Procurement has moved centre-stage in the current COVID-19 Crisis with health sector purchasers having to react very quickly to immediate sourcing demands for PPE, testing kits, reagents, ventilators, temporary hospital facilities, medicines and medical consumables.
Purchasers in current life-or-death circumstances clearly cannot afford to dwell on the niceties of standard procedures and the Office of Government Procurement was quick to issue a useful Information Note to purchasers on procurement in situations of extreme urgency.
The Information Note covers options that may be considered by contracting authorities in relation to procurements above EU threshold including:
• Direct award due to extreme urgency (regulation 32(2)(c),
• Direct award due to absence of competition or protection of exclusive rights,
• Call for competition using a standard procedure with accelerated timescales,
• Social and other specific services (Light Touch Regime), and
• Extending or modifying a contract during its term.
The OGP guidance has now been supplemented by a guidance note issued by the European Commission on 1 April which focusses especially on procurements in cases of extreme urgency, so as to enable public purchasing within a matter of days, even hours, if necessary. The Commission Guidance forthrightly and helpfully makes it clear that precisely for a situation such as the current COVID-19 crisis which presents an extreme and unforeseeable urgency, “the EU directives do not contain procedural constraints”.
The Commission guidance makes it clear that under Regulation 32 “public buyers may negotiate directly with potential contractor(s) and there are no publication requirements, no time limits, no minimum number of candidates to be consulted, or other procedural requirements. No procedural steps are regulated at EU level. In practice, this means that authorities can act as quickly as is technically/physically feasible – and the procedure may constitute a de facto direct award only subject to physical/technical constraints related to the actual availability and speed of delivery”.
The Commission guidance also contains helpful and forthright guidance on other aspects of market engagement to enable public health authorities to source emergency supplies in difficult market conditions such as pro-active engagement and collaboration with suppliers to develop or secure innovative solutions. “Public buyers are fully empowered under the EU framework to engage with the market and in matchmaking activities.”
Both the OGP and Commission guidance have a number of important caveats to make it clear that the situation is not to be seen as a free-for-all. The Commission points out that if extreme urgency is invoked, the procurement need has to be satisfied without delay. The exception cannot be invoked for the award of long-term contracts and the Commission is at pains to emphasise that emergency purchasing is only meant to cover the gap until more stable solutions can be found in the medium to longer term using standard procedures.
Public Procurement Services
The material in this post is purely for information and discussion and does not purport to advise on matters of law. Any persons affected by the matters discussed in this post should seek legal advice on their particular situation.