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Procurement in a Nutshell – Urgent procuring in wake of the Coronavirus COVID-19

Following the outbreak of the coronavirus and disruption this is likely to have on the formal procurement of public contracts, public bodies may now be looking into whether it is possible to procure urgent works, supplies and services without adhering to the requirements of the Public Contracts Regulations 2015 (PCRs).

Applicability of Regulation 32?

Regulation 32 of the PCRs sets out limited instances when contracting authorities can award public contracts via a negotiated procedure without prior publication, in other words allowing them to award a contract without complying with the normal procurement timetables and rules.

The provision which looks most relevant to apply in the case of the Coronavirus is Regulation 32(2)(c).  This provides that:

“the negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service… insofar as it is strictly necessary where, for reason 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.”

Courts are likely to apply this regulation of the PCRs very strictly, and each element of that limb should be fulfilled i.e. strictly necessary, extremely urgent and unforeseeable.

It could be argued that the potential spread of the virus was foreseeable when news broke from China, however the speed at which the virus would spread, and its impact on the United Kingdom would have been more difficult to predict.

Any contracting authority wishing to rely upon Regulation 32 should record its consideration of the procurement options available as well as the rationale for relying on Regulation 32 in their Regulation 84 report.

Furthermore any contract awarded via this route should only last for as long as strictly necessary.  As such, the contracting authority should, when it is able to do so, carry out a formal procurement for the affected works/service/supplies at the earliest possible opportunity.

Other options available

Contracting Authorities may also wish to:

  • check Regulation 7 of the PCRs to see if their contracting requirement falls within one of the categories of Public Service Contract which is specifically excluded by the PCRs; and/or
  • consider whether it is possible to carry out an accelerated ‘open’ or ‘restricted’ procedure in accordance with Regulation 27(5) or 28(10).

If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0330 137 3451.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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