The Cabinet Office has issued a Procurement Policy Note (PPN 01/20) setting out guidance on public procurement and responding to the COVID-19 outbreak. The guidance helpfully details the procurement options which you should consider when responding to the impact of COVID-19.

The guidance

PPN 01/20 can be found here.

The guidance does not change the procurement rules, but outlines options which should be considered from a procurement perspective when responding to the impact of COVID-19. It sets out five main options, which we have summarised below.

1. Directly awarding a contract due to extreme urgency

Contracts can be awarded directly to a contractor without carrying out a procurement process where there are genuine reasons for extreme urgency. This might include where you have lost provision of an essential service at short notice.  You must be able to show:

1. a genuine reason for extreme urgency
2. that the events were unforeseeable
3. that it is impossible for you to comply with the usual timescales (even the accelerated ones) and
4. you have not done anything to cause or contribute to the extreme urgency.

2. Directly awarding a contract due to the absence of competition or protection of exclusive rights

Contracts can also be awarded directly without a competition if you can show that there is no competition. The guidance specifically identifies that competition might be absent if there is only one supplier “with capacity to complete on the scale required” .

3. Using an existing Framework Agreement or Dynamic Purchasing System (DPS)

Using an existing Framework or DPS may give you a quick route to market, whilst still complying with procurement rules. You should look for a Framework or DPS that has been set up in compliance with the Public Contract Regulations 2015 and check to see if you are specifically included on the list of potential purchasers

(for example, this might include all registered providers of social housing, local authorities, health bodies, etc.).

It is important to also check that the scope of works/goods/services meets your needs and that the terms and conditions work for you without significant changes. If there is a need to change things too much this may undermine the protection of the Framework or DPS.

A Framework may allow for direct award in some circumstances or require mini-competitions to be carried out – these can often be completed more quickly than a full procurement process. The circumstances when you can use direct award should be checked carefully.

A DPS will require a competition to be held, but short timescales are usually in place for this.

4. Running a procurement with accelerated timescales

It may be possible to run a procurement process with reduced timescales where there is a state of urgency which makes it impracticable to follow the normal timescales. The open, restricted and competitive procedure with negotiation can all be accelerated.

You may need to adapt your Selection Questionnaires and tender questions to ensure the timescales you set can be met and that this is still a fair process for all bidders.

5. Extending or modifying an existing contract

Finally, the procurement rules set out when a contract can be modified without triggering the need for a new procurement process. It will be worth considering all of the grounds for modification, but specifically highlighted in the guidance is the ability to extend or modify a contract where the need for change is brought about by unforeseen circumstances.

If this ground is relied upon, the change must not alter the overall nature of the contract and must not exceed 50% of the value of the original contract.

Concluding thoughts

Procurement teams will be familiar with these options under procurement rules, but the guidance does give you a helpful checklist to work through when looking at your procurement decision making in response to COVID-19 issues, so we recommend taking a look.

How can we help?

If we can help you to work through these options then please speak to Lee Clarke and Katrina Day.