Operating quickly versus compliance with public procurement law, a contradiction ?

As COVID-19 continues to spread, many public authorities and other entities subject to public procurement law (including most hospitals and nursing homes), are becoming increasingly confronted with a pressing need to purchase certain goods or services.

The urgency of these needs may appear to conflict with certain procedural and substantive public procurement law requirements that such public purchasers have to comply with, e.g. with respect to publicity and competition, and the obligation to provide candidates with sufficient time to prepare and submit their proposals.

Recent examples include difficulties encountered when purchasing medical masks and other emergency equipment.

Public Procurement law tools to use in situations of urgency

Public procurement law does provide tools for public purchasers allowing them to act immediately when confronted with such urgent needs, as explained hereunder.

Firstly, in case of "extreme urgency" (urgence imperieuse/dwingende spoed) public purchasers may use the flexible "negotiated procedure without prior publication".

Extreme urgency refers to situations where the timeframe for a normal public tender award process cannot be complied with, due to unforeseeable events not attributable to the public purchaser.

This negotiated procedure without prior publication allows the purchasing authority to consult one (or if possible multiple) supplier(s) of its choice, and to immediately negotiate a contract.

It seems reasonable to consider that the current sudden outbreak of COVID-19, and the resulting urgent needs for extra supply of certain goods like medical masks, may qualify as a situation of "extreme urgency" enabling public purchasers to use this negotiated procedure without prior publication.

However, as the weeks and months will go by, and purchasers will have had adequate time to adjust to the situation created by COVID-19, it may become more difficult to justify that the situation still is unforeseeable as included in the notion of "extreme urgency".

Public purchasers may than turn to another tool offered by public procurement law, namely the possibility to limit the normal time constraints involved with classic public procurement processes, in case of "urgency duly substantiated by the contracting authority".

As opposed to the "extreme urgency" required for the negotiated procedure without prior publicity, the requirement of mere "urgency" includes situations that may be attributable to the purchaser.

In such cases of mere "urgency" the traditional prior publication requirement will have to be met, but the duration of the procurement process may be considerably shortened by limiting the minimum period between publication of the tender notice and the deadline for submission of candidacies or proposals. Overall, this may lead to a potential gain of time of up to 20 days for open procedures, and of up to 35 days for restrictive procedures.

Originally published March 21, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.