1. Except where use of electronic means is mandatory pursuant to Articles 28 (2) and 30 of this Directive contracting authorities and contracting entities may choose between the following means of communication for all communication and information exchange:
(a) electronic means in accordance with paragraphs 3, 4 and 5;
(b) post or fax;
(c) telephone in the cases and circumstances referred to in paragraph 6, or
(d) a combination of those means.
Member States may make mandatory the use of electronic means of communication for concessions, going beyond the obligations established in Articles 28 (2) and 30 of this Directive.
2. The means of communication chosen must be generally available and not restrict economic operators' access to the concession award procedure.
In all communication, exchange and storage of information, contracting authorities and contracting entities shall ensure that the integrity of data and the confidentiality of tenders and applications are preserved. They shall examine the content of tenders and applications only after the time limit set for submitting them has expired.
3. The tools to be used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the information and communication technology products in general use and shall not restrict economic operators' access to the concession award procedure. The technical details and characteristics of the devices for the electronic receipts to be deemed in compliance with the first subparagraph of this paragraph are set out in Annex XII
The Commission shall be empowered to adopt delegated acts in accordance with Article 46 to amend the technical details and characteristics set out in Annex XII due to technical developments or administrative reasons.
To ensure the interoperability of technical formats as well as of process and messaging standards, especially in a cross-border context, the Commission shall be empowered to adopt delegated acts in accordance with Article 46 to establish the mandatory use of specific technical standards, at least with regard to the use of e-submission, electronic catalogues and means for electronic authentication.
4. Contracting authorities and contracting entities may, where necessary, require the use of tools which are not generally available, provided that they offer alternative means of access.
Contracting authorities and contracting entities shall be deemed to offer suitable alternative means of access in any of the following situations:
(a) They offer unrestricted and full direct access by electronic means to these tools from the date of publication of the notice in accordance with Annex IX or from the date when the invitation to confirm interest is sent; the text of the notice or the invitation to confirm interest shall specify the internet address at which these tools are accessible;
(b) ensure that tenderers established in other Member States than the contracting authority's may access the concession award procedure through the use of provisional tokens made available online at no extra cost;
(c) support an alternative channel for electronic submission of tenders.
5. The following rules shall apply to devices for the electronic transmission and receipt of tenders and for the electronic transmission and receipt of applications:
a) information on specifications for the electronic submission of tenders and requests to participate, including encryption and time-stamping, shall be available to interested parties;
b) devices, methods for authentication and electronic signatures shall comply with the requirements of Annex XII;
c) contracting authorities and contracting entities shall specify the level of security required for the electronic means of communication in the various stages of the concession award procedure followed. The level shall be proportionate to the risks attached.
d) where advanced Electronic Signatures as defined by Directive 1999/93/EC24 of the European Parliament and of the Council are required, contracting authorities and contracting entities shall accept signatures supported by a qualified electronic certificate referred to in the Trusted List provided for in the European Commission Decision 2009/767/EC25, created with or without a secure signature creation device, subject to compliance with the following conditions:
(i) they must establish the required advanced signature format on the basis of formats established in Commission Decision 2011/130/EU26 and put in place necessary measures to be able to process these formats technically;
(ii) where a tender is signed with the support of a qualified certificate that is included in the Trusted list, they must not apply additional requirements that may hinder the use of those signatures by tenderers.
6. The following rules shall apply to the transmission of applications to participate:
(a) applications to participate in a procedure for the award of a concession may be made in writing or by telephone; in the latter case, a written confirmation must be sent before expiry of the time limit set for their receipt;
(b) contracting authorities or contracting entities may require that applications for participation made by fax must be confirmed by post or by electronic means, where this is necessary for the purposes of legal proof.
For the purposes of point (b), the contracting authority or entity shall indicate in the concession notice or in the invitation to confirm interest that it requires applications to participate made by fax to be confirmed by post or by electronic means and the time limit for sending such confirmation
7. Member States shall ensure that, at the latest 5 years after the date provided for in Article 49 (1), all procedures for the award of concessions under this Directive are performed using electronic means of communication, in particular e-submission, in accordance with the requirements of this Article.
This obligation shall not apply where the use of electronic means would require specialised tools or file formats that are not generally available in all the Member States within the meaning of paragraph 3. It is the responsibility of the contracting authorities or contracting entities using other means of communication for submission of tenders to demonstrate in the concession documents that the use of electronic means, due to the particular nature of the information to be exchanged with the economic operators, would require specialised tools or file formats that are not generally available in all the Member States.
Contracting authorities and contracting entities shall be deemed to have legitimate reasons not to request electronic means of communication in the submission process in the following cases:
(a) the description of the technical specifications, due to the specialised nature of the concession award, cannot be rendered using file formats that are generally supported by commonly used applications;
(b) the applications supporting file formats that are suitable for the description of the technical specifications are under a proprietary licensing schema and cannot be made available for downloading or remote use by the contracting authority;
(c) the applications supporting file formats that are suitable for the description of the technical specifications use file formats that cannot be handled by any other open or downloadable applications.
8. Contracting authorities may use the data processed electronically for public procurement procedures in order to prevent, detect and correct errors occuring at each stage by developing appropriate tools.
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24 OJ L 13, 19.1.2000, p. 12.
25 OJ L 274, 20.10.2009, p. 36.
26 OJ L 53, 26.2.2011, p. 66.