Procurement Policy Note – Responding to the pandemic

The Procurement Policy Note (PPN) provides guidance on direct award, extension and modification of public contracts due to the COVID-19 outbreak.  It applies, with immediate effect, to all contracting authorities, including central government departments, executive agencies, non-departmental public bodies, local authorities, NHS bodies and the wider public sector.

The PPN gives you guidance where there is an ‘urgent requirement’ for goods, services or works due to COVID-19, and covers a range of options:

• direct award due to extreme urgency
• direct award due to absence of competition or protection of exclusive rights
• call-off from an existing framework agreement or dynamic purchasing system
• procurement exercise using the open, restricted or competitive procedure with negotiation with accelerated timescales due to substantiated urgency
• use of the light touch regime for specific health and social care related services
• extending or modifying an existing public contract within the limits of permitted modification, where the need for modification has been brought about by circumstances which you, when acting diligently, could not have foreseen

For each of these options, the PPN provides guidance on the circumstances where you will be justified in undertaking a particular course of action.  You should ensure that you can satisfy all elements of the tests stipulated within the PPN and the PCR 2015, and the reasoning must directly relate to the COVID-19 outbreak.  Where seeking to rely on reasons of extreme urgency, this must not be attributable to your own actions or failure to act.

To prove that you have undertaken the appropriate assessment, and that the option or procedure you used was justified, keep written records. They will be essential if you have to defend decisions made or actions undertaken following a legal challenge for breach of the PCR 2015.

Framework agreements, direct awards pursuant to regulation 32 (use of negotiation procedure without prior publication), the light touch regime and regulation 72 (Modification of contracts during their term) of the PCR 2015 are areas we regularly advise and provide training on.

Please do not hesitate to contact us if you would like to discuss the practical application of the PPN.