Usual competition processes can be bypassed, Cabinet Office has announced
The Cabinet Office has issued procurement guidance advising central departments and executive agencies that the Covid-19 crisis qualifies as an exceptional circumstance that allows normal rules for buying goods and services to be bypassed.
According to the seven-page document, published yesterday, the coronavirus outbreak is a sufficiently grave situation to allow public bodies to cite the “extreme urgency” of securing necessary new technology updates and other things they need to procure – which could also include works – as a reason to ditch competition rules.
The note said the current “exceptional circumstances” regulation 32(2)(c) under the Public Contract Regulations 2015 could be used as justification for directly awarding contracts, extending or modifying contracts during their terms, or accelerating a standard procurement procedure.
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Departments, executive agencies and arm’s-length bodies and agencies were also advised they can make use of regulations allowing additional delivery of supplies from existing providers; securing additional works or services from existing suppliers; or using the services of a subsidiary of another contracting authority.
However, the Cabinet Office guidance said it was vital for departments to keep proper records of decisions and actions relating to individual contracts to “mitigate against the risk of a successful legal challenge”.
It added that use of the exceptional circumstances procurement routes required there to be genuine reasons for the extreme urgency – such as public-health risks or the loss of existing provision at short notice.
The guidance said the justification only applied to procurement decisions made in reaction to a current situation that was a genuine emergency, rather than preparations for an anticipated emergency. The emergency situation also needed to not be the contracting authority’s fault – such as an administrative error.
“Contracting authorities should keep a written justification that satisfies these tests,” the guidance said. “You should carry out a separate assessment of the tests before undertaking any subsequent or additional procurement to ensure that they are all still met, particularly to ensure that the events are still unforeseeable.”
The guidance added that contract award notices still needed to be published within 30 days of the award, even when they were made under the emergency clauses.