On 1st April 2020 the European Commission published a Communication setting out its guidance on the use of the public procurement framework when procuring in emergency situations in response to the Covid-19 pandemic (the Communication).
The Communication recognises that the Covid-19 crisis requires swift and smart solutions, particularly by public sector buyers in the healthcare sector who are required to ensure, for example, that personal protective equipment and medical devices (for example, ventilators) are readily available. The Communication also identifies the importance of ensuring the availability of other medical supplies, as well as hospital and IT infrastructure (this list is not exhaustive).
Through the Communication, the European Commission sets out which options and "flexibilities" are available under the public procurement framework for the purchase of supplies, services and works.
Much like the UK Procurement Policy Note 02/20, the Communication does not suspend any requirements to comply with the procurement framework, but rather reminds contracting authorities of some of the exemptions available under the regime. In fact, the Communication broadly covers the same points that the UK Government has already set out in PPN 01/20 (and which we have already discussed here.)
The Communication might, however, give some comfort to contracting authorities in the health and care sectors as the Commission has taken the opportunity to provide healthcare specific examples for when the use of the negotiated procedure without prior publication might be justified.
In particular, the Communication sets out that there is no doubt that the specific needs of hospitals and other health institutions to provide treatment, personal protective equipment and ventilators (to name only a few) in response to the Covid-19 crisis could not have been foreseen by contracting authorities.
The Communication confirms that the immediate needs of hospitals and health institutions must be met with all possible speed, and contracting authorities will need to consider on a case by case basis whether it is possible to comply with the timelines of an accelerated open or restricted procedure.
The Communication also indicates that the urgent requirements of health care providers in the current circumstances are unlikely to be able to be procured under an accelerated open or restricted procedure (at least in relation to an increase in immediate, short-term, needs as the infection curve rises).
Notwithstanding the above, the Communication remains clear that the use of the negotiated procedure without prior publication should only be used for the most urgent of procurements (where the procurement need must be satisfied immediately) which could not have been procured by alternative means. Contracting authorities should therefore, where possible, make use of competitive procedures (utilising the accelerated timescales where possible) or award under compliant framework agreements.