Procurement: European Commission Communication on public procurement in the COVID-19 emergency situation 2020/C 108 1/01

The European Commission has published a Communication “Guidance on using the public procurement framework in the emergency situation related to the COVID-19 crisis”

The Guidance discusses three methods for procurement by public purchasers in responding to the current COVID-19 emergency

1. use of the accelerated forms of the open and restricted procedures, with explanations of the reduced timescales available
2. negotiated procedure without prior publication of a notice
3. alternative solutions for engaging with the market  - essentially where the current nature of the market means that the other procedures are not fit for purpose. The Guidance refers to possible routes such as hackathons and closer working with “innovation ecosystems and entrepreneurs’ networks”.

Negotiated procedure without prior publication of a notice – the Guidance runs through the conditions for use of this procedure. It also notes that use of this procedure is permitted only in exceptional circumstances, which are restrictively interpreted and should be considered on a case-by-case basis. The Guidance also confirms that negotiated procedure without prior publication should be used for procuring requirements to satisfy stop-gap needs only, until a more stable solution can be found such as framework contracts.

In the context of hospitals and healthcare institutions the Guidance provides some reassurance to purchasers procuring requirements in response to the COVID-19 emergency - in terms of satisfying the conditions for use of the negotiated procedure without prior publication of a notice.

PCR 32(2)(c) provides that the negotiated procedure without prior publication may be used “insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with”[1]

The Guidance confirms, in summary, that:

• The events and specific developments relating to rise in number of COVID-19 patients requiring medical treatment has to be considered as unforeseeable for any contracting authority. The specific needs for hospitals and other healthcare institutions could not be foreseen and planned in advance and “thus constitute an unforeseeable event”.
• The “extreme urgency” condition is likely to apply at least in the short term as the procurement need has to be satisfied, without delay. It cautions that use of this procedure must be considered on a case-by-case basis. The Guidance also warns that the procedure cannot be invoked for procurements that take longer than a transparent competitive procedure would take, such as an accelerated open procedure.
• For the satisfaction of immediate needs of hospitals and other health institutions within a very short timeframe, the causal link between the unforeseen event and the extreme urgency “cannot reasonably be doubted”.

Follow this link to read the Commission Communication

For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page

[1]             Directive 2014/24//EU art.32(2)(c)