Recommendations for Urgent Procurement in the EU Directives and GPA : COVID-19 and Beyond

This paper assesses the rules on urgent procurement of the European Union (EU) procurement Directives and Agreement on Government Procurement (GPA) of the World Trade Organization (WTO). It addresses urgent procurement in its broadest sense, covering both crisis events and other urgent situations, in the light of the questions thrown up by the COVID-19 pandemic. It concludes that these international frameworks are reasonably suitable for balancing the interests involved in urgent procurement. However, the chapter also highlights some important areas for development. While some early analysis anticipates the debate on the pandemic’s lessons as being broadly between treating procurement rules as an obstacle that need removing to allow better procurement and promoting more regulation to prevent “bad” procurement, our analysis advocates a nuanced approach. Thus it makes recommendations in both directions. It also suggests there is a need to acknowledge the special circumstances of crisis events both to deal appropriately with crisis situations and to prevent the “regular” urgency provisions from being watered down. More specifically, key recommendations for the EU include, on the one hand, introducing broader exceptions to public tendering for crisis situations and allowing national rules to designate categories of procurement as urgent at the expense of a case-by-case approach and, on the other hand, enhanced information transparency, including mandatory ex ante notices, open contracting and an expansive interpretation of justification provisions, which will not create an undue burden in cases of crisis if accompanied by the other proposed reforms. The paper also recommends some changes – such as allowing additional entities to use existing framework agreements in emergencies and reduced timescales for call offs from dynamic purchasing systems – that will enhance both flexibility and competition and transparency, and are suitable for both crisis and non-crisis situations. For the GPA we suggest similarly nuanced reforms, although less extensive reflecting, on the one hand, the GPA’s existing greater flexibility and, on the other hand, its more diverse application which entails a more cautious approach to additional burdens. At the risk of over-simplification, the main themes of the proposals are a slight shift towards flexibility in procedure accompanied by a significant shift towards greater information transparency, together with recognition that widespread emergencies do warrant bespoke regulatory provisions