PEPPOL Business Interoperability Specification

PEPPOL Business Interoperability Specification

12a – eCatalogues as part of a Tender

Specification

Project Acronym: / PEPPOL
Grant Agreement number: / 224974
Project Title: / Pan-European Public Procurement Online
PreAward - eCat
ICT-Models
PEPPOL Business Interoperability Specification
Profile 12a
eCatalogues as part of a Tender
Version: 1.3.1
Status:In use
Editors:
Giancarlo De Stefano (Consip)
Leonardo Bertini (Consip)
Kristian Gromholt (Difi)
Project co-funded by the European Commission within the ICT Policy Support Programme
Dissemination Level
P / Public / X
C / Confidential, only for members of the consortium and the Commission Services

Revision History

Revision / Date / Author / Organisation / Description
1.0 / 29/11/2010 / Leonardo Bertini / Consip / First version (pending EC approval)
1.1 / 17/02/2011 / Leonardo Bertini / Consip / pending EC approval
1.2 / 16/052011 / Kristian Gromholt / Difi/Mercell / Second version (pending approval)
1.3.0 / 08/062011 / Kristian Gromholt / Difi/Mercell / Third version (pending approval)
1.3.1 / 30/06/2012 / Giancarlo De Stefano / Consip / Final editing to create official release for Delivery of PEPPOL EIA Release 4

Contributors

Organisations

Organisations

Consip, Italy,

Bundesbeschaffung GmbH (BBG), Austria,

DIFI, Norway,

Persons

Giancarlo De Stefano (Consip)

Leonardo Bertini (Consip)

Andrea Leutbeg (BBG)

Kristian Gromholt (DIFI/Mercell Holding AS)

Kazim Sardar Mehdi (DIFI/Mercell Holding AS)

Thomas Berghreen (DIfi/EU Supply)

Table of Contents

1Introduction

1.1Audience

1.2PEPPOL Business Interoperability Specification (BIS) Context

1.3BIS Profile 12a Scope

2Legal Interoperability

2.1EU Mandatory requirements for electronic purchasing techniques

2.2EU Mandatory Legal requirements for electronic means of communications

2.3EU Mandatory Legal requirements for the electronic submission of tenders

2.4EU Mandatory Legal requirements for submission of e-catalogues as tenders

3Organizational Organization/Business Interoperability

3.1Organizational scope

3.2Organization Requirements

4Organizational Process Interoperability

4.1CEN ISSS WS/BII Profile

5Semantic Interoperability

5.1Call for Tender Catalogue Template

5.2Tender Simple Catalogue

5.3Accept and Reject Catalogue Data model

5.4Identifiers

5.5Code Lists

6Technical Interaction Interoperability (Process and Semantic Implementation)

7Technical Interaction Interoperability (eSignature Validation)

8Technical Transport Interoperability

1Introduction

1.1Audience

The audience for this document is organizations wishing to be PEPPOL enabled for using interoperable eCatalogues in the preAward phase of the public procurement process, and/or their ICT-suppliers. These organizations may be:

Service providers

Contracting Authorities

Economic Operators (tendering for supply to Contracting Authorities)

1.2PEPPOL Business Interoperability Specification (BIS) Context

The set of formal requirements for ensuring interoperability of pan-European Public eProcurement are specified as PEPPOL Business Interoperability Specifications. These Specifications follow an open interoperability architecture based on:

• the European Interoperability Framework 2.0
• the CEN ISSS WS/BII Profiles
• the PEPPOL eSignature Infrastructure
• the PEPPOL Transport Infrastructure

PEPPOL divides the Legal, Organizational, Semantic and Technical layers of the European Interoperability Framework version 2.0 into 6 layers as shown in the figure below.

Figure 1 PEPPOL's Interoperability Framework

This sets the foundation of the BIS in the following way:

• Legal requirements, setting the Legal scope of the specification are stated in chapter 2.
• Business requirements, setting the Organization/Business scope of the specification are stated in chapter 3.
• The solution to the requirements are specified using a CEN ISSS WS/BII Profile as the basis. A CEN ISSS WS/BII specifies the process (choreography) and the semantics of the documents involved. PEPPOL uses extensions i.e. adds Business Rules, to meet the PEPPOL specific Legal and Organisational Requirements. The BIS Process (CEN ISSS WS/BII Choreography) is specified in chapter 4. The BIS Semantics of the involved documents (CEN ISSS WS/BII transactions extended with PEPPOL Business rules) are specified in chapter 5.

The semantics of the documents are being binded to a syntax e.g. CEFACT or UBL, this is described in chapter 6.

In order to comply with a PEPPOL BIS, it is necessary to comply with each interoperability layer.

1.3BIS Profile 12a Scope

PEPPOL Profile 12a only covers part of the eProcurement processes.

Figure 2 Scope of eCatalogues

Figure 2 indicates that the preaward electronic catalogues is a part of a Tender within the Tendering process and can set the foundation for the postaward eCatalogue.

The (optional) underlying eSignature validationsupports digital signing of eCatalogues to ensure eSignatureswork end-to-end between the participants.

The (optional) PEPPOL transport infrastructure ensures secure and reliablecommunication of eCatalogues.

2Legal Interoperability

This chapter describes the legal implications of adopting the PEPPOL Profile 12a.It also analyzed any legal obligations coming from existing European Directives.

Under certain conditions, established by the public procurement legislation, eCatalogues can be submitted as a part of a tender.At general level, the relevant directives relating to the procurement procedure are the directives 2004/17/EC and 2004/18/EC.

The EU Directives allow (Recital 12 of the EU Directive 18/2004/EC[1]), under specific conditions, that a tender may be submitted in a procurement procedure in an electronic format. In such a case contracting authorities may make use of this electronic technique, providing such use complies with the rules drawn up under this Directive and, basically, the principles of equal treatment, non-discrimination and transparency.

Under these conditions, and exclusively whether explicitly provided by the contracting authority, the submission of electronic tenders in a public procurement competition may assume the form of e-catalogues. Though the Directive recommends the recourse to e-catalogues where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, the recourse to e-catalogues may take place in any tender procedure, at condition that the use of it is made in compliance with the rules provided by the article 42 (Rules applicable to communications) and Annex 10 of the Directive itself[2] (as well as with possible requirements provided by the contracting authority).

In this sense it will actually be the concerned contracting authority which will specify the exact conditions for the creation and exchange of e-Catalogues in form of tenders. So, contracting authorities shall define content requirements and may request specific formats for e-Catalogues, providing that these specifications are not contrary to the general principle of equality of treatment, non-discrimination and transparency.

The Directives as such are not prescribing any particular format for eCatalogue content and format. However, a relevant legal provision that has an influence on the content that should be included in eCatalogues is the mandatory use of the Common Procurement Vocabulary (CPV) to identify the matter of the tender.

CPV has a structure that has been extensively analysed in Deliverable 3.1, and although the most detailed level of this classification system has not in all cases perfectly the right level detail for identifying catalogue items, in many cases this can happen, and the mandatory use of CPV is a very good incentive to think of CPV not just as a bureaucratic obligation, but as a mean to best communicate to the EU internal market detailed information on the items that are the subject of the tender.

Summarizing, according to the EU Directives, electronic catalogues are electronic purchasing techniques relying on electronic means of communications. They may have the form of electronic documents established by the suppliers which describe products and prices which may, under certain conditions, constitute a tender.

In short, according to the EU provisions:

-e-catalogues are electronic purchasing techniques;

-e-catalogues rely exclusively on the use of electronic means of communication;

-the EU Directives authorise the submission of electronic tenders;

-the EU Directives authorise the submission of e-catalogues as tenders in a public procurement competition (especially in DPS and framework agreements);

In the following paragraphs the mandatory legal requirements provided by the EU legislation related to the electronic purchasing techniques, the use of electronic means of communication, the submission of electronic tenders and the use of eCatalogues as tenders are analysed. As a consequence, the aforementioned mandatory legal requirements shall be considered as mandatory when contracting authorities of a Member State decide to make use of e-catalogues as a tendering tool.

2.1EU Mandatory requirements for electronic purchasing techniques

Electronic purchasing techniques must be intended as new procurement techniques fully based on the use of electronic devices. The Recital 20 of the Directive 2004/18/EC provides that electronic purchasing techniques shall comply, amongst others, with the principles of equal treatment, non-discrimination and transparency.

As a consequence, whether EU Member States’ contracting authorities should recur to electronic purchasing techniques to award public contracts, they shall mandatory ensure the fulfilment of the principle of equal treatment, non discrimination and transparency as explicitly referred by the EU Directives.These principles are derived from the general principles of the Treaty, and in particular those related to the freedom of movement of goods, the freedom of establishment and the freedom to provide services.

In particular,

-the equal treatment principle, involves that all economic operators shall be treated in exactly the same way. For example: the information provided by contracting authorities must be the same for all economic operators;the criteria for the award of the contract should enable tenders to be compared and assessed objectively;the necessary electronic tools and means that economic operators must use for taking part in a public competition must be equally accessible to suppliers.

-the non-discrimination principle, involves that all the tender rules and conditions must ensure that no economic operators from another Member State may be discriminated in force of his nationality. For example, the electronic tools and means that economic operators must use for taking part in an electronic public competition must be equally accessible to all. Fees required by contracting authorities for allowing economic operators to access the system and technical and economic requirements, if any, must be justified and proportional to the estimated value of the contract and should not discriminate or restrict access to interested competitors to the procurement procedure.

-the transparency principle, involves that tender procedures, even when carried out electronically, must be conducted in a manner that ensures that all processes are transparent and fair. Moreover all the information concerning the participation and the awarding of the contract must be made available and accessible in any way to interested economic operators.

2.2EU Mandatory Legal requirements for electronic means of communications

As previously seen, according to the Recital 20 of the Directive, the use of e-Catalogues for the submission of tenders relies on the use of electronic means of communications.

Both the Directives 2004/17/EC and 2004/18/EC provide at the article 1.12 a definition of electronic means of communication, stating that‘electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.

The article 42 of the Directive 18/2004/EC provides for rules applicable to electronic communications and the tools to be used for communicating by electronic means. In particular, the means of communication chosen must be generally available and thus not restrict economic operators' access to the tendering procedure (paragraph 2).

Moreover, communication and the exchange and storage of information shall be carried out in such a way as to ensure that the integrityof data and the confidentiality of tenders and requests to participate are preserved, and that the contracting authorities examine the content of tenders and requests to participate only after the time limit set for submitting them has expired (paragraph 3).

Finally, the paragraph 4, prescribes that the tools to be used for communicating by electronic means, as well as their technical characteristics, must be non-discriminatory, generally available and interoperable with the information and communication technology products in general use.

Therefore, according to the aforementioned provisions, when making use of electronic means of communications in tender procedure, contracting authorities should comply with the following legal requirements, strictly related to the principlesas explicitly referred by the EU Directives.

In particular the choice of the electronic means of communications chosen by a contracting authorities should ensure:

•general availability: any electronic mean of communication used by a contracting authority in a tender procedure shall be commonly accessible and easily usable so as to ensure the compliance with the general principle of equal treatment and non-discrimination, and offering, at the same time, a real openness to the market and the grounds for effective competition. Moreover, just to achieve unrestricted and full direct access to all the tender documents, all relevant documents must be accessible on a precise site and around the clock from the date of publication of the contract notice until the expiry of the deadline for submitting tenders. In this sense, contracting authorities shall guarantee free, available and reliable access to the contracting authority’s connection to an open network, in order to guarantee that access to the tendering procedure is not restricted and to ensure equal treatment and effective competition.

•interoperability: the electronic means used and any electronic tool made available by a contracting authority shall be able to function and interact with commonly used equipment and applicationsas well as with commonly used hardware and software equipmentavailable on the market and normally used by economic operators. In particular, such means and tool shall not represent barriers for cross-border suppliers or certain groups of suppliers

•integrity, confidentiality and security: the tools and means used for the transmission and storage of all information concerning a tender procedure shall be realised in a way to safeguard the integrity of transmitted data, ensuring that data exchanged between contracting authorities and economic operators or stored within an electronic platform or system is not accessible to other parties and that the aforementioned data and information may not be modified or tampered with (on purpose or accidentally) by the contracting authorities themselves or by third parties.

2.3EU Mandatory Legal requirements for the electronic submission of tenders

According to the EU Directives, tenders, when appropriated and clearly stated by the contracting authorities in the contract notice, may be submitted by electronic documents on electronic devices.

In order to full fill the same binding effect of tenders submitted by paper documents, and render these tools really effective to their scope, public procurement EU Directives provide that the submission of tenders made by electronic devices shall necessarily have the same evidential value of those made by paper documents. Such principle is affirmed by the Recital 35 which states that “in view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.

As a consequence, so as specified by the article 1.12 of the Directive 18/2004/EC, the terms "written" or "in writing", as used in the Directive itself, shall be intended as “any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means”.

In this way the electronic document (subscribed with an electronic signature where expressly required by the rules of each single Member State) is put on par with the traditional paper document manually subscribed by an economic operator, with the consequence that it may be invoked before third parties and has the same evidence value of the paper document.

According to the article 42.5, the following rules are applicable to devices for the electronic transmission and receipt of tenders:

a)information regarding the specifications necessary for the electronic submission of tenders, including encryption, shall be available to interested parties. Moreover, the devices for the electronic receipt of tenders shall conform to the requirements of Annex X;

b)Member States may, in compliance with Article 5 of Directive 1999/93/EC, require that electronic tenders are accompanied by an advanced electronic signature;

c)Member States may introduce or maintain voluntary accreditation schemes aiming at enhanced levels of certification service provision for these devices;

In addition, the Annex X of the Directive 18/2004/EC prescribes the mandatory requirements relating to devices for the electronic receipt of tenders. In particular, devices for the electronic receipt of tenders must at least guarantee, through technical means and appropriate procedures, that:

(a)electronic signatures relating to tenders comply with national provisions adopted pursuant to Directive 1999/93/EC;

(b)the exact time and date of the receipt of tenders can be determined precisely;

(c)it may be reasonably ensured that, before the time limits laid down, no-one can have access to data transmitted under these requirements;

(d)if that access prohibition is infringed, it may be reasonably ensured that the infringement is clearly detectable;

(e)only authorised persons may set or change the dates for opening data received;

(f)during the different stages of the contract award procedure or of the contest access to all data submitted, or to part thereof, must be possible only through simultaneous action by authorised persons;

(g) simultaneous action by authorised persons must give access to data transmitted only after the prescribed date;

(h)data received and opened in accordance with these requirements must remain accessible only to persons authorised to acquaint themselves therewith.

Therefore, on the basis of the aforementioned provisions, and in addition to all the other mandatory legal requirements determined for electronic purchasing techniques and electronic means of communication, the electronic submission of tenders in an awarding procedure must ensure the following legal requirements:

•in order to guarantee the certainty and the authenticity of the tender, the electronic tender shall be subscribed, whether required by the single Member State, with an electronic signature adopted in compliance with the Directive 1999/93/EC. In any case Member States may require additional accreditation schemes aiming at enhanced levels of certification service provision for these devices;