In light of the state of emergency in the Czech Republic declared on 12 March 2020, the Office for the Protection of Competition of the Czech Republic issued a statement that procurement rules can be relaxed for the acquisition of urgent medical commodities such as facemasks, respirators, disinfectants and other medical supplies.
Negotiated procedure without publication
The Competition Office acknowledged that currently the main priority when making these purchases is speed, which would be grounds for using the negotiated procedure without publication pursuant to Section 63 (5) of the Act No. 134/2016 Coll., on Public Procurement (Public Procurement Act). The Act states that the contracting authority can use the negotiated procedure without publication where necessary in extremely urgent circumstances, which were not caused by the contracting authority and where the deadlines for the open procedure, restricted procedure or negotiated procedure with publication cannot be reasonably respected.
Although in urgent cases the contracting authority is entitled to use the negotiated procedure without publication, such procedures still have formal requirements, such as the need to prove the minimum requirements and provide evidence of the ultimate beneficial owner of the bidder.
No awarding procedure
In the current situation where international markets with scarce commodities often work on a “first come, first serve” basis, even the basic procurement requirements may be difficult to satisfy, which could obstruct the purchases of badly needed goods.
This situation would likely justify the award of a public contract without using the statutory procurement procedure at all. Exemption in Section 29 lett. a) and c) of the Public Procurement Act enables the contracting authority not to award the public tender in an awarding procedure if rigid adherence to the statutory requirements might jeopardise the protection of the basic security interests of the Czech Republic and, at the same time, if the use of the awarding procedure within the Public Procurement Act is not possible.
Both the protection of life and public health would in principle fall within the scope of the basic security interests outlined above. Therefore, the current state of emergency could justify avoiding procurement procedures entirely, but only for emergency purchases of equipment and tools necessary for the management of the COVID-19 crisis.