Covid-19 – the impact on procurement over the next coming months

Published 19 March 2020

Urgent procurements and changes to processes

At the height of the COVID 19 Pandemic, a Procurement Policy Note was published by Crown Commercial Service setting out out provisions under the Public Contracts Regulations 2015 ("PCR") available to organisations when making urgent arrangements for supplies, services and/or works during the Covid-19 pandemic.

These included:

• direct award due to extreme urgency;
• direct award due to absence of competition or protection of exclusive rights;
• call off from an existing framework agreement or dynamic purchasing system;
• call for competition using a standard procedure with accelerated timescales;
• extending or modifying a contract during its term.

Depending on the specific nature of the requirement there may have been further options under the PCR, such as the additional delivery of supplies from an existing supplier (regulation 32(5)), additional similar works or services from an existing supplier (regulation 32(9)), or using the services of a subsidiary of another contracting authority (regulation 12).

The PPN set out that contracting authorities should keep proper records of decisions and actions on individual contracts, as this could mitigate against the risk of a successful legal challenge. The PPN also set out that where a direct award is made, contracting authorities should publish a contract award notice (regulation 50) within 30 days of awarding the contract. As we are now a number of months into the Pandemic, it is unlikely that the “direct award due to extreme urgency” provision could be relied on as it would now be difficult to say that the Pandemic was unforeseeable. We are seeing more organisations vary their existing contracts under regulation 72 of the PCR which sets out a number of safe harbours that could be applied in different circumstances. DAC Beachcroft has available a training webinar: ‘What Contract Changes are Permitted by Procurement Law?’ recorded in partnership with the Crown Commercial Service Skills Academy that we would be happy to share with public sector procurement teams. Please get in touch with one of the contacts listed below to request a link to the recording.

Current/future procurement processes

But what about procurement processes that are currently underway or that are about to start? How will Covid-19, the updates from Government that may bring about changes and the uncertainty for organisations and their staff impact these?

For commissioners and providers wanting to start a new procurement process, it's still unlikely that any in person face to face market engagement can go ahead - this will impact pre market engagement activity or indeed planned dialogue meetings. Organisations are switching to telephone conferences or skype meetings. Consideration will need to be given to the timetables for procurement processes and whether it’s proportionate to expect a quick turnaround of a tender. Healthcare providers are focussing their efforts and resources on managing the situation and preparing for winter. Will these organisations be in a position to be able to tender for contracts during the next few months? Will they be able to respond quickly to clarification questions? Will they be able to mobilise in the required timescales? Will evaluators be available for the contracting authority to evaluate bids or participate in moderation meetings? If the relevant procurement involves clinical evaluators, it’s likely their time could be redeployed.

Timetables may have to be extended for each stage of the procurement process. For procurements that are not urgent or where a delay could be absorbed, then consideration should be giving to making changes to the process.

Our advice to commissioners or providers running procurement processes is to communicate with your bidders, be open and transparent about the pressures and any changes that may have to be made. Our advice to bidders is to share any issues being faced.