On 19 December 2008, the European Commission made an announcement that, due to the financial crisis and in a bid to stimulate the economy, there is to be a "presumption of urgency" for all "major public projects".
This means contracting authorities can shorten the time limit for requests to be selected to tender from 37 to 10 days if the contract notice was sent by electronic means and the subsequent time limit for the selected candidates to submit their tenders from 40 to 10 days. With the remaining standstill period of 10 days, time limits for the restricted procedure can therefore be ultimately shortened to 30 days all in all, instead of the non-accelerated 87 days.
The Commission did not clarify what is meant by the phrase “major public projects”, but the OGC has recently issued some guidance which suggests that the phrase should be interpreted as covering any over-threshold contract where early execution of the contract is likely to be of benefit to the industry/the economy. The substantive parts of the OGC guidance are paragraphs 5 and 6, as follows:
- The Commission has not defined ”major projects” and it has not stated any minimum monetary value for the types of procurement for which it considers the accelerated restricted procedure might be appropriate. In our view, the relaxation should apply to any above threshold procurement, be it works, services or supplies, for which early execution would be of benefit to industry. Authorities should still consider the need to apply the reduced timescales for any specific requirement they might have, but should be aware this will not be suitable in all cases. They should, for example, take into account the market’s ability to respond and meet the reduced timescales. Also, authorities should continue to use existing framework agreements for the purchase of straightforward ”stock” items. At the other extreme, many projects that might be considered “major” will be more suitable for the competitive dialogue procedure, which does not lend itself to reductions in timescales and is not subject to the current relaxation.
- Decisions on whether to use the accelerated restricted procedure remain for the contracting authority to determine. However, we advise that any authority considering whether the accelerated timescale is appropriate should first determine whether the procurement in question would meet the fundamental aim of boosting the economy through rapid execution of the contract. Authorities should state this in the justification field in the OJEU notice.
Although quite short, the guidance is nonetheless helpful in that it:
- clarifies that the Commission’s relaxation does not apply to procurements that ought properly to use the competitive dialogue procedure, even where these are also “major public projects” which are likely to benefit the economy;
- implies that, to take advantage of the relaxation, contracting authorities need to demonstrate not only that a particular contract will benefit the economy, but rather that the early execution of that contract will benefit the economy (it is not clear whether this “early execution” benefit must be above and beyond the economic benefit that would have resulted were the contract entered into following the standard timescales; there is of course an argument that any public contract will inevitably “benefit the economy” in some way); and
- confirms that contracting authorities relying on the relaxation must state this in the OJEU notice.
