European Commission: use of the framework on public procurement during the emergency

The emergency situation related to the COVID-19 crisis requires that public buyers in the Member States have to ensure goods and services to deal with such emergency at very short notice.

The European public procurement framework provides all necessary options for the purchase as quickly as possible of supplies, goods, and services of first necessity.

In Communication n. 2020/C 108 I/01, “Guidance on using the public procurement framework in the emergency situation related to the COVID-19 crisis”, published the last 1st of April, the Commission explains which options and flexibilities are available under the EU law to address the COVID-19 crisis.

According to the Directive 2014/24/EU, in cases of urgencies, public buyers can avail themselves of possibilities to substantially reduce the deadlines to accelerate open or restricted procedures (“accelerated procedures”). Under the open procedure, the deadline for the submission of tenders may be reduced from 35 to 15 days in cases of duly justified urgency; under the restricted procedure, the deadline to submit a request for participation may be reduced to from 30 to15 days and to submit an offer from 30 to 10 days.

However, it may happen that the short terms of the accelerated procedures are not tight enough to respond efficiently and quickly to a situation of extreme and unpredictable urgency. In this case, the directive provides for the ‘negotiated procedure without publication’. With this procedure contracting authorities have the right to negotiate directly with potential contractors (without publication of the tender notice) the purchase of goods, services, supplies necessary to deal with cases of extreme and unpredictable urgency.

It is beyond doubt for the Commission that the Covid-19 pandemic legitimizes the use of the procedure without negotiation. The specific needs for hospitals, and other health institutions to provide treatment, personal protection equipment, ventilators, additional beds, and additional intensive care could, certainly, be qualified as a situation of extreme and unpredictable urgency.

To meet immediate needs, public buyers in the Member States might, therefore, consider adopting the negotiated procedures without prior publication. However, clarifies the Commission, more stable solutions should be found, such as framework contracts for supplies and services, awarded through regular procedures (including accelerated ones).