Are you contracting with government? European Commission guidance on the application of the EU public procurement framework in the context of COVID-19

Over the past few weeks, a number of European jurisdictions have published guidance for public authorities on the options available to them when carrying out public procurement exercises to respond to the COVID-19 pandemic (see our blog post on the UK’s approach).

The European Commission has now published its own guidance (PDF) aimed at member states (including the UK, during the transition period) and their public authorities. 

This guidance expressly acknowledges the unique challenges faced by public buyers in light of the health crisis caused by COVID-19, and explains which options and flexibilities are available under the EU public procurement framework for the purchase of supplies, services and works needed to address this crisis.

The guidance reminds public authorities of the following options:

Shortening deadlines in the open and restricted procedures

Public buyers are reminded of their ability under existing rules to substantially reduce deadlines in accelerated open or restricted procedures in cases of duly justified urgency. For example:

• in open procedures, the deadline for submitting tenders can be reduced from 35 to 15 days; and
• in restricted procedures, the deadlines for:
  • submitting a request for participation; and 
  • submitting an offer can be reduced to 15 days and 10 days respectively.

Negotiated procedure without publication or direct award

If these flexibilities are not sufficient, a negotiated procedure without publication may be used to allow public buyers to acquire supplies and services without time limits, minimum number of candidates or other procedural requirements. 

A direct award to a preselected operator may even be allowed where the latter is the only one able to deliver the required supplies within the technical and time constraints imposed by the extreme urgency.

The guidance sets out the key conditions that must be met for the negotiated procedure to be available, namely: 

• events unforeseeable by the contracting authority; extreme urgency making compliance with general deadlines impossible; 
• a causal link between the unforeseen event and the extreme urgency; and 
• that the procedure is only used in order to cover the gap until more stable solutions can be found. 

The guidance goes on to explain that, in the context of COVID-19, these conditions will almost certainly be satisfied, particularly in the context of procurement required to satisfy the immediate need of hospitals and health institutions.

Active buying techniques

In addition to the above, the guidance suggests that public buyers speed up their procurements by taking a proactive approach.

For example, they are encouraged to try contacting potential contractors, to send representatives directly to countries that have necessary stocks and can ensure immediate delivery, and to contact potential suppliers to agree to an increase in or renewal of production.

Innovative solutions 

However, the Commission also acknowledges that disruptions to supply chains and exceptional increases in demand may make it physically or technically impossible to procure certain goods, even using the options outlined above. 

As a result, it encourages public authorities to explore the use of innovative solutions, including:

• using digital tools such as hackathons to trigger a wide interest among economic actors able to propose alternative solutions; and
• working closely with innovation ecosystems or entrepreneurs’ networks that may be able to propose solutions.

Of course, using such solutions presupposes capacity among public authorities whose resources are already likely to be stretched.

Final thoughts

In this guidance, the Commission is sending a clear message to public authorities that they should not encounter procedural constraints when carrying out public procurement activities in situations, like the current crisis, that present an 'extreme and unforeseeable urgency'. 

Like the UK government, it emphasises that the significant flexibilities within the EU public procurement framework obviates the need for additional legislation.

The guidance serves as a reminder for public authorities of the existing options available to them under the existing procurement rules that allow them to procure goods, services and works needed to respond to the COVID-19 pandemic on an urgent basis. 

Perhaps more significantly, it expressly states that the challenges posed by the COVID-19 crisis are likely to justify the use of the negotiated procedure without publication in many circumstances.

The Commission has made clear that it will 'mobilise all its resources to provide further advice and assistance to Member States and public buyers'. 

We can therefore expect to see further guidance in this space, as the global pandemic develops.