Commission's guidance on the use of the public procurement framework in the COVID-19 crisis

The European Commission published today a Communication containing guidance on how to handle public procurement during this COVID-19 crisis. As it should be expected, this is simply a refresher of how to handle procurement quickly during an emergency and does not affect in any way the current set of procurement rules and that said framework already provides flexibility to deal with the current crisis. In my view, that is indeed the case and the Commission is trying to assuage procurers that all tools in the legal framework are there to be used in times like this.

The advice seems (correctly) to be to keep using the same approaches and shorten deadlines of open and restricted procedures where urgency dictates, before moving to the use of exceptional procedures such as the negotiated procedure without prior publication of notice or alternative solutions for engaging the market. However, the Commission seems not to have a problem in spelling out that the negotiated procedure without prior publication of notice can be used and how it should be used.

Regarding the negotiated procedure without prior publication of notice, the Commission highlights the same points I mentioned here on Friday: that the conditions for 'extreme urgency' from Article 32 are cumulative and the grounds need to be interpreted restrictively due to the exceptional nature of the provision. This means that it can only be invoked for the provision of supplies without delay and with evidence that even the accelerated open or restricted procedures would not be of use in that particular situation. In other words, it cannot be used to award contracts that would take longer to fulfil than an accelerated open or restricted procedure.

The Commission argues regarding the lack of foreseeability by the contracting authority that the specific needs for medical equipment and infrastructure (including ventilators) could not be foreseen and planned in advance. On this I do not agree fully with the Commission. It is true that there is a moment when the need could not be foreseen and planned in advance, but if after that moment no action was duly taken (as the UK Government did with the ventilators) then the extreme urgency was actually brought about by the contracting authority.

Furthermore, the guidance also states that the negotiated procedure without prior notice is only to be used for stop gap solutions, that is, for the here and now instead of long term solutions that could be achieved via framework agreements perhaps with accelerated procedures. For me it means it is recognising the tight rope being walked on at the moment and that emergency purchases done today should not extend far into the future.

The Commission also recognises the possibility of different ways of engaging the market being deployed by contracting authorities and that these may be an opportunity to include strategic procurement aspects into it. Frankly, I cannot think of a time or moment *less* adequate in general to consider strategic procurement implications than in a middle of a crisis. Now is the time to get the basics right, not to go for the bells and whistles.

Perhaps an exception would be for the security of supply, but even that should not be affected by maintaining capacity inside the Union and not necessarily inside the actual Member State doing the procurement. Having said that, examples like the TechForce19 which bridge the gap between development and procurement seem like a good idea:

This round of TechForce19 challenges have now closed. In total we received 1643 applications from innovators wanting to help on the #Covid19 frontlines. A fantastic response, with everyone acting super fast. Now for the sift w/ @NHSX @AHSNNetwork @DCMS @GDSTeam @mhclg https://t.co/2RvTtJCcquApril 1, 2020

I would add that using the innovation partnership for *some* of the technical issues faced instead of just a simple phone call with potential suppliers as was done in the UK that ended up with Dyson developing a new ventilator would not be a bad idea either.