If you need emergency help with
– Public procurement
If you are a public body that needs to buy goods or services with ‘extreme urgency’ due to COVID-19 you can do so legally – but you must do it correctly.
On 18 March 2020 the UK government provided guidance on public procurement in relation to COVID-19, formally called ‘Procurement Policy Note – Responding to COVID-19 Information Note PPN 01/20‘ – there is already a lot of misinformation about what this guidance means.
There has been no change to the law or procurement rules, and there has been no relaxation of the rules.
Organisations that have to follow the Public Contract Regulations have always had the ability to directly award contracts with no competition.
The process, formally known as the ‘negotiated procedure without prior publication’, is set out in Regulation 32 of the Public Contract Regulations. These say that public bodies can directly award contracts to suppliers if one of a set of very special circumstances exists.
One of these is circumstances ‘for reasons of extreme urgency brought about by events unforeseeable by the contracting authority’ (see Regulation 32(2)(c)).
Public bodies have always been nervous about using this area of the law because it is regulation that suppliers are always on the lookout for as it’s easy to abuse.
For example, if a contract ends but a project isn’t finished, a public body might want to say that it is ‘extremely urgent’ so they can just award a contract to the supplier – in almost all cases the situation is actually a result of bad management, and so if challenged, the direct award would not stand up in court.
What the government has clarified is that requirements due to COVID-19 can be considered ‘extremely urgent’ under the law.
However, this only applies to genuine cases. If an organisation uses COVID-19 as an excuse to award a contract that they just want to because they can ‘get away with it’, it’s not more legal today than it was before the announcement. Time will tell if there are a raft of cases from suppliers that have lost out on business.
COVID-19 procurement Q&A
What do I do if I think I need to do an emergency procurement?
- Check that it really is an emergency.
- See if the goods or services are on an existing framework that allows for direct awards.
- Check that the supplier you have in mind really is the best supplier and can provide the goods and services in the current circumstances.
- Consider issuing a VEAT notice.
- Ensure you’re using the right terms and conditions for the contract.
- Negotiate the contract.
- Issue a contract award notice.
Does COVID-19 mean I can delay or cancel an existing procurement?
Yes and no. Most procurement documentation allows the buyer to extend their timetable, and does not obligate the buyer to complete the procurement. Many organisations are using these clauses in their procurement documentation to prioritise procurements as a result of COVID-19.
Are we as a buyer liable for supplier costs if we delay or cancel a procurement due to COVID-19?
Almost certainly not. Procurement documentation generally states that suppliers bid at their own cost.
Does COVID-19 mean that suppliers can send tender responses late?
No. COVID-19 is not a blanket excuse for procurement timetables being missed. However, everyone should act reasonably and clearly all organisations are struggling so each case should be treated on its merits noting that the principles of transparency and equal treatment still apply.