The Cabinet Office has published a Procurement Policy Note for contracting authorities responding to the COVID-19 outbreak. This note highlights how contracting authorities can utilise existing provisions of the Public Contract Regulations 2015 (PCR 2015) in ensuring they have the necessary goods and services at this time.
In particular it highlights the availability of:
- direct award due to extreme urgency using regulation 32(2)(c)
- direct award due to absence of competition or protection of exclusive rights
- call off from an existing framework agreement or dynamic purchasing system
- call for competition using a standard procedure with accelerated timescales
- extending or modifying a contract during its terms.
Whilst several of these options will be familiar to contracting authorities they are unlikely to have utilised direct award due to extreme urgency. The note explains that "COVID-19 is serious and its consequences poses a risk to life. Regulation 32(2)(c) of the PCRs is designed to deal with this sort of situation". The criteria for utilising this provision are set out.
- There are genuine reasons for extreme urgency
- The events that have led to the need for extreme urgency were unforeseeable
- It is impossible to comply with the usual timescales in the PCRs
- The situation is not attributable to the contracting authority.
Whilst the COVID-19 outbreak clearly meets these tests, the note highlights there are restrictions to its use. For instance contracting authorities will need to keep a written justification stating that these tests have been met. Before any additional procurement exercises are engaged in the contracting authority must ensure these tests are still met. Additionally, contracting authorities must continue to ensure they achieve value for money and good commercial judgment during any direct award.
It is welcomed that the government is clearly acknowledging that contracting authorities will have to act quickly to ensure that necessary goods are services are available at this time. There remains, however, a risk that measures used at this time could be challenged if the appropriate process is not followed or is considered to be excessive.