In guidance adopted on Wednesday 1 April, the European Commission has approved the extensive but temporary use of the negotiated procedure without the requirement to publish contract notices, in order to reduce constraints and delays in the public procurement of medical supplies and equipment needed to tackle the Covid-19 pandemic.
Use of the negotiated procedure without prior publication, which is set out in Article 32 of Directive 2014/24/EU governing ‘traditional’ public contracts, allows public purchasers to obtain supplies and services as quickly as possible. They can negotiate directly with potential contractor(s) of their choice. There are no requirements to publish contract details, no deadlines, no minimum number of candidates that must be consulted, and no other procedural constraints.
The Commission, which views the Covid-19 pandemic as an emergency situation that justifies recourse to the most flexible forms of public procurement, has stressed, however, that, in accordance with case law (Case C-352/12), a number of cumulative conditions must be met and applied restrictively in order for the negotiated procedure to be applied when purchasing medical supplies and equipment.
These conditions are the following: - the contracting authority is faced with unforeseeable events such as a sudden increase in the number of Covid-19 patients requiring medical treatment; - the extreme urgency of responding to the crisis situation makes it impossible to comply with general deadlines for meeting the immediate needs of hospitals with all possible speed; - there is a causal link between the unforeseen event and the extreme urgency; - the negotiated procedure is only used until more stable solutions can be found, such as framework contracts for supplies and services, awarded through regular procedures.
The contracting authority will be required to produce a report to justify its choice of the negotiated procedure.
To consult the Commission’s guidance, go to: https://bit.ly/2R3s0Ed (Original version in French by Mathieu Bion)