Delivering and participating in public procurement during COVID-19

The infrequently used `extreme urgency’ regulation in the UK’s public procurement rules comes into its own in assisting both procuring authorities and bidders alike during the global pandemic.

Having spent years advising clients that a rather robust argument is needed to rely on Regulation 32(2)(c) of the Public Contracts Regulations 2015, and that just having that procurement for goods or services at the bottom of the to-do list is not a good enough reason to rely on the regulation, it is now clear that the exceptional circumstances that allow the use of this regulation have arrived.

The UK Government has published a new procurement policy note that confirms that if there is an urgent requirement for goods, services or even works as a result of COVID-19, an effective direct award of a contract can be made.  This means that advertising the opportunity is not required and so speeding up the time in which crucial goods, services or works can be delivered.

There must be genuine reasons why the specific goods, services or works in question are needed immediately and procuring authorities should keep a written record to:

• justify the urgency
• document the unforeseeable event (COVID-19)
• confirm that the usual time limits for a full procurement procedure to be carried out would mean that the urgent requirement would not be met
• set out that the procuring authority has not contributed to the need for extreme urgency.

Even as a stop-gap whilst COVID-19 remains a threat, the flexibility that the extreme urgency regulation allows is likely to prove helpful for procuring authorities enabling them to react quickly to need and companies to maintain vital business. As well as the extreme urgency regulation, the UK procurement rules contain other potentially helpful measures to permit contracts to be modified and/or extended, and procurement procedures to be accelerated.

As the coronavirus situation is rapidly evolving, our advice may change in light of Government announcements and on-going developments; please consult our Coronavirus hub for our latest thinking.