Part V – Digital ecosystem
Title I – Digital tools
Chapter 1
Electronic communication and interoperability
Article 127
Electronic communication
1.Public buyers shall use electronic communication tools in all their exchanges with the economic operator in the procurement procedure. They shall use only generally available and non-discriminatory tools, and their communication shall be in conformity with the harmonised standard for procurement detail pursuant to Article 129(1) point (b).
2.Notwithstanding paragraph 1, public buyers may use other means of communication to the extent that electronic communication is not possible due to the specific technical requirements of the procurement procedure or to the extent that this is necessary for one of the following reasons:
(a)a breach of security of the electronic communication; or
(b)the protection of the particularly sensitive nature of data requiring such a high level of protection that it cannot be properly ensured by using electronic communication tools.
3.In all communication, exchange and storage of data, public buyers shall ensure that the integrity of data and the confidentiality of expressions of interest, tenders and innovative solution proposals are preserved and that they are able to exchange data with the economic operator through the interoperability network pursuant to Article 128. They shall examine the content of expressions of interest, tenders and innovative solution proposals only after the time limit set for submitting them has expired and shall ensure that any unauthorised access is detectable.
4.Notwithstanding paragraph 1 of this Article and Article 65, public buyers may require the use of electronic communication tools which are not generally available and non-discriminatory only where this is necessary for the conduct of the procurement procedure and where they provide free and equal access to such tools to all economic operators intending to participate in the procurement procedure.
5.In accordance with Articles 27 and 37 of Regulation (EU) 910/2014 81 , public buyers may require the use of advanced electronic signatures or seals, advanced electronic signatures or seals based on a qualified certificate or qualified electronic signatures or seals for the signature of electronic communication by the economic operator.
Article 128
Interoperability network
1.The Commission shall establish or designate a secure network for data exchange, to enable public buyers and economic operators to communicate using electronic means in procurement procedures using different eProcurement service providers (‘interoperability network’).
2.The Commission shall adopt delegated acts in accordance with Article 141, to supplement this Regulation in order to establish or designate such an interoperability network.
The Commission shall ensure that the interoperability network meets the following requirements:
(a)it complies with the harmonised standards referred to in Article 129 and the common specifications referred to in Article 130;
(b)it takes into account existing Union tools and standards;
(c)it complies with the requirement for protection of personal data in accordance with Regulations (EU) 2016/679 82 and (EU) 2018/1725, and ensures ‘data protection by design' and by default as laid down in Article 25 of Regulation (EU) 2016/679 and Article 27 of Regulation (EU) 2018/1725;
(d)it allows for the establishment of a secure, practical, easily implementable, flexible, configurable and cost-efficient data exchange in all procurement procedures;
(e)it considers the particular needs of SMEs;
(f)it considers the eProcurement ontology as a semantic framework standardising the concepts of Union public procurement; and
(g)it considers the public summaries and their technical implementation in accordance with Article 110.
3.The Commission is empowered to adopt implementing acts laying down the detailed arrangements for the implementation and operation of the interoperability network, including, where appropriate, the rules on the re-use of existing networks for the purposes of this Article. Those implementing acts shall specify at least the following:
(a)technical information on the connection to the interoperability network;
(b)data format and structure including configuration and syntax;
(c)semantic repository;
(d)interoperability requirements;
(e)scalability and performance;
(f)security and accountability requirements;
(g)data ownership and access management;
(h)qualification of eProcurement service providers;
(i)organisational and technical measures for processing personal data;
(j)arrangements to tackle inappropriate or fraudulent use of the interoperability network;
(k)availability of the interoperability network and data; and
(l)interconnections made via the interoperability network, including the interconnection to the digital business credential tool and to the NPPDS.
The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the advisory procedure referred to in Article 143(2).
4.The Commission may require the interoperability network operator to deny or remove access to the network for eProcurement service providers where those providers do not, or no longer, fulfil the requirements laid down in Article 131. The Commission shall provide appropriate prior notice to eProcurement service providers of the denial of or loss of access to the network. The interoperability network shall provide the Commission with the information necessary for assessing the compliance with the requirements laid down in Article 131.
Article 129
Harmonised standards for public procurement
1.The Commission may adopt a standardization request in accordance with Regulation (EU) No 1025/2012 for the drafting of harmonized standards, for the semantic data model and interoperability of the core elements of the following:
(a)the procurement procedures in accordance with this Regulation (the ‘harmonised standard for procurement procedures’); and
(b)at least the main elements of the procurement detail (the ‘harmonised standard for procurement detail’).
2.Standards adopted in accordance with paragraph 1 shall comply at least with the following criteria:
(a)they take into account existing Union tools and standards;
(b)they meet the requirement for the protection of personal data in accordance with Regulations (EU) 2016/679 and (EU) 2018/1725, in particular respecting the principles of ‘data protection by design’ and by default as laid down in Article 25 of Regulation (EU) 2016/679 and Article 27 of Regulation (EU) 2018/1725;
(c)they allow for the establishment of a secure, easily implementable, flexible, configurable and cost-efficient data exchange in all procurement procedures;
(d)they consider the particular needs of SMEs; and
(e)they consider the eProcurement ontology as a semantic framework standardising concept of Union public procurement.
3.Where the harmonised standard for procurement procedures or the harmonised standard for procurement detail, delivered following the request referred to in paragraph 1, complies with the requirements set out therein, the Commission shall publish the reference to that harmonised standard in the Official Journal of the European Union.
Article 130
Common specifications
1.The Commission may adopt implementing acts establishing common specifications as referred to in Article 88(4), point (a), covering the essential requirements for the semantic data model of the core elements of the procurement procedures referred to in Article 129(1), point (a).
Those implementing acts may be adopted where the Commission has requested, pursuant to Article 10(1) of Regulation (EU) No 1025/2012, one or more European standardisation organisations to draft or to revise European standards for those requirements and:
(a)the request has not been accepted by any of the European standardisation organisations to which the request was addressed; or
(b)the request has been accepted by at least one of the European standardisation organisations to which the request was addressed, but the European standards requested:
(i) are not delivered within the deadline set in the request;
(ii) do not comply with the request; or
(iii) do not satisfy the requirements they aim to cover.
2.Where the references of a harmonised standard are published in the Official Journal of the European Union, the Commission shall repeal the implementing acts adopted pursuant to paragraph 1, or the relevant parts thereof, to the extent they cover the same requirements.
3.When a Member State or the European Parliament considers that a common specification or parts thereof do not entirely satisfy the requirements which it covers, it shall inform the Commission thereof by submitting a detailed explanation. The Commission shall assess that detailed explanation and may, if appropriate, amend the implementing act establishing the common specification in question.
Chapter 2
eProcurement service providers
Article 131
Obligations of eProcurement service providers
1.eProcurement service providers shall ensure that their eProcurement platforms comply with the harmonised standards referred to in Article 129, the references of which have been published in the Official Journal of the European Union, or with the common specifications adopted pursuant to Article 130.
2.eProcurement service providers shall, where relevant, enable the use of the European Business Wallets established pursuant to Regulation [OP – please add proposal on the establishment of the European Business Wallets] for the services they provide to economic operators and public buyers.
3.eProcurement service providers shall ensure that their eProcurement platforms connect to the interoperability network in accordance with the implementation arrangements provided in the implementing acts in accordance with Article 128(3).
4.eProcurement service providers shall not be in an exclusion situation pursuant to Article 25. eProcurement service providers shall be established in the European Economic Area (EEA), shall be owned and controlled by natural or legal persons that are established in the EEA and no natural or legal person, established in a third country shall exercise, directly or indirectly, decisive influence over them. eProcurement service providers shall store all data related to public procurement procedures conducted by public buyers pursuant to this Regulation in the EEA.
5.eProcurement service providers shall ensure access to the procurement detail pursuant to Article 97 and shall not charge any fees for access to any electronic communication conducted through the interoperability network.
6.eProcurement service providers shall ensure that their eProcurement platform is compliant with the technical arrangements provided in the implementing act adopted pursuant to Article 133(5).
7.eProcurement service providers shall connect to an NPPDS established in accordance with Article 134, unless they provide their services exclusively to economic operators.
8.Member States shall designate one or more competent authorities responsible for verifying whether eProcurement service providers comply with the obligations set out in this Article. They shall provide for penalties applicable to infringement of those obligations which shall include the temporary prohibition to provide those eProcurement services. Those penalties shall be effective, proportionate and dissuasive.
Article 132
Commission eProcurement platform
1.The Commission shall set up and operate an eProcurement platform (‘Commission eProcurement platform’) and make it available to public buyers, for the purpose of conducting procurement procedures, and to economic operators, for the purpose of participating in procurement procedures.
2.The Commission eProcurement platform shall comply with the requirements applicable for eProcurement service providers set out in Article 131(1) to (6). The Commission shall make the solution developed for the Commission eProcurement platform available as open-source software.
3.Member States may require public buyers to use the Commission eProcurement platform. They shall notify the Commission of that decision at least 12 months in advance before the date from which public buyers are required to use the Commission eProcurement platform.
Chapter 3
Electronic eligibility
Article 133
Electronic eligibility service
1.The Commission shall set up and operate an electronic eligibility service. The electronic eligibility service shall provide an electronic verification service for exclusion grounds, selection criteria and requirement of origin for each procurement procedure by means of the European Business Wallets established pursuant to Regulation [OP – please add proposal on the establishment of the European Business Wallets] or by alternative electronic means which shall be interoperable with the European Business Wallets.
2.For each procurement procedure, public buyers shall specify the applicable exclusion grounds, selection criteria and requirements of origin, in the electronic eligibility service. Economic operators shall create an eligibility profile in the electronic eligibility service corresponding to the procurement procedure they wish to participate in. The eligibility profile shall allow public buyers to verify if the economic operator fulfils the requested requirements through use of the digital business credential tool.
3.The Commission is empowered to adopt delegated acts in accordance with Article 142 to supplement this Regulation, laying down detailed rules of the management the electronic eligibility service and designating the digital business credential tool and the related network to be used by economic operators for the purpose of determining eligibility.
4.When preparing the delegated acts referred to in paragraph 3, the Commission may select one or more of the following instruments, including any combination thereof, or any successor thereto:
(a)the European Business Wallets pursuant to [OP: please add Regulation on the European Business Wallets];
(b)the Once-Only Technical System pursuant to Article 14 of Regulation (EU) 2018/1724 83 ;
(c)the European Digital Identity Wallet pursuant to Regulation (EU) No 910/2014 84 ;
(d)Member States services where they fulfil the applicable requirements pursuant to paragraph 5, point (b) to (f), of this Article.
5.The digital business credential tools listed in paragraph 4 of this Article shall fulfil the following requirements:
(a)for instruments set out at Union level, they shall, by 30 June 2028, be technically implemented in all Member States and be generally available to economic operators;
(b)they shall be based on existing Union tools and standards;
(c)they shall comply with the requirement for protection of personal data in accordance with Regulations (EU) 2016/679 and (EU) 2018/1725, and ensure ‘data protection by design’ and by default as laid down in Article 25 of Regulation (EU) 2016/679 and Article 27 of Regulation (EU) 2018/1725 and provide for appropriate safeguards for the rights and freedoms of data subjects pursuant to Article 10 and Article 22 of Regulation (EU) 2016/679;
(d)they shall ensure a secure, easily implementable, flexible, configurable and cost-efficient data exchange in all procurement procedures;
(e)they shall be adapted to the particular needs of SMEs; and
(f)they shall consider the eProcurement ontology as a semantic framework standardising the concepts of Union public procurement.
6.The Commission is empowered to adopt implementing acts specifying the technical arrangements for the electronic eligibility service. Those implementing acts shall specify in particular the following:
(a)technical set-up and structure of the digital business credential tool network;
(b)technical information on the connection to the digital business credential tool;
(c)data format and structure including configuration and syntax;
(d)semantic repository;
(e)interoperability requirements;
(f)set-up of the algorithmic tool required for the dynamic procedure, including definition of the algorithm;
(g)scalability and performance;
(h)security and accountability requirements;
(i)data ownership and access management;
(j)technical information on national access points of the digital business credential tool and the access point of the Commission;
(k)organisational and technical measures for processing personal data;
(l)arrangements to tackle inappropriate or fraudulent use of the digital business credential tool network;
(m)technical audits;
(n)availability of the digital business credential tool network and data;
(o)obligations of the digital credential business tool network; and
(p)detailed rules on the obligations of the Member States and the Commission regarding the electronic eligibility service, including handling the exclusion grounds set out in Articles 25 and 26, and selection criteria set out pursuant to Article 27.
The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the advisory procedure referred to in Article 143(2).
7.For the purposes of Regulation (EU) 2018/1725 the Commission shall be regarded as the processor as defined in Article 3, point (12), of that Regulation, in relation to the processing of any personal data that may result from the setting up and management of the electronic eligibility service.
8.Member States shall inform the Commission within 30 days of the creation of any new certificates or other forms of documentary evidence to be provided through the electronic eligibility service.