For housing providers reviewing contracts and their procurement options as a result of COVID-19 issues, we recommend using the Cabinet Office PPN 01/20 as a useful “checklist” of your options.

A copy of the PPN can be found here and our recent e-bulletin summarising the options can be found here.

We have also set out below some practical tips you may wish to consider when working through these options.

Top Tips:

1. Record keeping: Keep a record of your consideration of options, why you consider any required tests are met and your decision-making process. This is required for your Regulation 84 report, but is also extremely useful if queries or a challenge is raised in the future.

2. Justifications: Think carefully about your justifications for the route you take. It is not enough to say that you took the steps in response to the COVID-19 outbreak. Record how COVID-19 has led to this requirement. For example, the PPN guidance gives the example of where staff are off sick or need to be diverted elsewhere, preventing you from completing a procurement.

3. Notices: Do not forget any notices that are needed.

• Contract award notices must be published for any direct award of contracts.
• An OJEU contract notice is still required if you are running an “accelerated” procedure and this notice should explain why the procurement is urgent.
• Where you are extending an existing contract and relying on the “unforeseen circumstances” ground, a contract modification notice is required explaining this to the market. 

4. Revisit the tests: Things may change, so revisit the tests whenever you are making a procurement decision to ensure they are still met, and update your written records.

5. Do the best you can: Think about what you can achieve and do the best you can. For example, do not go straight to the option of direct award without looking at whether you could run an accelerated process. You should also consider what is really necessary in terms of scope and duration. These measures are intended to deal with urgent, extreme situations and should not be used for long-term solutions. It might, for example, be advisable to run a full procurement alongside these emergency measures for longer term plans.

6. Value for money: You should still ensure the value for money standards / your best-value duties are met. Accelerated procurement or mini-competitions under a Framework will help to ensure value for money. With direct awards you should consider any safeguards you might need to put in place (e.g. price reviews).

7. Pausing procurement: if you need to pause a current procurement (for example as staff are directed elsewhere), let your bidders know. You should keep this situation under a review. A short pause may have minimal impact on the process, but longer delays may mean the market has changed since your OJEU Contract Notice went out, and this could impact on who would have bid, which bidders meet qualification requirements, etc. If this is the case, starting afresh may be advisable.

Conclusion

When making a decision at pace, record keeping can often be overlooked or dealt with retrospectively. We urge you, to keep an audit trail of your thoughts and conclusions so that you can demonstrate the justification for the approach you have taken. Keep your procurement reports up to date and answer any queries which suppliers may raise. It is much easier to keep this record at the time than try and remember after the event.
Likewise, checking that you have issued the correct notices at the right time will avoid your justification for any extensions or direct awards being undermined for failure to meet the technical requirements. 

How Capsticks can help

At Capsticks we strive to ensure our clients are “one step ahead” in delivering their ambitions to ensure value for money and the best possible service. We offer an experienced and responsive team of specialist procurement lawyers who are on hand to review your procurement options and/or procurement compliance.
If you have any queries about this article and the impact on your organisation, please speak to Katrina Day or Lee Clarke to find out more about how we can help.