The Cabinet Office has published a new procurement policy note in response to the coronavirus situation.
Procurement Policy Note 01/20: Responding to COVID-19 (PPN 01/20) reminds contracting authorities – and their suppliers – what flexibilities currently exist within the Public Procurement Regulations to act quickly, where necessary, to procure goods and services. It is not a relaxation of the regulations in the face of COVID-19.
It highlights one provision in the Regulations which specifically allows for flexibility in emergency situations, and several others where flexibility already exists.
The specific provision is Regulation 32(2). This provides that, “The negotiated procedure without prior publication may be used … 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.”
It follows that, in responding to COVID-19, contracting authorities may enter into contracts without competing or advertising the requirement so long as they are able to demonstrate:
- there are genuine reasons for extreme urgency
- the events that have led to the need for extreme urgency were unforeseeable
- it is impossible to comply with the usual timescales in the PCRs
- the situation is not attributable to the contracting authority
The PPN goes on to clarify that this is only available if you are reacting to a current situation that is a genuine emergency – not planning for one. This seems unfortunate, as planning for ongoing challenges in the coming months would seem to be best practice, when uncertainty is likely to persist about availability of resources (including capacity of contracting authorities to commission optimally at the same time as dealing with the ongoing emergency situation), as well as the ability of commissioners and suppliers to engage in hitherto standard ways.
The PPN, however, suggests Regulation 32(2) is not what should be relied on for this. Instead, some of the other options in the regulations may be available. These include:
- calling off from an existing framework agreement or dynamic purchasing system
- a call for competition using a standard procedure with accelerated timescales
- extending or modifying a contract during its term.
The PPN is a useful reference note for what to take into account in using these options – notably, for contracting authorities, emphasising the importance of transparency and maintaining a good audit trail.
It also makes reference to other possibilities such as the light touch regime, which remains at contracting authorities’ disposal. Authorities may also wish to consider utilising approaches falling outside the regulations and making grants to local organisations which may be well placed to act in a swift and targeted manner in areas of particular need.