All over the world, the demand for various healthcare-related products has increased and is very urgent because of the consequences of the COVID-19 virus (or Coronavirus), for example the demand for face masks and respiratory equipment. At an European level,the European Commission has launched an accelerated joint tender procedure with 26 Member States for protective equipment and medicines. By means of a joint tender procedure, the European Commission hopes for better conditions, lower prices and a good supply.
Contracting authorities, such as the Dutch State, that wish to purchase certain products and services as quickly as possible, still have to comply with the framework of public procurement law. The question that arises is whether public procurement law allows for exceptions during a crisis. On 25 March 2020, we published a contribution on the possibilities of deviating from tender terms during the Corona crisis. In this contribution, we briefly consider the legal possibilities in the event of an urgent demand for products and services during the Corona crisis.
Procurement law contains a number of exceptions on the basis of which it is possible to deviate from the standard norms laid down in the law. One possibility is the negotiated procedure without prior publication of a notice, which means that a public contract is not advertised in advance. This is possible, for example, in the case of extreme urgency.
In the case of extreme urgency, contracting authorities have the possibility of concluding contracts without complying with the minimum time-limits for the open, restricted and competitive procedure with negotiation. This allows contracting authorities to act more quickly in situations of urgency. However, the contracting authority must be able to demonstrate that the following cumulative conditions (from Article 2.32(1)(c) of the Dutch Procurement Act and Article 32(2)(c) of Directive 2014/24) have been met in order to justify and demonstrate that there is extreme urgency:
- The cases in question are strictly necessary
- The events are unforeseeable for the contracting authorities
- The urgency is due to the events (which could not have been foreseen by the contracting authorities).
- The urgency of the situation makes it impossible to comply with the time limits laid down for open, restricted and negotiated procedures with prior call for competition.
- The circumstances invoked are not attributable to the contracting authorities.
In our view, it can be successfully argued that contracting authorities which, because of the consequences of the COVID-19 virus, must purchase necessary products or services as a matter of urgency, have the option of concluding contracts more quickly by invoking extreme urgency. Of course, this requires a case-by-case analysis.
If there is no extreme urgency but the situation is still urgent, the accelerated procedure may be applied (see Section 2.74 of the Dutch Procurement Act and Articles 27(3) and 28(6) of Directive 2014/24). The accelerated procedure makes it possible for contracting authorities to observe a shorter period of time because of an urgent situation, which is not caused by their own fault, as the situation makes it impossible to apply the minimum period of time. This applies to the open procedure, the restricted procedure and the competitive procedure with negotiation. Several time-limits may be shortened, for example the time-limit for the request to participate or the time-limit for the receipt of tenders.
The financial crisis was an urgent reason, according to the European Commission, to use the accelerated restricted procedure for certain projects.
In our view, it is not unrealistic for contracting authorities to justify the use of extreme urgency or the accelerated procedure for certain tenders, such as those for medical devices (to the extent that there is a contracting authority / obligation to tender) or other services and/or products that are immediately needed during the Corona crisis.
For questions about and assistance with (ongoing) procurement procedures, please contact our procurement experts Janneke Kohlen and Pauline Kuipers.