Public Procurement Law and the COVID-19 Crisis
March, 2020 - Anders Thue
The authorities have been quick to publish public procurement law guidance for the Covid-19 crisis. In this article we argue that Norwegian authorities could have provided even more clear guidance on what is to be considered at the crossroad between public procurement law and the protection of life and health.
The exceptional Covid-19 crisis has given contracting authorities new and unforeseen challenges. This applies inter alia to the following situations:
- upcoming tender procedures
- unplanned crisis procurement
- on-going tender procedures
- public contracts that are already signed, but that needs to be changed
In this situation, it is important that contracting authorities understand that public procurement law shall not restrict such authorities from doing what is necessary to protect the life and health of humans. Both Norwegian and Danish authorities have published guidance notes that set out what flexibility exists within public procurement law. It is laudable that the authorities have acted this rapidly in providing guidance in regard of this crisis. Both Norwegian and Danish authorities set out the common procedures for inter alia urgency procurements and direct procurement in certain cases.
The authorities also point to the most relevant provisions on modifications of public contracts. However, we think that the authorities should have gone further in placing the crisis in its proper context within public procurement law. This would have made the exceptional aspects of this situation more pronounced and provided contracting authorities with more assurance when having to make unusual decisions.
In our opinion, it is important to underline the clear signals that the public procurement rules express regarding the protection of life and health. In preamble 41 of the Public Procurement Directive (2014/24/EU) it is expressly stated inter alia that nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public security, health and human life, provided that those measures are in conformity with the TFEU.
This is fully in line with the fundamental provisions on the internal market of the TFEU and the EEA agreement, from which public procurement law is derived.
It is also appropriate to point to one specific provision that is not mentioned at all in the authorities' guidance. Similar provisions can be found in several public procurement law instruments, but in the Public Procurement Directive it is included in Article 15 (2). Here it is stated that:
«This Directive shall not apply to public contracts and design contests not otherwise exempted under paragraph 1, to the extent that the protection of the essential security interests of a Member State cannot be guaranteed by less intrusive measures …»
The public sector is large and diverse, and it is not difficult to imagine that it will now be necessary to make drastic decisions in order to protect a state's essential security interests. In such a situation, public procurement law does not apply unless less intrusive measures are sufficient. Of course, this exception should not be unduly exploited, and regular abuse will be caught, but it is important to highlight that the weighing of public procurement law vs. human life has already been conducted by the legislator.