Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis (2020/ C108 1/01)

On April 1, 2020, the European Commission’s Communication regarding the guidance on using the public procurement framework throughout the emergency situation related to the COVID-19 crisis, was published in the Official Journal of the European Union.

Options and flexibility mechanisms under the public procurement framework

COVID-19 is a medical crisis that requires swift, smart solutions and agility in dealing with an immense increase of demand for similar goods and services with certain supply chains being disrupted, while the contracting authorities/entities in the Member States are at the forefront for most of these goods and services.

The Commission explains, under the guidance, which options and flexibility mechanisms are available under the European Union’s (“EU”) public procurement framework for the purchase of the supplies, services and works needed to address the crisis caused by the COVID-19 pandemic.

As a general rule, under the current situation, the contracting authorities/entities can take into consideration several options, as follows:

• in cases of urgency the contracting authorities/entities can avail themselves of possibilities to substantially reduce the deadlines to accelerate open or restricted tender procedures;
• should those flexibilities not be sufficient, a negotiated procedure without publication can be envisaged. Eventually, even a direct award to a preselected economic operator could be allowed, provided the latter is the only one able to deliver the required supplies within the technical and time constraints imposed by the extreme urgency;
• the contracting authorities/entities should also consider looking at alternative solutions and engaging with the market.

The European public procurement framework provides the necessary flexibility to public buyers to purchase goods and services directly linked to the COVID-19 crisis as quickly as possible. In order to speed up their procurements, public buyers may also consider to:

• contact potential contractors in and outside the EU by phone, e-mail or in person;
• hire agents that have better contacts in the markets;
• send representatives directly to the countries that have the necessary stocks and can ensure immediate delivery;
• contact potential suppliers to agree to an increase in production or the start or renewal of production.

Procedures and deadlines available under the EU public procurement framework—especially in cases of urgency and extreme urgency

European public procurement rules provide all the necessary tools to satisfy the current needs caused by COVID-19, under the provisions of the Directive 2014/24/EU (the “Directive”).

For contracts falling within the scope of the Directive, the contracting authority may choose to award the contract, following an open tender procedure, with a deadline of 35 days for the submission of tenders, or a restricted tender procedure, with a deadline of 30 days for the submission of requests to participate, followed by an additional deadline of 30 days for the presentation of tenders.

In cases of urgency, the Directive foresees a substantial reduction of the general deadlines to allow for a swift award of the contract:

a)       under the open tender procedure, the deadline for the submission of tenders may be reduced to 15 days in cases of duly justified urgency;

b)      under the restricted tender procedure, the deadline to submit a request for participation may be reduced to 15 days, and the deadline to present an offer to 10 days;

In cases of extreme urgency, the negotiated procedure without publication may be used. Contracting authorities/entities 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.” In this case, the circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting authority.

Taking into consideration that the negotiated procedure without publication represents a derogation from the basic principle of the Treaty concerning transparency, it must be pointed out that the use of this procedure remains exceptional.

In order to use the negotiated procedure without publication, the relevant conditions must be cumulatively met and are to be interpreted restrictively. The authority deciding to use such mechanism will have to justify its option under an individual procedure report.

The negotiated procedure without publication allows contracting authorities/entities to negotiate directly with potential contractors, and a direct award to a preselected economic operator remains the exception, applicable only if solely a specific undertaking is able to deliver within the technical and time constraints imposed by the extreme urgency conditions.