The ongoing COVID-19 pandemic required an urgent and unprecedented response from the government in an attempt to safeguard the healthcare service and to protect the economic wellbeing of the country. The government implemented monetary aid schemes to alleviate financial stress on individuals and businesses and in order to access resources quickly, the government decided to award contracts to private companies without the need for competitive tender.
Expedited Tender Contracts
Non-competitive contracts were awarded to acquire;
- Medical supplies
- Hospital equipment
- Information gathering services, including contact tracing
At the beginning of the coronavirus outbreak, the need for a competitive tender was waived to ensure a fast response and avoid delays in being able to obtain the necessary resources to attempt to combat the virus (see also our previous note, COVID: 19 European Commission publishes guidance on Public Procurement).
Whilst these contracts were not awarded in the usual manner, due to the exceptional circumstances, the awards were still considered to be consistent with EU and World Trade Organisation laws.
Value for Money?
Eight months into the pandemic and the UK government has awarded approximately £10 billion mostly in private, non-competitive tender contracts. A quick process was undoubtedly required at the beginning of the outbreak to source materials, however, for how much longer this fast-track procedure should continue is now being called into question.
Contracts which continue to be awarded non-competitively could result in less value for money and the government missing out on cheaper, but just as effective, alternatives.
Position Moving Forward?
The usual basis for awarding a contract using the negotiated procedure without prior publication is on the basis of extreme urgency. The justification for using this procurement method has always been limited to insofar as is strictly necessary where, for reasons of extreme urgency it is not attributable to the contracting authority and brought about by events unforeseeable by the contracting authority. Therefore the justification for contracting authorities to avail of emergency powers which were implemented to handle the initial crisis, may be open to challenge for the use of these powers, the longer the pandemic continues.
A number of judicial reviews have recently been filed against the government for failing to disclose financial details of money spent on some of the contracts to obtain personal protective equipment. Therefore in addition to the justification of a direct award method the government is now also facing challenges in respect of who they have awarded a number of these direct award contracts to and the criteria they used to justify that award.