Public procurement procedures for contracting authorities in case of urgency

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Updated on Friday 10 April 2020- 4pm

The coronavirus outbreak has created an urgent need for certain goods, such as medicine and medical devices. But do the public authorities still need to follow the complete public procurement procedures to procure these urgently-needed goods?

Public authorities, including hospitals, are subject to the Act of 17 June 2016 on public procurement and its strict procedures. However, in the case of extreme urgency (urgence imperieuse/dwingende spoed) contracting authorities can use the negotiated procedure without publication (Article 42 of the Act of 17 June 2016) to place tenders. Extreme urgency is present when the normal timeframe for a public tender cannot be observed, because of reasons brought about by unforeseeable events that are not attributable to the contracting authority. The coronavirus outbreak presents such a case of extreme urgency.

The contracting authorities must keep the following principles in mind:

  • If possible, multiple suppliers must be consulted;
  • The decision to use the negotiated procedure without a procedure still needs to be expressly justified, in particular with reference to the urgent need for certain goods or services;
  • The public authorities can then negotiate with interested parties about the initial offers in order to improve them. The award criteria cannot be subject to negotiation.

 

Update: The European Commission has published guidance[1] for public authorities for the emergency situation related to the COVID-19 crisis. The Commission stresses that contracting authorities should first investigate the option to substantially reduce the deadlines to accelerate procedures, before opting for the negotiated procedure without publication. However, ultimately, even a direct award to a preselected economic operator could be allowed, provided the latter is the only one able to deliver the required supplies within the technical and time constraints.

Furthermore, public buyers will also need to identify alternative solutions. The Commission reminds contracting authorities that they are fully empowered to engage with the market and in matchmaking activities, by for instance working closely with entrepreneurs’ networks, or by employing innovative digital tools such as a hackathon. Emergencies can give rise to creative solutions.

In the end, the Commission concludes that procedures without prior publication can only be used to cover the gap until more stable solutions are found, through regular (although possibly accelerated) procedures.

 

[1] European Commission Communication - Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis, OJ C 108 I/1, 1 April 2020.

 

Do not hesitate to contact Vera Van Thuyne or William Timmermans for further information.

The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.

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