It is important to stress that the use of electronic catalogues does not imply a different type of procedure, but rather ‘a format for the presentation and organisation of information in a manner that is common to all the participating bidders and which lends itself to electronic treatment’ (rec (68) dir 2014/24).
Functionally, eCatalogues are intended for use in relation to framework agreements of dynamic purchasing systems. The rules in reg.36 PCR2015 are fundamentally oriented towards the transparency requirements linked to the use of eCatalogues [reg.36(5) PCR2015] and their technical features, with a clear stress towards the obligation of tenderers to adapt their ‘general’ eCatalogues to the specific requirements of the contracting authority [regs.36(3) & (4) PCR2015]. Indeed, recital (68) of Directive 2014/24, indeed stresses that ‘the use of electronic catalogues for the presentation of tenders should not entail the possibility of economic operators limiting themselves to the transmission of their general catalogue’.
However, there are other concerns linked to the need to standardise eCatalogues in order to avoid imposing an excessive administrative burden on tenderers: ‘in order to participate in a procurement procedure in which use of electronic catalogues ... is permitted or required, economic operators would, in the absence of standardisation, be required to customise their own catalogues to each procurement procedure, which would entail providing very similar information in different formats depending on the specifications of the contracting authority concerned. Standardising the catalogue formats would thus improve the level of interoperability, enhance efficiency and would also reduce the effort required of economic operators’ [rec (55) dir 2014/24].
The rules applicable to eCatalogues also specify clear requirements governing the reopening of (mini-)competitions in framework agreements and dynamic purchasing systems and, in particular, rules on the specific moment when the information available in the eCatalogues will be frozen and used to award the given contract [regs. 36(4) to (13) PCR2015]. Pedro has taken issue with the limited rules concerning time-limits (see here).
The use of eCatalogues per se does not seem to create significant scope for distortions of competition, other than the eventual imposition of the use of exceedingly demanding or non-compatible IT solutions. However, that risk should be excluded on the basis of the requirement that ‘electronic catalogues shall comply with the requirements for electronic communication tools as well as with any additional requirements set by the contracting authority in accordance with article 22’ [reg.36(4) PCR2015]—which expressly requires that tools and devices ‘used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure’ (see comments here and here).