David Gollancz, partner, Field Fisher Waterhouse LLP:
The European Commission has issued a press release saying that it “recognises” the need, in response to the economic crisis, for use of the accelerated restricted procedure in public procurements. The OGC has issued its own brief Procurement Policy Note on the press release, suggesting that the accelerated procedure is available for any above-threshold restricted procedure procurement, subject to considering its suitability.
It seems a little unlikely that cutting the maximum 87 required days of delay in procurement to 30 for restricted procedure procurements only, will have a significant impact on the European economy. High value procurements are comparatively rarely conducted by the restricted procedure, while acceleration is not available in competitive dialogue and the Commission has pretty much warned us off using the negotiated procedure except in extremis. But leaving aside its efficacy, there are some questions to be asked about the legal implications of this pronouncement.
The relevant law is in Article 38(8)(b) of the Directive and in regulation 16(6)(b) of the Regulations. These both speak of the normal time limits being “rendered impractical by reasons of urgency”. So far as I know, this has always been understood as referring to the same sort of “reasons of urgency” as those which justify the use of the negotiated procedure under regulation 14(a)(iv) – essentially, that the procurement must be undertaken rapidly to meet an urgent need of the authority. For example, a current supplier has failed, or some contingency has arisen which means that the authority has a new and unforeseeable requirement which must be met immediately. But regardless of the nature of or reason for the urgency, the legislation speaks of the consequence being that the time limits are, not inconvenient, but “impractical”. This must surely mean that if the time limits are adhered to, the procurement itself will be ineffective – it will not deliver its intended result.
The Commission’s pronouncement does not change the law: it is not a legal instrument. But it doesn’t carry the Commission’s habitual acknowledgment that its opinions are just that and that the final arbiter of community law is the European Court. It is a bit worrying that the Commission should apparently think that – or at least express itself as though – it does have the ability unilaterally to amend a directive and the domestic law of Member States.
As to the practical implications, I’d suggest that anyone contemplating using an abbreviated timetable for a public procurement should bear in mind that:
- The competitive dialogue procedure makes no provision for acceleration and hence the Commission’s announcement does not apply to it.
- You should only use the accelerated restricted procedure in cases where:
- doing so will demonstrably deliver some benefit in terms of accelerating economic activity; and
- using the accelerated procedure does not introduce inequality between economic operators. In particular, it should not confer an unfair advantage on an incumbent supplier, who already has all the information which a competing bidder would need to understand.
Finally I’d say, if the project is big enough to make an impact on the economic crisis, you probably want to take your time about it anyway.