On 19 December 2008, the European Commission announced that it considers that, in light of the current economic situation, use of the accelerated procurement procedure is justified by urgency. This will apply in relation to awards of contracts for "major public projects" during 2009 and 2010.

Background

Under Article 38 of public procurement Directive 2004/18, the time limits for the normal restricted procedure are as follows:

  • a minimum 37 days for receipt of requests to participate from candidates, commencing on the date on which the contract notice is sent; and
  • a further minimum 40 days for receipt of tenders from the selected candidates, commencing on the date on which the invitation to tender is sent.

However, Article 38(8) provides that where the time limits above are "rendered impractical for reasons of urgency", contracting authorities may fix the following time limits under an accelerated restricted procedure:

  • no less than 15 days for receipt of requests to participate (or no less than 10 days if the notice was sent by electronic means); and
  • no less than 10 days for receipt of tenders commencing on the date of the invitation to tender.

Also, under the new Remedies Directive (Directive 2007/66) a standstill period of 10 days applies between the date on which candidates are notified of the award decision and the conclusion of the contract. This cannot be shortened under the accelerated restricted procedure.

Commission statement

The Commission considers that speeding up the procurement procedures can significantly support Member State action to foster their economies. The exceptional nature of the current economic situation gives rise to a "presumption of urgency" that justifies use of the accelerated procedures provided for in Article 38(8) of Directive 2004/18 for all "major public projects". This presumption should apply during both 2009 and 2010 and in relevant cases will reduce time limits for such projects from the basic period of 87 days to a minimum period of 30 days.

Comment

The Commission's announcement does not represent a change in the law as accelerated procedures have always been possible under the Directive. However, whilst this presumption of urgency highlights the flexibility in the rules and suggests that the Commission is encouraging use of the accelerated procedure, it remains unclear what view would be taken by the courts. For example, it is not entirely clear whether the presumption could be applied to all contracts or if it is limited to "major public projects" precisely what this means.

To date there has not been a successful challenge to the use of the accelerated procedure. This statement by the Commission would seem to further reduce the risk of this happening, at least until the end of 2010. However, contracting authorities should probably not rely too heavily on the statement. Instead it would be advisable for contracting authorities to continue to act cautiously in using the accelerated procedure and to carefully consider the facts of each case.