On 1st April 2020 the Commission issued practical guidance in relation to how public bodies can use the provisions of the EU public procurement rules to source goods, services and works rapidly in response to the emergency situation caused by the Coronavirus outbreak.

The guidance emphasises that “ the EU public procurement legislation already provides public buyers in the EU with the ability to purchase protective equipment, medicines and ventilators quickly if needed in urgent situations. The current coronavirus crisis presents an extreme and unforeseeable urgency – precisely for such a situation our European rules enable public buyers to buy within a matter of days, even hours, if necessary.”

In announcing the publication of these guidelines EU Internal Market Commissioner, Thierry Breton stated that he hoped the guidance would help them by fully explaining all the flexibilities and solutions provided by the EU public procurement framework to buy such material fast. He urged all public buyers to fully exploit the flexibilities contained in the rules.

The guidance outlines the options and flexibilities provided by the EU legislation. It provides an overview of the choice of tendering procedures available to public buyers and applicable deadlines. The guidance points out possibilities, which range from considerable shortening of the generally applicable deadlines to procuring without prior publication of tender notices in exceptional circumstances, such as the extreme urgency linked to the fight against the coronavirus.

Scope

Although the guidance is principally focused on assisting public buyers procure urgent medical supplies and protective equipment the guidance is of far wider application as it refers to “options and flexibilities are available under the EU public procurement framework for the purchase of the supplies, services, and works needed to address the crisis”.

In the introduction to the guidance it also states that public buyers have to ensure not only “the availability of personal protective equipment such as face masks and protective gloves, medical devices, notably ventilators, other medical supplies, but also hospital and IT infrastructure, to name only a few” So the clear expectation is that this guidance is of more general application.

Greater Use of Direct Awards?

The guidance helpfully accepts that the coronavirus pandemic is an event unforeseeable by contracting authorities and therefore would give contracting authorities justification in appropriate cases for using the negotiated procedure without a prior call for competition – otherwise known as a direct award.

This would apply as long as the contact in question is linked or in response to the emergency situation caused by the coronavirus outbreak.

So a wide range of goods, services or works could be said to be directly linked to the COVID-19 emergency apart from essential goods and services. Examples could extend beyond medical supplies to include projects needed to maintain and keep open essential infrastructure to ensure and maintain continuity and stability of supply (ie IT procurement, transport links and logistics and construction.

Although the guidance expressly refers to the provisions of the Public Sector Directive 2014/24/EU it can be argued that this guidance can also be cross read as an aid to the interpretation of similar accelerated procurement provisions in the Utilities Directive if and in so far as the urgent need for good, services or works relates to dealing with the needs of the COVID-19 pandemic

The guidance is available here :

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.CI.2020.108.01.0001.01.ENG

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