The COVID-19 outbreak has created an urgent need for certain goods, including medicines and medical devices. However, do public authorities (eg, hospitals) still need to follow the complete public procurement procedures to procure these urgently needed goods?
Public authorities are subject to the Belgian Act of 17 June 2016 on public procurement and its strict procedures. However, in cases of extreme urgency, such as that presented by the COVID-19 pandemic, contracting authorities can use the negotiated procedure without publication (Article 42 of the Act of 17 June 2016) to place tenders.
'Extreme urgency' applies where the normal timeframe for a public tender cannot be observed because of reasons brought about by unforeseeable events that are not attributable to the contracting authority.
The contracting authorities must keep the following principles in mind with regard to public procurement:
- if possible, multiple suppliers must be consulted;
- the decision to use the negotiated procedure without publication must be expressly justified, in particular with reference to the urgent need for certain goods or services; and
- the public authorities can then negotiate with interested parties about the initial offers received in order to improve them. The award criteria cannot be subject to negotiation.(1)
Endnotes
(1) For further details please see European Commission, "Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis", OJ C 108 I/1, 1 April 2020. Available here.
