We reported in last edition of this newsletter on the European Commission’s recent statement on the use of the accelerated restricted procedure for ”major public projects” procured “throughout 2009 and 2010”, which the Commission stated may be justified on the basis that speeding up the procurement process would provide a boost to the economy in the current financial climate.
Since then, the OGC has issued guidance for public sector purchasers about the statement. The OGC policy note states that:
- Contracting authorities should be able to use the accelerated procedure for any procurement that exceeds the relevant threshold, if early contract execution would benefit industry.
- Contracting authorities must decide if it is appropriate to use the accelerated procedure on a case-by-case basis. In doing so, an authority should consider whether using the accelerated procedure would actually provide a boost to the economy and also the market's ability to deliver in a reduced timescale.
- Where a contracting authority elects to use the accelerated procedure, the OGC recommends that the authority includes a statement that the procedure is being used for the benefit of the economy in the relevant part of its contract notice (ie, section IV.1.1.
- The OGC also encourages contracting authorities to continue to use existing framework agreements for straightforward purchases, as this can remove the need for a formal procurement process and so save time.
We note that the competitive dialogue procedure makes no provision for acceleration and hence the Commission’s announcement does not apply to it. In our view and in the light of the OGC guidance, in order to ensure that a procurement falls within the scope of the Commission’s statement, the accelerated restricted procedure should only be used where doing so will demonstrably deliver some benefit in terms of accelerating economic activity, and in circumstances where the contracting authority can be confident that its use does not introduce inequality between economic operators (in particular, it should not confer an unfair advantage on an incumbent supplier).