UK Government publishes Procurement Policy Note on dealing with COVID-19

The UK Government published today a procurement policy note setting out information and guidance on how public procurement should adapt to the challenges posed by COVID-19. This note recognises the need to be aware of the scope that already exists within the rules for exceptional measures and, crucially, for contracting authorities to use them. For me this is the crucial message and the one that should be disseminated widely: the current rules already include provisions for exceptional circumstances such as this one and now is the time to use those provisions.

The guidance points out that in case of an urgent requirement for goods, services or works due to COVID-19, contracting authorities can adopt various expedite procurement approaches, such as:

• Direct award due to extreme urgency
• Direct award due to absence  of competition or protection of exclusive rights
• Call off from an existing framework or dynamic purchasing agreement
• Call for competition using a  standard procedure with accelerated timescales
• Extending or modifying  existing contracts during their term

The meat of the guidance note focus on the requirements for each of these different procurement approaches.

Direct award due to extreme urgency

Regarding the first one, 'extreme urgency' is set forth in Regulation 32(2)(c) and the guidance clarifies what should constitute an 'extreme urgency' and sets up 4 cumulative tests which should be met (and recorded...):

1. Extreme urgency effectively  already exists such as immediate public health risks and not that one is planning on how to react to a future emergency
2. Events are unforeseeable, that is the impact arising from the virus could not have been predicted
3. Impossibility of complying  with regular Public Contracts Regulations timescales due to their inherent slowness
4. Situation is not attributable  to the contracting authority, that is it has not brought about the situation of extreme urgency

I think grounds 2 and 4 are the most interesting ones and those which are more likely to raise questions by procurement officers. As for 2, the guidance does not mention much other than knowing about something needs to be done implies that it is foreseeable. In addition, the lack of planning (mentioned on 4) also applies to the unforeseeable requirement as well. In other words, this exceptional procurement approaches cannot be excused in situations of negligence or incompetence. Furthermore, the measures taken need to comply with the principle of necessity, therefore the intervention must be the least damaging possible for the regular rules. In consequence, if an accelerated procedure is good enough to achieve the underlying objective there is no justification for a direct award.

All contracts awarded directly should be written down as should be the process and they are still subject to the usual ex post publicity requirements as per Regulation 50.

Direct award due to absence of competition or protection of exclusive rights

Regulation 32(2) also allows for the use of the negotiated procedure without prior publication due to absence of competition or protection of exclusive rights. The guidance again provides some clarification on the grounds for use, namely how the lack of competition is defined or what intellectual property rights are included in the exception. It does include however a mention to the lack of competition occurring due to the lack of alternatives available and the contracting authority not narrowing down the scope artificially as to exclude competition.

Call for competition using a standard procedure with accelerated timescales

Regulations 27(5), 28(10) and 29(10) provide some scope for the reduction of timescales based on urgency but without the need for the strict requirements set for the direct award based on extreme urgency grounds. However, the guidance recommends the use of a disclaimer in the notice providing for a clear justification behind the claim of urgency.

Extending or modifying existing contracts

As for extending or modifying existing contracts, the guidance refers to Regulation 72(1) and the various requirements that need to be met. This remain unchanged and contracting authorities are advised to again document and record the reasons for the decision to extend or modify the existing contract.

Overall, my view of the guidance is aligned withy Albert’s and is frankly positive. It handles the uncertainty and risks raised by COVID-19 well by reassuring procurement officers that the Regulations already provide for tools to be used in this time of need. It is surely much better than Portugal’s knee jerk effort I covered yesterday.