The Cabinet Office has issued Procurement Policy Note PPN 01/20 to assist public bodies to navigate their way through the arrangements already present within the Public Contract Regulations 2015 (PRC2015) to deal with urgent procurement requirements. The PPN can be found here: https://www.gov.uk/government/publications/procurement-policy-note-0120-responding-to-covid-19 .
These are not new powers but the guidance will assist those needing to procure contracts, or deal with the need to extend existing contracts, urgently in response to the problems that Covid-19 is presenting.
Responding to urgent needs
The PRC2015 has provision under section 32(2)(c) which covers 'open', 'restricted' and 'competitive procedures with negotiation' and permits negotiation without prior notice where it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority (and not the fault of the contracting authority) and where the usual procedures cannot be complied with. This may relate to an urgent need in itself, eg the need to procure PPE, or the circumstances that an emergency brings about, eg a large scale unanticipated absence of staff due to sickness, or the need to isolate.
'Holding' actions only
Any actions that you take to procure urgently should not last any longer than absolutely necessary. This is not an excuse to avoid normal procurement practices. You may therefore wish to undertake normal procurement alongside the urgent arrangements that you put in place.
Alternative options
These are not new powers but the guidance will assist those needing to procure contracts, or deal with the need to extend existing contracts, urgently in response to the problems that Covid-19 (or any other emergency) is presenting.
You should also consider the appropriateness of alternative routes before seeking to use the provisions in section (32)(2)(c), for example, use of the accelerated procedures permitted in section 27(5) for urgent open procurement; section 28(10) for restricted procurement; and, section 29(10) for competitive procedure with negotiation.
Other alternatives to consider first
You should also consider existing framework agreements or dynamic purchasing systems (DPS) that you may be entitled to use.
As accelerated systems and existing framework and DPS arrangements are competitive processes it would be reasonable to expect you to consider these routes before proceeding under the provisions of S32(2)(c).
You will need to ensure that you meet all the requirements to use the accelerated, framework or DPS arrangements in the usual way.
Documentation
Following any procurement you will need to issue a Contract Award Notice. It is also important that you document the process that you have followed, the alternatives that you have considered and the reasons for your decisions. These are best documented contemporaneously rather than relying on writing them up some time after the event. We don't know if legal challenges will be made but if companies are facing large financial losses, which looks likely, it may be that challenges will be made in an attempt to recover lost opportunities.
Be sure to document the arrangements that you make to ensure value for money and other compliance requirements. This is not an opportunity to avoid usual procurement procedures or good practice.
Within the framework provided by the legislation, make decisions based on fact and common sense and document these as you go.
Existing contracts
The last option you may want to consider, where there is already a contract in place, is to extend the existing contract using the provisions of section 72(1) but be sure not to change the overall nature of the contract and ensure that the increase in value does not exceed 50% of the original value. You will need to issue a Contract Modification Notice.
If you need any assistance in procuring contracts through these unprecedented times please do get in touch.
The information provided here is given in good faith and is believed to be accurate, however you may wish to discuss any anticipated approach to these issues with your legal advisors.
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