The European Commission issued guidance earlier this month on when and how the "extreme urgency" exemption applies during the Covid crisis. Over the past month there has been a significant number of contracts across government, but particularly in the healthcare sector, that have applied this exemption in order to avoid the need to run a full procurement process. The full regulation is set out at Regulation 32(2)(c) of the Public Contracts Regulations - the key extract of which is below. This is not new law.
However, it is important that contracting authorities and providers carefully assess whether the exemption actually is valid in the specific circumstances. If it is not, the contract award may be subject to procurement challenge from a third party provider who was not given the opportunity to tender.
The issues may be complex, but at a high level, authorities and providers should ask themselves a series of questions to challenge the use of the urgency exemption before it is used, including:
(i) is the requirement so urgent that there is no time to run a procurement process, even within accelerated timescales? In the case of contracts to address the Covid pandemic, this will often be the case - but not automatically.
(ii) is the event that caused the urgency unforeseeable? Again, this will often be the case for Covid related requirements. However, as time goes on, there is scope to argue that this may not be the case, if the authority could have acted earlier.
(iii) are there any other innovative ways that the contract can be procured, rather than by direct award? For example, is there even a limited level of competition or market engagement that can take place?
If you would like to discuss these issues further, please contact me at Patrick.Parkin@burges-salmon.com, or your usual Burges Salmon contact.
Contracting authorities may award public contracts by a negotiated procedure without publication ‘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. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting authority.’