Direct Award of Contract

June 9th, 2021 by James Goudie KC

Regulation 32 (2) (c) of the Public Contracts Regulations 2015 allows negotiation of a contract without prior advertisement insofar as it is “strictly necessary”. This is provided that is so by reasons of “extreme urgency”. Moreover, the extreme urgency must be brought about by events “unforeseeable” by the contracting authority and it must not be possible for the time limits for other procedures to be complied with. In R ( Good Law Project) v Minister for the Cabinet Office (2021) EWHC 1569 (TCC) O’Farrell J observed, at para 82, that use of the Regulation 32(2)(c) procedure is a departure from the “normal requirement” that public contracts ( above the relevant thresholds) “ must” be subject to an “open, transparent and competitive process.” As such, it should be reserved for “exceptional circumstances”. At para 89 she observed that the burden of proving the requisite circumstances is on the contracting authority and that the derogation must be “interpreted strictly”; at para 90 that in each case it is a question of fact, objectively ascertained, as to whether the necessary circumstances existed at the time the decision was made.; at para 91 that in considering whether there was sufficient time to carry out an expedited procurement exercise the Court may take into account evidence as to the minimum time needed in practice, for preparing tender documentation, evaluating tenders, etc; and at para 93 that even if the derogation is engaged the “scope and duration” of the procurement “must be limited” to what is strictly necessary.

At para 124 the Judge held that the extreme urgency,  for immediately needed public health protection services, caused by the Covid-19 pandemic was unforeseeable, unpredictable, and not attributable to the Defendant.

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