Covid-19: Public Procurement: How To Organise Urgent Public Purchases?

• Published date: 13 March 2023
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Government Contracts, Procurement & PPP, Government Measures
• Law Firm: EY Law
• Author: Mr Philip Peerens

Operating quickly versus compliance with public procurement law, a contradiction ?

As COVID-19 continues to spread, many public authorities and other entities subject to public procurement law (including most hospitals and nursing homes), are becoming increasingly confronted with a pressing need to purchase certain goods or services.

The urgency of these needs may appear to conflict with certain procedural and substantive public procurement law requirements that such public purchasers have to comply with, e.g. with respect to publicity and competition, and the obligation to provide candidates with sufficient time to prepare and submit their proposals.

Recent examples include difficulties encountered when purchasing medical masks and other emergency equipment.

Public Procurement law tools to use in situations of urgency

Public procurement law does provide tools for public purchasers allowing them to act immediately when confronted with such urgent needs, as explained hereunder.

Firstly, in case of "extreme urgency" (urgence imperieuse/dwingende spoed) public purchasers may use the flexible "negotiated procedure without prior publication".

Extreme urgency refers to situations where the timeframe for a normal public tender award process cannot be complied with, due to unforeseeable events not attributable to the public purchaser.

This negotiated procedure without prior publication allows the purchasing authority to consult one (or if possible multiple) supplier(s) of its choice, and to immediately negotiate a contract.

It seems reasonable to consider that the current sudden outbreak of COVID-19, and the resulting urgent needs for extra supply of certain goods like medical masks, may qualify as a situation of "extreme urgency" enabling public purchasers...