As Governments continue to battle the ongoing COVID-19 crisis,  the needs of public sector supply chains are crucial. From medical equipment through to urgent construction projects, the European Commission has just (1 April 2020) issued helpful practical guidance on the flexibilities in the regime (see link below).

The Guidance recognises that time is of the essence in procurement for many member states and that there are tools which enable public sector purchasers "to buy within a matter of days, even hours, if necessary". 

Regulation 32 negotiated procedure without prior publication of an OJEU notice

As set out in our previous article on this topic, there is scope under the Public Contracts Regulations 2015 (and corresponding provisions under the Utilities and Scottish rules) to negotiate with one supplier without an advertisement. Whilst this is a 'derogation' from the principles of procurement, the Guidance confirms that "no procedural steps are regulated at an EU level". 

The Guidance provides specific examples of COVID-19 related procurement as falling within the derogations required for regulation 32 procurements. 

The Guidance confirms that the Commission is supportive of public buyers taking an active purchasing role in COVID-19 related procurement, including contacting potential contractors by phone, email or in person. 

Practical strategies

The Commission's Guidance is to be welcomed by public sector purchasers in that it provides a clear indication that COVID-19 related procurement activity should fall within the existing flexibilities in the regime. This is also consistent with domestic member state guidance on this issue (for example, in the UK). That said, the Guidance does not change the law and so a risk assessed approach will be needed for every procurement process. 

In particular, it would be more difficult to justify long term strategic contract awards without a competition by seeking to use the current pandemic as a justification. The safest ground for regulation 32 procurements will be for those purchases which have a direct causal link to COVID-19 requirements,  with contracts put in place for as short a period of time as possible.

A contract award and/or VEAT notice are useful tools to consider in de-risking such contract awards from cancellation claims. As always, records should be kept - including the regulation 84 report on the reasons why certain decisions were taken to help to justify the position if needed later. 

For more information or advice on any procurement issue you may be facing please contact David Hansom, Partner on / 0207 876 4127 or your usual contact at Clyde & Co.