Extremely urgent public procurement under Directive 2014/24/EU and the COVID-19 pandemic.

Abstract

The COVID-19 pandemic swept throughout the European Union swiftly and led to significant changes in how we live and operate. Some of those changes occurred in public procurement as well, with Member States struggling to react to the dissemination of the virus. The purpose of this paper is to assess what scope the EU's public procurement legal framework provides to deal with a crisis, and how the rules should be interpreted. This paper will show how the EU public procurement legal framework deals with extreme urgency situations and how it has been intentionally designed to allow Member States flexibility within very clearly defined boundaries. This means that the path to award contracts without competition on the grounds of extreme urgency is narrow due to Article 32(2)(c) of Directive 2014/24/EU1 and the case law from the CJEU. The narrowness of this path is due to the exceptional nature of procedure and the obligation for the contracting authority to discharge the tight grounds for use in full for every contract. Therefore, this paper concludes that the view exposed by the European Commission on its guidance from April 2020 that the pandemic is a single unforeseeable event amounts to an incorrect reading on how the grounds for the use of Article 32(2)(c) operate. If such interpretation was already too broad in April 2020, it certainly is no longer in line with the transition from an unfolding crisis into a new and more permanent equilibrium.In the context of COVID-19, particularly the need for the crisis to be unforeseeable and the extreme urgency not being attributable to the contracting authority raise significant difficulties for some contracting authorities to discharge the grounds for use of the negotiated procedure without prior notice. This is particularly the case in those situations where governments centralized pandemic-related procurement.As such, the paper concludes that existing substantive rules for extremely urgent procurement are adequate and, albeit sufficient to respond to crisis situations, that does not entail that the wholesale use of the negotiated procedure without prior notice is necessarily legal.