Procurement by public bodies (or "contracting authorities") in the UK is subject to the regime set out in the Public Contracts Regulations 2015 ("PCRs") and related statutory instruments, which among other things seek to ensure that in procuring goods, services and works contracting authorities adhere to fair and reasonable timetables and procedures and encourage open competition.
The COVID-19 pandemic is already requiring, and will continue to require, contracting authorities to procure products and services from the private sector with unprecedented urgency. Indeed, some examples of urgent UK Government COVID-19 related procurements have been discussed in the press over recent weeks, including the award of certain contracts for the manufacture of ventilators.
Furthermore, the COVID-19 pandemic may mean that goods or services can no longer be provided in the same way – or indeed at all – under existing contracts, which may ordinarily entitle contracting authorities to withhold payment for such goods or services. UK Government advice to contracting authorities is that contract requirements should be varied to enable (i) insofar as possible, supply to take a different form during the current crisis, and/or (ii) continued payments to suppliers or supply chains considered 'at risk' to ensure continuity of supply both during and after the crisis.
Failing to properly navigate their statutory requirements while doing so could give rise to a number of issues for contracting authorities. For example, the procurement or contract variation could be challenged by suppliers not awarded the contract on the basis that, had they been allowed to tender (either originally or for the newly varied contract), they could well have won the business. Such challenges are increasingly common; a recent example is the successful challenge by Eurotunnel to the UK Government's 2018 decision to award a contract for extra cross-channel freight capacity without following the normal public procurement procedures.
In recognition of these issues, the UK Government has published two sets of guidance on how public procurement rules should be applied in such circumstances. The key points of this guidance are summarised below.