Have the procurement regulations been relaxed for Covid-19?
The short answer is no, the regulations have not been relaxed. However, the regulations already provide for exceptional situations such as the current crisis. This 60-second briefing outlines the key provision and explains how to apply it during the coronavirus emergency.
Regulation 32(2)c. Using the Negotiated Procedure Without Prior Publication of a Notice
The most important provision is Regulation 32(2)c. This provision entitles Contracting Authorities to adopt the Negotiated Procedure Without Prior Publication of a Notice in some circumstances. To adopt this procedure, Contracting Authorities must be able to demonstrate that the alternative procedures cannot be used because of extreme urgency.
The key to using this procedure is that the requirement must be unforeseen and, as important, must have been ‘unforeseeable’ by the Contracting Authority. Take the example of ventilators. Contracting Authorities could not possibly have foreseen the urgent requirement for ventilators, a requirement so urgent that a conventional tender would not be possible. In this instance, a Contracting Authority may adopt the Negotiated Procedure Without Prior Publication of a Notice. This allows a Contracting Authority simply to negotiate with any supplier to provide the requirement without opening it up to formal competition.
Does this apply to framework call-offs?
No. Where the structure of a framework requires a mini-competition to call-off from a framework, the mini-competition must be conducted in accordance with the rules set down in the Framework. If the requirement is too urgent, you’ll need to use the Negotiated Procedure Without Prior Publication of a Notice as described above.
When should Regulation 32(2)c not be used?
During the current crisis, many procurement teams will be busy working on Covid-19 related issues and other procurements may have temporarily been pushed down the priorities list. These procurements may then become extremely urgent. However, these requirements will have almost certainly been foreseen, or at least foreseeable by the Contracting Authority. In these situations, it isn’t possible to use Regulation 32(2)c to adopt the Negotiated Procedure Without Prior Publication of a Notice. However, as the Covid-19 situation progresses, Contracting Authorities may increasingly find that the requirement was foreseeable and the use of Regulation 32(2)c will become more difficult to justify.
Do I still need to create a Regulation 84 report?
Even where there is extreme urgency and Regulation 32(2)c is used, a Regulation 84 report must still be completed by Contracting Authorities to record the decision-making process that led to the use of the Negotiated Procedure Without Prior Publication of a Notice. Compliant Regulation 84 reports can be created at www.regulation84.co.uk, a free resource created by Lifecycle and Mills & Reeve, the leading Public Sector lawyers.
Do I need to publish awards following a Negotiated Procedure Without Prior Publication of a Notice?
If you adopt this procedure, you must publish a Contract Award Notice within 30 days of the conclusion of the procurement. This is a critical step making sure your decision making is transparent. In the notice, you must clearly justify your use of this procedure, in particular explaining why the requirement is ‘extremely urgent’ and why the Contracting Authority could not have foreseen the urgency of the requirement.
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