Urgent procurement – does COVID-19 enable any flexibility in the rules?

As with everything else in the current climate, public procurement needs to be flexible and adapt in response to the COVID-19 pandemic. In these unique circumstances, contracting authorities may need to urgently procure goods, services and works, and may wish to take action to respond to claims of force majeure or frustration as a result of supply chain disruption.

Accordingly, the government has released a procurement policy note which sets out some guidance and information for all contracting authorities, including central government departments, non-departmental public bodies, local authorities, NHS bodies and the wider public sector.

The existing Public Contract Regulations 2015 (PCR) already enables contracting authorities to procure goods, services or works with extreme urgency, including, but not limited to, the following:

• direct award (whether due to urgency, absence of competition or to protect exclusive rights);
• call off from an existing framework agreement;
• call for competition with accelerated timescales; and
• extending or modifying an existing contract during its term.

Not all of the options above negate the need to publish a contract award notice and contracting authorities will need to bear this in mind when considering any of the above options.

Top tips:

• keep a good (and continuing) audit trail of decisions and actions taken to justify the tests set out in the PCR and mitigate against the risk of a successful legal challenge;
• limit what you are procuring and the length of the contract to what is essential;
• consider including mechanisms to secure pricing reductions throughout the life of the contract; and
• continue to achieve value for money and ensure any abnormally high pricing is approved by the appropriate person within the authority.

For further information please contact our procurement team.