Government issues policy note and guidance on public procurement and responses to COVID-19

The Cabinet Office has issued a Procurement Policy Note (PPN) setting out information and associated guidance on the public procurement regulations and responding to the COVID-19 outbreak.

The PPN, which can be viewed here, says: “The exact response to COVID-19 will be tailored to the nature, scale and location of the threat in the UK, as our understanding develops. However, it is already clear that in these exceptional circumstances, authorities may need to procure goods, services and works with extreme urgency.

“Authorities are permitted to do this using regulation 32(2)(c) under the Public Contract Regulations 2015.”

The Cabinet Office said the PPN was applicable to all contracting authorities, including central government departments, executive agencies, non-departmental public bodies, local authorities, NHS bodies and the wider public sector.

The PPN says that if a contracting authority has an urgent requirement for goods, services or works due to COVID-19, and it needs to procure this under the Public Contract Regulations 2015 (PCRs), there are various options available.

These options (discussed in more detail in the PPN) include:

• 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 your requirement there may be further options under the PCRs, 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 (regulation12). These are not covered in this guidance and do have their own specific requirements," the note says.

The PPN advises contracting authorities to ensure they keep proper records of decisions and actions on individual contracts, as this could mitigate against the risk of a successful legal challenge. “If you make a direct award, you should publish a contract award notice (regulation 50) within 30 days of awarding the contract,” it adds.

The note says contracting authorities procuring under the Defence and Security Public Contracts Regulations 2011, the Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016 wouldl need to check similar provisions in those regulations to the provisions in the PCRs.

The PPN adds that the COVID-19 outbreak was likely to give rise to supply chain disruption and contracting authorities may need to take action in response to supplier claims of 'force majeure' or contract 'frustration'.