Last year, we wrote about a report published by the National Audit Office detailing issues in central government procurement during the early stages of the pandemic. You can read that article here.
In the article we commented that further guidance on the operation of Regulation 32(2)(c) of the Public Contracts Regulations 2015 would be welcome. The Cabinet Office has recently published procurement note 01/21 – ‘Procurement in an Emergency’ which provides useful guidance to those undertaking a procurement process in response to an emergency.
The policy note stresses that, despite the existence of an emergency situation, the normal policies which underpin good practice in procurement apply. Authorities must therefore be mindful of the need to obtain good value for money, maintain a record of decisions and undertake the procurement process in a transparent manner. The note provides practical advice as to how authorities can comply with these principles and still run an accelerated procurement process. These principles are all the more important in any abnormal procurement procedure.
Authorities have several options when running a procurement in response to an emergency. Overreliance should not be placed on the ability to make direct awards in emergency scenarios. Instead, authorities should consider all the available options and take a course of action which is proportionate to the situation in hand.
Potential options include the use of pre-existing framework agreements, dynamic purchasing systems or the modification of an existing contract to extend its scope. Each of these systems has specific requirements as are explained in brief within the note. Where an emergency procurement is considered it is sensible to obtain advice as to which system will best fit your specific requirements.
The note also reminds authorities of their ability to shorten the timescales within the open, restricted and competitive procedure with negotiation. This ability arises during a state of urgency, the scope of which is wider than the strictly limited requirements for use of a direct award under Regulation 32(2)(c). Authorities may be able to use this procedure where situation is foreseeable, or even arises due to the actions of the authority, but they must be able to provide ‘clear justification’.
Further, very welcome, guidance is provided on the operation of direct awards in emergency situations under Regulation 32(2)(c). Of particular interest is that the note specifically states that a direct award is intended for reactive, and not proactive, use. The right to use a direct award is only engaged where the situation is ongoing, and not when it is only anticipated. Furthermore, the note indicates that failure to consider the expedited procedures detailed above may be indicative of the situation being of the authority’s own making, which in itself would bring the situation outside of the scope of the emergency procedure.
The note is a timely reminder of how authorities can correctly undertake shortened procurement procedures in response to urgent needs. The Covid-19 pandemic is ongoing, and it may be difficult for authorities to predict their future procurement needs. Nevertheless, a direct award under Regulation 32(2)(c) should not be the fallback option. There are many options at an authority’s disposal. As always, authorities should aim to award contracts correctly. This is all the more important where there is even a hint of urgency.
For more information on the topic, please contact Michael Winder of another member of our Procurement team.
