Many European Research Infrastructures (RIs), particularly national RIs, are likely to fall within the definition of a ‘body governed by public law’, hence subject to the European legal framework on public procurement. There are currently 21 established ERICs which are exempt from the EU procurement directives and follow their own procurement rules or policy, however they are still subject to the EU Treaty obligations and are likely to follow similar procedures (albeit more flexible) compared to those set out in the European procurement directives.
The exceptional circumstances brought about by COVID-19 may require some RIs (and indeed the public sector at large) to speed up procurement procedures in relation to specific contracts and the circumstances may as well imply a presumption of urgency for certain contracts. In such circumstances the procedures set out in the EU directive (and the ERICs internal policies) may be relaxed. There are a number of options available for RIs to award a contract without competition (direct award) or to follow shorter time scales for competitive procedures. Each option is subject to specific requirements and is not suitable for every contract. In practice, the relaxation of the rules due to the COVID-19 will be suitable for a small proportion of contracts, for example, contracts awarded by RIs that operate in the life science or the biobanking and biomolecular research which need to respond quickly to COVID-19 related activities or to RIs that must secure their lines of supplies in light of lock-down restrictions that threaten the availability of such supplies. Each contract should be assessed on a case-by-case basis to establish its suitability to benefit for any of the following options:
- Direct award due to circumstances of extreme urgency
This ground allows the RI to enter into a direct contract without prior publication of a contract opportunity or the need for competition. The RI will have to demonstrate that the extreme urgency resulting from the impact of the COVID-19 on the specific contract or requirement is genuine and not attributable to the RI, that the state of urgency was unforeseeable and that is impossible to comply with the normal time scales of a competitive procedure. The RI should make sure the document the reasons that support the decision to make a direct award.
- Use of the ‘accelerated procedure’ with shortened time scales
Before utilising a direct award, RIs should also consider whether the use of an accelerate procedure with shorter time scales (usually 15 days for receipt of tenders), would be more appropriate in the circumstances. This option would be available in cases where the COVID-19 has given rise to an urgent need, but a degree of competition can still be offered. This will be the case where the RI estimates that there is enough time for a competitive procedure, but the standard procedures are too lengthy in the circumstances.
- Direct award due to lack of competition
In case where the RI can credibly demonstrate that the goods, services or works required can only be supplied by one particular contractor and that due to COVID-19 or related reasons, competition is completely absent in the market. This could be the case, for example, where for lock-down restrictions there is no practical possibility to secure supplies from other sources.
- Extending (or modifying) existing contracts
Finally, in cases where the RI has an existing contract that is about the expire, the RI it may prolong it and modify it, provided certain conditions are met.
Conclusion: Some RIs have been quick to interpret the COVID-19 situation as a carte blanche to waive many of the procedural requirements in their procurement, or as an easy way out of troublesome procurement processes. In reality, as has always been the case, the relaxation of the procurement rules will only be suitable for a small proportion of contracts. Each contract should be assessed on a case-by-case basis to establish its suitability for a direct award, the use of the accelerated procedure, an extension or variation. The safest approach is to treat the new circumstances with a degree of caution and to only embark upon a direct award or an accelerated procedure where you are comfortable that this procedure is indeed suitable for your requirement in terms of both flexibility and timing, that the legal requirements are met and that an audit trail justifying the decision is kept.