (pirkimai.eviesiejipirkimai.lt). The registration process is done online but some verification will take place before access is granted. The main platform (pirkimai.eviesiejipirkimai.lt) is where electronic procurement process can be fully conducted. After registration, the user will have access to a rich set of services:  The list of available public tenders and extended search capabilities  The list of tenders that he has previously submitted  A messaging system to communicate with the contracting authority and receive answers  A part where users can prepare their proposal with subparts to answer qualification questions, provide price, attach and upload document, submit the quotation, retake the quotation…  A space to manage documents about its company  A list of scheduled uploads  A list of tasks  A list of approvals  A user guide and information on how to get further help

3.3 Additional platforms

The following private platforms have been identified:

 www.cpo.lt : Central Project Management Agency (CPMA) is acting as Central purchasing body in Lithuania. Research is done to determine products reasonable to be purchased centrally. Economic operators are selected and Framework agreements are signed to supply office stationary, computer equipment, fuel, mobile telecommunications and other products. Economic operators who have signed Framework agreements are allowed to put their product specifications into a specially developed eCatalogue. Contracting authorities are presented with this eCatalogue to place their orders for product specifications online. Usage of eCatalogue is conceived to eliminate the need of complex Public purchase procedures for commonly purchased products, decrease the time and cost needed to complete the purchase, cut prices and increase Public procurement transparency. eCatalogue is constantly further developed to encompass new modules for purchase of fuel and telecommunication services. At the moment the system offers goods and services specifications in many structured categories in accordance with these Framework agreements: computer and office equipment, stationery and office supplies, automotive fuel in filling stations and mobile telecommunication services. More configurable products and services will be included when new Framework agreements are signed. Products and services to be included in eCatalogue are determined by carrying out surveys.

Version:...... v3.1 Page: 222 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

CPMA organizes courses on using the eCatalogue, telephone line and email help desks are available at any time on solving the issues. eCatalogue is a tool developed and maintained by CPMA itself. The system is available online via secure SSL connection. Economic operators and Contracting authorities representatives are registered within the system and have their own user profile they can login to. Economic operators are allowed to upload and update their product specification and pictures in eCatalogue (within the Framework agreement conditions) at their will during the period Framework agreements are in effect. Special forms indicate the correct format of filled data and check its validity. Contracting authorities are allowed to review, select and configure product specifications to be ordered and set its delivery and payment terms. Placed orders are forwarded to a list of respective Economic operators to have a price competition. Economic operators are able to prepare their price proposals using prefilled online forms. Proposals are signed using qualified e-signatures. Proposals signed by Economic operators are assessed and winner Economic operator is determined automatically. Award of the order is notified to all respective parties. The winner Economic operator and the ordering Contracting authority are presented with the prepared order contract to be signed. Each user of the system may access his own actions and respective orders history.

 www.mercell.lt : Private portal publishing contracts from government agencies, organisations and businesses in all industries, both private and public sector, providing supplier search functionalities, contract monitoring and education. Suppliers have access to all the published prices and bid requests. Buyers can write and publish bid requests and write contracts with tender winner. Additionally, it offers tender writing and review, help in providing documents, legal advices. The site for Lithuania is only available in Lithuanian but the company has also other sites in Denmark, Germany, Estonia, Latvia, Norway and Sweden which are in their respective language.

3.4 Figures

According to the DG INFSO Benchmarking study9, Lithuania achieves a score of 57% for the availability benchmark while the European average is 56%. It scores 86% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only, or scanned copies in eProcurements natural persons absence of conviction for Paper only, or scanned copies in eProcurements legal persons non-bankruptcy and financial Paper only, or scanned copies in eProcurements status

9 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 223 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

compliance with social Paper or electronic security obligations compliance with fiscal Paper or electronic obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Paper only, or scanned copies in eProcurements technical and/or professional Usually paper only, or scanned copies in eProcurements ability adequate insurance Usually paper only, or scanned copies in eProcurements quality assurance Usually paper only, or scanned copies in eProcurements environmental compliance Usually paper only, or scanned copies in eProcurements

Version:...... v3.1 Page: 224 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Luxembourg

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The primary eProcurement portal in Luxembourg is the “Portail des Marchés publics”; however, it is presently primarily an information dissemination site where procurement opportunities are published on-line.

Name Public eProcurement portal URL http://www.marches.public.lu/ Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication N.A. (the platform does not require eSignatures) requirement

Here are the DG INFSO Benchmarking report scores:

Version:...... v3.1 Page: 225 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platform has been identified:

Platform Name Platform URL Public eProcurement portal http://www.marches.public.lu/

1.2 Laws and policies

1.2.1 Laws The new Public Procurement Act was approved on 25 June 2009 (Nouvelle loi sur les marchés publics du 25 juin 2009 (Mémorial A n° 172 du 29 juillet 2009); see http://www.legilux.public.lu/leg/a/archives/2009/0172/index.html

1.2.2 Legally supported tools

 eSignatures: Annex V of the relevant Decree requires only that the offer is signed in accordance with the eSignatures Act; thus, no specific signature types are imposed.  DPSes: The main Act contains the definition of DPSes (art.3.6), but no substantive rules. These are to be determined in a specific regulation, which has not been issued yet..  eAuctions: The main Act contains the definition of eAuctions (art.3.7), but no substantive rules. These are to be determined in a specific regulation, which has not been issued yet  Buyer’s profiles: referenced in Annex II a of the Regulation.

1.2.3 Permissibility of using eProcurement While eProcurement can be used freely, Article 51 (2) of the Règlement grand-ducal notes that any electronic submission must be accompanied by a printed version, which will take precedence in case of differences between the electronic and printed version. Thus, it seems that fully electronic procurement is presently not possible.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

While suffering some delays in the implementation, Luxembourg has implemented a transparent legal framework, and has established a single national public procurement portal. Both of these are elements which should improve accessibility of eProcurement in Luxembourg.

The Luxembourg public procurement is qualified OJS eSender for sending notices in XML format to the Official Journal of the E.U. On the public procurement portal the economic operators also find notices of contracts below the thresholds. Apart from the technical aspects, significant emphasis is also placed on user assistance (via a help line) and training.

Version:...... v3.1 Page: 226 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3.2 Weaknesses of the national situation

However, it should also be recognised that eProcurement is not very mature in Luxembourg yet, with no detailed regulations yet for DPSes or eAuctions, and an infrastructural framework which doesn’t yet support eSubmission of offers. In that respect, sophistication of eProcurement solutions could still be improved.

Version:...... v3.1 Page: 227 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Ministry of Sustainable Development and Infrastructure – Department of Public Works is responsible for both public procurement and for e-Procurement policy, legislation and implementation.

The Ministry of Civil Service and Administrative Reform is the central body responsible for defining e- Government policy and strategies. It also coordinates the developments of e-Government across the public administrations of the Government. Furthermore, the Ministry is assisted by a Coordination Committee for the Modernisation of the State, composed of several ministers and chaired by the Minister of Civil Service. These two bodies are involved in the coordination of the e-Luxembourg Action Plan (Plan directeur de la gouvernance électronique) and both act as a pilot Ministry for the evaluation of the implementation of new electronic procurement procedures.

The Ministry of Sustainable Development and Infrastructure – Department of Public Works (Ministère du Développement durable et Infrastructure – Département des Travaux Publics) and the State IT Center (Centre des Technologies de l’Informations de l’Etat) are jointly responsible for the technical implementation of the online publication portal. Specifically, the Department of Public Works is responsible for the implementation of the “Portail des Marchés publics” under the framework of the e- Luxembourg program launched by the Ministry of Civil Service and Administrative Reform. The portal supports the online publication of procurement notices1.

Procurements are organized by the contracting authorities themselves; however, as in most Member States, coordination of the specific procurement activities is becoming more centralized, including via the Ministry of Civil Service and Administrative Reform and the Department of Public Works. The Department of Public Works is responsible body for the implementation of the “Portail des Marchés publics”.

2.1.2 Action plans and strategies

Presented on 13 June 2005 by the Minister for Civil Service and State Reform, the new e-Government Strategy includes an action plan for further implementation of public e-Services in Luxembourg. The new plan sets out the strategic objectives of “e-Governance” in Luxembourg, which are Government transparency, citizen inclusion and participation, public sector efficiency, increased competitiveness of both the public and private sectors, as well as an increase of the general level of knowledge and know-how in Luxembourg.

1 Source : http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 228 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

In the context of the new e-Government action plan and in the framework of the country’s Information Society initiatives, emphasis is put on education/ training and technology/infrastructure which are highly inter-related for the effective functioning of the Information Society.

However, it should be noted that these efforts focus on eGovernment in general, and not specifically on eProcurement.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The new Public Procurement Act was approved on 25 June 2009 (Nouvelle loi sur les marchés publics du 25 juin 2009 (Mémorial A n° 172 du 29 juillet 2009); see http://www.legilux.public.lu/leg/a/archives/2009/0172/index.html; this law transposes the European Directives into national law.

2.2.1.2 Secondary Acts

The new regulations implementing the aforementioned Act were approved on 3 August 2009 (Règlement grand-ducal du 3 août 2009 portant exécution de la loi du 25 juin 2009 sur les marchés publics. (Mémorial A n° 180 du 11 août 2009) ; see http://www.legilux.public.lu/leg/a/archives/2009/0180/index.html

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

While eProcurement can be used freely, Article 51 (2) of the Règlement grand-ducal notes that any electronic submission must be accompanied by a printed version, which will take precedence in case of differences between the electronic and printed version. Thus, it seems that fully electronic procurement is presently not possible.

2.2.1.5 Thresholds

The possibility to make use of the negotiated procedure is limited to contracts of low amounts (lower than 55.000 €) and to limited cases, listed in the law, and which are similar to the cases contained in the EU directives. The EU Directives thresholds are transposed in national law, so that the publication on European level is guaranteed for the contracts exceeding these thresholds.

Version:...... v3.1 Page: 229 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2 Specific tools 2.2.2.1 eSignatures

Annex V of the relevant Decree requires only that the offer is signed in accordance with the eSignatures Act; thus, no specific signature types are imposed.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Luxembourg.

2.2.2.3 DPSes

The main Act of 2006 contains the definition of DPSes (art.3.6), but no substantive rules. These are to be determined in a specific regulation, which has not been issued yet.

2.2.2.4 eAuctions

The main Act of 2006 contains the definition of eAuctions (art.3.7), but no substantive rules. These are to be determined in a specific regulation, which has not been issued yet

2.2.2.5 Lists of economic operators

The legal framework does not contain references to lists of economic operators, nor do there appear to be any such lists in practice.

2.2.2.6 Buyer’s profiles

Buyer’s profiles are referenced in Annex IIa of the aforementioned Regulations under similar terms as in the Directives (http://www.legilux.public.lu/leg/a/archives/2009/0180/a180.pdf#page=2); however, there is no indication yet of usage in practice.

2.2.2.7 Framework agreements

Framework agreements are regulated in art. 46 of the Act (accords-cadres), in similar terms as under the Directives.

Version:...... v3.1 Page: 230 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in article 221 and following of the Decree (see http://www.legilux.public.lu/leg/a/archives/2009/0180/a180.pdf#page=2). Tenderers established outside of Luxembourg may provide any equivalent document delivered in their country by an administrative or judiciary authority. When such a document does not exist, a declaration under oath also suffices; or if this doesn’t exist either, a solemn declaration before an administrative or judicial authority, a notary public or professional organisation can also be accepted (art.223 of the Decree).

With regard to verification and language issues for the certificates, there are no formal rules for verifying the validity of an offer (although of course the contracting authority can specify the language in which the offer as such, i.e. excluding the certificates, must be presented). The contracting authority is thus relatively free to assess the validity and value of the provided evidence.

However, as for all decisions, the authority must respect the basic principles of good administrative governance. In practice, that means that any decision to reject certain evidentiary documents must be motivated and transparent. Additionally, the decision must be proportionate. When a contracting authority considers that the provided certificates are incomplete, ambiguous or unclear, it may request clarification from the tenderer rather than rejecting an offer outright (see art.235). In this way, arbitrary decision making is avoided.

Version:...... v3.1 Page: 231 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

A series of initiatives have been taken to create full eProcurement platform in compliance with the European Directives, particular through the Public eProcurement portal at http://www.marches.public.lu. No other platforms have been found.

3.2 Main platform

The Public eProcurement portal was created in February 2006, and is currently mainly used as a dissemination tool for notifications of new procurements, for publication of tender documents and for general information on procurement procedures. Publication of contract notices on this national portal is mandatory for contract notices above and below thresholds. The portal is a qualified OJS eSender for sending contract notices in XML format to the Official Journal of the EU.

The portal is in French and addressed both to the public authorities and to potential tenderers. Contract notices are published in French (majority), German or English. Apart from the dissemination of general information, it also provides enterprises with a search and notification tool about new opportunities arising from the public sector. This functionality is publicly accessible; however, users can also choose to create a user account, which allows them additional functionality, including the possibility to subscribe to an automated notification services. This subscription is freely available to anyone, including foreign entities. Economic operators can also access tender documents with this user account. The portal is also the contact point of the Tender Commission (Commission des soumissions) an independent advisory body addressing public procurement issues. Users also have access to training and to a help-line.

Contracting authorities (both on a national and local level) can accede to the platform voluntarily, which brings the direct benefit for them of cost free online publication of procurements. A full list of acceded authorities can be consulted on-line: http://www.marches.public.lu/organismesaffilies/index.html The Department of Public Works is responsible for the implementation of the project in collaboration with the State IT Centre (Centre des technologies de l'information de l'Etat, see http://www.fonction-publique.public.lu/fr/structure- organisationnelle/ctie/index.html). The realisation of any functionality apart from e-notification has not yet been implemented. Thus, the portal does neither allow for the electronic submission of offers, nor for the electronic submission of certificates.

3.3 Additional platforms

No additional platform has been found.

3.4 Figures

Version:...... v3.1 Page: 232 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

According to the DG INFSO Benchmarking study2, Luxembourg achieves a score of 98% for the availability benchmark while the European average is 56%. It scores 57% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper or electronic natural persons absence of conviction for Paper or electronic legal persons non-bankruptcy and financial Paper or electronic status compliance with social Paper only security obligations the AED allows certificates to be requested via the internet compliance with fiscal Paper only obligations the AED allows certificates to be requested via the internet economic and financial Paper only standing professional qualification Paper only technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Paper only environmental compliance Paper or unsigned PDF

2 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 233 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Malta

(No validating or corrective feedback was received from Malta concerning this profile)

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Department of Contracts) URL http://www.contracts.gov.mt/ Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication The platform presently relies on username/password authentication via the Maltese eID requirement system after on-line registration. Smart card support will be integrated into the portal when Maltese eID cards become part of the eID scheme.

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Department of Contracts http://www.contracts.gov.mt/ Government eProcurement System http://www.e-procurement.gov.mt/ Department of Information http://www.doi.gov.mt/

Version:...... v3.1 Page: 234 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Enemalta http://www.emcservices.gov.mt/ Government Health Procurement Services http://www.sahha.gov.mt/

1.2 Laws and policies

1.2.1 Laws Two acts regulate the field of public procurement in Malta:

 The Public Contracts Regulations (Subsidiary Legislation 174.04; Legal Notice 177/2005); see http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/174/04.PDF  Public Procurement of Entities Operating in the Water, Energy, Transport and Postal Services Sectors Regulations (Subsidiary Legislation 174.06; Legal Notice 178/2005); see http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/174/06.PDF.

1.2.2 Legally supported tools

 eSignatures: contracting authorities may require that electronic tenders are signed with an advanced electronic signature; however, this is not mandatory (according to Art. 44(5)(b) of the Regulation).  DPSes: supported through art.26 of the Regulation.  eAuctions: supported through art.29 of the Regulation.  Buyer’s profiles: defined and referenced in the Regulation.

1.2.3 Permissibility of using eProcurement In accordance with §44 of the Act, a contracting authority may specify that any communication referred to in these Regulations can be made with or without electronic means. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Malta set up an accessible and efficient administrative and legislative framework for the implementation of e-Procurement policies, with a clear allocation of responsibilities to set up and manage the e-Procurement system have been allocated to the Department of Contracts.

The Maltese e-Procurement system is rather easy to use and the actual level of development may pave the way to substantial and interesting developments.

Version:...... v3.1 Page: 235 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3.2 Weaknesses of the national situation

Malta still has to do a lot in order to complete its e-Procurement system within the more general framework of innovations in the e-Government panorama of the country. The further development an maturation of the eID system will likely improve the national situation significantly.

In addition, an inherent challenge may be that Malta is itself a relatively small nation, which may reduce the political drive behind eProcurement as there are less savings to be realised than in nations where larger distances must be crossed.

Version:...... v3.1 Page: 236 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The competences in the field of public procurement in Malta are split between the Ministry of Finance, the Economy and Investment and the Department of Contracts. The former acts as central body for public procurement policy, while the latter has clear competences as regards the implementation of these policies. The Department of Contracts (https://secure2.gov.mt/EPROCUREMENT/home?l=1&x=8D75E169D7544055595403C20629CD0A91 10D918F84384524CE1EF1803B7330511A5603D3FD85627C3EB6EF2) is an institution of the Ministry of Finance, the Economy and Investment and has, as principal mission, that of putting the necessary administrative structures in place so that public procurement is carried out on the principles of fairness, transparency and non-discrimination between economic operators.

The Department of Contracts acts also as central purchasing body, since it publishes calls for tenders estimated over €47,000 excluding VAT on behalf of most Government Ministries, Departments and Entities. The use of the services provided by the Department of Contracts is mandatory and only particular government entities can carry out their own procurement outside the Department of Contracts (Central Bank of Malta, the Malta Stock Exchange, the Malta Tourism Authority and Local Councils).

Another body to mention is the General Contracts Committee, that is appointed by the Prime Minister, and its members are primarily responsible for providing advice to the Director General (Contracts) on all matters pertaining to public calls for tenders and the award of the relevant contracts, in terms of the applicable Maltese legislation.

2.1.2 Action plans and strategies

Maltese e-Procurement is a relatively recent achievement, given the fact that the Department of Contracts launched its new online Procurement Management System (integrated into the Maltese MyGov e-government portal at https://mygov.mt/register) and website in January 2009. This project was financed through the European Union's Transition Facility Program (started in 2005), and this fact shows the willingness of Maltese authorities to implement European legislation, standards and best practices in the country.

The Maltese e-Procurement is strictly linked to other recent achievements in the field of e- Government, like eID distributed to Maltese citizens (see https://mygov.mt/portal/%28wfgedn55ylfwhs55dsrevcng%29/webforms/howdoigetaccesstomygov.asp x). Thanks to the e-ID, in fact, Maltese citizens can register in the portal of the Department of Contracts and their identity is verified online in a secure way (while foreigners' registration need to be verified and validated by the Department of Contracts). With the appropriate eID codes, users of the portal website can also request and download a signature certificate via the MyGov Portal.

Version:...... v3.1 Page: 237 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts Two acts regulate the field of public procurement in Malta:

 The Public Contracts Regulations (Subsidiary Legislation 174.04; Legal Notice 177/2005); see http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/174/04.PDF  Public Procurement of Entities Operating in the Water, Energy, Transport and Postal Services Sectors Regulations (Subsidiary Legislation 174.06; Legal Notice 178/2005).

2.2.1.2 Secondary Acts

No known secondary acts. However, for a list of Circulars enacted by the Department of Contracts, please refer to the following web-page: https://secure2.gov.mt/EPROCUREMENT/circulars.

2.2.1.3 Regulatory autonomy

Maltese public procurement is strongly centralized, and thus no regulatory authority is left to local authorities.

2.2.1.4 Permissibility of using eProcurement

In accordance with §44 of the Act, a contracting authority may specify that any communication referred to in these Regulations can be made with or without electronic means. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

As regards the national thresholds, they amount to € 133,000 for services and supplies (€ 206,000 in specific cases), and € 5,150,000 for works. They are provided for by Schedule 8 of the Public Contracts Regulations.

Version:...... v3.1 Page: 238 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2 Specific tools 2.2.2.1 eSignatures

In the field of e-Signatures, contracting authorities may require that electronic tenders are signed with an advanced electronic signature; however, this is not mandatory (according to Art. 44(5)(b) of the Regulation).

Furthermore, in the field of voluntary accreditation schemes, contracting authorities may require that economic operators comply with a voluntary accreditation scheme aiming at enhanced levels of certification service provision for these devices: however, this is not mandatory (pursuant to Art. 44 of the Regulation).

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives. Communications between the contracting authority and the economic operator(s) may be made by post, by fax, by telephone (in some cases), by electronic means or by a combination thereof.

2.2.2.3 DPSes

Dynamic purchasing systems are provided for by the Public Contracts Regulations. Art. 2 defines the DPS as “a completely electronic process for making commonly used purchases, the characteristic of which, as generally available on the market, meet the requirements of the Contracting Authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification”. The definition is, therefore, consistent with the applicable EU legislation.

The relevant provisions (notably article 26) of the main transposition Act (http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/174/04.PDF) appear to be a faithful transposition of the Directives

2.2.2.4 eAuctions

Electronic Auctions are provided for by the Public Contracts Regulations. Pursuant to Art. 2, an e- Auction “means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and, or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. Certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions”.

The relevant provisions (notably article 29) of the main transposition Act (http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/174/04.PDF) appear to be a faithful transposition of the Directives.

Version:...... v3.1 Page: 239 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.5 Lists of economic operators

Art. 35 of the Public Contracts Regulations states that official lists of economic operators of other EU Member States are recognised by Maltese authorities. The Public Contracts Regulations do not set forth the possibility to have official lists of Maltese economic operators. However, some Maltese e- Procurement initiatives, like 'E-Procurement for IT desktop equipment' (https://secure.gov.mt/e- procurement/default.asp), include lists of economic operators/suppliers.

2.2.2.6 Buyer’s profiles

Buyer profiles are recognised by the Public Contracts Regulations; pursuant to Schedule 9, Annex I A, the buyer profile must indicate the following information: country of the contracting authority; name of the contracting authority; internet address of the buyer profile; CPV Nomenclature reference No(s). The buyer profile may also contain information on ongoing invitations to tender, scheduled purchases, contracts concluded, procedures cancelled and any useful general information, such as a contact point, a telephone and a fax number, a postal address and an e-mail address.

2.2.2.7 Framework agreements

A framework agreement is defined by Art. 2 of the Public Contracts Regulations as “an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms, in particular with regard to the prices and, where appropriate, the quantity envisaged, governing the contracts to be awarded during a given period”. Art. 25, then, sets forth the rules to be followed when using the tool of the framework agreement. Consistently with the applicable EU legislation, Maltese laws (Art. 25(2)(c)) states that “When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement”.

As regards the awarding of the contracts based on the framework agreement, contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.

2.2.2.8 Electronic certificates / electronic evidences

With a view to determine the suitability of the tenderer, a tender document must contain a series of declarations/statements/certificates/attestations. These conditions apply to Maltese entities and foreign ones, both natural and legal alike and the provision of such documents is mandatory, given that it is one of the conditions for passing the administrative compliance gateway assessment. Failure to produce such documentation may preclude the tender from being considered in the next step, which is that of evaluation. To date this process has not been automated and hence, no electronic interactive version is as yet available, since basically all certificates are issued in paper-based form.

Version:...... v3.1 Page: 240 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

A significant number of websites currently provide functionality that enables prospective bidders to view and download tender documents. Other websites have limited their functionality to being information providers. Hence, these websites provide information regarding the publication of tenders; however, the prospective bidder must collect a hardcopy of the tender documents personally from the relevant office.

3.2 Main platform

The main platform in Malta is the web site of the Department of Contracts which is the Central Purchasing Unit for all Contracts that exceed the thresholds established by law. The web site is available in English and is provided free of charge. The website is available in English or in Maltese and aims at providing information relative to the calls for tender published by the Department of Contracts. It is aimed at all organisations which might be interested in the procurement activities of the Government of Malta, as well as the general public. Maltese citizens and residents of Malta can register on the site using their e-ID only. Foreign individuals and organisations can also make use of the portal's services, by registering directly from the website, and following verification by the Department, have their account activated.

All users may, without having to register and subscribe:  View current calls for tenders, extrapolated from the Malta Government Gazette  View a preview of the tender documents (including any clarifications), before purchasing/downloading the actual tender document  Download tender documents which are free-of-charge  View tender schedules and summary of tenders received  View the recommendations of the General Contracts Committee;  View information relative to the lodging of an objection against a particular tender recommendation  View the awarded tenders;  View archived calls for tenders, recommendations, and awards (going back to 2003)

Additionally, registered users:  Will be able to purchase and download the tender document online  Can set up alerts (email and/or SMS) in respect of new calls for tender that might be of interest to them  Can register their attendance to site visits/clarification meetings, online  Can post questions online  Can be alerted with new clarifications/notifications, and can view the same clarifications, notifications and answers online;

Version:...... v3.1 Page: 241 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Can choose to be alerted with developments in the adjudication process

The internet browsers that are currently supported are Internet Explorer 6 (or above) and Mozilla Firefox. Word processing/spreadsheet software is also required for the opening some documents in .DOC, .RTF and .XLS format. Computer-Aided Design software would also be necessary to open plans and drawings in .DWG format. Most importantly, software to open and read tender documents in .PDF format is required. This software should be able to support the latest encryption (for example, the latest version of Adobe Acrobat Reader).

3.3 Others platforms

The following additional platforms have been identified:

 www.e-procurement.gov.mt : The Government e-Procurement system has been in operation since 2004. Initially, the system was developed to issue a request for quotation for PC’s and related equipment; obtain quotations from a preset list of preferred suppliers; and award the sale to the most advantageous quotation. To support the system an e-Procurement Framework was developed and implemented to govern the decentralisation of the procurement standard both in terms of hardware standards and the Government Financial regulations. The e-Procurement framework provides for the establishment of a pool of suppliers who after a qualifying period of six months are awarded a quality mark. Hence, the website is intended for use by Quality Mark Suppliers, and Purchasing Officers from Government Ministries, Departments and Public Sector entities connected to the MAGNET. There purchasing officers may request quotations for the required equipment with suppliers submitting their quotations electronically into the e-Procurement system.  www.doi.gov.mt : On its website, the Department of Information provides details of all published tenders and makes available email notifications of calls for tenders issued by Government Departments, Department of Contracts, Local Councils and Government Corporations. The website is defined in a manner that the information is accessible through the publication date. The website does not provide a functionality to download tender documents but directs the prospective bidder to a source where the document can be acquired (be it a website or the physical address of the department concerned).  emcservices.gov.mt : Enemalta provides a service to prospective bidders that allow them to download tender documents online. The tenders are normally published on a Friday. The website currently only allows the download of documents and does not allow suppliers to submit bids online. Furthermore, prospective bidders must first register for an account through the Enemalta website after which they are able to download any of the tender documents that may be available through the website. Documents are categorised according to estimated price thresholds Prospective bidders are able to gain information on the tender prior to purchasing the tender document through a summary that is linked to the tender. This gives the bidder a good idea of the content of the tender and whether it is applicable to them or not. The tender document may be purchased through the website and downloaded immediately on confirmation of the electronic purchase transaction. Enemalta publishes all of their tenders through this website and according to the web site administrator they have never encountered a situation whereby the tender could not be published through this medium due to the complexity of the document. As an incentive for prospective bidders to purchase and download tender documents online, Enemalta offers a 10% discount on the tender documents purchase price. This appears to have a positive effect since about 20% to 30% of tender documents are currently purchased online. Between May 2006 and March 2007 a total of 495 purchases have been made with a peek of 87 being encountered during the month of June

Version:...... v3.1 Page: 242 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2006. There are currently 197 bidders who have registered since the launching of the service. The website has recently been enhanced to provide an electronic receipt (for payment) to the purchaser of tender documents. This receipt needs to be attached to the tender document and is an integral part of the suppliers bid. This procedure ensures that the original tender document has been purchased by the supplier and is not merely a copy. No concrete plans are in hand for additional enhancements to the business process.  www.sahha.gov.mt : The mission statement of the Healthcare Procurement and Supplies Services [HPSS] within the Ministry for Health, the Elderly and Community Care is the provision of good quality medicines, pharmaceutical preparations and medical devices which are safe and effective, in a timely, quality - approved and cost-effective manner, with the aim of achieving optimal and effective pharmaceutical care in relation to cost. The main functions of the HPSS target the purchase, storage and distribution of pharmaceutical supplies in line with E.U. legislation concerning good storage and distribution practise and wholesale dealing. The HPSS currently procures and distributes about 10,000 different healthcare-related products.

3.4 Figures

The Department of Contracts within the Ministry for Finance, The Economy and Investment, publishes calls for tenders estimated over €47,000 excluding VAT on behalf of most Government Ministries, Departments and Entities. The Department has launched its new Procurement Management System and website in January 2009.

According to the DG INFSO Benchmarking study1, Malta achieves a score of 92% for the availability benchmark while the European average is 56%. It scores 75% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper and electronic natural persons absence of conviction for Paper and electronic legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations

1 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 243 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

compliance with fiscal Paper only obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply. professional qualification Electronic information can be looked up technical and/or professional Usually paper only ability adequate insurance Usually paper only quality assurance Usually paper only environmental compliance Usually paper only

Version:...... v3.1 Page: 244 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Netherlands

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The main Dutch platform is the TenderNed portal site (www.tenderned.nl), through which all contracting authorities (central government, provinces, municipalities) can use a common national eProcurement infrastructure. Usage of the portal is not mandatory, except for eNotification, where usage will be mandatory under planned new legislation. TenderNed will be obligated to e-notify public all contracts above the EU-threshold. For contracts below the threshold TenderNed is not mandatory. However, at this time, the portal is not yet operational, with most functionality planned to become operational in 2011 and 20121.

Name TenderNed URL http://www.tenderned.nl/ Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Presently, the portal uses an authentication system relying on username and password in requirement combination with SMS authentication, after prior registration on-line. PKI signature support is considered for the future.

Here are the DG INFSO Benchmarking report scores:

1 See http://www.tenderned.nl/images/fasering/Fasering_TenderNed.pdf

Version:...... v3.1 Page: 245 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified:

Platform Name Platform URL

TenderNed http://www.tenderned.nl/ Aanbestedings kalender http://www.aanbestedingskalender.nl/ www.aanbestedingenonline.nl http://www.aanbestedingenonline.nl www.uwv.nl/marktplaats http://www.uwv.nl/marktplaats Blik op Werk http://www.blikopwerk.nl Ik ben Brig id http://www.brigid.nl Tenders for architects and design contest http://www.ontwerpwedstrijden.nl City of Nijmegen http://www.nijmegenonderneemtmeer.nl ProRail (Special Sector) http://www.aanbesteden.prorail.nl

1.2 Laws and policies

1.2.1 Laws The Dutch legislator opted for a legal framework at the level of the tendering administration and not at national level, via the General Framework Act on European Economic Community regulations of 31 March 1993 (http://wetten.overheid.nl/BWBR0005937/geldigheidsdatum_02-04-2009). This framework was set to be replaced by the new Public Procurement Act of 2006 (Aanbestedingswet), but the latter was rejected by the Senate in July 2008. An updated draft is expected to be adopted in 2011, and meanwhile the 1993 framework act remains applicable. This framework act created a basis for the execution of specific implementation Royal Decrees, known as BASS, Bao, which contain most substantive rules.

1.2.2 Legally supported tools

 eSignatures: according to Articles 42, 8 BAO and 49,8 BASS, the contracting authority may make the use of an advanced electronic signature mandatory as laid down in the Dutch Civil Code.  DPSes: supported through art. 33 of the BOA.  eAuctions: supported through art. 57 of the BOA.  Buyer’s profiles: defined and referenced in art.35 of the BOA.

1.2.3 Permissibility of using eProcurement

Under the provisions of the BOA and BASS, eProcurement can be used if permitted by the contracting authority, and under the terms allowed by the contracting authority.

Version:...... v3.1 Page: 246 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The new legislation in the public and utilities sector is substantially identical to the EU Directives; no additional national requirements/principles have been introduced in the two new Regulations. The Dutch situation is interesting as the regulations are thus very similar to the Directive, but their application has largely been left as a decentralized matter (i.e. local authorities have substantial autonomy in interpreting these rules and establishing their own policies)..

1.3.2 Weaknesses of the national situation

Dutch eProcurement initiatives have suffered relatively strong delays, both in the adoption of a new Public Procurement Act and in the development of the centralised TenderNed portal, which is still largely inoperative. As eProcurement is decentralized, this is not a factor that could stop the uptake of eProcurement in the Netherlands outright, but a higher impact could likely be achieved after the updating of the legal framework and the activation of the portal.

Version:...... v3.1 Page: 247 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Ministry of Economic Affairs (ΜΕΑ - – Department for Competition and Consumer Policy) is responsible for the drawing up of new legislation concerning public procurement. The Ministry of Interior Affairs and Kingdom relations is responsible for the general e-Government strategy and urban policy2.

The ICT Unit under the Ministry of Interior Affairs and Kingdom relations is responsible for the coordination of cross-departmental and infrastructure projects . The Ministry of Economic Affairs-ICT provides advice, development, management, and support in the area of information management, internal and external information sourcing, and ICT.

While regulations are implemented centrally, public procurement in the Netherlands generally takes place in a decentralised manner, with substantial autonomy for local administrations. According to the Dutch Action Plan (see below), all Ministries are to be involved in the introduction of electronic tendering.

To assist contracting authorities in professionalizing purchase and procurement procedures, PIANOo (Public Network for Professionals in Contracting and Procurement – www.pianoo.nl) was established in 2005, as an independent body under the control of the Ministry of Economic Affairs. It provides training and advice to procurement officers on how to apply procurement law for the efficient completion of procurement notices. While eProcurement is not the exclusive area of focus for PIANOo, TenderNed is a part of its activities.

2.1.2 Action plans and strategies

The Action Plan, “Modernising Government' (covering the period 2003-2007 for the modernisation of e-Government was adopted by the Government on 02 December 2003. It involves the cooperation between the central and the local (Provinces and Municipalities) Governments and aims at creating a more effective and efficient system of Government. Key priorities are, inter alia, to make smart use of ICT, to diminish administrative burden for citizens and businesses, to improve the quality of services, to reduce the amount of regulations and to reconsider Government tasks.

As one of its basic pillars, the DigiD digital authentication scheme supports the identification of citizens and businesses in eGovernment applications. The establishment of PIANOo was another consequence of this Action Plan, to improve coordination of eProcurement initiatives via guidance and advice. This is necessary, because while regulations are implemented centrally, public procurement in

2 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol- 2_en.pdf

Version:...... v3.1 Page: 248 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

the Netherlands generally takes place in a decentralised manner, with substantial autonomy for local administrations.

Presently, the main area of focus is the continuous development of the TenderNed eProcurement portal, with a view of generalized use of the eNotification functionalities in 2011, and offering the eTendering functionalities in 20123. In addition, the revision of the Public Procurement Act has been ongoing for some time now.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The Dutch legislator opted for a legal framework at the level of the tendering administration and not at national level, via the General Framework Act on European Economic Community regulations of 31 March 1993 (http://wetten.overheid.nl/BWBR0005937/geldigheidsdatum_02-04-2009). This framework was set to be replaced by the new Public Procurement Act of 2006 (Aanbestedingswet), but the latter was rejected by the Senate in July 2008. An updated draft is expected to be adopted in 2011, and meanwhile the 1993 framework act remains applicable. This framework act created a basis for the execution of specific implementation Royal Decrees, which contain most substantive rules.

2.2.1.2 Secondary Acts

The aforementioned framework act is thus complemented by the substantive rules in the following texts:

 the Royal Decree of 16 July 2005 abbreviated as BASS (Besluit aanbestedingen speciale sectoren - http://www.pianoo.nl/dsresource?objectid=8580&type=pdf) regarding public procurement of works, supplies and services in the water, energy, transport and communications sectors; this contains specific procedures and regulations for the granting of procurements in the utilities sectors;  the Royal Decree of 16 July 2005 abbreviated as Bao (Besluit aanbestedingsregels voor overheidsopdrachten - http://www.pianoo.nl/dsresource?objectid=21042&type=pdf) regarding public procurement of works, supplies and services and concessions for public works; this contains specific procedures and regulations for the granting of procurements in the traditional sectors.  The Regulation for Works Procurement 2005 (Aanbestedingsreglement Werken 2005, ARW - http://www.pianoo.nl/content.jsp?objectid=8566) is not a royal degree as such, and its usage in practice by contracting authorities is voluntary. It contains significantly more flexible rules than the rules laid down in Bao and BASS, by allowing contracting authorities to require a so called ‘own declaration with a public procedure’ (‘eigenverklaring bij een openbare procedure’),a standardized document in which the tenderer formally declares to be in compliance with the requirements for which the Bao requires a certificate, and in which he agrees to provide the relevant certificate if the contracting authority asks for it (section2.14 ARW).

3 See http://www.tenderned.nl/factsheetuk.pdf and http://www.tenderned.nl/index.php/over-tenderned

Version:...... v3.1 Page: 249 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is applicable to all public contracts above the EU-threshold, but not to contracts with a value below the thresholds. Local administrations thus have no regulatory autonomy per se; however, they have significant freedom in interpreting this framework and in deciding how it is applied (e.g. the complete freedom to decide upon appropriate electronic signature choices, if desired).

2.2.1.4 Permissibility of using eProcurement eProcurement is not mandatory under the law, although local authorities may decide at their own discretion to make certain eProcurement processes mandatory. The exception is eNotification, where it is presently expected that the new law will require the use of TenderNed’s eNotification capabilities.

2.2.1.5 Thresholds

Concerning the national thresholds for public contracts, each contracting authority is responsible for applying its own publication process and administrative requirements for the preparation, validation and submission of procurement notices for publication of contracts above and below the EU thresholds. There are no separate official national thresholds; the European ones are published on- line via the PIANOo website as well4.

2.2.2 Specific tools 2.2.2.1 eSignatures

According to Articles 42, 8 BAO and 49,8 BASS, the contracting authority may make the use of an advanced electronic signature mandatory as laid down in the Dutch Civil Code. Furthermore, on the basis of Articles 42, 11 BAO and 49, 11 BASS, the contracting authority may introduce or keep voluntary accreditation arrangements in the framework of the advanced electronic signatures, allowing contracting authorities to specify on a case by case basis which types

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in the Netherlands.

2.2.2.3 DPSes

4 See http://www.pianoo.nl/Wet_en_regelgeving/Wetten/Drempelwaarden_Europese_aanbestedingen

Version:...... v3.1 Page: 250 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

DPSes are regulated by the BOA, namely by art. 33. The relevant provisions (see http://www.pianoo.nl/dsresource?objectid=21042&type=pdf) appear to be a faithful transposition of the Directives.

2.2.2.4 eAuctions

Electronic auctions are regulated by the BOA, namely by art. 57. The relevant provisions (see http://www.pianoo.nl/dsresource?objectid=21042&type=pdf) appear to be a faithful transposition of the Directives.

2.2.2.5 Lists of economic operators

With respect to lists of approved economic operators, a number of contracting authorities have established lists of accredited construction and/or maintenance service providers; however, these are not lists of accredited economic operators in accordance with art. 52(1) of Directive 2004/18/EC on a central government level at this moment.

2.2.2.6 Buyer’s profiles

A definition and rules with respect to usage of buyer’s profiles are included in art. 35 BOA, which is substantially identical to the rules of the Directives.

2.2.2.7 Framework agreements

Framework agreements are regulated by art. 43 of the BOA, again in terms which are largely identical to those of the Directives.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in BAO and BASS. For foreign tenderers, the applicable rules provide that in case no equivalent documents are delivered by the competent judiciary or governmental body from the country of origin, a declaration under oath or a solemn declaration before a judiciary or governmental body, a public notary or a competent professional organisation will also be deemed acceptable.

With regard to verification and language issues, there are no formal rules for verifying the validity of an offer. The contracting authority is thus relatively free to assess the validity and value of the provided evidence. In case of foreign offers or certificates, art. 47 BOA allows the contracting authority to demand to produce a copy of the tenderer’s bylaws.

Version:...... v3.1 Page: 251 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Regulation for Works Procurement 20055 (Aanbestedingsreglement Werken 2005, ARW) contains a significantly more flexible rule than the rules laid down in BOA and BASS, by allowing contracting authorities to require a so-called ‘own declaration with a public procedure’ (‘eigenverklaring bij een openbare procedure’), a standardised document6 in which the tenderer formally declares to be in compliance with the requirements for which the BAO requires a certificate, and in which he agrees to provide the relevant certificate if the contracting authority asks for it (section 2.14 ARW). In this way, the cost and effort can be reduced significantly for tenderers, and the problem of converting these certificates to an electronic form can also be scaled down: certificates are (at least until after the awarding of the tender) replaced by a formal declaration.

5 See http://www.aanbestedingskalender.nl/download.aspx?id=423&ext=pdf 6 See http://www.aanbestedingskalender.nl/download.aspx?id=462&ext=doc

Version:...... v3.1 Page: 252 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

Netherlands is running the “Non-mandatory National eProcurement Platform” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities. The National eProcurement Platform is mandatory for Central Government Contracting authorities.

3.2 Main platform

The Ministry of Economic Affairs is implementing an eProcurement programme by the name of TenderNed, which will facilitate and automate the procurement process. It is set to become the national system for e-procurement in the Netherlands. TenderNed will achieve substantial time and financial savings for both contracting parties and economic operators, by enabling them to focus on the substance of the assignment or on the tender. It is important to realise that TenderNed in its previous form as described in 2007 will be rebuilt and that the tendering option has not been available for some time. The website has remained operational. This website, www.TenderNed.nl, presents news, information and an overview of the latest contract notices. Part of this website is only accessible to registered users. Contracting authorities publish contract notices on TenderNed. Economic operators can respond by submitting a tender online. The contracting authorities receive online assistance in assessing the submitted tenders. They then announce the award of contract on TenderNed. Economic operators need to enter their company details only once on TenderNed. This information may then be used for all other submissions of tender. A TenderNed Attention Service enables economic operators to receive contract notices automatically, based on their own profile. TenderNed supports the government and business community in procurement processes for services, supplies and works. It is a key instrument in meeting the European Commission’s objectives for e- procurement. TenderNed automatically publishes contract notices that exceed the EU threshold on Tenders Electronic Daily (TED). TED is the official website of the EU on which all European contract notices are published. It is expected that by 2011/2012 the entire procurement process will be conducted electronically via TenderNed: from the (prior) information notice to the awarding of contracts. Moreover, TenderNed provides an electronic vault and a database for company details. Relevant documents, including specifications and information notices, will be made available online. Auctions will also be possible. TenderNed is user-friendly and offers online support throughout the procurement process. The security aspects of the TenderNed system and electronic vault are regularly audited. Transactions conducted via TenderNed are secured using text message authentication. This method is comparable to that used for online banking. It is important to note that since the 2007 description TenderNed has stopped using its PKI solution which in practise turned out not to be workable, also because of European interoperability problems and downloading of middleware by the users. The Netherlands strongly encourages the publication of notices on the central portal and provides a wide range of services. The Netherlands public service providers are in competition with private ones to provide eProcurement services.

Version:...... v3.1 Page: 253 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.3 Others platforms

A special daily overview of tenders as well as assigned projects is offered via the website www.aanbestedingskalender.nl. This site also supports the sending of information directly to the European Union’s Publication Office in Luxembourg, so that three working days later this is published on TED (Tenders Electronic Daily). Municipalities, as well as regional and national government agencies can post their tenders as well as assigned projects on this site. There is no electronic signature used on this site for contracting purposes, the site has a pure informing nature.

3.4 Figures According to the DG INFSO Benchmarking study7, The Netherlands achieves a score of 44% for the availability benchmark while the European average is 56%. It scores 48% for the Pre-Award Process Benchmark while European average is 59%. The Netherlands is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: epSOS, SPOCS, STORK, CLEAR, ECRN, FREILOT, HosPilot, In-Time, REACH112, and SAVE ENERGY.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper and unsigned electronic document standing professional qualification Paper and unsigned electronic document technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

7 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 254 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Norway

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Norway has a mandatory national platform for tender notifications (Doffin). The platform is managed by the Agency for Public Management and eGovernment (Difi) and funded by the Ministry of Government Administration, Reform and Church Affairs. The mandatory use of Doffin is governed by the Public Procurement Regulation. Norway also has a non-mandatory eTendering platform and an eOrdering platform as part of the Ehandel.no Electronic Public Procurement Portal.

Name Public Procurement Portal

URL www.doffin.no, www.ehandel.no Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Advanced signature required requirement

Norway is part of the PEPPOL project.

Here are the DG INFSO Benchmarking report scores:

Version:...... v3.1 Page: 255 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified:

Platform Name Platform URL Database for public procurement notifications Doffin.no (Software as a service provided by Millstream Ltd) www.doffin.no Electronic Public Procurement Portal Ehandel.no www.ehandel.no Ehandel.no eTendering solution (Software as a service solution provided by two suppliers: Mercell and VismaUnique www.ehandel.no/kgv Ehandel.no eOrdering solution (Software as a service solution provided by IBX) www.ehandel.no/ehp Mercell www.mercell.no

1.2 Laws and policies

1.2.1 Laws

The central legislation is now the amended Act of 17 July 1999 no. 69 on Public Procurement (lov 17. juli 1999 nr. 69 om offentlige anskaffelser); see http://www.lovdata.no/info/lawdata.html, the Public Procurement Act and the Public Procurement Regulation.1

1.2.2 Legally supported tools

 eSignatures: §7-3(1)a and §16-3(1)a of the Public Procurement Regulation requires that, when eSignatures are used, they must satisfy the requirements of regulation 21 November 2005 No. 1296 on voluntary self-declaration schemes §§ 3, 4 or 5, as well as be listed on the published list in accordance with § 11 first paragraph in these regulations.  DPSes: supported through §6-4 and §15-4 of the Public Procurement Regulation.  eAuctions: supported through §13-4 and §22-4 of the Public Procurement Regulation.  Buyer’s profiles: referenced in chapter 18 of the Public Procurement Regulation.

1.2.3 Permissibility of using eProcurement

In accordance with § 7-1(1) and §16-1(1) of the Public Procurement Regulation (‘Rules for Communication’), all communications and information exchange referred to in that section of the law may, as chosen by the contracting authority, made by post, fax or by electronic communication. Thus, the contracting authority chooses permissible means of communication. In the absence of specification provisions, there appear to be no legal barriers to the use of eProcurement.

1 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol- 2_en.pdf and http://ec.europa.eu/idabc/servlets/Doc?id=32349

Version:...... v3.1 Page: 256 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Norway can be considered a European frontrunner in eProcurement: it has been active in this domain for a long time, resulting in solid experience and a very mature infrastructure. The legal framework is comprehensive and well aligned with the European Directives, which should minimise legal interoperability barriers. Finally, Norway can also benefit from a well developed eGovernment infrastructure and an advanced ICT industry (including a strong PKI sector), resulting in a secure eProcurement environment and good all-round technical awareness.

1.3.2 Weaknesses of the national situation

Few weaknesses can be identified, with the main issue being the reliance on national norms and accreditation with respect to eSignatures, which is a requirement enshrined in Norwegian law. As a result, foreign eSignature solutions are generally not acceptable unless they’ve been accredited as compliant with Norwegian standards, resulting in interoperability concerns. However, it should be pointed out that this issue exists in all countries that rely on PKI infrastructure.

In awareness of this weakness, the Ministry of Government Administration, Reform and Church Affairs have proposed a change in the Public Procurement Regulation allowing also for foreign qualified signatures to be used. To handle validation of foreign signatures, a validation authority service has been established as part of the eTendering solution on Ehandel.no. This service is operated by a third- party (presently BBS, originally DNV) and is based on bilateral agreements between the validation authority and a number of European certificate issuers.

A more general weakness is that the Ehandel.no solutions are non-mandatory resulting in relatively slow implementation.

Version:...... v3.1 Page: 257 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The primary policy body with respect to eProcurement in Norway is arguably the Agency for Public Management and eGovernment (No. Difi). The Agency was established on 1 January 2008, following a merger of the public agencies Statskonsult, Norway.no and the Norwegian eProcurement Secretariat; see http://www.anskaffelser.no/english. Difi also takes a leading role in coordinating the technical implementation work involved in establishing the Norwegian public infrastructure, as will be commented below.

The Agency aims to strengthen the government’s work in modernizing the working of the Norwegian public sector and improve the organization and efficiency of government administration. The agency is overseen by the Ministry of Government Administration, Reform and Church Affairs (No. Fornyings- og administrasjonsdepartementet). This Ministry is inter alia in charge of formulating public procurement regulations and ensures the implementation of competition rules covered by the EEA Agreement into Norwegian law2.

Procurement is substantially decentralised: while centralised mechanisms exist for the publication of notices on Doffin in Norway, there is no single central procurement or purchasing body in Norway. Each contracting authority is hence responsible for its own procurement activities. In practice, the main technical solutions (Ehandel.no) are strongly promoted and taken up as procurement solutions. The services available through Ehandel.no are made available for all public sector entities and their suppliers as software-as-a-service, Use of the eTendering service is payable for the contracting authorities and free of charge for economic operators, the eOrdering services are payable for both contracting authorities and the economic operators.

2.1.2 Action plans and strategies

Electronic public procurement was until 2009 handled as part of the eGovernment policy, and dealt with through documents such as «e-Norway 2009 - the digital leap» published in October 2005 and the White Paper to the Parliament: St. melding nr. 17 (2006-2007) - An Information Society for All. In 2009 a White Paper to the Parliament: St.melding nr. 35 (2008-2009) – “The good procurement” was released, focusing on use of e-procurement as a means to achieve better control, savings and transparency in public procurement. The white paper focuses on the need for continued efforts in further development and promotion of Ehandel.no services, and from the budget year 2010, an extra €2,5 million budget has been made available for the Agency for Public Management and eGovernment to increase use of Ehandel.no eOrdering services.

2 Source: http://ec.europa.eu/idabc/servlets/Doc?id=32349 and http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 258 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Norway also acts as a coordinator of the large scale pilot project PEPPOL, aiming to create a pilot application supporting cross border eProcurement3.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

Norway has implemented the EU Directives on public procurement into national legislation via a new Regulation which entered into force on 1 January 2007, and via a set of amendments to the Norwegian Public Procurement Act.

Thus, the central legislation is now the amended Act of 17 July 1999 no. 69 on Public Procurement (lov 17. juli 1999 nr. 69 om offentlige anskaffelser); see http://www.lovdata.no/info/lawdata.html and the Public Procurement Regulation.

2.2.1.2 Secondary Acts

The main secondary act is a Regulation of 7 April 2006 no. 402 on public procurement (No. forskrift av 7. april 2006 nr. 402 om offentlige anskaffelser) implementing Directive 2004/18/EC. The regulation contains requirements on types of eID/eSignatures that can be used in public procurement procedures. In this case the secondary legislation contains a reference to the Regulations of 21 November 2005 no. 1296 on a voluntary self-declaration scheme for certification service providers, which in its turn referrers to the Requirement Specifications for PKI for Public Sector. Under this regulation it is established that three certification classes defined in Norway on the basis of specific reliability requirements – Person-High, Person-Standard and Business – are legally accepted4.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

In accordance with § 7-1(1) and §16-1(1) of the Public Procurement Regulation (‘Rules for Communication’), all communications and information exchange referred to in that section of the law may, as chosen by the contracting authority, made by post, fax or by electronic communication. Thus,

3 See http://www.ehandel.no/index_en.php/Artikkel/item/914.html 4 Source: http://ec.europa.eu/idabc/servlets/Doc?id=32349

Version:...... v3.1 Page: 259 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

the contracting authority chooses permissible means of communication. In the absence of specification provisions, there appear to be no legal barriers to the use of eProcurement.

2.2.1.5 Thresholds

Thresholds are specified in §2-2 of the Public Procurement Regulation. Part III of the Regulations apply to contracts where the estimated value exceeds 1,65 MNOK (1,6 MNOK as of 01/03/2010) for goods and service contracts, and 41 MNOK (40,5 MNOK as of 01/03/2010) for construction contracts. For state authorities, however, the regulations apply to goods and service contracts where the estimated value exceeds 1.05 MNOK (1,0 MNOK as of 01/03/2010).

Separate thresholds are determined for certain research and development services, telecom services and defence spending.

The Ministry of Government Administration and Reform can change the threshold values set forth in the Act.

2.2.2 Specific tools 2.2.2.1 eSignatures

§7-3 (a)1 and §17-3(a)1 of the Public Procurement Regulation requires that, when eSignatures are used, they must satisfy the requirements of regulation 21 November 2005 No. 1296 on voluntary self- declaration schemes §§ 3, 4 or 5, as well as be listed on the published list in accordance with § 11(1) in these regulations. Thus, when required, advanced signatures need to comply with Norwegian quality requirements and be accredited as such, which could raise interoperability issues for foreign users.

In practice, use of the main technical solutions (Doffin and Ehandel) is partially based on user credentials (username and password). Ehandel also supports PKI based authentication using certificates issued by various CSPs that comply with the Norwegian Requirement Specifications for PKI in the public sector identified in the law, including various private certification service providers, eg. Buypass and BankID.

2.2.2.2 eCommunication

As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Norway.

2.2.2.3 DPSes

The relevant provisions of the main legislation (see http://www.lovdata.no/info/lawdata.html, the Public Procurement Act and the Public Procurement Regulation, particularly §15-4) implement the Directives

Version:...... v3.1 Page: 260 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

faithfully. It could be noted that DPSes (dynamiske innkjøpsordninger) are regulated in the same chapter as framework agreements (Rammeavtaler). The regulation in §15-4 on DPS is applicable for procurements above EU/EEA threshold value, while similar rules apply below threshold (§6-4).

2.2.2.4 eAuctions eAuctions (elektronisk auksjon) are principally regulated by §&13-4 and 22-4 of the Public Procurement Regulation, which implement the Directives. The regulation in §22-4 on eAuctions is applicable for procurements above EU/EEA threshold value, while similar rules apply below threshold (§13-4).

2.2.2.5 Lists of economic operators

Official lists of economic operators in countries within the European Economic Area are recognised in Norway and those operators are deemed to satisfy the preconditions set forth by the Regulation (see, in particular § 17-11 Alternative rules of evidence, notably paragraphs 1 and 2).

There are no known lists created or maintained in Norway.

2.2.2.6 Buyer’s profiles

Buyer profiles (kjøperprofil) are defined in the Regulation (Chapter 18) in accordance with the EU legislation.

2.2.2.7 Framework agreements

Framework agreements are regulated in chapter 6 and chapter 15 of the Public Procurement Regulation, along with DPSes, as noted above. Separate provisions are dedicated to framework agreements with a single economic operator (§§6-2 and 15-2) or with multiple economic operators (§§6-3 and 15-3). The provisions are materially similar to those of the Directives. Only chapter 15 applying in case of procurements above EU/EEA threshold value, implements the corresponding provisions of the Directive, while similar rules apply below threshold.

Framework agreements are used at national, regional and local levels of government5.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Public Procurement Act. The tenderer is commonly required to provide the following documents with regard to the exclusion criteria:

5 Source: http://www.ehandel.no/data/file/file_237.pdf

Version:...... v3.1 Page: 261 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Statement that the tenderer complies with HSE (Health, Security and Environment) requirements, see the Public Procurement Regulations section §§8-7 and 17-14.  Attestation of compliance with obligations to pay taxes and duties, see the Public Procurement Regulations §§8-8 and 17-15. Such attestation is issued by the tax collector’s office.

It is worth noting that the contracting authority is obliged to require the abovementioned documents, and to exclude any providers who fail to submit them (see the Public Procurement Regulations section §§11-10 and 20-12).

For foreign tenderers, the Public Procurement Regulation §11-10 (3) and §20-12 (3), provides that equivalent documents delivered by the competent judiciary or governmental body from the country of origin will also be accepted if they adequately demonstrate that the goal of the Regulation was met. When the tenderer’s country of origin does not deliver such documents, a declaration under oath or a solemn declaration before a judiciary or governmental body, a public notary or a competent professional authority will also be deemed acceptable.

With regard to selection criteria, a different set of supporting documents is typically required. When the tenderer cannot present the required documentation with regards to economical and financial suitability for valid reasons, this may be demonstrated through any other documents which the contracting authority deems suitable.

It is worth noting that the documents pertaining to selection criteria mentioned above are usually not originals. Copies of such documents (which carry no signature or seal themselves) are often submitted in procurement proceedings, and such copies are typically accepted by the contracting authority. This situation is different from most of the exclusion criteria documents (most notably the fiscal documents and the HSE-statement), which are typically required to be originals, i.e. signed and/or stamped.

Version:...... v3.1 Page: 262 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Norway is running the “Non-Mandatory National eProcurement Platform/Portal” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities.

3.2 Main platform The Norwegian electronic public procurement portal Ehandel.no was established in 2002 in order to attain a critical user mass of electronic public procurement. The introduction of electronic public procurement has been embedded in different national and local/regional eGovernment strategies since 1999. Participation in Ehandel.no activities is open for central, regional and local authorities and their suppliers. Experiences from Norwegian public sector entities indicate a potential for 20-40 % time reductions on handling of orders, goods receipt and invoices, and between 2-10 % price reductions in operations related procurement expenditures. The operational e-procurement solutions available through Ehandel.no can be accessed by the users via web-based services (software-as-a-service) or through internal procurement or order handling systems. Integration with legacy systems is available both for the public sector buyers and their suppliers. As part of the agreement with the operator of the Ehandel.no services, the available functionality is updated frequently on basis of user input and availability of new software.

DOFFIN are databases for announcements of public procurement. For public contracts above the EU/EEA threshold, use of DOFFIN is mandatory. Norway has also introduced a national announcement obligation to publish public contracts with a value below EU/EEA threshold values but above 500.000 NOK. This means that contracts with and estimated value above 500.000 NOK shall also be published in DOFFIN database.

3.3 Additional platforms The following platform has also been identified:

 www.mercell.no: a private portal publishing contracts from government agencies, organisations and businesses in all industries, both private and public sector, providing supplier search functionalities, contract monitoring and education. Suppliers have access to all the published prices and bid requests. Buyers can write and publish bid requests and write contracts with tender winner. Additionally, it offers tender writing and review, help in providing documents, legal advices. The site for Norway is only available in Norwegian but the company has also other sites in Denmark, Germany, Estonia, Lithuania, Latvia and Sweden which are in their respective languages.

Version:...... v3.1 Page: 263 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.4 Figures According to the DG INFSO Benchmarking study6, Norway achieves a score of 50% for the availability benchmark while the European average is 56%. It scores 50% for the Pre-Award Process Benchmark while European average is 59%. 10.218 e-tenders in 2008. 169 Public entities on e-sourcing. 60 Public entities on e-procurement. 453 Active suppliers on e-procurement. Aggregated e-Order value (last 12 months): $ 536.250.000. Number of e-Orders (last 12 months): 255.0007. Approximately 60 % of Norwegian hospitals are operative or are presently preparing implementation. 30 of 435 municipalities are operative, mainly the largest and some medium sized municipalities. None of the many small municipalities are operative. During 2009, 80 public enterprises in Norway (municipalities, counties and state agencies) use of IBX / Ehandel.no, and the total procurement volume for 2009 of the platform has exceed 3 billion. With the new solution, the goal is that total volume will increase to 16 billion by 2013.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

6 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf 7e-Procurement in Norway - Third Global conference on Electronic Government Procurement - Washington, 9th of November 2009

Version:...... v3.1 Page: 264 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Poland

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The following table provides a global evaluation of the supported tools and phases of eProcurement systems in this country, and does not necessarily reflect the capabilities of any particular site.

Public Procurement Office – Electronic Auctions Platform Name URL https://aukcje.uzp.gov.pl Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through eInvoicing ePayment (green=supported; red=not eCatalogues supported) Supported tools (green=supported; red=not DPS eAuctions Buyer’s Profiles supported) Signature / authentication qualified signature required requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified.

Platform Name Platform URL Public Procurement Office – Electronic https://aukcje.uzp.gov.pl/ or

Version:...... v3.1 Page: 265 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Auctions Platform https://licytacje.uzp.gov.pl e-Przetarg.pl http://www.e-przetarg.pl/ Market Planet http://www.marketplanet.pl/ Polish Procurement Platform PWPW http://www.ppp.pwpw.pl/ XTRADE http://www.xtrade.com.pl/ eTender - Electronic Procurements http://www.etender.pl/

1.2 Laws and policies

1.2.1 Laws Poland has transposed the EU Directives (2004/17/EC, 2004/18/EC and 2007/66/EC) on public procurement into national legislation. The latest amendment to the Public Procurement Law was published in Dziennik Ustaw (Journal of Laws of 2009 - No. 223, item 1778). It entered into force on the 29th of January 2010.

For an unofficial translation, see http://www.uzp.gov.pl/en/legal-framework/public-procurement- law/PPL

1.2.2 Legally supported tools

 eSignatures: if tenders are submitted in electronic form , they must carry a secure electronic signature based on a qualified certificate (Art. 82, par. 2, Art. 91c, par. 2 PPL). Also, requests to participate in a contract award procedure to be sent in electronic form require an e- signature (Art. 27 par. 4 PPL)  DPSes: supported through article 102 and following of the PPL.  eAuctions: supported through articles 74 – 81 and 91a – c of the PPL.  Buyer’s profiles: defined and referenced in the PPL (article 13).

1.2.3 Permissibility of using eProcurement Tenders may be submitted in electronic form, if the contracting authority has decided to permit this (Art. 82, par. 2, PPL).

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Polish approach to eProcurement is largely decentralised, allowing private market actors to develop their own services which compete in the market for take-up. This appears to have resulted in a number of competitive solutions, which should improve service levels (as witnessed by a number of service providers offering e.g. eAuction services and supporting eCatalogues) and/or reduce costs.

Version:...... v3.1 Page: 266 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Furthermore, these initiatives can build on a relatively well developed eGovernment structure, and on a mature market for eSignature services, which should prove beneficial as well.

1.3.2 Weaknesses of the national situation

The plurality of eProcurement platforms could however also result in market confusion as contracting authorities and economic operators are confronted with a larger number of choices for eProcurement, which could negatively impact take-up. It is not clear to what extent take-up has been successful in Poland.

Version:...... v3.1 Page: 267 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Public Procurement Office (PPO) - which is an independent body within the Government - plays a policy making and coordinating role for the Polish public procurement system. The PPO prepares drafts of legislative acts in the field of public procurement and among others functions also manages the official Public Procurement Bulletin in which contract notices (of value above the thresholds defined in the Public Procurement Law as 14.000 euro) are published. By the role played in the public procurement system PPO is also obliged to undertake actions towards the development and the implementation of solutions/tools in the field of e-Procurement

In principle, each contracting authority is responsible for the implementation of the technical features concerning their own procurement matters. At the national level however, the Chancellery of the Prime Minister undertakes steps towards centralization on public procurement for central government bodies – as a beginning by contracts awarded jointly (e.g. mobile phone services) followed by preparation for establishment of central purchasing body for ordering printing paper and IT equipment.

In practice, decentralized system has resulted in multiple eProcurement platforms being developed, including the www.ppp.pwpw.pl; www.e-przetarg.pl; www.etender.pl; xtrade and MarketPlanet

2.1.2 Action plans and strategies

The Strategy for the Development of the Information Society in Poland until 2013, prepared by the Government This Strategy is sectoral and, as such, defines the vision and mission for the development of the information society in Poland until 2013. Within each of its three areas – Human, Economy and State – it maps out strategic directions and determines the objectives that should be accomplished in order to achieve the desired development status for the information society in Poland in 2013.Strategic direction in the Area: STATE is to “Increase the accessibility and effectiveness of public administration services with the use of ICT solutions to reconstruct internal processes in the administration and the delivery of services”. Among key tasks the Strategy mentions building e- services platforms dedicated to particular areas to meet the needs of entrepreneurs and citizens in key areas for business activities.

( English version of the Strategy: http://www.mswia.gov.pl/portal/SZS/495/6271/ )

2.2 Legal framework

2.2.1 General regulations

Version:...... v3.1 Page: 268 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.1 Primary Acts Poland has transposed the EU Directives (2004/17/EC, 2004/18/EC and 2007/66/EC) on public procurement into national legislation. The latest amendment to the Public Procurement Law was published in Dziennik Ustaw (Journal of Laws of 2009 - No. 223, item 1778). It enter into force on the 29th of January 2010. For an unofficial translation, see http://www.uzp.gov.pl/en/legal-framework/public-procurement- law/PPL

2.2.1.2 Secondary Acts

Regulation of the Prime Minister of 28 January 2010 on the list of priority and non-priority services (Journal of Laws, No. 12, item 67).

The Prime Minister defined a list of services of priority and non-priority nature, taking into account the provisions of the Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts and the Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.

The Regulation entered into force on the 29th of January 2010.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

Tenders may be submitted in electronic form, if the contracting authority has decided to permit this (Art. 82, par. 2, PPL). Separate rule have been defined with respect to eAuctions:

 article 74 par. 2 of the PPL defines conditions of using electronic bidding procedure (procurements below threshold of 14.000 euro);  91a of the PPL defines conditions of using electronic auction (procurements conducted by open tendering, restricted tendering and negotiated procedure).

2.2.1.5 Thresholds

Version:...... v3.1 Page: 269 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The new amended Procurement Law has streamlined procurement procedures by reforming thresholds below which the obligation to comply with a number of legal provisions does not apply. Specifically, the law in question does not apply to public contracts below the threshold of 14 000 euro.

Contract notices must be placed on the Public Procurement Bulletin available on the portal of Public Procurement Office (if the contract or design contest value is lower than EU thresholds) and shall be published in the Official Journal of the European Union if they are dispatched to the Publications Office of the European Union (the contract or design contest value exceeds the EU thresholds).

However, notices shall not be published in any gazette (national/ regional) prior to the date of their dispatch to the OJEU with regard to contracts above EU thresholds. They shall not be published either before their dispatch to the PPO as regards contracts below EU thresholds.

In addition, the PPL provides for a single publication of notices for contracts above EU thresholds to the OJEU only. The requirement to publish such notices to the BPP has been abandoned1.

2.2.2 Specific tools 2.2.2.1 eSignatures

If tenders are submitted in electronic form, they must carry a secure electronic signature based on a qualified certificate (Art. 82, par. 2, PPL). Also, the request to participate in a contract award procedure to be sent in electronic form requires an e-signature (Art. 27 par. 4 PPL).

2.2.2.2 eCommunication

As regards e-Communications, permissibility in the award procedures is determined by the contracting authority.

2.2.2.3 DPSes

DPSes are supported under Polish law. The definition of DPSes in the act (see http://www.uzp.gov.pl/en/legal-framework/public-procurement-law/PPL) has been slightly amended to reflect that DPSes may only relate to generally available supplies or generally available services (art. 2.2a).

With respect to the duration of the DPS, the Polish act clarifies that this may go beyond 4 years “for reasons related to the object of the contract and to the particular interests of the awarding entity” (art. 102.2). In addition, any DPSes must be notified to the Polish Public Procurements Office (art.102.3). The Polish act states that tenders submitted within a DPS must be signed using an advanced signature based on a qualified certificates, under penalty of nullity (art. 103.2).

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 270 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Article 106.3 of the Public Procurement Act states that prior to the publication of a simplified contract notice the awarding entity may modify the contents of the specification of the essential terms of contract. The awarding entity shall immediately inform all the economic operators, admitted to participate in the DPS, about the modification, and the information shall also be posted on its website. Article 109 of the act notes that a tender submitted by an economic operator in a contract award procedure under a DPS may not be less advantageous than the indicative tender.

2.2.2.4 eAuctions

Eauctions are supported under articles 74 – 81 and 91a – c of the PPL. the PPL specifies the terms „licytacja” - translated as electronic bidding - and „aukcja” – electronic auction (actually both have the same equivalent in the English language – an auction). However, the first case (electronic bidding) concerns a separate procedure to place orders for defined goods and services; The awarding entity may award a contract under electronic bidding procedure, where the contract value is less than the amounts specified in the provisions issued under Article 11 paragraph 8 PPL ( EU thresholds) The second one is a way of selection of the best tender in open tendering, restricted tendering and negotiated procedure.

2.2.2.5 Lists of economic operators

Not applicable according to the provisions of the PPL.

2.2.2.6 Buyer’s profiles

Buyers' profiles are provided for by the applicable national legislation. Art. 13 of the PPL notes that “The awarding entity, immediately following the approval or adoption of a financial plan according to the provisions, statute or agreement that the awarding entity is obliged to follow, and in the case of awarding entities which do not prepare financial plans – once a year, may dispatch to the Publications Office of the European Union or post on its own website in a separate section for procurement, hereinafter referred to as the “buyer’s profile”, a prior information notice about contracts or framework agreements envisaged for the following 12 months

2.2.2.7 Framework agreements

Framework agreements are defined in Art.2 par. 9a) of the Act as “an agreement concluded between the awarding entity and one or a bigger number of economic operators for the purpose of establishing the conditions concerning the public contracts to be awarded within a given period, in particular with reference to the prices and, if necessary, envisaged quantities.” Detailed rules are provided in articles 99 – 101 .

2.2.2.8 Electronic certificates / electronic evidences

Version:...... v3.1 Page: 271 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As a general rule, awarding authorities are obliged to request from economic operators documents proving that they satisfy contract awarding requirements (i.e. certificates) only where value of the contract is equal to or exceeds the amounts ensuing European publication of the contract notice2 (art. 26(1) PPL). On the other hand, where the value of the contract is lower, awarding authorities are allowed, but not obliged, to request from economic operators the documents proving that they satisfy the conditions for participating in the procedure (art. 26(2) PPL). When no certificates are requested, statements of fulfilling conditions, signed by tenderers, are sufficient. Usually awarding authorities require a statement of fulfilling conditions for participating in the procedure (sometimes called a “statement of compliance with art. 22 PPL”3) and a statement of non-exclusion (sometimes called a “statement of compliance with art. 24 PPL”4). In practice, both statements, or at least the first one, are requested even if other documents proving compliance are required5. In any case, awarding authorities may request from economic operators only statements and certificates necessary to conduct the procedures (art. 25(1) PPL).

In detail this issue is subject to an executive measure, the Regulation of the Prime Minister of 30 December 2009 on the types of documents that may be requested by the awarding entity from the economic operator and forms in which these documents may be submitted (Journal of Laws No. 226, item 1817) (hereinafter: Regulation of 30 December 2009)6. The legislative delegation for the Regulation of 30 December 2009 provides explicitly that the executive measure is to take “into consideration that the forms of such documents should make it possible to award contracts using electronic means” (art. 25(2) PPL).

If the required documents are not issued in the tenderer’s country of origin, a solemn statement before a judiciary or governmental body, a public notary or a competent professional organisation will be deemed acceptable. (§ 2 of the Regulation of 30 December 2009).

§ 6 the Regulation of 30 December 2009 allows for delivering copies instead of original documents. More specifically, the Regulation proclaims that awarding authorities may require original documents or copies certified by a notary only when a copy submitted by the tenderer is unreadable or doubts arise as to its authenticity . This provision does not mean, however, to do away with any restrictions for

2 See supra footnote 3. 3 Art. 22(1) defines general eligibility criteria for participation in any awarding procedure. In extension it says: “Eligible to compete for a contract shall be economic operators who: 1) authorisations to perform specific activities or actions, if such authorisations are required by the law; 2) have the necessary knowledge and experience; 3) appropriate technical potential and personnel capable of performing a contract; 4) economic and financial standing. 4 Art. 24 PPL establishes reasons for excluding a tenderer from the procedure. 5 This practice should cease in the future, because the amendment which entered into force on 11 June 2007 modifies art. 36(1)(6) PPL (see supra footnote 7) and art. 25(1) PPL (see supra, this point) so that awarding authorities should not request statements AND documents (certificates) at the same time. 6 Rozporządzenie Prezesa Rady Ministrów z dnia 30 grudnia 2009 r. w sprawie rodzajów dokumentów, jakich może żądać zamawiający od wykonawcy, oraz form, w jakich te dokumenty mogą być składane, Dz. U. 2009, Nr 226, Poz. 1817.

Version:...... v3.1 Page: 272 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

copies. Paper copies must bear a brief warrant of authenticity (potwierdzenie za zgodność z orginałem), which should be signed by hand . Consequently, similarly strict requirements are applied to digital copies. These must be signed with an secure electronic signature created with a qualified certificate .

Version:...... v3.1 Page: 273 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Poland is running the “Non-mandatory National eProcurement Platform” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities. The National eProcurement Platform is mandatory for Central Government Contracting authorities.

3.2 Main platform

The Public Procurement Office (PPO) runs the Electronic Auctions Platform which is a non- mandatory eProcurement tool prepared for conducting both electronic biddings (https://licytacje.uzp.gov.pl ) and electronic auctions ( https://aukcje.uzp.gov.pl ). This system has no supervision (only awarding entities are responsible for using it in conducting procedures) and its usage is free of charge.

3.3 Other platforms Polish Procurement Platform (PPP) enables to use secure signature creation devices for the purpose of qualified electronic signatures for subscribers of all three qualified certification authorities in Poland, i.e.: Certum – Unizeto Technologies S.A., Sigillum – PWPW S.A. and Szafir – KIR S.A. Therefore none of qualified certificates issuer is discriminated, nor customers of stated above CAs.

Electronic Procurement Platform e-przetarg.pl (EPP) accepts and operates with secure signature creation devices provided by Unizeto Technologies S.A. (i.e.: Certum - qualified CA providing certification services), but it is possible to use the components offered by other qualified certificates issuers. There is no detailed information concerning Electronic Procurement platform (PE), XTRADE Serwis Aukcyjno-Przetargowy, and MarketPlanet (MP).

3.4 Figures According to the DG INFSO Benchmarking study7, Poland achieves a score of 61% for the availability benchmark while the European average is 56%. It scores 33% for the Pre-Award Process Benchmark while European average is 59%. Poland is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: SPOCS and CLEAR. Case studies report savings of 20-32%; however, the data referred to a limited number of auctions and was presented through a commercial site8, making the data less neutral.

7 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf 8 http://www.eng.ppp.pwpw.pl/CaseStudyList

Version:...... v3.1 Page: 274 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper or electronic standing professional qualification Paper only technical and/or professional Paper or electronic ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 275 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Portugal

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The following table provides a global evaluation of the supported tools and phases of eProcurement systems in this country, and does not necessarily reflect the capabilities of any particular site

Name Portugal has several eProcurement platforms (see below) ; a leading platform is ANCP – Agência Nacional de Compras Públicas. URL www.ancp.gov.pt Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through eInvoicing ePayment (green=supported; red=not eCatalogues supported) Supported tools DPS (under eAuctions (under Buyer’s Profiles (green=supported; red=not developement) developement) supported) Signature / authentication Qualified signature required requirement

Here are the DG INFSO Benchmarking report scores1:

1 Portugal does not have a unique eProcurement platform as it is mentioned in the picture above

Version:...... v3.1 Page: 276 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified:

Platform Name Platform URL ANCP – Agência Nacional de Compras Públicas, E.P.E. http://ancpconcursos.ancp.gov.pt/ VortalGOV http://www.vortal-info.biz/ bizGov http://www.bizgov.pt/ Tradeforum http://www.tradeforum.pt/default.asp Infosistemas DL - Compras AP https://www.compraspt.com/compraspt/ Plataforma de Compras Públicas https://www.compraspublicas.com/ comprasgov.forumb2b.com https://comprasgov.forumb2b.com anoGov http://www.anogov.com/plataforma/ acinGov http://www.acingov.pt

1.2 Laws and policies

1.2.1 Laws The Portuguese legislation in the field of public procurement is extremely rich and complex. The most important legal source is the Code of Public Contracts, established by the Decree-Law 18/2008, modified by the Decree-Law 278/2009 (published recently, on 2/10/2009). The list of national, more relevant legislation in the field of public procurement, including the “Code of Public Contracts” and its amendments, is published in the “Portal Base” (the website where all communications regarding all public contracts entered into by public authorities under the Code of Public Contracts are published) at http://www.base.gov.pt/Paginas/Default.aspx, in particular http://www.base.gov.pt/legislacao/Paginas/default.aspx): 2. Decree-Law No. 18/2008 of January 29, approving the “Code of Public Contracts”; 3. Statement of Rectification No. 18-A/2008, 28 March, correcting the “Code of Public Contracts”; 4. Decree-Law No. 223/2009 of September 11, amending the “Code of Public Contracts” (extends until 31 October 2009 the possibility for documents constituting the proposal or application to be submitted on paper); 5. Decree-Law No. 278/2009 of October 2, amending the Code of Public Contracts (provides the flexibility of its application to research and development in scientific institutions and higher education); 6. Decree-Law No. 34/2009 of February 6, providing for exceptional procurement, effective in 2009 and 2010, for the speedy implementation of public investment priority; 7. Regulation 330/2009 of June 30 that establishes the rules applicable to the National System of Public Procurement (see below for further information). The relevant regulatory documents of the Code of Public Contracts:  Regulation No. 701-A/2008 of July 29, approving the main standard forms of public procurement related notices that are published in the “Diário da República” (Portuguese official journal available at http://www.dre.pt/);

Version:...... v3.1 Page: 277 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Regulation No. 701-D/2008 of July 29, defining the model of statistical data;  Regulation No. 701-E/2008 of July 29, defining the model of the data reports to be completed by entities in “Portal Base”;  Regulation No. 701-F/2008 of July 29, regulating the establishment, operation and management of “Portal Base”;  Regulation No. 701-G/2008 of July 29, setting out the requirements and conditions of use of electronic platforms by the contracting authorities and rules of operation of those platforms;  Regulation No. 701-I/2008 of July 29, establishing the “Observatório das Obras Públicas”; As far as electronic communications related to public procurement are concerned, the relevant regulations in force are the following:  Decree-Law No. 290-D/1999 of August 2, providing legal rules of electronic documents and use of electronic signatures;  Decree-Law No. 62/2003 of April 3, amending Decree-Law No. 290-D/1999 of August 2, which approves the legal rules of electronic documents and signatures;  Decree-Law N 116-A/2006 of June 16, creating the Electronic Certification System of the State - Infrastructure and Public Key means the National Security Authority as the national accreditation authority;  Decree-Law No. 143-A/2008 of July 25, setting out the terms to be complied with the submission and receipt of proposals, applications and solutions within the “Code of Public Contracts”;  Regulation No. 701-G/2008 of 29 July, defining the requirements and conditions of use of electronic platforms by authorities and rules of operation of such platforms;  Order No. 32639-A/2008 of 26 December, establishing the relevant functions of supervisor of electronic platforms under the Code of Public Contracts to the CEGER;  Decree Law No. 88/2009 of 9 April, amending Decree 290-D/99, 2 August, which establishes the legal regime of electronic documents and signatures, and the first amendment Decree- Law no 116-A/2006, 16 June, establishing the Electronic Certification System of the State.

1.2.2 Legally supported tools

 eSignatures: the Decree-Law 143-A/2008 and the Administrative Order no. 701-G/2008 both require the use of qualified signatures.  DPSes: supported through Art.237 and following of the Code of Public Contracts.  eAuctions: supported through Art.140 and following of the Code of Public Contracts  Buyer’s profiles: not supported in the Code of Public Contracts.

1.2.3 Permissibility of using eProcurement Since November 1st 2009, the tender procedures for public procurement must now be made directly on the electronic platform used by the contracting authority (except for contracts of lesser value).

In addition to the above, the authorities are required to report, on the “Portal Base”, the information about formation and execution of public contracts of awarded under the Public Procurement Code.

Version:...... v3.1 Page: 278 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Portugal has an advanced legal framework that recognises e-Procurement, together with the legal value of e-Documents and e-Signature. In other words, one of the main pillars of e-Procurement is the obligation of tenderers to submit tender proposals, certificates and other documents electronically. The legislative panorama in Portugal is sufficiently comprehensive to allow them to do so.

The country has all the instruments in place to set up a fully functional e-Procurement system, and a centralised public procurement portal has already been established named “Portal BASE” (www.base.gov.pt). Jointly managed by the Institute of Construction and Real Estate (INCI; www.inci.pt) and the National Agency for Public Procurement (ANCP; www.ancp.gov.pt), the “Portal Base”:

 centralizes the most important information about public procurement, notices, among others, calls for tender and other procurement procedures, sanctions applied under the “Code of Public Contracts”;  disseminates technical content and relevant legislation;  contributes to a more transparent public procurement, namely by publicising detailed information about Direct Awards and promoting the observation and understanding of public expenditure.

Through this website it is also possible to access the information system that assesses and monitors the public works contracts in Portugal: Observatory on Public Works, named “Observatório das Obras Públicas” (http://oop.inci.pt/).

The “Observatório das Obras Públicas”, created under the “Code of Public Contracts”, is a tool for analysis and evaluation of public procurement in the field of public works, which aims, among others, to promote transparency and facilitate the conduct of policies sector, more informed decisions and therefore more efficient.

The information related to goods and services published in “Portal Base” is integrated with the ANCP Management Information System

1.3.2 Weaknesses of the national situation

Functionalities of the ANCP portal are not yet fully developed, and it is unclear to what extent the available possibilities are being used in practice.

Version:...... v3.1 Page: 279 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

According to the most recent available information, several bodies are responsible for the coordination as regards the policy of public procurement in Portugal, including:

 The Ministry of Finance (MOF) and Public Administration, which has the political responsibility for public administration matters, including public sector modernization and e-Government since February 2005;  The Ministry of Public Works, Transport and Communications is responsible for tracking and monitoring of public procurement in the public works  The Knowledge Society Agency (UMIC, within Ministry of Science, Technology and Higher Education, http://www.umic.pt/), which has the mission of planning, coordinating and developing projects in the areas of Information Society, including those of e-Government. It is among others assigned with policy formulation. It was created in January 2005, as a public institute with administrative and financial autonomy which succeeded to the Mission Unit for Innovation and Knowledge formerly operating, since November 2002, within the Ministers Council Presidency. UMIC is also primarily responsible for the technical aspects of public procurement, provided that it is tasked with coordinating and gearing the government’s activities in the field of Information Society, e-Government and innovation and it played an essential role in the preparation of the Portuguese Information Society and e-Government Action Plans. In other words, UMIC plays a pivotal role as regards e-Procurement in Portugal (see http://www.ligarportugal.pt/) from the technical point of view;  The National Agency for Public Procurement (ANCP - 'Agência Nacional de Compras Públicas', http://www.ancp.gov.pt/ANCP/Pages/Home.aspx), public company created by the Decree-Law 37/2007 with the goal to manage the newly-created National System of Public Procurement, i.e. the union of different systems at the level of ministries to increase efficiency, transparency and competition in the national public procurement. A very important part of the National System is the establishment of an efficient e-Procurement system. Therefore, ANCP is the entity ultimately responsible for e-Procurement in Portugal.; Founded in 2007, under the Ministry of Finance, the main objective of the Agency is to generate savings through reduced spending on goods and services across the public sector. Support for the modernization and efficiency of public administration as well as promotion of economic competitiveness among suppliers to the public sector are closely linked to the mission of ANCP. With a view to the modernization and dematerialization of the procurement processes, ANCP provides electronic tools to assist purchasing bodies and tenderers, through its portal (www.ancp.gov.pt).  The Institute of Construction and Real Estate (INCI; www.inci.pt) is, together with the National Agency for Procurement, the managing body of the website “Portal Base”. It is also responsible for the management of the “Observatório das Obras Públicas” (http://oop.inci.pt/);

Version:...... v3.1 Page: 280 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 The Management Center for the Electronic Government Network (CEGER; www.ceger.gov.pt) is the supervisor of electronic platforms, which certifies and monitors entities that can provide platforms for eProcurement.  The “Imprensa Nacional – Casa da Moeda” (INCM; www.dre.pt) is the entity responsible for the publications in the “Diário da República Electrónico”. After publication, the INCM sends to the “Portal Base”, through an electronic process, public procurement notices.

A central purchasing body is a recent achievement of the national public procurement system. While eProcurement in Portugal is still organized through a number of eProcurement sites and therefore largely in a decentralized manner, ANCP has taken a stronger role in recent years. A number of pre- identified categories of goods and services that are seen as commonly needed by the entities of Public Administration are subject to centrally awarded framework agreements (by ANCP http://www.ancp.gov.pt/ComprasPublicas/Pages/ComprasElectronicas.aspx) :  Mobile communications  Fuel and LGP  Paper and stationary  Printing and copying  Cleaning Services and Products  Hardware  Car and Motorcycle insurance  Energy  E-Tendering Tools  Cars and Motorcycles  Software licencing  Security and surveillance services  Office Furniture  Non-Mobile Communications (voice and data)  Travel and accommodation  Meals (catering)

2.1.2 Action plans and strategies

Portugal is devoting great efforts to make its public administration more efficient and more able to meet the requirements of citizens and businesses. The country scores very high in e-Government and we have to say that also in the field of public procurement the government has been active during the last years. The main results to highlight are the institution of ANCP, which operates under the direction and control of the government, and the setting up of the National System of Public Procurement that unifies the pre-existing systems at the level of ministries. The ultimate goal of the National System is to improve efficiency and transparency of the national public procurement2.

2 See also http://www.epractice.eu/files/media/media_318.pdf

Version:...... v3.1 Page: 281 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The Technological Model of the National system of Public Procurement is summarized in the following chart:

ANCP Portal (www.ancp.gov.pt)

Public Procurement Information System (SAP BO)

Tendering Platform Aggregation of Demand (ASP) (SAP Netweaver)

Base Portal

eCatalogue (.NET)

eOrdering Fleet Management (out of scope) (.NET)

Framework Agreements Pre-Award Framework Agreement Contract Post-Award

BI Process 12

Up until 2007, eProcurement was mostly coordinated via the Compras program. The main objectives of the National e-Procurement Program (www.compras.gov.pt) were3: increase efficiency and transparency, generate savings, and promote the adoption of e-commerce. During the first two years of program (2003-04), the focus was on the characterization of the expense and the reformulation of procedures, whereby new processes were adopted, such as sourcing, aggregation and negotiation. In the pilot phase the project involved eight ministries and a few public bodies and product categories. Presently, the process is at a generalization and enlargement phase to all public bodies/ministries, and other product categories. The program already involved directly all the 16 ministries of the Portuguese Government (including the Presidency of the Ministers Council), 794 public bodies, 1,374 users, 94 aggregation/negotiation processes, with 40 million euros negotiated (26 million euros in the first semester of 2006) and 20% estimated savings. Total savings expected from the ongoing expansion of this initiative amount to 250 million euros/year. No information is available on more recent action plans.

3 Source : http://www.infosociety.gov.pt/projects.htm#compras

Version:...... v3.1 Page: 282 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Portuguese legislation in the field of public procurement is extremely rich and complex (all references can be found above). In addition to the information provided supra, the electronic communications, exchange and database archive principles and rules of the Code of Public Contracting have been regulated by the Decree-law 143-A/2008 of 25 July 2008 and several development Administrative Orders (such as the Administrative Order no. 701-G/2008). In this field, the e-platforms of the public entities must comply with several requirements (namely interoperability, compatibility, confidentiality and security). The Portuguese national entity that certifies that e- Plataforms are compliant with security requisites defined in Administrative Order no. 701-G/2008 is CEGER - “Centro de Gestão da Rede Informática do Governo” (http://www.ceger.gov.pt/ceger/pt/).The Administrative Order no. 701-G/2008 of 29 of July 2008 defined some of the requirements of the platforms of the public entities through which the interested parties will apply the respective proposals. As a result, there are multiple certified eProcurement platforms in Portugal.

2.2.1.2 Secondary Acts

No known secondary Acts other than those mentioned above.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

All the procedures aiming at forming a public contract have to be conducted electronically. Since November 1st 2009, the tender procedures for public procurement, must now be made (except for contracts of lesser value), directly on the electronic platform used by the contracting authority.

2.2.1.5 Thresholds

Version:...... v3.1 Page: 283 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As regards national thresholds, Portugal adopts the same ones set forth by the applicable European legislation4.

2.2.2 Specific tools 2.2.2.1 eSignatures

For what concerns e-Signatures, both the abovementioned Decree-Law 143-A/2008 and the Administrative Order no. 701-G/2008, impose the use of qualified e-signatures to sign every document submitted by both the contracting entities and the tenderers throughout all stages of the tendering procedure. According to Art. 94 of the Code of Public Contracts, public procurement contracts must be done in written form, or in an electronic form with an electronic signature. Thus, the contract itself can be concluded on paper or (when done electronically) using a qualified e-signature.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Portugal.

2.2.2.3 DPSes

Dynamic purchasing systems are provided for by the national legislation. Art. 237 and following of the Code of Public Contracts sets forth rules in the field. DPSes are admitted only for goods and services of current use, i.e. for goods and services whose technical specifications are completely standardized. The phases of the proceedings are the following: (I) setting up of the system; (II) simplified advertisement; (III) award of the contract.

The main Portuguese transposition provisions contain significant changes compared to the Directives, including the following:

 Comparable to the provision with respect to eAuctions in Portugal, DPSes may only be used for purchase/rent contracts of movables, or for services contracts relating to generic services , i.e. to the extent that their technical characteristics are sufficiently standardised (art. 237 (1));  The process of using a DPS is split into several phases, specifically the set-up, simplified notification, and the judging of bids (art. 238). Each of these phases is then dealt with separately through specific articles.  DPSes may only be used under a certain threshold established in article 20 of the Code, which vary depending on the type of contract and contracting authority.  Indicative tenders may be continuously modified as per the Directives, but the Portuguese act clarifies that a 15 day approval period applies to each modification as well (and not just to the original indicative offer).  For the submission of offers for a specific contract within a DPS, the Portuguese law specifies that the simplified notice must specify the applicable deadlines (like the Directives), but it adds that this deadline may not be shorter than five days (art.243 (2)).

4 See http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 284 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.4 eAuctions

Electronic auctions are regulated by Art. 140 and following of the Code of Public Contracts, in a way consistent with the applicable EU legislation. Art. 144 sets forth a confidentiality clause to protect the participants to the auction: during the e-auction, in fact, the purchasing authority cannot disclose, directly or indirectly, the identity of the participants.

The main Portuguese transposition provisions contain several changes compared to the Directives, including the following:

 eAuctions may only be use for purchase/rent contracts of movables, or for services contracts (art. 140 (1));  There are no provisions specifically for conducting auctions in multiple phases.

2.2.2.5 Lists of economic operators

The Code of Public Contracts mentions (in nº 4 of the 81th article) the registration of the economic operators in an official list of contractors (either in Portugal or abroad). However the creation of this official list in Portugal (known earlier as the National Registry of Suppliers (RNF- 'Registo Nacional de Fornecedores')) has been suspended in 2008.

2.2.2.6 Buyer’s profiles

There are no specific provisions in the Code of Public Contracts about buyer profiles.

2.2.2.7 Framework agreements

Framework agreements are regulated by Art. 251 and following of the Code of Public Contracts. In particular, and without entering into further details, purchasing authorities may conclude contracts in such frameworks whose terms cover all aspects subject to competition or whose terms cover all aspects not subject to competition.

For an overview of the criteria followed by the purchasing authorities, and set forth by ANCP, and for a list of agreements concluded so far, please refer to http://www.ancp.gov.pt/ComprasPublicas/AcordosQuadro/Pages/AcordosQuadro.aspx.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined in the Code of Public Contracts. It should be noted that the purchasing authority may accept other documents other than those mentioned in the Code, if the tenderer is justifiably unable to present these documents. National tenderers shall also present, in case of contract of procurement or assignment of public works, the contractor’s

Version:...... v3.1 Page: 285 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

classification certificate, issued by the Portuguese construction regulator (i.e. Instituto da Construção e do Imobiliário). Likewise, other EU tenderers shall present the equivalent document issued by a competent regulatory authority. If they fail to do so, additional documents will be required to prove their eligibility to participate in a call (e.g., a statement signed by the company’s legal representative, duly certified, attesting to the list of works executed in the last five years).

As regards the possibility to submit e-documents, the national legal framework allows the dematerialization of documents and thus the implementation of e-tenders. In fact, according to a general provision of Decree-Law no. 290-D/99 of 2 August 1999, amended ultimately by the Decree- Law no. 116-A-2006 of 16 June 2006, electronic documents have the same effect has hard-copy documents. The use of the electronic signature has been recognised under Portuguese law since 1999 and according to Art. 7 of Decree-Law no. 290-D/99, electronic signatures constitute valid proof of declaration with the same value as handwritten signatures.

We must also highlight that this act expressly states that public entities may issue electronic documents bearing a qualified electronic signature in accordance with the provisions of this statutory instrument for “operations that concern the creation, issue, storage, reproduction, copying and transmission of electronic documents, which formalise administrative acts through computer systems, including the transmission thereof by telecommunications means. The data relating to the interested entity and the person who carried out each administrative act shall be indicated in clearly identifiable language and in a manner that will enable verification of the functions or the position of each document’s signatory” (Art. 5). From this statement, it is clear that Portugal intended to provide a legal solution for the use of electronic signatures in the general act on electronic documents.

In addition many professionals (such as lawyers, solicitors and notaries) have the power to certify documents and the Bar Association and Notaries Professional Order have already implemented PKI platforms issuing digital signatures to their members.

From the above we can say that:  the provision of statements by tenderers can be provided by electronic means and duly signed with a qualified e-signature;  Declarations of the public administration may also be provided by electronic means and expressly be permitted by law;  If necessary, e-documents can be certified by lawyers and notaries.

Version:...... v3.1 Page: 286 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

Portugal has made a substantial effort in providing public services online and increasing the level of sophistication. This has resulted in a leading position in Europe.

Portugal operates a mandatory national eProcurement platform through the ANCP, which must be used for certain national contract types, as will be commented further below. However, there is a multitude of other platforms as well.

3.2 Main platform

Among the platforms certified by CEGER –(the Management Centre for the Electronic Government Network, http://www.ceger.gov.pt/ceger/en/), particular attention has to be given to the one used by ANCP (http://ancpconcursos.ancp.gov.pt/), since it is the main tool of the national system of Public Procurement with some 500 contracting entities. Indeed, central administrations and public institutes are obliged to use this platform to buy goods and services under the framework agreements awarded by the Agency, while autonomous administrations and public business companies may use the platform although they are not obliged to do so.

E-catalogues are used by ANCP (https://catalogo.ancp.gov.pt/catalogo) to make goods and services that are the object of a framework agreement available for “call-off” purposes (i.e. to enter into specific purchasing contracts under a framework agreement). Awarding entities are granted access to these catalogues so that they can prepare (e.g. to choose the required goods lots and services) the call for tenders of the call-offs. The whole call off procedure is then conducted in the electronic platform (http://ancpconcursos.ancp.gov.pt/).

The e-platform being used by ANCP is integrated with a management information system from which ANCP can retrieve information about the buyer, the purchase (price and quantity) and the tenderers. Access to the platform is granted to users who have been able to install a valid “user authentication certificate”, in order to guarantee the highest level of security.

Cross-border accessibility is assured via the registration and authentication processes.

Version:...... v3.1 Page: 287 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.3 Other platforms

Besides the ANCP platform identified here before, there is a multitude of other platforms which are certified by CEGER. Apart from these, another key eProcurement website is www.base.gov.pt, as was already mentioned above.

The major principles are:  Public tenders are published on an Internet portal through an announcement in accordance with the official model and in processes that imply an announcement in the Official Journal of the European Union, these should be electronically sent to the Official Publications Service of the European Communities (http://www.base.gov.pt/Paginas/Default.aspx).  In negotiation processes, the jury can inform the candidates through any electronic means of data transmission and all of the formalities of the negotiation process may be based on electronic means of communication.  During the process of competitive dialogue, the jury can notify qualified candidates through any electronic means of transmission of data. Furthermore, Electronic auctions are included in a specific section.  The electronic auctions obey by the following regime: (i) All of the commissioning entities may make use of the electronic auctions, for commissioning preparation purposes (in the event that the proposal attributes only when depicted in a quantitative value and evaluation through an automatic mechanism). (ii) All the candidates whose proposals were admitted will be invited simultaneously by the commissioning entity, through electronic means, to participate in the auction. (iii) The auction may be processed in consecutive stages, each one corresponding to the bid value of each of the attributes, if there are several, of the proposals on electronic auction. Furthermore, the commissioning entity cannot, at any given moment, reveal the identity of the candidates in the course of the auction.  The commissioning entity must make available the terms of the procedure on the Internet portal or on an internet page of their responsibility.  The documents to be presented by the interested parties in access system. These should be submitted through electronic means, except if in cases where this is not possible due to the nature of the documents or because of occasional failure of the computer equipment, hence not of the responsibility of the interested parties.

3.4 Figures According to the DG INFSO Benchmarking study5, Portugal achieves a score of 42% for the availability benchmark while the European average is 56%. It scores 64% for the Pre-Award Process Benchmark while European average is 59%.

According to Eurostat, 1.78% of Portuguese GDP was advertised in the OJEU in 2007, corresponding to approx. 2.96 billion EUR.

5 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 288 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Portugal is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: STORK, BEST Energy and SAVE ENERGY.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper and unsigned electronic document standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 289 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Romania

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Sistemul Electronic de Achizitii Publice (SEAP) URL www.e-licitatie.ro Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Digital certificate provided by SEAP. requirement

Here are the DG INFSO Benchmarking report scores:

The following platform has been identified:

Platform Name Platform URL Sistemul Electronic de Achizitii Publice (SEAP) www.e-licitatie.ro

Version:...... v3.1 Page: 290 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws

The applicable law is the Government Emergency Ordinance no. 34 of 2006 regarding Public Procurement, which was last updated on June 23, 2009, via the Government Emergency Ordinance no. 72 of 2009. See http://www.oecd.org/dataoecd/7/18/39646004.pdf, http://www.e- licitatie.ro/Public/Static/ro/Legislatie/ORDONANTA34_2006_actualizata12martie2009.doc and http://www.anrmap.ro/index.php?page=legislatie_nationala_34_2006

1.2.2 Legally supported tools

 eSignatures: contracting authorities to require the use of advanced electronic signatures (article 61 (3) of the Ordinance).  DPSes: regulated via article 151 and following of the Ordinance.  eAuctions: regulated via article 161 and following of the Ordinance.  Buyer’s profiles: not defined or referenced in the Ordinance.

1.2.3 Permissibility of using eProcurement

As formulated under articles 21 and 40 of the Ordinance, it is the contracting authority that has the right to specify whether eProcurement can be used in a specific instance.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Romanian legal and policy framework is well developed, and is centred strongly around the aforementioned SEAP portal, which was first established already in 2002. Usage of the portal for the publication of notices is even required by law, and while other phases of eProcurement are not legally required, contracting authorities must use the portal if they choose to use eProcurement. Thus, the Romanian approach is well focused. The portal also publishes some basic usage statistics, which appear to be favourable1. In mid-January 2010, the following figures are provided:

 Registered Contracting Authorities/Suppliers: 11,577/22,261  Published Notices/Request For Quotation Invitations: 145,130/239,397  Notices Sent To OJEU: 34,816  Published Catalog Products: 185,182  Published Requests For Quotation/Direct Aquisitions: 48,717/674,836

1 See http://www.e-licitatie.ro/Public/Common/Content.aspx?f=PublicHomePage

Version:...... v3.1 Page: 291 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

 Awarded Aquisitions Total: 19,736,511,785.18 RON (approx. 4.7 billion EUR, presumably referring to the total amount since the platform’s inception in 2002)

Official figures released in 2003 indicated a savings of 22% through the use of the portal2, which would substantially outperform most eProcurement systems in use.

1.3.2 Weaknesses of the national situation

The available structure is still at a relatively early stage, with the emphasis being on eNotification and making information on tendering opportunities broadly available. In addition, the strong link between the legal framework and the currently existing national portal will certainly improve consistency and homogeneity, but also reduces the freedom to choose alternative solutions.

2 Source : http://www.epractice.eu/en/news/283997

Version:...... v3.1 Page: 292 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The central public procurement policy body in Romania is the National Authority for Regulating and Monitoring Public Procurement (NARMPP). The authority is responsible for policy making, for the monitoring, analysis, evaluation and supervision of the public procurement system; and for training personnel involved in specific public procurement activities.

In addition, it is also charged with the following tasks3:

 Drafting, regulating the procedures for awarding public procurement contracts  Drafting, improvement and implementation of legislation  Advice and support to contracting authorities  Providing procurement advice to contracting authorities, ensuring training and capacity building, and monitoring procurement operations, including the collection of statistics.

With respect to the technical execution of public procurement policy, the National Center for Management Information Society (CNMSI) (www.cnmsi.ro) acts as the operator of the national e- Government services.

Operationally, there are essentially two responsible Central Procurement Bodies interacting. The newly formed National Authority for Regulating and Monitoring Public Procurement (NARMPP) as a policy maker plays the key role in enforcing the new legislation. It has been operational since December 2009. The National Center for Management Information Society,(CNMSI) an autonomous public institution subordinated to the Minister for Conmunications and Information Society, has attributions in the IT field. One of the main IT services that the latter provides is the Electronic System for Public Acquisitions (SEAP, after the Romanian acronym sistemul electronic de achizitii publice). Concretely, the SEAP is an IT infrastructure offering the Romanian public institutions the alternative to buy products, goods and services by electronic means, according to the legislation in force.

Globally, procurement policy appears to be largely decentralized, but with a tendency towards centralization through the development of a national infrastructure which is then made available to all contracting authorities. The aforementioned SEAP is an example of this trend. The contracting authorities stipulated in the GD 182/2002 are obliged to use the SEAP system, whereas all other contracting authorities may use it at their request.

3 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 293 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.1.2 Action plans and strategies

As early as 2004, the Reform Strategy of the Public Procurement System (2005-2007) noted the following policy priorities:

 Adoption of the best European practices as regards the operation of the procurement system  Prerequisites for increased efficiency, transparency and competitiveness of public procurement  New public procurement legislative framework (unitary Act)  Regulation and monitoring of procurement system  Improving the ICT infrastructure and the public procurement system (adopted in 2005) using open and interoperable standards.  Fighting corruption in customs administration (drafted in 2005) in accordance with the National Anti-corruption Strategy

Significant effort has since been made in the preparation and organization of training activities/programs for the application of public procurement legislation. The training covers the principal aspects of the Romanian public procurement regime and the bases of international procurement regulations and good practices. Participation in these activities/programs is free of charge.

Finally, according to Government Decision no. 167 of 03 March 2010, starting with 2010, a target was established for contracting authorities to use electronic means in awarding procedures and direct procurement for at least 40% of the total value of the procurement made during this year.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The applicable law is the Government Emergency Ordinance no. 34 of 2006 regarding Public Procurement, which was last updated on June 23, 2009, via the Government Emergency Ordinance no. 72 of 2009. See http://www.oecd.org/dataoecd/7/18/39646004.pdf, and http://www.e- licitatie.ro/Public/Static/ro/Legislatie/ORDONANTA34_2006_actualizata12martie2009.doc

2.2.1.2 Secondary Acts

The main known secondary act is the Government Decision 1660/2006 regarding the approval of the application norms for Public Procurement; see http://www.e- licitatie.ro/Public/Static/ro/Legislatie/Hotarare1660_22nov2006.doc.

Version:...... v3.1 Page: 294 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

As formulated under articles 21 and 40 of the Ordinance, it is the contracting authority that has the right to specify whether eProcurement can be used in a specific instance.

2.2.1.5 Thresholds

There are no publication requirements for products, services and works for which the value does not surpass the equivalent of 15.000 € (VAT excluded) per each product, service or work. There are publication requirements (to the OJEU) when the values of the contracts surpass 100.000 € (for supply and service contracts) and 750.000 € (for public works contracts)4.

2.2.2 Specific tools 2.2.2.1 eSignatures

Like the Directives, the transposition allows contracting authorities to require the use of advanced electronic signatures (article 61 (3)); however, this is not automatically required in all procurements.

2.2.2.2 eCommunication

While the main provisions of the Ordinance with respect to eCommunication contain no notable changes to the provisions of the Directives, it should be noted that the Ordinance makes explicit reference to the aforementioned SEAP portal, which thus has a clear legal basis under law. Under article 21 (2) of the Ordinance, SEAP is explicitly identified as the only technical solution to be used when eProcurement is employed. The Ordinance also allows the Government to impose the use of SEAP for specific contracting authorities; however, so far, this has not yet occurred.

Usage of SEAP is however mandatory for the publication of contract notices, and SEAP itself is charged with the publication at the European level after due clearance by the National Authority for Regulating and Monitoring Public Procurement (art.48 and following of the Ordinance). SEAP must contain both the publication notices and the related tender documents.

4 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 295 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.3 DPSes

The main Romanian transposition provisions (see notably article 151 and following of the primary act, http://www.oecd.org/dataoecd/7/18/39646004.pdf) show gold plating, in the sense that article 151 (1°) clearly indicates that DPSes may only be organised when using the Romanian SEAP system, a public utility IT system aimed to support awarding procedures by electronic means. Other than this, the provisions of the Romanian act follow the Directives faithfully.

2.2.2.4 eAuctions

The main Romanian transposition provisions (see notably article 161 and following of the primary act, http://www.oecd.org/dataoecd/7/18/39646004.pdf) appear to be a faithful transposition of the Directives.

2.2.2.5 Lists of economic operators

Article 177 (3) of the Ordinance allows the Government to establish lists of accredited economic operators; however, this does not seem to have occurred in practice yet. The law also specifies that, even if membership of such a list is demonstrated through a specific certificate, the economic operator will still be required to show an attestation demonstrating tax and social security compliance (art.177(4)).

2.2.2.6 Buyer’s profiles

Buyer’s profiles do not appear to be defined or referenced by the Ordinance. None the less, the main eProcurement portal appears to support a profiling functionality that seems to meet the requirements of buyer’s profiles; see https://www.e-licitatie.ro/Public/Actors/EntitiesList/EntitiesList.aspx

2.2.2.7 Framework agreements

Article 141 of the Ordinance contains specific legal provisions with respect to framework agreements, which follow the example of the Public Procurement Directives quite faithfully.

They are defined as a “written agreement between one or more contracting authorities and one or more economic operators, with the purpose of establishing the essential terms that will govern the public procurement contracts that are to be awarded in a certain period, in particular regarding the price and, where appropriate, the quantities envisaged.” Other aspects are regulated in line with the provisions of the Directives.

Framework agreements are also supported in practice through the aforementioned SEAP system.

Version:...... v3.1 Page: 296 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.8 Electronic certificates / electronic evidences

The legal requirements to be met are regulated in articles 176 and following of the Ordinance. These articles provide that the contracting authority must identify within the awarding documentation any request, criterion, regulation or other information necessary for assuring the tenderer with thorough, correct and explicit information regarding the awarding procedure.

For foreign tenderers equivalent documents delivered by the competent judiciary or governmental body from the country of origin will also be accepted. When the tenderer’s country of origin does not deliver such documents, an affidavit authenticated in front of a public notary will also be deemed acceptable.

With regard to the verification and language issues, there are no formal rules for verifying the validity of an offer. The contracting authority is thus free to assess the validity and value of the provided evidence.

Version:...... v3.1 Page: 297 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Romania is running the “Mandatory National eProcurement Portal” model: it is mandatory to publish tenders on a single National Portal.

3.2 Main platform The Romanian e-procurement portal allows aspiring private companies to actively participate online, non-discriminatorily, in the Romanian public procurement process. The application allows public institutions to electronically publish their acquisitions announcements and private companies to participate in the acquisition. The application allows a fully electronic automation of the process, including the electronic signing of the contract.

3.3 Additional platforms Not relevant.

3.4 Figures

According to the DG INFSO Benchmarking study5, Romania achieves a score of 36% for the availability benchmark while the European average is 56%. It scores 86% for the Pre-Award Process Benchmark while European average is 59%. Here follows some statistics info from the SEAP site as on 27th January 2010.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only

5 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 298 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 299 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Slovakia

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Electronic procurement (EVO)

URL www.evo.gov.sk Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication There is a possibility for the contracting authority to check the e- requirement signature certificates issued by the EVO-system in Adobe Acrobat by verifying the private and public part of e-signature.

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Electronic procurement (EVO) www.evo.gov.sk National Journal of Public Procurement www.e-vestnik.sk On-line system for editing and sending of notices www.uvo.gov.sk/zovo

Version:...... v3.1 Page: 300 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

(ZOVO)

Since July the 1st 2009, contracting authorities, contracting entities and persons subject to the Article 7 of the Act on PP (hereinafter procurers) shall prepare notices electronically and send them to the OPP and to the OJEU by methods and on-line tools available on web pages of above mentioned.

Registered procurers who have obtained authentication tools from the OPP – an ID identifier with an access password, have a complete access to the ZOVO application. Every person who sends to the OPP a fulfilled and signed request becomes a Registered Procurer.

All notices on public procurement are published in the national Journal of Public Procurement www.e- vestnik.sk.

1.2 Laws and policies

1.2.1 Laws

The new Directives have been transposed into national legislation by the Act on Public Procurement No. 25/2006 Coll. The new Act replaced the previous laws on public procurement. For an official translation, see the following link for the primary act: http://www.oecd.org/dataoecd/6/35/39646945.pdf, and see the following link for the Annexes to this act: http://www.oecd.org/dataoecd/6/34/39646981.pdf

1.2.2 Legally supported tools

 eSignatures: tenders must be signed using an electronic signature in accordance with the national Act on Electronic Signatures. However, this law only defines an e-signature based on asymmetric cryptography (‘digital signature’) and does not define a technologically neutral e- signature (as the Signature Directive does via the ‘electronic signature’ concept.) Therefore, de facto the advanced e-signature is a minimally possible type of e-signature .  DPSes: regulated by the article 47 and following of the Act on Public Procurement.  eAuctions: regulated by the article 43 and following of the Act on Public Procurement.  Buyer’s profiles: referenced in articles 22-23 of the Act on Public Procurement.

1.2.3 Permissibility of using an eProcurement

Article 16 (2) of the Act on Public Procurement notes that the contracting authority will determine the permissible means of communication. In the absence of any indications to the contrary, there appears to be no legal barrier to the use of eProcurement.

Version:...... v3.1 Page: 301 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Slovak legal and policy framework is well developed, and has been coupled with the development of an advanced eProcurement platform, EVO. All information relating to public procurement (handbooks, guidance, decisions on protests and on control) published notices, are concentrated in one common place – on the web page of the OPP. Particularly positive elements include the emphasis on the promotion and dissemination of know-how, and the innovative solution to eSignature interoperability issues, where a signature certificate is created and issued to the economic operator by the portal after his registration has been approved by the consultant of Contracting Authority/Utility. This way, interoperability issues are largely eliminated, while retaining an authentication mechanism that is somewhat more reliable than pure username/password systems.

1.3.2 Weaknesses of the national situation

Few weaknesses are apparent, other than the minor fact that the aforementioned signature solution is presented as temporary, and it is thus not yet clear what the final approach will be. Current efforts focus on the improvement of existing systems and the development of new functionalities. These would become the bases for the future single information system. A part of the mentioned efforts is the implementation of the national project: “E-services of public procurement in the OPIS (Operational Programme for Information Society) framework. The main objective of the project is a development of e-services of the OPP as well as of supporting services to provide e- procurement via the EVO system. This would increase trust in the electronic exchange of documents on the basis of verified e-signatures.

Version:...... v3.1 Page: 302 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Office for Public Procurement (The OPP) is the Slovak authority for the Public Procurement Policy. The OPP governs State Policy on Public Procurement and Concession Procurement and exercises Remedies Procedures and Control Procedures of Tendering Processes of contracting authorities and entities. The Department of European Affairs & International Cooperation of the OPP is in charge of liaising with the European Commission. The OPP has the overall responsibility for the future formulation of Slovak policies in the area of electronic public procurement as well as the maintenance of the applicable legal framework.

With respect to technical development, the Governmental Committee on e-Procurement under the Ministry of Transport, Posts & Telecommunication (MTPT) is responsible for designing e-Government applications, including with respect to eProcurement. The Slovak Ministry of the Finance, its Section of Information Society, and the Slovak Government Plenipotentiary for Information Society are responsible for questions related to information society.

Finally, it should be noted that the OPP is a also Central Procurement Body that cooperates with the different levels of Government, especially with regards to public procurement, regional development planning and administrative, economic, and international cooperation1.

Procurement policy is relatively decentralized, with most contracts being prepared and managed by the contracting authorities themselves. Central support focuses mostly on providing trainings and developing an eProcurement infrastructure (specifically the EVO system prepared by the MTPT - www.evo.gov.sk). Since June 2006, the OPP manages the EVO-system and supports innovations. .

2.1.2 Action plans and strategies

For eGovernment in general, in the summer of 2008 the Slovak Government has adopted the “eGovernment Strategy of the Slovak Republic” (Stratégia informatizácie verejnej správy). The strategy created a framework for establishing clear criteria and procedures for financing e- Government. The current financing situation is exceptional due to the fact that in addition to state budget sources, the creation of e-Government will draw on the finances of the EU structural funds.

1 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 303 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Specifically with respect to eProcurement, a training and accreditation system is operated and maintained by the OPP, which licenses procurement professionals based on their qualifications and examination results. The required qualifications and procedures for achieving accreditation are clearly set out in the law. The OPP also requires continuing education and monitors the list of professionals so as to ensure that it remains accurate and up to date. Thus, the emphasis has been very much on developing and disseminating know-how between crucial stakeholders2.

The most recent policy document addressing eProcurement is the Competition strategy of Slovak Republic to 2010 (MINERVA)3, which emphasises the importance of a universally used transparent eProcurement system, without however outlining further concrete actions in that respect.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The new Directives have been transposed into national legislation by the Act on Public Procurement No. 25/2006 Coll. The new Act with its eight amendments replaces the previous laws on public procurement. For an official translation, see here for the primary act: http://www.oecd.org/dataoecd/6/35/39646945.pdf, and see following link for the Annexes to this act: http://www.oecd.org/dataoecd/6/34/39646981.pdf

2.2.1.2 Secondary Acts

The Decree of OPP No. 530 from 9 December 2009 on the Notices Used in Public Procurement contains relevant secondary rules.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

2 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf 3 See http://www.iminerva.sk/dokumenty/Englishversion.doc

Version:...... v3.1 Page: 304 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Article 16 (2) of the Public Procurement Act notes that the contracting authority will determine the permissible means of communication. In the absence of any indications to the contrary, there appears to be no legal barrier to the use of eProcurement.

2.2.1.5 Thresholds

The financial thresholds for submission to the OJEU are adapted to the Commission Regulation No. 1177/2009.

The publication in the National Journal on Public Procurement is required if the contract value net of VAT is within the limits of EU thresholds and more/equal to these national thresholds:

- 60.000 €, where a supply contract or a service contract is awarded by a contracting authority - 360.000 €, where a building works contract is awarded by a contracting authority.

2.2.2 Specific tools 2.2.2.1 eSignatures

Tenders must be signed using an electronic signature in accordance with the Act on Electronic Signatures. However, this law only defines an e-signature based on asymmetric cryptography (‘digital signature’) and does not define a technologically neutral e-signature (as the Signature Directive does by the ‘electronic signature’ concept.) Therefore, de facto the minimum type of e-signature is the advanced e-signature.

2.2.2.2 eCommunication

No known notable changes to the binding provisions of the Directives.

2.2.2.3 DPSes

The main Slovakian transposition provisions (see notably article 47 and following of the primary act, http://www.oecd.org/dataoecd/6/35/39646945.pdf) appear to be a faithful transposition of the Directives. It is interesting to note that the definition of a DPS emphatically covers supplies, services and works; apart from this matter, no major changes to the provisions of the Directives were made. 2.2.2.4 eAuctions

The main Slovak transposition provisions (see notably article 43 and following of the primary act, http://www.oecd.org/dataoecd/6/35/39646945.pdf) appear to be a faithful transposition of the Directives.

Version:...... v3.1 Page: 305 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.5 Lists of economic operators

Article 80 of the Act on Public Procurement allows contracting entities to establish a qualification system of approved suppliers/contractors/providers. Similarly, under article 128 the OPP is mandated to establish a list of entrepreneurs who have proven their capability to conclude contracts or framework agreements in public procurement and who have applied for enrolment.

The form for the application for enrolment on the list is published on the website of the Office https://www.uvo.gov.sk/zoznamy/podnikatelia/zapis07.html. The list is accessible to the public. Enrolment in the list is done with a one year validity.

2.2.2.6 Buyer’s profiles

A legal framework for buyer’s profiles is provided in article 22 and 23 of the Public Procurement Act, and TED data indicates that buyer’s profiles are used (although only rarely: 4 reported uses in 2008). This seems plausible, since other reports indicate that contracting authorities may indeed use buyer’s profiles (http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol- 2_en.pdf).

2.2.2.7 Framework agreements

Framework agreements are defined in article 11 of the Public Procurement Act as ‘an agreement in writing between one or several contracting authorities or one or several contracting entities on one hand and one or several tenderers on the other. A framework agreement determines the contract award conditions during its term of validity, particularly as regards the price and the estimated quantity of the object of contract.’

They are regulated through Article 64 of the Public Procurement Act, which follows the example of the Public Procurement Directives quite faithfully.

2.2.2.8 Electronic certificates / electronic evidences

The administrative requirements to be met are defined from Art. 26 to 30 of Public Procurement Act. The Public Procurement Act has a special provision for foreign tenderers and provides when equivalent documents delivered by competent judiciary or governmental body from the country of origin will also be accepted. In this case, if the tenderer is not established in the Slovak Republic and the country of his establishment does not issue any of the documents mentioned in the Act or any equivalent documents, then they may be replaced by a declaration on honour pursuant to the regulations in effect in the country of his establishment.

All documents that serve to determine the suitability of the tenderer may be substituted by a confirmation of enrolment in the aforementioned list of entrepreneurs.

Version:...... v3.1 Page: 306 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Slovakia is running the “Non-Mandatory National eProcurement Platform/Portal” model; there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities.

3.2 Main platform Please refer to section 1.1

3.3 Additional platforms Not available.

3.4 Figures According to the DG INFSO Benchmarking study4, Slovakia achieves a score of 32% for the availability benchmark while the European average is 56%. It scores 48% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only

4 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 307 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 308 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Slovenia

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

Name Ministry of Finances URL www.enarocanje.si Supported pre-award phases eNotification eAccess to tender eSubmission from eEvaluation and documents May 2010 award from May (green=supported; red=not 2010 supported)

Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication advanced signature based on qualified certificate required requirement

The eInvoicing and ePayment phases are not a part of the principal eProcurement platform, identified above. While ePayment was made possible separately in 2002, eInvoicing is expected to be enabled in the course of the first half of the year 2010. E-payment was made possible for all legal and natural persons, including contracting authorities, with the provisions of the Slovenian Payment Transactions Act (Official Gazette of the Republic of Slovenia, No. 30/02, 75/02, 15/03, 37/04, 39/06, 102/07 available at http://zakonodaja.gov.si/rpsi/r05/predpis_ZAKO2205.html), when it was first adopted in 2002. With this act, the Public Payments Administration of the Republic of Slovenia was established. Its formation paved the way for setting up a new payment transaction system for budget spending units. The Public Payments Administration’s mission is to perform and keep records of public finance trends within the single treasury system. The users of the Public Payments Administration’s services (budget users) are direct and indirect spending units of the state and local government budgets, which represent approximately 80% of all Slovenian contracting authorities. In line with the provisions of Rules on the Submission and Acceptance of Data from Payment Instructions and Statement of Account in Computerised Form (Official Gazette of the Republic of Slovenia, No. 117/02, 72/04, 120/05, 137/06 in 117/07, available at http://zakonodaja.gov.si/rpsi/r00/predpis_PRAV4620.html) all communication between budget users and the Public Payments Administration itself must be electronic. The manner and procedure of transactions between Public Payments Administration and Bank of Slovenia is regulated by a Technical Protocol for Data Exchange between the Public Payments Administration and Banc of Slovenia. According to the statistical data of the Public Payments Administration, 98,5% of payments are carried out electronically.

Version:...... v3.1 Page: 309 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Here are the DG INFSO Benchmarking report scores:

The following platform has been identified:

Platform Name Platform URL Ministry of Finances www.enarocanje.si

1.2 Laws and policies

1.2.1 Laws

The Directives were implemented through the Public Procurement Act and the Public Procurement in Water Management, Energy, Transport and Postal services Area Act adopted in November 2006:  Public Procurement Act (Official Gazette of the Republic of Slovenia, No. 128/2006, 16/2008, http://zakonodaja.gov.si/rpsi/r08/predpis_ZAKO4298.html).  Public Procurement in Water Management, Energy, Transport and Postal Services Area Act (Official Gazette of the Republic of Slovenia, No. 128/2006, 16/2008, http://zakonodaja.gov.si/rpsi/r09/predpis_ZAKO4299.html)

For an official translation of the Public Procurement Act and the Public Procurement in Water Management, Energy, Transport and Postal services Area Act, without the amendments adopted in February 2008, see: http://www.mf.gov.si/slov/javnar/ZJN-2_angl.pdf and http://www.mf.gov.si/slov/javnar/angl_ZJNVETPS.pdf.

1.2.2 Legally supported tools

 eSignatures: tenders must be accompanied by a secure electronic signature based on a qualified certificate (art. 67 (4) of the Public Procurement Act). In addition, they must also be timestamped and electronically archived.  DPSes: regulated via article 33 and following of the Public Procurement Act.  eAuctions: regulated via article 35 and following of the Public Procurement Act.  Buyer’s profiles: not referenced in the Public Procurement Act.

Version:...... v3.1 Page: 310 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.3 Permissibility of using eProcurement

The Public Procurement Act notes that “Tenderers may submit their tenders electronically if this is supported by the information system used by the contracting authority. The contracting authority shall inform tenderers of the possibility of electronic submission of tenders in the tender documentation.” (art. 67 (1-2)). Thus, availability of the appropriate infrastructure at the contracting authority’s side appears to be the decisive factor.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The Slovenian legal and policy framework is well developed, and has been coupled with the development of an advanced eProcurement platform, http://www.enarocanje.si. Particularly positive elements include the fact that processes supporting eProcurement have also been duly considered, including through an obligation to use time stamping and electronic archiving, which should increase the reliability and trustworthiness of the framework.

1.3.2 Weaknesses of the national situation

It is not clear to what extent eTendering functionalities are supported by the portal in practice. The most recent ePractice factsheets note that eSubmission, eEvaluation and eAward were to become available in 20091, but reports from mid 2009 noted that this goal had been delayed. Due to legislation changes to be adopted in April 2010, the availability of these phases was delayed. The new legislation envisages that contracting authorities will first rank the submitted tenders and after that check whether the tender with the lowest price or the most economically advantageous tender meets the qualification assessment criteria. The application enabling eSubmission, eEvaluation and eAward will thus have to be adapted to the new legislative changes. According to plan all three phases eSubmission, eEvaluation and eAward will be available in May 2010.The portal is presently only available in the Slovene language, which may prove to be cross border accessibility barrier.

1 See http://www.epractice.eu/en/document/288366

Version:...... v3.1 Page: 311 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The public procurement policy making body in Slovenia is the Ministry of Finance, which ensures compliance of national legislation to European standards and Directives and drafts and interprets public procurement legislation. Adoption of relevant internal acts is in jurisdiction of an individual contracting authority.

The Directorate for e-Government and Administrative Processes within the Ministry of Public Administration in cooperation with the relevant ministries and government offices develops the ICT infrastructure, as well as supports, controls and coordinates departmental ICT projects. The Ministry of Public administration also organises training courses on public procurement.

Slovenian public procurement is characterised by dispersion of contracting authorities. There is no special central purchasing body. However, the Ministry of Public Administration carries out procedures of joint public procurement for the whole central government. Joint government procurement is carried out in line with provisions of the Decree on the implementation of procedures of awarding joint public contracts for the purposes of administrative authorities2, adopted in October 2003 and amended in May 2005. On the basis of needs expressed by central government contracting authorities, the Ministry of Public Administration annually prepares a proposition of joint government procurement procedures to be carried out in the budget period. The Government adopts the plan, thus obliging all central government contracting authorities to procure through these procedures. All exceptions must be approved by the Government. In the last few years the Ministry of Public Administration carried out joint public procurement for energy, cars, computers and screens, paper, mobile phones, air tickets etc.

2.1.2 Action plans and strategies

In April 2006, the Slovenian Government adopted an action plan for the development of e- Administration in Slovenia. The strategy outlines the main actions to be taken in this area and the necessary conditions that need to be in place, in order to achieve these goals in the period 2006 - 2010. However, the action plan does not appear to relate directly to eProcurement3.

In 2009, the Ministry of Finance and the Ministry of Public Administration have started preparing an evaluation of the public procurement system in regard to implementing electronic solutions into the

2 http://www.mju.gov.si/fileadmin/mju.gov.si/pageuploads/mju_dokumenti/predpisi/Uredba_SJN- precisceno.doc 3 Source: http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot- vol-2_en.pdf

Version:...... v3.1 Page: 312 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

public procurement process. This evaluation will be a basis for determining new goals and timeframe to achieve them.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The Directives were implemented through the Public Procurement Act and the Public Procurement in Water Management, Energy, Transport and Postal services Area Act adopted in November 2006:

 Public Procurement Act (Official Gazette of the Republic of Slovenia, No. 128/2006, 16/2008, http://zakonodaja.gov.si/rpsi/r08/predpis_ZAKO4298.html).  Public procurement in water management, energy transport and postal services area act (Official Gazette of the Republic of Slovenia, No. 128/2006, 16/2008, http://zakonodaja.gov.si/rpsi/r09/predpis_ZAKO4299.html)

For an official translation of the Public Procurement Act and the Public Procurement in Water Management, Energy, Transport and Postal services Area Act, without the amendments adopted in February 2008: http://www.mf.gov.si/slov/javnar/ZJN-2_angl.pdf and http://www.mf.gov.si/slov/javnar/angl_ZJNVETPS.pdf.

2.2.1.2 Secondary Acts Secondary acts adopted on the basis of Public Procurement Act include notably: - Decision regarding publication of thresholds for public procurement procedures (Official Gazette of the Republic of Slovenia, No. 34/2008), - Decree on lists of contracting authorities, works, services, lists of products, information to be included in notices, definition of technical specifications and requirements relating to devices for the electronic receipt of tenders (Official Gazette of the Republic of Slovenia, No. 18/2007), - Decree on rules and the procedure for establishing the status of a contracting entity pursuant to the Public Procurement Act (Official Gazette of the Republic of Slovenia, No. 58/2008), - Decree on provisions for direct remuneration to the subcontractor when a contractor enters into public contract with the subcontractor (Official Gazette of the Republic of Slovenia, No. 66/2007), - Rules on types of data for the contracts awarded during the preceding year pursuant to the Public Procurement Act and the way of their collecting (Official Gazette of the Republic of Slovenia, No. 8/2009).

Secondary acts adopted on the basis of Public Procurement in Water Management, Energy, Transport and Postal services Area Act include notably:

Version:...... v3.1 Page: 313 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

- Decision regarding publication of thresholds for public procurement procedures (Official Gazette of the Republic of Slovenia, No. 34/2008), - Decree on lists of contracting authorities, community legislation, works and services, information to be included in notices, definition of technical specifications and requirements relating to devices for the electronic receipt of tenders (Official Gazette of the Republic of Slovenia, No. 18/2007), - Decree on rules and the procedure for establishing the status of a contracting entity pursuant to the Public Procurement in the Water, Energy, Transport and Postal Services Act Official Gazette of the Republic of Slovenia, No. 58/2007), - Decree on provisions for direct remuneration to the subcontractor when a contractor enters into public contract with the subcontractor (Official Gazette of the Republic of Slovenia, No. 66/2007), - Rules on types of data for contracts awarded during the preceding year pursuant to the Public Procurement in the Water, Energy, Transport and Postal Services Act and the way of their collecting (Official Gazette of the Republic of Slovenia, No. 8/2009).

All these acts are available on http://www.mf.gov.si/slov/javnar/predpisi.htm. Translation of these acts is currently not available.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is applicable to all public procurements, except: - public procurement of goods and services, awarded on the basis of Public Procurement Act and below 10.000 EUR, - public procurement of works, awarded on the basis of Public Procurement Act and below 20.000 EUR, - public procurement of goods and services, awarded on the basis of Water Management, Energy, Transport and Postal Services Area Act and below 20.000 EUR, - public procurement of works, awarded on the basis of Water Management, Energy, Transport and Postal Services Area Act and below 40.000 EUR. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

The Public Procurement Act notes that “Tenderers may submit their tenders electronically if this is supported by the information system used by the contracting authority. The contracting authority shall inform tenderers of the possibility of electronic submission of tenders in the contract documents.” (art. 67 (1-2)). Thus, availability of the appropriate infrastructure at the contracting authority’s side appears to be the decisive factor.

2.2.2 Specific tools 2.2.2.1 eSignatures

Version:...... v3.1 Page: 314 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Tenders must be accompanied by a secure electronic signature based on a qualified certificate (art. 67 (4). In addition, the law adds specifically that “Electronic tenders must be accompanied by time stamps.” (article 67 (5)). This is not problematic because this functionality is integrated in the tendering platform itself.

Finally, the law also requires that the information system of the contracting authority must enable archiving of electronic tenders in compliance with Public Procurement Act or Public Procurement in Water Management, Energy, Transport and Postal services Area Act, with the law governing electronic commerce and electronic signature, and with the law governing the preservation of documentary and archival materials and archives.

Thus, there is a substantial reliance on trusted third party services.

2.2.2.2 eCommunication

Until May 2010, when the application for eSubmission, eEvaluation and eAward within the national eProcurement platform will be operational, availability of the appropriate infrastructure at the contracting authority’s side is a decisive factor for allowing the electronic submission of tenders. One of the functionalities of the platform, established from the start, though, is submission of questions and answers regarding tender documentation via national eProcurement platform. Paragraph 2 of article 81 of the Public Procurement Act states that ”The contracting authorities are obliged to provide additional explanations relating to the contract documents on or through the procurement portal”.

2.2.2.3 DPSes

The main Slovenian transposition provisions (see notably article 33 and following of the primary act, http://www.oecd.org/dataoecd/6/33/39647089.pdf) appear to be a faithful transposition of the Directives.

2.2.2.4 eAuctions

The main Slovenian transposition provisions (see notably article 35 and following of the primary act, http://www.oecd.org/dataoecd/6/33/39647089.pdf) appear to be a faithful transposition of the Directives.

2.2.2.5 Lists of economic operators

No list of economic operators has been integrated into the Public Procurement Act, nor do any such lists exist in practice.

2.2.2.6 Buyer’s profiles

Version:...... v3.1 Page: 315 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Buyer’s profiles are not foreseen in the Public Procurement Act and the Public Procurement in Water Management, Energy, Transport and Postal services Area Act.

2.2.2.7 Framework agreements

Framework agreements are defined in article 2 subparagraph 1, point 12 of the Public Procurement Act and in article 2 point 12 of the Public Procurement in Water Management, Energy, Transport and Postal services Area Act as ”an agreement between one or more contracting authorities and one or more tenderers, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.”

They are regulated through article 32 of the Public Procurement Act and article 38 of the Public Procurement in Water Management, Energy, Transport and Postal services Area Act, which follow the example of the Public Procurement Directives quite faithfully.

2.2.2.8 Electronic certificates / electronic evidences

General provisions with regard to certificates, attestations and declarations are put down by articles 41 to 48 of the Public Procurement Act and articles 45 to 49 of the Public Procurement in Water Management, Energy, Transport and Postal services Area Act. In principle, the contracting authority may require a number of documents. However, the authority is obliged to obtain these on its own, if the document required is in public evidence. This approach is very practical for the tenderer as in consequence he must only make reference to the public body holding the documents required. In cases of certificates with personal data, the tenderer must give his authorisation that the contracting authority may retrieve the certificate from the public evidence on his behalf. For retrieval of data on fulfilment of obligations relating to the payment of taxes and social security contributions special forms were developed in cooperation with the Tax Administration of Republic of Slovenia.

There are almost no specific arrangements or provisions in the law or in practice, relating to foreign documents. The principle of non-discrimination would apply. The only case regulated by the Public procurement Act and Public Procurement in Water Management, Energy, Transport and Postal services Area Act in respect of documents relating to exclusion criteria is the following: in case foreign law does not provide for documents required in the tender (and defined as exclusion criteria), their provision can be replaced by a declaration of honour by the tenderer, before a public body (notary, court or administrative body) in that foreign state.

Version:...... v3.1 Page: 316 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction Slovenia is running the “Mandatory National eProcurement Platform” model: eProcurement policy is centralized and the use of the National Platform is mandatory for all contracting authorities.

3.2 Main platform On 26 June 2007, the eProcurement portal of the Ministry of Finance became operational. The Ministry of Finance immediately dispatched a notification of the establishment of the portal to all Slovenian contracting authorities. The eProcurement portal is managed by the same company that publishes the Official Gazette of the Republic of Slovenia, so the transition of publication of notices was fairly smooth. All aspiring tenderers are able to view and search for public procurement opportunities free of charge and without having to register or authenticate their identification on the national portal for public procurement “Portal javnih naročil”, which is similar to TED (Tenders Electronic Daily). Within the framework of the portal, an application “Electronic Procurement System” will be set up in May 2010 for e-tendering (phases eSubmission, eEvaluation and eAward). Contracting authorities will be able and encouraged to use the application free of charge. In an electronic award procedure tenderers are able to submit bids electronically or on paper, which ensures non-discriminative treatment of all tenderers. A tenderer who submits a bid electronically must authenticate its identity with a digital certificate. In an electronic award procedure all bids can be opened and processed by the application for electronic procurement automatically. Data from bids submitted on paper is entered in the application after the opening of both electronic and paper bids and afterwards processed electronically by the application operated by the contracting authority. The application is currently in the phase of testing production environment and adoption to the new legislation to be adopted in April 2010. The application will be operational in May 2010.

3.3 Additional platforms Not available.

3.4 Figures According to the DG INFSO Benchmarking study4, Slovenia achieves a score of 77% for the availability benchmark while the European average is 56%. It scores 39% for the Pre-Award Process Benchmark while European average is 59%.

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

4 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 317 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 318 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Spain

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The following table provides a global evaluation of the supported tools and phases of eProcurement systems in this country, and does not necessarily reflect the capabilities of any particular site.

Name Plataforma de contratación del estado URL http://www.contrataciondelestado.es Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through eInvoicing ePayment (green=supported; red=not eCatalogues supported) Supported tools (green=supported; red=not DPS eAuctions Buyer’s Profiles supported)

Signature / authentication advanced signature, qualified signature from national eID card requirement

Here are the DG INFSO Benchmarking report scores:

The following platforms have been identified:

Platform Name Platform URL Plataforma de contratación del estado http://contrataciondelestado.es /

Version:...... v3.1 Page: 319 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Electronic Contracting Platform of Public Administration for some local authorities in the http://www.pecap.org/ region of Catalonia Spanish Agency of Medicines and Health http://www.agemed.es/actividad/licitacionPublica/ Products http://www.aesan.msc.es/AESAN/web/licitaciones_ Spanish Agency for Food Security and Nutrition publicas/licitaciones_publicas.shtml/ http://www.ingesa.msc.es/ciudadanos/licitaciones/in National Institute of Health Management dex.jsp/ http://www.pnsd.msc.es/Categoria4/licitaciones/licit National Drug Plan acion.htm/ CONECTA-PATRIMONIO http://catalogopatrimonio.meh.es

1.2 Laws and policies

1.2.1 Laws The central act is the Law 30/2007, of 30 October 2007, of Public Sector Contracts (PSC, hereinafter the 'Public Procurement Act'); see http://www.060.es/te_ayudamos_a/legislacion/disposiciones/39482_LEG-ides-idweb.html.

1.2.2 Legally supported tools

 eSignatures: qualified signatures must be used (19th Add. Prov. to the Public Procurement Act).  DPSes: supported through Art. 43 and following of the Public Procurement Act.  eAuctions: supported through Art. 132 and following of the Public Procurement Act.  Buyer’s profiles: supported through Art. 42 and following of the Public Procurement Act.

1.2.3 Permissibility of using eProcurement In accordance with the Nineteenth Additional Provision with the Public Procurement Act, electronic means can be used provided that they meet the requirements of this Additional Provision (which correspond broadly to the communications provisions of the Directives. Thus, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

Spain has a highly advanced technical e-Procurement systems, backed by an advanced eGovernment system in general. The existence of clear national laws defining aspects such as security, confidentiality, transparency and accessibility, ensures that all these criteria are well represented. In

Version:...... v3.1 Page: 320 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

general, e-procurement systems are in an advanced state of maturity in Spain. Considerable efforts are being made to introduce organizational control at a national level.

1.3.2 Weaknesses of the national situation

The main challenge of the Spanish situation is linked to the complexity of the public administration, split among national, regional and local institutions. As in some other European countries (e.g. Italy), the complexity of the public administration may be potentially a barrier to the full implementation of an e-Procurement system that scores optimally and that has the potential to be very efficient.

Version:...... v3.1 Page: 321 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Public procurement, including e-Procurement, involves the responsibility of several public entities in Spain. In particular, policy making with respect to e-Procurement is done through interaction between several administrations, including most notably:

 The Ministry of Economy and Property, who is the main responsible entity for policy making of the public procurement sector. The Directorate General of State Patrimony within the Ministry has the competence of the normative development concerning procurement, and e- procurement in particular. It is also responsible for centralized procurement, as it will be shown below;  the Ministry of Public Administration Territorial Policy, that is responsible for steering the development and implementation of e-Government in the State administration. These tasks are carried out by the Directorate General for Administrative Modernization within the Ministry;  the Ministry of Economy and Property, that is in charge of the development, proposal and execution of the economical policy of the Government, especially of the State budgets, the control of public companies and the taxes levying. It also plays an active role in the policy making of the public procurement sector. The Directorate General of State Patrimony within the Ministry is responsible for the centralized procurement, as it will be showed below;  the Ministry of Trade, Industry and Tourism, which is responsible for drafting public procurement policy in collaboration with other Ministries, as well as for drafting eInvoicing technical specifications and the promotion of eGovernment and eProcurement solutions for small and medium enterprises (SMEs)  Higher Council for Electronic Administration, that is an inter-ministerial organism chaired by the Ministry of Public Administration and tasked with the preparation/development of the e- Government strategy and policy for the central administration.

Even with respect to technical solutions several bodies are involved. In particular, the Directorate General of State Patrimony, Sub-Directorate General of Purchasing (Ministry of Economy and Property) is responsible for centralised procurement (central procurement system, as will be discussed further below); while 'Red.es' (operating under the Ministry of Trade, Industry and Tourism, see http://www.red.es/index.action) is a state-owned company whose role is to encourage, support and monitor the use of ICT in Spain, including in the public sector. Among others, it maintains an 'Observatory on Telecommunications and the Information Society' and provides consulting and support services to central and local administrations. Red.es operates in line with the strategic priorities set by the State Secretariat for Telecommunications and the Information Society (SETSI).

To summarize the situation, one entity (the Directorate General of State Patrimony) is in charge of public procurement as such, developing strategies, policy, technical specifications and ICT tools for electronic public procurement while Red.es is in charge of the application of ICT-tools to public procurement, and managing the Central Purchasing Body for the central administration.

Version:...... v3.1 Page: 322 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

With respect to technical solutions, the platform 'Plataforma de Contratación del Estado' (Platform for State Contracting), accessible at http://contrataciondelestado.es is managed by the Directorate General of State Patrimony, Advisory Board for Administrative Contracting and Sub Directorate General of eProcurement Coordination, and contains all the information about procurement at the central administration level. This platform lists all the business opportunities at the national level (and, if the regional/local authorities so wish, also at the regional and local level) and provides buyers and economic operators with value added services, such as alerts about interesting opportunities, or a connection with the official journals.

The Directorate General of State Patrimony, Sub-Directorate General of Purchasing (Ministry of Economy and Property) is responsible for centralized procurement (the central procurement system), being the central purchasing body for public administrations at the national level, but also open to regional and local authorities on a voluntary basis. Its services relate to goods and services that are commonly used by several or all State departments and constitutes the so-called 'State Central Acquisition System'. Some regions also manage their own central acquisition systems.

The Spanish central purchasing body serves public administrations through the platform 'Conecta Patrimonio' (Tender and Electronic Contracting System of the Directorate General of State Patrimony), accessible at http://catalogopatrimonio.minhac.es/pctw/. This e-Procurement System website covers eTendering and e-Ordering based on framework agreements and the e-Procurement System of the Directorate General of State Patrimony and composes the so-called 'State Central Acquisition System'. The State departments can select the required goods and services from those available in the website and buy them. The system is aimed at central public administrations but it is open to regional and local authorities. . Buyers can buy any of the goods and services included in the catalogue, and are obliged to buy through this central body any goods or services which are included in it.

Another portal, 'Contratación' (Platform for State Contracting), accessible at http://contrataciondelestado.es/wps/portal/plataforma, managed by the Directorate General of State Patrimony, Advisory Board for Administrative Contracting, lists all tenders and possibilities of public procurement at national level (and, if the regional/local authorities so wish, also at regional and local level).

As regards the role of central and regional/local authorities, it has to be said that in Spain public procurement in the traditional public sector as well as in the utilities sector follows a mixed decentralized/centralized approach. Although contracting authorities are responsible for their own procurement needs and thus may directly submit their notices in an independent fashion, there is a growing centralization tendency (see above). In this context, the abovementioned central purchasing body plays a pivotal role and its aim is to render all procurement transactions, from the tender to the delivery phase, fully electronic. None the less, advanced e-Procurement solutions can be developed and offered at the regional level as well (see e.g. the platform of the Basque Region at http://www.ogasun.ejgv.euskadi.net/r51-3712/en/).

2.1.2 Action plans and strategies The Spanish strategy for electronic public procurement is based on the following projects: CODICE As a central pillar of Spanish eProcurement, the Directorate General of State Patrimony has developed the CODICE, containing the technical specifications for electronic procurement processes,

Version:...... v3.1 Page: 323 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

considering the documents interchanged between the actors taking part in the awarding process. It defines a set of electronic documents and components which travel between the information systems of buyers and providers. The aim of this project is to normalize the eProcurement process, taking part in the CEN/BII workshop (CODICE is the base for the pre-awarding profiles defined in this workshop) and reusing the UN/CEFACT Core Components Technical Specifications. CODICE documents are being included in the set of UBL 2.1 documents held by OASIS.

This project is part of the general objective to provide the General State Administration with a technological environment, tools and services that enable the contracting authorities to electronically process their procurement procedures, and to provide the best integration and interoperability of the e- Procurement procedures with the contracting authorities’ current or future information systems, and of tenderers or potential tenderers, facilitating maximum use by all economic operators interested in accessing public procurement contracts, also focused on transnational interoperability. The Official Registry of Tenderers and Classified Companies (‘Registro Oficial de Licitadores y Empresas Clasificadas del Estado’, ROLECE) This registry will hold all the information voluntary inscribed by economic operators needed to take part in public awarding processes. The aim of this registry is to simplify the tendering phase by reducing the administrative burdens. Evidences for tenderers qualification are evaluated once, and the result of the evaluation can be verified with a certificate. This Registry is fully electronic relying on open standards, and can deliver electronic certificates. It allows the validation of issued certificates through an electronic connection. CONECTA-PATRIMONIO The State Central Acquisition System, established within the framework of the General State Administration, its autonomous Organizations, Management bodies and Common Services of the Social Security and other state public sector organizations, can be used as well by the other public organisms (Regional – i.e. of the Autonomous Communities – Governments, Local Councils, their autonomous Organizations and public bodies), as explained above. Inclusion in the centralized system can be done for all or specific categories of goods and services, through adhesion agreements with the Directorate General of State Patrimony. Spanish eProcurment Platform (‘Plataforma de Contratación del Estado’) The Spanish eProcurement Plataform (http://contrataciondelestado.es) is meant to be the electronic marketplace for public procurement of state departments, and other public administration that chose to join it. It will provide buyers and providers with all the services required to develop the electronic procurement process. It will eventually integrate all the services provided by the Directorate General of State Patrimony such as the Official Registry of Tenderers and Classified Companies, and CONECTA- PATRIMONIO.

In light of these considerations, two main trends shall be highlighted: first of all, the Spanish government is active in promoting the diffusion of ICT within the public administration, with particular attention devoted to e-Procurement. Furthermore, the central government is willing to set up an efficient model (the State Central Acquisition System) that can be accessed and used also by regional and local authorities.

Version:...... v3.1 Page: 324 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The main Act in the field of public procurement and e-Procurement in Spain is the Law 30/2007, of 30 October 2007, of Public Sector Contracts (PSC, hereinafter the 'Public Procurement Act'), approved to fully implement the EU Directive 2004/18/CE. This law regulates the procedures to be followed in the field of public procurement as well as the effects of the contracts entered into between the purchasing authorities and the economic operators.

As regards public procurement and utilities, the applicable Act is the Law 31/2007, of 30 October 2007 (Law about proceedings for contracting in the sectors of water, energy, transports and portal services). If not explicitly mentioned, the Act taken into account in the following lines is the Public Procurement Act, and we will refer always to this Law.

2.2.1.2 Secondary Acts

The Public Procurement Act is supported by acts of secondary legislation, i.e.:

 Royal Decree 1098/2001, which will be soon substituted by a new Royal Decree developing the Law 30/2007.  Royal Decree 817/2009 of 8 May 2009 for the partial development and implementation of the Law 30/2007 (the Decree is focused, among others, on specific aspects of the companies’ classification and the Official Register of Tenderers and Classified Entities);  Order EHA/1049/2008 of 10 April 2008 for the declaration of goods and services for the State Central Acquisition System.

2.2.1.3 Regulatory autonomy

The central State is competent to set forth the legal framework in the field of public procurement and e-Procurement. Regions (Autonomous Communities), on the other side, have freedom as regards the implementation of the public procurement systems.

2.2.1.4 Permissibility of using eProcurement In accordance with the Nineteenth Additional Provision with the Public Procurement Act, electronic means can be used provided that they meet the requirements of this Additional Provision (which correspond broadly to the communications provisions of the Directives. Thus, there appears to be no legal barrier to the use of electronic means.

Version:...... v3.1 Page: 325 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.5 Thresholds

As regards thresholds, publication in the National Official Journal and/or in the relevant regional Journals of the autonomous Communities and local authorities takes place for all notices the value of which is equal or above 50.000 €. for works contracts and 18.000 € for the rest. Publication in the Official Journal of the European Union is required for works contracts over 4.845.000 €, and goods and services contracts over 125.000 € or 193.000 € depending on the nature of the contracting body and the object of the contract.

2.2.2 Specific tools 2.2.2.1 eSignatures

As regards e-Signature, the advanced electronic signature based on a qualified certificate and generated via a secure-signature-creation-device must be used (19th Add. Prov. to the Public Procurement Act), as provided forth by the Spanish Law on electronic signature (see Art. 3(3) of the Law 59/2003 of 19 December 2003 about electronic signature). Voluntary accreditation schemes are recognised in the Spanish public procurement system. In fact, a contracting authority may require the tenderers’ prior registration1 in the Official Registry of Tenderers and Classified Companies, which is a list of approved economic operators ('Registro Oficial de Licitadores y Empresas Clasificadas' (ROLECE). Actually there is one list at the state level, but the Spanish regions may choose to also have a regional ROLECE.

2.2.2.2 eCommunication

As regards e-Communications in general, a small addition has been made compared to the applicable EU legislation. The Nineteenth Additional Provision to the Public Procurement Act notes that “programs and applications necessary for the electronic submission of tenders or requests to participate must be in widespread use, easily accessible and non discriminatory, or shall be made available to interested parties by the contracting authority.” (19th Add. Prov., section c). The italicised part is an addition compared to the provisions in the EU legislation.

The 19th Add. Prov. adds two additional rules as well:  In procedures for awarding contracts, electronic delivery of tenders may be done in two phases: first by transmitting only the electronic signature of the offer, the receipt of which will be considered to complete submission, followed secondly by the actual submission within a maximum of 24 hours delay. In the absence of timely receipt of the full bid, it shall be deemed to have been withdrawn (section h);  The formats of submitted electronic documents must conform to specifications publicly available and not be subject to usage restrictions that ensure the free and complete access to them by the contracting authority, the oversight and control bodies, the courts and

1 The Official Registry of Tenderers and Classified Companies uses eSignature, but eSignature is not validated through this registry. Power of attorney can be verified through this registry, but both for electronic or conventional signature.

Version:...... v3.1 Page: 326 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

stakeholders, during the period for which records should be retained. In procedures for awarding contracts, acceptable formats should be indicated in the notice or the contract.

2.2.2.3 DPSes

Dynamic Purchasing Systems are provided for by Art. 43 and following of the Law 31/2007 of 30 October 2007 that regulates public procurement in the utilities sector.

Minor gold plating has occurred in the applicable provisions of the main Act (see article 183 at http://www.060.es/te_ayudamos_a/legislacion/disposiciones/39482_LEG-ides-idweb.html). It is interesting to note that the definition of a DPS (art. 183.1) emphatically covers supplies, services and works.

The law specifies that there is a 15 day period to evaluate indicative tenders (as per the Directives), and allows a two day period after that to notify economic operators of the outcome (art. 185).

Article 186 contains some further procedural clarifications, including the fact that the 15 day period to submit indicative offers begins counting when a notice is sent to the EU; that the period to submit specific bids must be determined keeping into account the time needed to prepare the bids and the complexity of the contract; and that the outcome of the procedure must be announced within 48 days after the decision has been made.

Available data shows that between 2006 and 2008, 454 contract awards notices (forms 3 and 6) were filed indicating that a DPS was established. 1 simplified notice indicating the possibility to use a DPS (form 9) was received in that same period. In addition, a representative of the Spanish government declared in a recent e-Procurement Working Group meeting (unreported) that DPSes were certainly not established to the extent indicated by the official notices2. Thus, at least some of the official notices appear to have been filed in error.

2.2.2.4 eAuctions

Article 132 of the Public Procurement Act is specifically devoted to electronic auctions, and the Spanish provisions are consistent with those set forth by the applicable EU legislation.

2.2.2.5 Lists of economic operators

A list of approved economic operators will be held through the so called Official Register of Tenderers and Classified Companies ('Registro Oficial de Licitadores y Empresas Clasificadas', ROLECE), provided for and regulated by Art. 301 of the Public Procurement Act. According to Art. 302 the Autonomous Communities may establish their own Official Registers.

2 With 'official notice' we mean the notices published on TED (Tenders Electronically Daily), online version of the 'Supplement to the Official Journal of the European Union' dedicated to European public procurement, http://ted.europa.eu/Exec?DataFlow=ShowPage.dfl&Template=TED/editorial_page&hpt=&StatLang=E N&embedded=embed.

Version:...... v3.1 Page: 327 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The Registers will contain relevant information about the companies willing to be involved in the public procurement value chain. It is important to highlight that the registration is fully voluntary and that every company can decide which data will be indicated and included in the Registries. In any case, according to the 19th Add. Prov. of the Public Procurement Act, in practice, as requisite for the processing of the proceedings to adjudicate contracts via electronic means, the contracting authorities may require that tenderers are previously enrolled in the abovementioned Official Register (and in fact previous registration in the Register is required to submit via electronic means proposals for the open proceedings for the conclusion of framework agreements). However, contracting authorities may require Spanish participants to be classified, meaning they must be certified by Spanish Administration on their technical and economical capability to execute specific works or services contracts. In this case this classification is registered in the Official Register of Tenderers and Classified Companies.

2.2.2.6 Buyer’s profiles

Buyer profiles are regulated by Art. 42 of the Public Procurement Act. Such profiles may contain all data the buyer finds useful and relevant, including information about pending and past tenders and purchasing opportunities (together, of course, with contact details).

From the practical point of view, a representative of the Spanish government declared in a recent e- Procurement Working Group meeting (unreported) that buyer profiles were integrated in the central procurement system, but that their use was not always confirmed in the official notices3.

2.2.2.7 Framework agreements

Art. 180 and following of the Public Procurement Act regulates framework agreements, in a way consistent with the applicable EU legislation. Such agreements will be published in the buyer profile and in the Official Journal of the State or of the Autonomous Community/Provinces.

In practice, the abovementioned State Central Acquisition System (http://catalogopatrimonio.mehminhac.es/pctw/) relies on framework agreements with the suppliers. In addition, contracting authorities are free to establish their own framework agreements with suppliers, either on their own or with other contracting authorities.

2.2.2.8 Electronic certificates / electronic evidences

Art. 72 of the Public Procurement Act states that, through the Official Register of Tenderers and Classified Companies, certificates can be issued for accrediting before all the contracting authorities of the public sector, based on what is stated in it and unless there is evidence otherwise, the conditions

3 Standard form 8 “Notice on a buyer profile” is not sent when a previous information notice is published on the buyer profile, but the whole notice is sent instead using standard notice 1. This is the reason why these buyer profiles may not be always confirmed in the official notices

Version:...... v3.1 Page: 328 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

for the entrepreneur’s competency regarding its personality and capacity to perform, representation, professional or business qualification, economic and financial solvency, and classification, as well as any procurement prohibitions that must be stated in it.

At regional level (i.e. at level of Autonomous Communities), the registration in the Official Register of Tenderers and Classified Companies of a Regional Government will accredit identical circumstances for the purposes of the procurement with it, with the local bodies included in its territorial scope, and with the other public sector bodies, organizations and agencies that report to them. Proof of the content of the Official Registers of Tenderers and Classified Companies is done via a certificate from the body in charge of it, which can be issued by electronic, IT or telematic means.

Evidence of the content of the Official Registers of Tenderers and Classified Companies is done via a certificate from the body in charge of it, and can be effectively issued by electronic means, as stated in article 72(2) of the Public Procurement Act.

The 19th Add. Prov. of the Public Procurement Act regulates the use of electronic, IT and telematic means in the public procurement procedures in the following way:

 They must not discriminate; they must be available to the public and be compatible with information and communication technologies of general use;  The information and technical specifications required for the electronic submission of the offers and requests for participation must be available to all the interested parties; they must not discriminate and must be in line with open standards of general use and broad implementation;  The programs and applications required for the electronic submission of the offers and requests for participation must be of wide use, easy access and non-discriminatory, or they must be made available to the interested parties by the contracting authority;  The systems for communications and for information exchange and storage must guarantee in a reasonable way, depending on the status of the technology, the integrity of the data transmitted and that only the competent bodies, on the date stated for this, can access them or that, in case of breaking that access prohibition, the breach can be clearly detected;  The applications used for making the communications and notifications and sending the documents between the tenderer or contractor and the contracting authority must be able to accredit the date and time of their issue or reception, the integrity of their content, and their sender and addressee. In particular, those applications must ensure that there is record of the exact time and date of the reception of the proposals or of the requests for participation and of any documentation that must be submitted to the contracting authorities;  All the actions and manifestations of willingness by the administrative bodies or tenderers or contractors that have legal effects and are issued in both the preparation phase and in the phase of calling the tender, awarding and executing the contract and must be authenticated via a recognized electronic signature in accordance with the abovementioned national Electronic Signature Law. The electronic, IT and telematic means used must ensure that the signature conforms to the provisions of that law.

Version:...... v3.1 Page: 329 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction As for all government processes, in the last years there has been a trend towards aggregation and rationalization of purchasing processes to achieve economies of scale and scope. This has led to the emergence of centralized procurement agencies at the national and territorial level. As in many countries, Spanish national infrastructure for eProcurement has evolved into fully-fledged portal, guiding authorities to select procurement tools or services according to their needs. Spain is running the “Non-mandatory National eProcurement Platform” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities. The National eProcurement Platform is mandatory for Central Government Contracting authorities.

3.2 Main platforms  Spanish eProcurement Platform (Plataforma de Contratación del Estado) The aforementioned “Spanish eProcurement Plataform” (contrataciondelestado.es) is the main platform, providing both economic operators and public organizations with all the services to perform the whole electronic procurement process. This platforms holds all the information about the contracting activity of the central administration, and an increasing number of local authorities. This platform is managed by the DG for State Patrimony (Ministry of Economy and Treasury)  CODICE The DG for State Assets Patrimony (Ministry of Economy and Treasury), has developed the CODICE4, a project that states the master guidelines for the legal policy of eProcurement in Spain. This project forms part of the general objective to provide the General State Administration with a technological environment, tools and services that enable the contracting authorities to electronically process their procurement procedures, and to provide the best integration and interoperability of the eProcurement procedures with the contracting authorities’ current or future information systems, and of tenderers or potential tenderers, facilitating maximum use by all the economic operators interested in accessing public procurement contracts.  Cross border accessibility: The CODICE project has been the base of the pre-awarding profiles in the CEN/BII workshop for the development of a common set of specifications for public electronic procurement in Europe. Therefore Spanish government is committed with the common objective of facilitating cross-border accessibility, although there are still some important obstacles like the mutual recognition of certificates, and digital signature requirements.

 Centralised Acquisition System The centralised acquisition system of goods and services, established within the framework of the General State Administration, its autonomous Organisations, Management bodies and Common Services of the Social Security and other state public sector organisations, can be used as well by the other public organisms (Regional Governments, Local Councils, their autonomous Organisations and

4 Technical description of the CODICE, accessible at http://contrataciondelestado.es/wps/portal/codice

Version:...... v3.1 Page: 330 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

public bodies)5. Inclusion in the centralised system can be done for all or specific categories of goods and services, through adhesion agreements with the General Directorate of State Assets. Cross-border accessibility: Possibility of access by non-nationals at the bid presentation will be decided case by case by the contracting organ. The application supports all non-national signatures admitted by the @firma platform (which at present already admits the Portuguese eID card).

3.3 Others platforms Regional authorities and some municipalities may manage their own eProcurement platform, independent of the Spanish eProcurement platforms mentioned above.

3.4 Figures According to the DG INFSO Benchmarking study6, Spain achieves a score of 78% for the availability benchmark while the European average is 56%. It scores 64% for the Pre-Award Process Benchmark while European average is 59%.

Spain reports7 cost savings of about 10% on average market price; however this is not linked to specific eProcurement methods.

Spain is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: epSOS, STORK, BEST Energy, CLEAR, CommonWell, Dreaming, DTV4All, eGOS, FREILOT, HosPilot, iSAC6+, Long lasting Memories, NEXES, REACH112, Rural Inclusion, SOCIABLE and T-SENIORITY.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper and unsigned electronic document8 natural persons absence of conviction for Paper and unsigned electronic document legal persons non-bankruptcy and financial Paper and unsigned electronic document status compliance with social Paper and unsigned electronic documents security obligations compliance with fiscal Paper and usigned electronic documents9

5 Adhesion procedure explained at http://catalogopatrimonio.minhacmeh.es/pctw/como_adh.aspx

6 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf 7 See http://catalogopatrimonio.minhac.es/pctw/norm_proc.aspx 8 ROLECE certificate may be issued electronically (and depending on the Specifications, it may be directly incorporated to the tendering file by the contracting authority).

Version:...... v3.1 Page: 331 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

obligations economic and financial Paper and unsigned electronic document standing professional qualification Not applicable technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

9 See www.aeat.es

Version:...... v3.1 Page: 332 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Sweden

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The Swedish Government has not implemented a central electronic public procurement portal, as this is deliberately left up to private operators. Several privately owned and operated platforms and portals exist instead, which concentrate on pre-award public procurement (e.g. Opic and Allego)1. In addition to this there are a number of post-award eProcurement solutions for eOrdering and eInvoicing which are not covered by the DG INFSO Benchmarking study.

Name Various private platforms URL Refer to table below Supported pre-award phases eNotification eAccess to tender eSubmission eEvaluation and documents award (green=supported; red=not supported) Supported post-award phases eOrdering through eInvoicing ePayment eCatalogues (green=supported; red=not supported) Supported tools DPS eAuctions Buyer’s Profiles (green=supported; red=not supported) Signature / authentication Advanced signatures. The ChamberSign application allows aspiring tenderers to register requirement and submit a bid electronically if the public authority has chosen to use this solution. Subsequently the bid is opened and processed electronically by the contracting authority.

Here are the DG INFSO Benchmarking report scores:

1 Source : http://www.epractice.eu/en/document/288382

Version:...... v3.1 Page: 333 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms have been identified for the purpose of the DG INFSO Benchmarking:

Platform Name Platform URL avropa http://www.avropa.se/ Allego http://www.allego.se/ Opic http://www.opic.se/ Mercell http://www.mercell.se/ Eniro procurement http://www.eniroupphandling.se/

1.2 Laws and policies

1.2.1 Laws Public procurement in Sweden is regulated by the Swedish Public Procurement Act (2007:1091) (http://www.notisum.se/rnp/sls/lag/20071091.HTm), and the Swedish Utilities Procurement Act (2007:1092) (http://www.notisum.se/rnp/sls/lag/20071092.HTm), which came into force on 1 January 2008, and the Act on Free Choice Systems (http://www.notisum.se/rnp/sls/lag/20080962.htm) which came into force on 1 January 2009.

1.2.2 Legally supported tools

 eSignatures: contracting authorities may (but are not obliged to) require the use of an advanced e-signature (Chap. 9 §3).  DPSes: not supported.  eAuctions: not supported.  Buyer’s profiles: defined in Chapter 2, Art. 20.

1.2.3 Permissibility of using eProcurement In accordance with Chap.9 §1 of the Act, offers must be submitted in writing, which includes electronic means, unless indicated otherwise. Thus, by default, eProcurement is permitted, and can even be made mandatory by the contracting authority.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

One of the main strengths of the Swedish situation lies in its pragmatic approach to eProcurement and in its relatively light legal framework. Institutional involvement focuses mostly on ensuring that the principles of free competition, efficiency (including cost efficiency and reduction of State's expenses) and non-discrimination are observed.

Version:...... v3.1 Page: 334 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

A second strong point is its systematic use of framework agreements, which has been a staple for Swedish procurement for many years now, and which has been used to realise efficiency improvements and savings.

1.3.2 Weaknesses of the national situation

A potential weakness lies in the strongly decentralised approach to developing eProcurement infrastructure, which could lead to less consistency in user experience and in inefficiencies due to economic operators being required to use multiple systems that may have different requirements. One could assume that the existence of a centralised portal of a central purchasing body might increase the efficiency of the system, but the Swedish authorities rejected this option in order to leverage the benefits of free competition in the market.

Version:...... v3.1 Page: 335 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

Since 1 September 2007, the Swedish Competition Authority (Konkurrensverket) is responsible for monitoring and assuring compliance with applicable national laws, regulations and principles in the area of public procurement. The vision of the Konkurrensverket, http://www.konkurrensverket.se/t/Page____490.aspx) is welfare through well functioning markets.

The Swedish Competition Authority acts in light of the following principles/missions:  procuring authorities being aware of their options regarding procurement and that they avoid violating the Swedish Public Procurements Act;  suppliers have the opportunity and are willing to take part in procurements;  small and medium sized enterprises participation in procurements;  report whether there is legislation or customs contraindicating a public procurement and how in such a case it is expressed;  prior publication of a contract notice.

The Swedish National Financial Management Authority (Ekonomistyrningsverket; see http://www.avropa.se/upload/Dokument/Yttranden,%20rapporter,%20pm/In%20english%20for%20avr opa.se_2009.pdf) has a government assignment regarding procurement coordination where the main objectives are to:  obtain savings for the government by effectively coordinating government procurement and purchasing;  obtain better conditions and lower costs for the public administrations agreements or other common agreements.

The Swedish National Financial Management Authority was also responsible for the introduction of electronic invoicing for public authorities under the government (mandatory as of 1st of July 2008) and currently has an ongoing assignment to introduce electronic ordering (as of 1st of January 2013).

The Legal, Financial and Administrative Services Agency (Kammarkollegiet) received a government assignment in 2009 to lead the development of Swedish pre-award eProcurement, thus enabling full electronic support for the procurement process. This final phase of the Swedish Action Plan for eGovernment has not yet received a final date for implementation and the exact scope of the introduction of electronic support for pre-award eProcurement is currently being defined by the agency in cooperation with relevant stakeholders.

Version:...... v3.1 Page: 336 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

As regards responsibility for technical solutions, each organization, central authority, County, Municipality or Council is in principle responsible for its own solution. Public procurement in Sweden is highly decentralized, and the central authority (the Competition Authority) has limited responsibilities in the field (as regards technical aspects). Single Face To Industry (SFTI), a joint initiative between the Swedish state and the Swedish Association for Local Authorities and Regions, has however played an important role in the development of Swedish standards for public electronic procurement and technical interoperability, especially within the field of post-award eProcurement.

The high level of decentralization also means that Sweden does not have a central purchasing body. There are instead many public procurement portals set up by different private entities; for an overview please refer to http://www.epractice.eu/en/document/288382. The main role of the Competition Authority against that backdrop, in fact, is that of controlling that public procurement procedures follow the law and the principles of impartiality and competition.

2.1.2 Action plans and strategies

The Swedish Government's National Action Plan for eGovernment was presented in 2008 (http://www.regeringen.se/content/1/c6/09/65/12/4ffd1319.pdf). The action plan divides the implementation of electronic public procurement into three steps.

1. The first step involves the introduction of electronic invoicing for the Swedish public sector. The introduction of eInvoicing was coordinated by the Swedish National Financial Management Authority and electronic handling of all ingoing and outgoing invoices by public authorities under the state was made mandatory as of the 1st of July 2008. 2. The second step involves the introduction of electronic ordering for the Swedish public sector. This step is also lead and coordinated by the Swedish National Financial Management Authority and was launched in 2008. The introduction of eOrdering for public authorities is to be finished by the 1st of January 2013. 3. The third step is the introduction of IT support for the procurement process, in this context referring mainly to the pre award process, thus ensuring that the procurement process can be conducted electronically from identified need to invoice and payment. This task has been entrusted to the Legal, Financial and Administrative Services Agency in 2009 and as of yet there is no final date set for this phase.

Furthermore, it is interesting to point out that the Swedish government deliberately did not set up a centralised purchasing/public procurement portal, but instead it left the initiative to private operators. This may potentially increase the efficiency of the system and reduce the prices of goods and services for public authorities.

Version:...... v3.1 Page: 337 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

Public procurement in Sweden is regulated by the Swedish Public Procurement Act (2007:1091) (http://www.notisum.se/rnp/sls/lag/20071091.HTm), the Swedish Utilities Procurement Act (2007:1092) (http://www.notisum.se/rnp/sls/lag/20071092.HTm), which came into force on 1 January 2008, and the Act on Free Choice Systems (http://www.notisum.se/rnp/sls/lag/20080962.htm) which came into force on 1 January 2009.

In addition, it is worth noting that public procurement below the thresholds is also relatively thoroughly regulated. Procurement below the thresholds, or contracts related to services according to appendix 3 B-services, or any procurements conducted in the field of defence and which is related to article 346 of the Lisbon Treaty, or is declared to be secret or other specific restrictions considering national security, are only subject to certain procedures stated in chapter 15 and 16 in the Public Procurement Act (2007:1091) and Utilities Procurement Act (2007:1092).

2.2.1.2 Secondary Acts

The main secondary regulation is the Regulation (SFS 1998:796) regarding the coordination of government procurement (binding for 252 government agencies), enacted in order to bring about savings for the State and to set forth rules in the field of framework agreements.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy. However, the Act on Free Choice Systems does at this point only apply to municipalities and county councils. The act is an alternative to the Public Procurement Act (2007:1091) and can be applied to health care services and social services, i.e. B services, category 25 in annex 3 to the Public Procurement Act.

2.2.1.4 Permissibility of using eProcurement

In accordance with Chap.9 §1 of the Act, offers must be submitted in writing, which includes electronic means, unless indicated otherwise. Thus, by default, eProcurement is permitted, and can even be made mandatory by the contracting authority.

2.2.1.5 Thresholds

Version:...... v3.1 Page: 338 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

National thresholds (Chapter 3, Art. 1 of the Act) correspond to those “the Commission of the European Communities has decided from time to time or given notice of”.

2.2.2 Specific tools 2.2.2.1 eSignatures

As regards e-Signature requirements, Chapter 9, Art. 3 of the Act points out that “A contracting authority may require that electronic tenders shall be furnished with an advanced electronic signature according to the Qualified Electronic Signature Act (2000:832).” Thus, electronic tenders may, if the purchasing authority so wishes, be furnished with an electronic signature that guarantees security standards, i.e. an advanced e-signature.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in Sweden.

2.2.2.3 DPSes

No provisions with respect to dynamic purchasing systems have been included in the Swedish legislation.

2.2.2.4 eAuctions

No provisions with respect to eAuctions have been included in the Swedish legislation. There is however a proposal currently on remit to the Swedish Council on Legislation to introduce eAuctions in Swedish procurement legislation as of 1st of July 2010.

2.2.2.5 Lists of economic operators

Official lists of economic operators in countries within the European Economic Area are recognised in Sweden and those operators are deemed to satisfy the preconditions set forth by the Act (see, in particular, Chapter 11, Art. 16 of the Act).

The Act, however, does not provide for the possibility to have official lists of economic operators in Sweden (i.e. lists kept by Swedish authorities).

2.2.2.6 Buyer’s profiles

Version:...... v3.1 Page: 339 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Buyer profiles are defined in the Act in accordance with the EU legislation. Chapter 2, Art. 20 defines a buyer profile as “a compilation of details available on the Internet and which contains information about the contracting authority and its procurements”, without adding any further specification.

2.2.2.7 Framework agreements

Framework agreements are frequently used in Sweden and are an important part of the Swedish public procurement system. Pursuant to Chapter 2, Art. 15 of the Act, framework agreement “means an agreement concluded between one or more contracting authorities and one or more suppliers, the purpose of which is to establish the terms for a later award of contracts during a given period.”

According to Chapter 5, Art. 1, then, framework agreements may be entered into by contracting authorities applying the provisions applicable for the awarding of public works contracts, public supply contracts and public service contracts. In ,general the provisions about framework agreements are consistent with the EU legislation and give a relative big freedom to contracting authorities to decide on which basis the contracts, entered into on the basis of the framework agreement, shall be granted.

Another important source is the Regulation (SFS 1998:796), whose third paragraph states that a government agency shall use the framework agreements unless the agency finds another way of agreement which is more beneficial (and this decisions is subject to control by the Swedish National Financial Management Authority).

In practice, framework agreements had already been in use for some time prior to the implementation of the EU legislation into the national legal system and they play a pivotal role in the Swedish public procurement system. An important tool in the field is the Public Procurement Information Portal (http://www.avropa.se/). This portal, maintained by the Swedish National Financial Management Authority (for an overview of the authority and of the government assignment regarding procurement coordination please refer to http://www.avropa.se/upload/Dokument/Yttranden,%20rapporter,%20pm/In%20english%20for%20avr opa.se_2009.pdf), serves as an information database on the different framework agreements which were procured centrally by Verva (the Swedish Administrative Development Agency ‐ now closed down). The portal is available to national authorities, Government agencies, regions and municipalities. An authority can thus use the information portal to locate the necessary information on a framework agreement, whereas the procurement process is further handled by the authority itself, either by electronic or traditional means. Today eleven authorities responsible for government procurement are working together with the co- ordination function in the system for framework purchasing.

2.2.2.8 Electronic certificates / electronic evidences

The requisites that economic operators must have (and the corresponding certificates that prove the existence of these requisites) are listed by Chapter 10, Art. 3, and by Chapter 11, Art. 6, 7, 9, 11, 12, 14, 15 and 16 of the Act.

As regards the form of the certificates, Chapter 9, Art. 4 of the Act, points out that, when using electronic means, candidates and tenderers shall, prior to the expiry of the time limit for the submission of requests to participate on tenders in other form, submit the requested certificates unless these are available in electronic form. In other words, the Act recognises explicitly the possibility to submit all certificates in electronic form, if and when they are available.

Version:...... v3.1 Page: 340 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction

Public procurement in Sweden is decentralized where each public agency is responsible for its procurement activities and collaborations. However central and local authorities collaborate in different ways. For instance, when it comes to market organisation initiatives the Swedish government has not established any central electronic public procurement portals as this is deliberately left to private operators.

Green public procurement is a concept which is gaining attention in Sweden. The Swedish Government has been encouraging public bodies to assume greater environmental responsibility in their procurement processes for just over ten years. The Swedish action plan establishes that ”Green public procurement is a market-based and powerful controlling tool in the work of guiding society towards long-term and sustainable consumption and therefore production.” The action plan contains an analysis of the current situation, the objective that the proportion of green public procurement should have increased by 2010, and a number of measures that must be taken if we are to achieve our objectives. Public procurement in Sweden has an annual turnover of approximately EUR 50 billion. Around 60 per cent of public organisations say that they always or usually specify environmental requirements in their public procurement processes. This figure has remained fairly constant over the last five years. Public bodies with an environmental policy for procurement, with targets for their environmental performance, and with trained staff, specify environmental requirements to a greater extent than other organisations. 82 per cent say they have an environmental policy for procurement; 55 per cent have objectives for environmental consideration in procurement, and 52 per cent say that the staff responsible for procurement has undergone training in green procurement. Only 11 per cent say they follow up completed procurement processes from an environmental viewpoint.

3.2 Main platform

Due to the decentralized public procurement approach, there is no main public platform in Sweden. The section below will focus on the platforms identified in the INFSO benchmarking study; however, it should be noted that there are several other relevant platforms in Sweden, including www.e- avrop.com, www.avantra.se, www.primona.se, and www.visma.se.

3.3 Additional platforms

The following platforms have been identified:

 www.avropa.se : A system currently administered by the Swedish National Financial Management Authority, aiming to coordinate the needs of the central government authorities by using framework agreements. The system is based on the principle that whichever authority has the best pre-requisites to perform a procurement, common for other central agencies, is asked to procure a framework agreement for all central government agencies. Today eleven authorities responsible for government procurement are working together with the co-ordination function in the system for framework purchasing. The system includes some 50 product areas with 90 sub areas, e g for stationery, cars, IT supplies and services, furniture, flight services. The annual turn-over is around 684 million euro. This corresponds to about 8 % of the total expenditure for the central government from external suppliers. Information regarding the different framework agreements can be found in a special database

Version:...... v3.1 Page: 341 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

together with other information about the system for co-ordination of government procurement at the website

The site offers searching for (1) existing framework agreements related to a product or service and (2) for companies leading to the display of current frameworks in which the company is a supplier or a dealer. The site is available in Swedish and English.

 www.allego.se: Private portal and meeting point for authorities and procuring entities searching for suppliers. The company is a distributor of information about public procurement gathered through a vast and well established network of purchasers. The site is available in Swedish and English. Allego Procurement takes place at four different levels. Basic Procurement Package 1, containing advertising and a copy of the current advertisement on the Authority's website, is free of charge. The more advanced package offers a number of possibilities such as emailing the selected supplier when the ad is published. You will receive a message when they have downloaded the tender documents. Searchable archive, credit ratings, statistics and evaluation of other possible parties. The most advanced package, Procurement 4 deals with all the formal components of the process effectively and professionally, allowing you to focus on the contents of the procurement. All our packages, from the free of charge to the most advanced, are quality assured. This means that they Comply with the requirements of the Swedish Public Procurement Act and other laws.  www.opic.se : Private portal offering information on public tenders, monitoring of contracts according to defined profile, personal advice and education. A web based tool called “TendSign” allows a procurer to create electronic contract notices, let the suppliers answer directly within the tool and keep track of the contract awards. From the economic operator side, it also allows to read the contract notice, communicate with the procurer and submit the tender within the tool. The site is available in Swedish, Lithuanian and English.  www.mercell.se : Private portal publishing contracts from government agencies, organisations and businesses in all industries, both private and public sector, providing supplier search functionalities, contract monitoring and education. Suppliers have access to all the published prices and bid requests. Buyers can write and publish bid requests and write contracts with tender winner. Additionally, it offers tender writing and review, help in providing documents, legal advices. The site for Sweden is only available in Swedish but the company has also other sites in Germany, Denmark, Estonia, Lithuania, Latvia and Norway which are in their respective language.  www.eniroupphandling.se : Private portal providing purchasers with the possibility to describe product or services that they need, receive answers from interested suppliers and select the supplier that best meets expectations. Suppliers can search for interesting contracts, submit tenders and receive replies from purchasers.

3.4 Figures

According to the DG INFSO Benchmarking study2, Sweden achieves a score of 52% for the availability benchmark while the European average is 56%. It scores 73% for the Pre-Award Process Benchmark while European average is 59%.

2 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 342 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.5 eDocument infrastructure

The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper or electronic format obligations economic and financial As this is not a formal attestation but rather documentation provided by the service provider, standing there is no objection to creating electronic versions. No special rules apply professional qualification Paper only technical and/or professional Paper only ability adequate insurance Usually Paper only quality assurance Usually paper only environmental compliance Usually paper only

Version:...... v3.1 Page: 343 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Turkey

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

The establishment of an Electronic Public Procurement Platform (EPPP) has been announced as a part of Turkey’s Public Procurement Strategy and of the Action Plan for the Information Society Strategy of Turkey, to match the possibilities of the legal framework that has already been put in place. The Turkish Public Procurement Authority (PPA) has been granted the authority to establish and operate the EPPP. However, at this time, this platform is presently only operational as a tool to facilitate preparation, submission and publishing of public procurement notices in compliance with the current regulations on public procurement in Turkey.

Name Public Procurement Platform Citizen Transactions URL http://vatandas.ihale.gov.tr Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through eInvoicing ePayment (green=supported; red=not eCatalogues supported) Supported tools (green=supported; red=not DPS eAuctions Buyer’s Profiles supported)

Signature / authentication Unknown requirement

The following platform has been identified:

Platform Name Platform URL Public Procurement Platform Citizen Transactions http://vatandas.ihale.gov.tr/

Version:...... v3.1 Page: 344 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2 Laws and policies

1.2.1 Laws The primary laws are presently the Public Procurement Law No. 4734 and the Public Procurement Contracts Law No. 4735 which came into force on January 1, 2003. In parallel with the amendments in EU legislation, Law No. 4734 was amended with the Law No. 5812 on November 20, 2008. An unofficial translation is made available here: http://www.ihale.gov.tr/english/english47341.htm; however, this translation appears to precede the implementation of Law No 5812, and therefore does not yet contain provisions with respect to eProcurement. Further revisions are planned to ensure full compliance with Directives 2004/17/EC and 2004/18/EC.

1.2.2 Legally supported tools

 eSignatures: implemented via Law No. 5812; no details are known.  DPSes: implemented via Law No. 5812, which introduced a new article 4 in Law No. 4734 (see below).  eAuctions: implemented via Law No. 5812; which introduced a new article 5 in Law No. 4734 (see below).  Buyer’s profiles: No specific provisions with respect to buyer’s profiles.

1.2.3 Permissibility of using eProcurement

Provisions permitting the use of eProcurement have been implemented via Law No. 5812, amending Law No. 4734. The law permits the use of eProcurement via the Electronic Public Procurement Platform established by the Authority, in accordance with the principles and procedures established by the Authority.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The step by step approach taken in Turkey in the adoption of eProcurement aims to leverage expertise gained by other initiatives in the Member States, which is an effective and cost efficient way of implementing public procurement initiatives. The presently operational portal has also been able to achieve some successes: as reported on ePractice.eu, 40000 procurement units of the administrations are regularly using the notification service offered by the platform, with around 30.000 people per day visiting the portal. Usage of the system has eliminated any complaints about infringements of the rules on notices.

1.3.2 Weaknesses of the national situation

Version:...... v3.1 Page: 345 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

While Turkey has brought its public procurement legislation in line with European regulations to some extent, transposition has not yet been completed. In addition, available eProcurement functionality is still at a relatively low level, as is also the case in a number of Member States. The key platform currently focuses on eNotification and eAccess, with eTendering slated as a priority for the future. Actual usage therefore currently focuses on the one-way dissemination of eProcurement opportunities and documentation at this stage; electronic submission of offers is presently still under development.

Version:...... v3.1 Page: 346 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies

The Ministry of Finance (MoF) is the competent authority ensuring and steering the implementation of a coherent policy in all areas related to public procurement. The MoF has assumed the coordinator role in the area of public procurement in order to facilitate the negotiation process for alignment to the Acquis.

The Public Procurement Authority (PPA1) is the regulatory and supervisory authority in the area of public procurement. It has administrative and financial autonomy, and is responsible for;

 Preparing and improving public procurement legislation,  steering implementation,  providing training programmes on public procurement legislation,  ensuring national and international coordination,  publishing tender notices,  compiling and publishing public procurement statistics and  reviewing complaints that could arise during the procurement process.

The PPA is charged with the establishment of an Electronic Public Procurement Platform (EPPP).

Finally, the State Planning Organisation (SPO) aims to ensure efficient use of resources and acceleration of development and to carry out economic, social and cultural planning services effectively, regularly and rapidly in a coherent manner.

2.1.2 Action plans and strategies

As noted on ePractice.eu2, Turkey has embarked on comprehensive economic, social and regulatory reforms being mostly formulated in its National Programme for the adoption of the EU Acquis which fully covers the public procurement sector as well. In preparing for membership Turkey closely follows the EU policy on public procurement and in the national programme has committed to harmonize its national legislation with that of the EU.

1 See http://www.ihale.gov.tr/ 2 See http://www.epractice.eu/en/cases/ppnmstr

Version:...... v3.1 Page: 347 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

To ensure effective adoption, Turkey applies a phase by phase approach for introducing e- procurement. It intends to harmonize its e-procurement infrastructure according to the studies prepared and pilot projects implemented through European initiatives. The Information Society Strategy of Turkey and its annexed Action Plan which came into force on 28 July 2006 is the basic reference document identifying the e-government projects scheduled for the period of 2006-2010 to be implemented by the Turkish Government. According to the strategy paper, 9% savings is foreseen in 2010 to be achieved by the efficiency gained from the implementation of electronic public procurement which is expected to be utilized 90% then

A new National Strategy on Public Procurement is presently being prepared, which will also cover the extended deployment of eProcurement. The continuous development of the aforementioned EPPP platform is one of the key drivers of the action plan, along with the further alignment of the legal framework with the Public Procurement Directives 2004/17/EC and 2004/18/EC.

Presently, it is envisaged that the e-Procurement project will be realised in two stages. The first stage, encompassing the generalised use of eNotification and eAccess via the EPPP platform, is envisaged to be completed by the end of the first half of 2010. The second stage addressing eTendering is to be completed by the end of 2010, and will include practices such as electronic auctions, electronic catalogue and dynamic purchasing systems.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts

The primary laws are presently the Public Procurement Law No. 4734 and the Public Procurement Contracts Law No. 4735 which came into force on January 1, 2003. These were prepared taking into account specifically the international context, including Directives 92/50/EEC, 93/36/EEC, 93/37/EEC, and the UNCITRAL Model Law on Public Procurement. Law No. 4734 was amended with the Law No. 4964, dated August 15, 2003.

In parallel with the amendments in EU legislation, Law No. 4734 was amended with the Law No. 5812 on November 20, 2008, by taking into account fact findings and recommendations laid down in the Progress Reports for Turkey. In the light of the amendments concerned, prior information notice, electronic procurement, framework agreements and dynamic purchasing system have been introduced to Turkish public procurement legislation.

With respect to eProcurement, the Law No. 5812 incorporated mechanisms such as dynamic purchasing system, electronic auction, prior information notice and electronic notification into Turkish public procurement legislation. An unofficial translation is made available here: http://www.ihale.gov.tr/english/english47341.htm; however, this translation appears to precede the implementation of Law No 5812, and therefore does not yet contain provisions with respect to eProcurement.

Version:...... v3.1 Page: 348 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

New draft regulations are being prepared to fully align Turkish law with the Public Procurement Directives, as transposition is not yet complete.

2.2.1.2 Secondary Acts

There are no known secondary acts.

2.2.1.3 Regulatory autonomy

The aforementioned legal framework is in principle applicable to all public procurements. Local administrations thus have no regulatory autonomy.

2.2.1.4 Permissibility of using eProcurement

While the legal framework explicitly permits the on-line publication of tendering opportunities (article 13 of the Act) and of outcomes (article 47), electronic submission does not yet appear to be permitted.

2.2.1.5 Thresholds

In accordance with article 8 of the Public Procurements Act, thresholds are set as follows:

a) 642 thousand 299 Turkish Liras (approx. 305.000 EUR) for procurement of goods and services by the contracting entities operating under the general or the annexed budget; b) 1 million 70 thousand 498 Turkish Liras (approx. 508.000 EUR) for procurement of goods and services by other contracting entities within the scope of the PPL; c) 23 million 551 thousand 44 Turkish Liras (approx. 11.2 million EUR) for the works contracts by any of contacting entities covered by the Public Procurement Act.

These thresholds have been published in the Official Gazette which is numbered 27469 and dated 21.01.2010 by the Communique of Public Procurement Authority, numbered 20010/1, and covers the period of 01.02.2010-31.01.2011.

2.2.2 Specific tools 2.2.2.1 eSignatures

Support for eSignatures has been implemented via Law No. 5812, with reference to the Electronic Signature Law No. 5070. No details are known.

Version:...... v3.1 Page: 349 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The introduction and usage of eSignatures to ensure the security of data is planned as a key element of Turkey’s future Public Procurement Strategy.

2.2.2.2 eCommunication

Support for eCommunication (including electronic submission of offers) has been implemented via Law No. 5812.

Other than the explicit permission to use on-line publication of tendering opportunities (article 13 of the Act) and of outcomes (article 47), eCommunication does not yet appear to be regulated. The relevant provisions with respect to announcements and notifications are as follows:

(Amendment: 5812/Article 25) Announcement and Notification Principles

Article 65- (Amendment: 5812/Article 25) It is compulsory to obey the following rules for the announcement and notifications to the candidates, tenderers and potential tenderers.

a) Notifications shall be done with one or more of the following ways by the contracting entities or the Authority

1- By hand in return of signature 2- By registered mail 3- In electronic environment 4- By fax

In notifications by registered mail, the seventh day, and in case of foreign tenderers the nineteenth day, following the mailing of the registered letter shall be deemed as notification date of the decision to the tenderers. When notification is arrived to whom concerned before that time, actual notification date shall be taken.

b) Notifications made by the contracting entities or by the Authority in electronic environment or by fax as well as the price offers submitted in electronic environment by tenderers involved in a framework agreement must be confirmed on the same day. In notifications in electronic environment or by fax, the actual notification date shall be deemed as the legal notification date.

However, in transactions executed by the contracting entities, Authority, candidates, tenderers and the potential tenderers by using electronic signature or transactions regarding the tender process executed via Public Procurement Platform, including those related to complaint applications, confirmation shall not be required.

Version:...... v3.1 Page: 350 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

c) The tools to be used in electronic communication and their technical features shall be compatible with the commonly used and easily available communication and information technology products and shall ensure equality principle.

d) It is essential to preserve integrity of data and the confidentiality of tenders and requests to participate, in all kinds of exchange and storage for information, In case there is no relevant provision in this Law for notifications to be served, the provisions of the Code of Notification shall apply.

2.2.2.3 DPSes

Support for DPSes has been implemented via Law No. 5812, amending Law No. 4734 as follows:

“Definitions Article 4

Dynamic Purchasing System: (Amendment: 5812/Article 2) A completely electronic procurement system for making purchases of the goods, which are generally available as manufactured in the market, where all tenderers meeting the qualifications and submitting preliminary tenders in compliance with the tender documents during the validity period of the system are admitted.”

“(Amendment: 5812/Article 28) Dynamic Purchasing System

ADDITIONAL ARTICLE 4- (Amendment: 5812/Article 28) The Dynamic Purchasing System may be used for purchasing in electronic environment the manufactured goods available in the market. Open procedure is applied while establishing the system. The dynamic purchasing system shall not be operated in such a way to impede, restrict or distort competition.

It shall be notified by an announcement in the Public Procurement Bulletin that the system is to be established. The information regarding the nature, description and quantity of the procurement planned, as well as procurement system, electronic equipment to be used in operating this system, necessary adjustments to connect the system in technical terms, the rules regulating the system operation and other information shall be covered in tender document. All tenderers fulfilling the qualification criteria and submitting the preliminary tenders in line with the conditions given in the tender document shall be allowed to take part in the system. Preliminary tenders may continuously be improved as long as they comply with the rules in tender document.

The evaluation of preliminary tenders shall be completed within fifteen days as of their submission. If no invitation has been issued yet for submitting the tenders, the evaluation period may be extended once up to fifteen days.

Version:...... v3.1 Page: 351 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Decision to establish a dynamic purchasing system, or to abandon the establishement of such a system, and that the preliminary tenders have been accepted to the system or rejected, shall be notified to the tenderers in three days at the latest following the relating decision.

All tenderers admitted to the system shall be invited to submit their tenders for each procurement. The procurements shall be announced by simplified notice at least fifteen days before this invitation. All of the tenderers accepted to the system shall be invited to submit tender by allowing sufficient time to prepare their tenders.

The procurement shall be finalized by evaluating the tenders in accordance with the principles in the tender document and the contract shall be concluded.

The period of dynamic purchasing system may not be longer than forty-eight months.

The Electronic Public Procurement Platform shall be used for the procurements to be conducted by dynamic purchasing system. No fee shall be collected for admitting to and operating of the system.

The Authority is empowered to determine the cases requiring contract arrangements, and the principles and rules regarding the contracts on procurements within the scope of dynamic purchasing system.”

2.2.2.4 eAuctions

Support for eAuctions has been implemented via Law No. 5812, amending Law No. 4734 as follows:

“Definitions Article 4- “Electronic Auction: (Amendment: 5812/Article 2) Procedures that are reiterated by re- evaluating and re-ranking of the presented new prices or values indicating certain tender aspects downwards by electronic means using automatic evaluation methods after the evaluation of the initial tender.”

The provision about eAuctions in Law No. 4734 is as follows:

Electronic (Reverse) Auction

ADDITIONAL ARTICLE 5- (Amendment: 5812/Article 28) The Electronic Auction may be conducted after the completion of the evaluation phase of the open procedure, restricted procedure and where conducted according to paragraphs (a), (d) and (e) of Article 21, of negotiated procedure, provided that it has been stated both in tender notice and tender documents. Electronic auction may also be applied in tenders within the scope of dynamic

Version:...... v3.1 Page: 352 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

purchasing system and framework agreements. Electronic auction shall not be used, however, in tenders for the procurement of consultancy services conducted pursuant to article 48.

Electronic auction may only be used in cases where all the technical characteristics of the subject matter of procurement are precisely determined.

Before starting the electronic auction the initial evaluation of the tenders shall be realized in accordance with the requirements given in the tender document.

The tenderers who are accepted as qualified shall be simultaneously invited to re-tender in the electronic environment. The starting date and time of the auction and all information necessary for tenderer to connect the electronic device being used shall be included in the invitation. A timetable indicating each stage of the electronic auction shall also be given in the invitation. Electronic auction may be conducted in more than one successive step. The auction may not be launched unless two working days have passed after the date on which the invitation is sent.

In cases where economically the most advantageous tender is determined also by considering the non-price factors, the result of the initial evaluation and the mathematical formula determining the ranking according to new tenders shall be notified in the invitation. This formula shall also include the relative weights, if any, of all the factors to be used in determining economically the most advantageous tender as specified in tender notice and tender documents.

In each stage of the electronic auction, the tenderers are instantly provided with necessary information enabling them to learn their rank at that time. As long as specified in the tender documents, information about the tenders of other tenderers and the number of tenderers at any stage of the auction may be announced. However, the identities of the tenderers shall not be disclosed during the electronic auction.

Electronic auction is terminated in the event that one or more of the following conditions occur:

a) Expiration of the date and hour scheduled in the invitation for the closing of auction.

b) Inability in receiving tenders ensuring the minimum difference range within the waiting period specified in the invitation for the placement of new bids.

c) Completion the number of tours indicated in the invitation.”

2.2.2.5 Lists of economic operators

No lists of economic operators have been identified.

Version:...... v3.1 Page: 353 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.2.6 Buyer’s profiles

No specific provisions with respect to buyer’s profiles have been identified.

2.2.2.7 Framework agreements

Support for framework agreements has been implemented via Law No. 5812, amending Law No. 4734 as follows:

“Definitions Article 4-

Framework Agreement: (Amendment: 5812/Article 2) An agreement between one or more contracting entities and one or more tenderers, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.”

(Amendment: 5812/Article 27) Framework agreements

ADDITIONAL ARTICLE 2- (Amendment: 5812/Article 27) Contracting entities may conclude framework agreements for the procurement of required goods, services and works provided that they use open or restricted tender procedures. Framework agreements may not be used in such a way to prevent, restrict or distort competition.

Goods, services and works to be procured in the scope of framework agreements shall be announced in accordance with Article 13 of PPL. Estimated amounts planned to be procured under the scope of framework agreement shall be stated in the notice.

Except for the provisions with regard to receiving of securities, the framework agreement shall be signed for a period not exceeding forty-eight months in accordance with the provisions in this Law prescribing the conclusion of contracts, and the results shall be announced in the Public Procurement Bulletin.

Framework agreements may also be concluded with only one tenderer where all the conditions are determined in advance. In framework agreements to be concluded with more than one tenderer, the number of tenderers who will become party to the framework agreement, which is not less than three, shall be stated in tender documents, on condition that an adequate number of tenders meeting the requirements is submitted. The tenderers whose tenders are accepted as suitable after the evaluation shall be included in the list by ranking from the economically most advantageous tender, except when the framework agreement is concluded with only one tenderer. In case the number of tenderers who are party to the framework agreement falls under three, the parties shall be notified of the annulment of the current framework agreement.

Version:...... v3.1 Page: 354 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

In procurements under the framework agreements in which all the conditions are determined in advance, the tenderers may be requested to re-tender on condition not to exceed their initial tenders. In cases where all the conditions are not determined in advance the tenderers may be requested to re-tender provided that no substantial changes are made on terms of the framework agreement.

The tenderers shall be given sufficient time for preparing their tenders considering the complexity and originality of the work.

The tenderers shall document every twelve months that their qualification is valid. Framework agreements of those who have lost their qualifications and those who do not submit a valid tender twice even though they have been invited to do so, shall be annulled.

The framework agreement with the tenderer who has failed to sign the individual contract within the time specified in tender documents in spite of an invitation from the contracting authority shall be annulled and the provisions of Article 58 shall be applied for the tenderer.

Articles 6, 38, 40, 41, 42, 43, 44, 45, 46, 54, 55 and 56 of this Law shall not apply in relation to an individual contract phase. The Authority is authorized to determine the procedures and principles as well as the nature and scope of the purchases to be realized within the scope of framework agreements, including the matters specified in these articles, to impose restrictions, and to determine the form and scope of contract in situations where such contracts are deemed necessary.

Concluding a framework agreement does not impose an obligation on the contracting entity to procure. The contracting entity may procure its needs that fall within the scope of the framework agreement also through other procedures in this law.”

2.2.2.8 Electronic certificates / electronic evidences

In Article 10 of the Public Procurement Act, the rules on qualification to participate in the procurement are regulated in detail. For the participation of the tenderers qualified for the procurement the required information and documents are defined. The information or documents that will be required for qualification evaluation proceedings, in accordance with the characteristics of the subject of the procurement, shall be specified in the tender documents or in the advertisements or invitations relating to pre-qualification.

As one of the drivers behind the future Public Procurement Strategy, it is envisaged to improve direct access to electronic sources for contracting authorities, so that economic operators will no longer be required to provide this information themselves. In this context, data integration projects have been initiated between the Revenue Administration (taxpayer identification number, tax debt and information on economic and financial qualification), Social Security Institution (social security premium debt and information related to the recruitment of the personnel), the Banks Association of Turkey and the Participation Banks Association of Turkey (tender security and bank reference letter) and the Ministry of Internal Affairs (Centralized Civil Registration System-- ID information).

Version:...... v3.1 Page: 355 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction eProcurement project will be realised at two stages. First stage of the project is envisaged to be completed by the end of the first half of 2010 and second stage is to be completed by the end of 2010. After the completion of the first stage of the project, transactions preceding the submission of the tender will be transferred to Electronic Public Procurement Platform (EPPP). In other words, tender documents will be prepared on and reached over the EPPP.

3.2 Main platform Not relevant

3.3 Others platforms Not relevant

3.4 Figures Not available

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper only obligations economic and financial Paper only standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

Version:...... v3.1 Page: 356 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

United Kingdom

1 Summary of the eProcurement situation

1.1 Principal eProcurement platforms & supported functionalities

While several eProcurement platforms exist, the largest platform is OGC Buying Solutions (http://www.buyingsolutions.gov.uk), which is also the only platform with a mandate to procure on behalf of all UK contracting authorities1 (notwithstanding the existence of other platforms which can procure on behalf of some other authorities).

Public sector’s national procurement portal Name URL http://www.buyingsolutions.gov.uk Supported pre-award phases eAccess to tender eEvaluation and eNotification eSubmission (green=supported; red=not documents award supported) Supported post-award phases eOrdering through eInvoicing ePayment (green=supported; red=not eCatalogues (planned) (planned) supported) Supported tools (green=supported; red=not DPS eAuctions Buyer’s Profiles supported) Signature / authentication qualified signature required requirement

Here are the DG INFSO Benchmarking report scores:

1 Contracting authorities are listed by applicable Regulations: see Art. 3 of the Public Contracts Regulation 2006.

Version:...... v3.1 Page: 357 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

The following platforms (public and private, covering some or all procurement phases) have been identified:

Platform Name Platform URL The public sector’s national procurement http://www.buyingsolutions.gov.uk/ portal BIP Solutions http://www.bipsolutions.com/ EGS eProcurment http://www.egsgroup.com/ Office of Government Commerce http://www.ogc.gov.uk/ NHS Purchasing and Supply Agency http://www.pasa.nhs.uk/ IDeA: Improvement and Development Agency for local government http://www.idea.gov.uk/idk/core/page.do?pageId=1002 The Scottish Government eProcurement http://www.eprocurementscotland.com/ Wales eProcurement http://www.xchangewales.co.uk/ Home Office eSourcing Portal https://sourcing.homeoffice.gov.uk/ National Policing Improvement Agency https://npia.bravosolution.co.uk/ Ministry of Justice https://justice.bravosolution.co.uk/ Department for Culture procurement portal http://dcms.g2b.info/ Charles Kendall Procurement http://www.charleskendall.com/ Department of Health Procurement & http://www.dh.gov.uk/en/Procurementandproposals Proposals Ministry of Defence http://www.contracts.mod.uk/ Department for Communities and Local https://communities.bravosolution.co.uk/ Government eSourcing NI https://e-sourcingni.bravosolution.co.uk/ Essex procurement https://essex.bravosolution.co.uk/ Surrey procurement http://www.surrey.bravosolution.co.uk/ Hampshire procurement https://in-tendhost.co.uk/hampshire/ Yorkshire and the Humber region http://scms.alito.co.uk/ Sheffield public sector organisations http://sccplugins.sheffield.gov.uk/sheffieldcontracts/ Source Nottinghamshire http://www.sourcenottinghamshire.co.uk/ Source Derbyshire http://www.sourcederbyshire.co.uk/ Source Lincolnshire http://www.sourcelincolnshire.co.uk/ Newham’s Electronic Contract and http://nectr.newham.gov.uk/ Tendering Resource (NECTR) ‘Bluelight’ Emergency Services eTendering https://www.bluelight.gov.uk/ Tenders Direct http://www.tendersdirect.co.uk/ Devon Procurement Portal https://www.devontenders.gov.uk

Version:...... v3.1 Page: 358 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Northern Ireland Health, Social Services and Public Safety http://www.dhsspsni.gov.uk/pas-therapeutic_tendering eGovernment Register http://www.brent.gov.uk/egr.nsf/Structure/Tenders B2B quote http://www.b2bquote.co.uk/ Kable Direct http://www.kabledirect.com/ Supply2 http://www.supply2.gov.uk/ Xtender http://www.xtender.com/ Public Contracts Scotland http://www.publiccontractsscotland.gov.uk/ Defense Contracts International http://www.dcicontracts.com/ Government Opportunities http://www.govopps.co.uk/ In-Tend http://www.in-tend.com/community.php

1.2 Laws and policies

1.2.1 Laws Two separate Regulations were enacted, one aimed to regulate public contracts and one in the field of utilities contracts. The Regulations, that came into force on 31 January 2006, are:  For England, Wales and Northern Ireland:  The Public Contracts Regulations 2006 (SI 2006 No.5) - Public Authorities (the State, regional and local authorities and other public bodies): http://www.opsi.gov.uk/si/si2006/uksi_20060005_en.pdf;  The Utilities Contracts Regulations 2006 (SI 2006 No.6) - Utilities: http://www.opsi.gov.uk/si/si2006/uksi_20060006_en.pdf.  Scotland :  The Public Contracts Regulations 2006 (SSI 2006 No 1): http://www.opsi.gov.uk/legislation/scotland/ssi2006/ssi_20060001_en.pdf;  The Utilities Contracts Regulations 2006 (SSI 2006 no 2): http://www.opsi.gov.uk/legislation/scotland/ssi2006/ssi_20060002_en.pdf.

1.2.2 Legally supported tools

 eSignatures: contracting authorities may (but are not obliged to) require the use of an e- signature, and such an e-signature does not have to be an advanced or qualified e-signature.  DPSes: supported through §20 of the Public Contracts Regulations 2006.  eAuctions: supported through §21 of the Public Contracts Regulations 2006.  Buyer’s profiles: defined in the Public Contracts Regulations 2006.

Version:...... v3.1 Page: 359 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

1.2.3 Permissibility of using eProcurement In accordance with §44 of the Public Contracts Regulations 2006, a contracting authority may specify that any communication referred to in the Regulations can be made with or without electronic means, or that eProcurement is mandatory. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

1.3 Summary assessment of the national eProcurement status

1.3.1 Strengths of the national situation

The main strengths of the UK situation relate to the very simple and clear legal framework and to the fact that several purchasing bodies operate in the market. Especially as regards the latter issue, the presence of a plurality of purchasing bodies is expected to increase the efficiency of the e- Procurement system in UK due to the benefits of competition between the existing operators.

Such competition is expected also to create good practices that are then diffused to other operators. In summary, we can say that the UK’s e-Procurement system is well established and in keeping with government policies to encourage electronic communications between government and others is becoming more widespread.

1.3.2 Weaknesses of the national situation

The emphasis in the UK is on accessibility and on flexibility, as e.g. witnessed in the absence of an eSignatures obligation in the legal framework, and the non-usage of PKI based solutions in key platforms. While this is a policy choice, it may be perceived as a less secure and less mature approach.

Furthermore, there is a risk that regional regulatory autonomy could lead to fragmentation of regulations or solution; however, this risk does not appear to have materialised in a negative way.

Version:...... v3.1 Page: 360 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2 Legal and policy framework

2.1 Policy perspective

2.1.1 Responsible bodies2

As regards responsibility for public procurement policies, the Office of Government Commerce (OGC) represents the UK on procurement matters to the European Commission, to other EU partners and to the World Trade Organisation and its members. It helps departments apply the rules in the UK. Finally, the OGC takes the lead on the Government’s policy of achieving value for money in public procurement. This role includes advising and providing guidance on the scope to take issues, such as sustainability, into account within the legal and policy framework. The Scottish Executive plays a similar role in Scotland. OGC, thus, plays a notable role also as responsible institution for legal aspects, publishing, for instance, guidances on applicable regulations.

As regards technical solutions, the e-Government Unit (eGU) was initially responsible for the consistent application and re-use of common ICT components and systems across Government. After a series of reforms most of the eGU’s role and aims have been taken over by the Chief Information Officers Council3, which:

 Sponsors cost effective IT security;  Increases IT-enabled change capability/capacity;  Builds partnerships with IT suppliers;  Improves confidence in Government IT;  Develops a common infrastructure;  Delivers knowledge network products.

An agreement was established between the e-Government Unit (eGU) and the Office of Government Commerce (OGC) for the effective development and use of IT across the Government. The eGU leads on strategic, architectural, technical and operational delivery as well as performance issues, while the OGC guides the definition of commercial, financial and contractual delivery processes. In other words, eGU manages the technical infrastructure, while OGC is in charge of the commercial and business aspects of e-Procurement4.

OGC then has a role also as central purchasing body. To be more precise, there are over 40 Professional Buying Organisations (PBO) in the UK, with OGC Buying Solutions

2 Source : http://www.buyingsolutions.gov.uk 3 See http://www.cabinetoffice.gov.uk/cio.aspx

4 For an overview, see http://ec.europa.eu/internal_market/publicprocurement/docs/eprocurement/feasibility/enot-vol-2_en.pdf

Version:...... v3.1 Page: 361 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

(http://www.buyingsolutions.gov.uk) being the largest, and the only one permitted to procure on behalf of all UK contracting authorities5, i.e. Buying Solutions is the only PBO with a legal remit to trade across the whole of UK public services (notwithstanding the existence of other platforms which can procure on behalf of some other authorities).. Buying Solutions is the national procurement partner for UK public services, and it was established in 2001 through a merger of the procurement functions of previous agencies and entities. Buying Solutions is an Executive Agency of the OGC in the Treasury and is a Trading Fund which is run on commercial lines, with responsibility for generating income to cover its costs and make a return to the Treasury6.

As regards the relations between OCG and Buying Solutions, whilst OGC sets procurement policy and best practices to help the UK public sector to achieve value from its spending, Buying Solutions delivers procurement solutions for nationally sourced (mainly commodity) goods and services to customers in both central civil government and the wider public sector. It, however, has no formal ‘mandate' and therefore has to ‘earn' its customers, i.e. it operates on a commercial basis (following the model of a private company).

It is interesting to point out that from a legal perspective public procurement is strongly decentralized in the UK, with contracting authorities having the freedom to decide upon their own procurement strategies, and a separate (but substantial similar) legal framework in Scotland (please see below for a more detailed analysis of the legal framework in the different parts of UK). Contracting authorities may choose to organize their procurements by calling upon the services of PBOs, but they are not obliged to do so. However, there is a policy emphasis for central departments on using collaborative deals in particular for certain categories of spend, using alternatives only where there is specific justification for doing so7.

2.1.2 Action plans and strategies

The “Transformational Government” strategy published in November 2005 focuses on the need to reduce waste and inefficiency in the area of public procurement by reorganising or reusing assets and sharing investments with others. The government is planning to assess the current public procurement processes, facilities, maintenance contracts and required management effort, in order to identify and reduce duplicated effort across different departments. The results of the assessment focus on the identification of shared services that will allow public procurement activities to be organised more effectively.

The current approach is strongly focused on identifying and disseminating best practices, including through templates and practical guides; see http://www.ogc.gov.uk/procurement_- _the_bigger_picture_policy_and_standards_framework.asp. The diffusion of best practices is undoubtedly very important in a country where public procurement is not centralised in one single entity.

5 Contracting authorities are listed by applicable Regulations: see Art. 3 of the Public Contracts Regulation 2006.

6 See http://www.buyingsolutions.gov.uk/aboutus/ 7 See http://www.ogc.gov.uk/documents/Collaboration_policy_statement.pdf

Version:...... v3.1 Page: 362 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

England has completed its own e-Government strategy for local governments, which was launched in November 2002. The strategy implemented, among other things, a wide set of e-Government services, standards and road-maps for the benefit of all local authorities. Likewise, Scotland (Scottish Executive), Wales (National Assembly for Wales) and Northern Ireland (Northern Ireland e- Government Unit) have produced and are currently implementing their own e-Government strategies.

2.2 Legal framework

2.2.1 General regulations

2.2.1.1 Primary Acts The legislation in the public and utilities sectors is almost identical to EU legislation in the field, since no additional national requirements have been introduced in the two existing national Regulations (see list below). Two separate Regulations were enacted, one aimed to regulate public contracts and one in the field of utilities contracts.

The Regulations, that came into force on 31 January 2006, are:  For England, Wales and Northern Ireland:  The Public Contracts Regulations 2006 (SI 2006 No.5) - Public Authorities (the State, regional and local authorities and other public bodies): http://www.opsi.gov.uk/si/si2006/uksi_20060005_en.pdf;  The Utilities Contracts Regulations 2006 (SI 2006 No.6) - Utilities: http://www.opsi.gov.uk/si/si2006/uksi_20060006_en.pdf.  Scotland :  The Public Contracts Regulations 2006 (SSI 2006 No 1): http://www.opsi.gov.uk/legislation/scotland/ssi2006/ssi_20060001_en.pdf;  The Utilities Contracts Regulations 2006 (SSI 2006 no 2): http://www.opsi.gov.uk/legislation/scotland/ssi2006/ssi_20060002_en.pdf.

The abovementioned pieces of legislation have been amended more than once since 2006. For England, Wales and Northern Ireland the following amendments were enacted and entered into force so far:  The Public Contracts and Utilities Contracts (Amendment) Regulations 2007 (SI 2007 No 3542);  The Public Contracts and Utilities Contracts (CPV Code Amendments) Regulations 2008;  The Public Contracts and Utilities Contracts (Postal Services Amendments) Regulations 2008;  Public Contracts (Amendment) Regulations 2009 (SI 2009 No. 2992);  Utilities Contracts (Amendment) Regulations 2009 (SI 2009 No. 3100).

Version:...... v3.1 Page: 363 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

2.2.1.2 Secondary Acts

As regards secondary transpositions acts, there are no known secondary sources. The legal framework appears to be quite accessible, since it is based on a few Regulations and on the supporting documentation drafted by OGC (for a list, please refer to http://www.ogc.gov.uk/procurement_policy_and_application_of_eu_rules_uk_regulations_.asp).

2.2.1.3 Regulatory autonomy

As noted above, there are separate legal frameworks for England, Wales and Northern Ireland on the one side, and Scotland on the other. Differences are however limited.

2.2.1.4 Permissibility of using eProcurement In accordance with §44 of the Act, a contracting authority may specify that any communication referred to in these Regulations can be made with or without electronic means, or that eProcurement is mandatory. In the absence of specific indications, there appears to be no legal barrier to the use of electronic means.

2.2.1.5 Thresholds

Thresholds are regulated by Art. 8 of the Public Contracts Regulations 2006 and by Art. 11 of the Utilities Contracts Regulation 2006. Due to the fact that they are regularly modified, please refer to the abovementioned provisions for up-to-date information.

2.2.2 Specific tools 2.2.2.1 eSignatures

Art. 44(6)(a), notes that “electronic signatures relating to tenders and requests to participate comply with national provisions adopted in accordance with Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures”. In other words, and to summarise the issue, contracting authorities may (but are not obliged to) require the use of an e-signature, and such e-signature does not have to be an advanced or qualified e- signature.

2.2.2.2 eCommunication As regards e-Communications in general, there are no known notable changes to the binding provisions of the Directives as implemented in the UK.

2.2.2.3 DPSes

Version:...... v3.1 Page: 364 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

Dynamic Purchasing Systems are provided for by applicable Regulations; a definition is set forth by Art. 2(1) of the Public Contracts Regulations 2006: “a completely electronic system of limited duration which is: (a) established by a contracting authority to purchase commonly used goods, work, works or services; and (b) open throughout its duration for the admission of economic operators which (I) satisfy the selection criteria specified by the contracting authority; and (II) submit an indicative tender to the contracting authority or person operating the system on its behalf which complies with the specification required by that contracting authority or person”.

DPSes are then regulated by Art. 20 of the Regulation, that sets forth the rules and procedures to be followed by the contracting authorities. Most provisions (see http://www.opsi.gov.uk/si/si2006/20060005.htm) are materially identical to those of the Directives. It is interesting to note that the definition of a DPS (Art. 2) emphatically covers supplies, services and works. A definition for the indicative tender is also provided, described as “a tender prepared by an economic operator seeking admission to a dynamic purchasing system which sets out the terms on which it would be prepared to enter into a contract with a contracting authority should that contracting authority propose to award a contract under the system”.

The same principles are set forth by Art. 19 of the Utilities Contracts Regulations 2006 as well. In general, thus, Regulations applicable in UK are fully consistent with the existing EU legislation.

2.2.2.4 eAuctions

According to Art. 2(1) of the Public Contracts Regulations 2006 'electronic auction' means “a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which (a) takes place after the initial evaluation of tenders; and (b) enables tenders to be ranked using automatic evaluation methods”.

Art. 21 of the Public Contracts Regulations 2006 is specifically devoted to e-auctions. Most provisions (see http://www.opsi.gov.uk/si/si2006/20060005.htm) are materially identical to those of the Directives. E-auctions are also used in practice: the aforementioned OGC has recently launched a centre for e- auctions, to provide assistance and advice to contracting authorities who wish to use e-auctions.

The same principles are set forth by Art. 20 of the Utilities Contracts Regulations 2006 as well.

2.2.2.5 Lists of economic operators

Official lists of economic operators are provided for by Art. 27 of the Public Contracts Regulations 2006. UK law recognises also the lists of other EU countries, where the economic operator is established. In particular, according to paragraph 3, “An economic operator is certified in accordance with this paragraph where it is certified by a certification body complying with European certification standards in a relevant State which maintains such certification and in which the economic operator is established.” The fact of being included in such lists relieve the economic operator from providing the contracting authority with evidentiary certificates.

Version:...... v3.1 Page: 365 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

A list of pre-qualified construction service providers exists. The service is referred to as ‘Constructionline’, and is managed by the Department for Business, Enterprise and Regulatory Reform. However, it should be noted that this is not an official list of economic operators.

2.2.2.6 Buyer’s profiles

Buyers' profiles are provided for by the applicable national legislation. Art. 2(1) of the Public Contracts Regulation 2006 states that buyer profile “means a page on the internet set up by a contracting authority containing one or more of the following: prior information notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address” The content displayed in the page of the contracting authority is binding, in the sense that such contracting authority cannot place a notice in any publication which contains additional information to that published on the contracting authority's buyer profile, according to Art. 42(4).

The same applies to utilities contracts regulated by the Utilities Contracts Regulation 2006.

2.2.2.7 Framework agreements

Framework agreements are provided for by Art. 19 of the Public Contracts Regulations 2006 and by Art. 17 of the Utilities Contracts Regulations 2006. The provisions set forth by the Regulations are fully consistent with the corresponding EU norms in the field of framework agreements, and they are widely used in practice.

2.2.2.8 Electronic certificates / electronic evidences

Requirements concerning the nature and form of the information which may be required to be supplied by a potential contractor (referred to as economic operators, as we said above) are laid down in the Public Contracts Regulations 2006 and in the Utilities Contracts Regulations 2006. In general, it is open to a contracting authority to determine what level of information is required to be supplied with the purpose of the regulations being both to set ceilings upon the amount of information which may be required and also to specify the forms of evidence which are to be accepted as providing conclusive evidence of conformity with requirements.

It is provided that the contracting authority may require economic operators to provide such evidence as it considers necessary evidence of their eligibility to participate in the procurement process. It is further provided, however, that certain forms of evidence are to be considered as conclusive. The relevant provisions are listed in Article 23 and following of the Public Contracts Regulations 2006.

The Regulations make limited provision as to the form in which information is to be supplied. In cases such as confirmation of compliance with tax or social security requirements, the form of any certificate will be determined by the relevant authority. In other cases, information, for example relating to turnover of the economic operator will be generated by the operator itself.

Version:...... v3.1 Page: 366 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

A number of schemes operate whereby economic operators may submit information from a single source. Examples are the “supply2.gov.uk” portal (http://www.supply2.gov.uk/) which applies in relation to contracts with a value of less than £100,000 and “Constructionline” (http://www.constructionline.co.uk/static/). Originally designed for the construction industry, this latter service is now available to operators in other sectors and provides the opportunity to register details once and for these to be reused in any subsequent procurement process. Art. 27 of the Public Contracts Regulations 2006 provides that contracting authorities are to accept a certificate of registration from the administering authority as evidence of most of the items of information which would otherwise require to be submitted as part of the procurement process.

Version:...... v3.1 Page: 367 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3 Technical and infrastructural framework

3.1 Introduction The United Kingdom is running the “Non-mandatory National eProcurement Platform” model: there is a National eProcurement infrastructure, whose use is recommended but not mandatory for contracting authorities. The National eProcurement Platform is mandatory for Central Government Contracting authorities.

3.2 Main platform Buying Solutions is the national procurement partner for UK public services. It was established in 2001 as a result of the Gershon Report, through a merger of the procurement functions of the Buying Agency and CCTA. It is an Executive Agency of the Office of Government Commerce in the Treasury. Buying Solutions is the largest of over 40 Professional Buying Organisations (PBO) in the wider public sector. Whilst OGC sets procurement policy and best practice to help the UK public sector to achieve value from its spending; Buying Solutions delivers procurement solutions for nationally sourced commodity goods and services to customers in both central civil government and the wider public sector. It however has no formal ‘mandate' and therefore has to ‘earn' its customers.

3.3 Others platforms IdeA: The National e-Procurement Project (NePP) is run by local authorities on behalf of local authorities, the project aims to enable all local authorities to gain the maximum benefit from e- procurement tools and techniques. The project is funded by Communities and Local Government. The NePP has created an e-auctions database which includes e-auctions that have taken place in local authorities around England and international e-auctions. An e-auction commodity listing has recently been added to the site and demonstrates the wide range of commodities that have been auctioned in the last year. eProcurement Scotland (http://www.eprocurementscotland.com/) is a centrally coordinated eProcurement service managed by the Scottish government. Set up in 2002, it is now available across Scotland. Organisations wishing to participate in ePS have to pay an implementation fee. The number of public sector bodies using ePS and the procurement funds spent continue to grow on a yearly basis. The portal supports publication of opportunities, eTendering, and components for eInvoicing and ePayment.xchangewales is a ground breaking programme that allows all public sector organisations in Wales to source, tender, evaluate, order and pay for goods and services. On 1 July 2008, the Department of Health (DH) deployed a combined financial, HR and procurement solution: Business Management System (BMS). A key element of the solution is the new e- procurement module. The e-procurement module automates the tendering process via an Oracle interface between buyer and supplier. The list of platforms identified in the present fiche contains a large number of entries, an important part of these entries is relative to commercial platform limited to notification and search functions.

Version:...... v3.1 Page: 368 of 369 Issued on: ...... 9 July 2010

eProcurement Phase II

3.4 Figures According to the DG INFSO Benchmarking study8, the United Kingdom achieves a score of 62% for the availability benchmark while the European average is 56%. It scores 40% for the Pre-Award Process Benchmark while European average is 59%. The United Kingdom is engaged in the EU policy development and activities. It participates in the CIP ISP PSP programme and particularly in: epSOS, STORK, BEPMS, CommonWell, DTV4All, iSAC6+, ISISEMD, Long Lasting Memories, REACH112, SAVE ENERGY and T-SENIORITY.

3.5 eDocument infrastructure The following table gives an overview of how evidentiary and supporting documents can be submitted (paper only, signed document…).

Evidence of… absence of conviction for Paper only natural persons absence of conviction for Paper only legal persons non-bankruptcy and financial Paper only status compliance with social Paper only security obligations compliance with fiscal Paper or electronic obligations economic and financial Paper or electronic standing professional qualification Paper only technical and/or professional Paper only ability adequate insurance Paper only quality assurance Paper only environmental compliance Paper only

8 Smarter, Faster, Better eGovernment 8th Benchmark Measurement – November 2009 available at http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pdf

Version:...... v3.1 Page: 369 of 369 Issued on: ...... 9 July 2010