Sam Karim QC and Andrew Singer QC look at the Cabinet Office Guidance on Procurement.
Regulation 32 of the Public Contract Regulations 29105 (“PCR”) outlines circumstances when contracting authorities (“CA”) can award public contracts via a procedure without prior publication: the ability to award a contract without complying with the normal procurement procedures and rules. The Cabinet Office has now issued guidance about the use of Regulation 32.
The relevant provision (Regulation 32(2)(c)) states that:
“the negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service… insofar as it is strictly necessary where, for reason of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.”
Practical points that arise from the same:
- The “extreme urgency” must have arisen from an unforeseeable event, which the current pandemic arguably is,
- There must be a causal nexus between the “unforeseeable” event and “extreme urgency”
- CA must record the consideration of Regulation 32(2)(c) in the Regulation 84 report,
- The contract awarded should only last as long as necessary,
- See if Regulation is 7 applicable (categories which exclude the PCR)
- See whether the accelerated or restricted procedure is applicable, see Regulation 27(5) or 28(10).