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The COVID-19 pandemic swept throughout the European Union swiftly and led to significant changes in how we live and operate. Some of those changes occurred in public procurement as well, with Member States struggling to react to the dissemination of the virus. The purpose of this paper is to assess what scope the EU's public procurement legal framework provides to deal with a crisis, and how the rules should be interpreted. This paper will show how the EU public procurement legal framework deals with extreme urgency situations and how it has been intentionally designed to allow Member States flexibility within very clearly defined boundaries. This means that the path to award contracts without competition on the grounds of extreme urgency is narrow due to Article 32(2)(c) of Directive 2014/24/EU 1 and the case law from the CJEU. The narrowness of this path is due to the exceptional nature of procedure and the obligation for the contracting authority to discharge the tight grounds for use in full for every contract. Therefore, this paper concludes that the view exposed by the European Commission on its guidance from April 2020 that the pandemic is a single unforeseeable event amounts to an incorrect reading on how the grounds for the use of Article 32(2)(c) operate. If such interpretation was already too broad in April 2020, it certainly is no longer in line with the transition from an unfolding crisis into a new and more permanent equilibrium. In the context of COVID-19, particularly the need for the crisis to be unforeseeable and the extreme urgency not being attributable to the contracting authority raise significant difficulties for some contracting authorities to discharge the grounds for use of the negotiated procedure without prior notice. This is particularly the case in those situations where governments centralized pandemic-related procurement. As such, the paper concludes that existing substantive rules for extremely urgent procurement are adequate and, albeit sufficient to respond to crisis situations, that does not entail that the wholesale use of the negotiated procedure without prior notice is necessarily legal.

The COVID-19 pandemic swept throughout the European Union swiftly and led to significant changes in how we live and operate. Some of those changes occurred in public procurement as well, with Member States struggling to react to the dissemination of the virus. The purpose of this paper is to assess what scope the EU's public procurement legal framework provides to deal with a crisis, and how the rules should be interpreted. This paper will show how the EU public procurement legal framework deals with extreme urgency situations and how it has been intentionally designed to allow Member States flexibility within very clearly defined boundaries. This means that the path to award contracts without competition on the grounds of extreme urgency is narrow due to Article 32(2)(c) of Directive 2014/24/EU 1 and the case law from the CJEU. The narrowness of this path is due to the exceptional nature of procedure and the obligation for the contracting authority to discharge the tight grounds for use in full for every contract. Therefore, this paper concludes that the view exposed by the European Commission on its guidance from April 2020 that the pandemic is a single unforeseeable event amounts to an incorrect reading on how the grounds for the use of Article 32(2)(c) operate. If such interpretation was already too broad in April 2020, it certainly is no longer in line with the transition from an unfolding crisis into a new and more permanent equilibrium. In the context of COVID-19, particularly the need for the crisis to be unforeseeable and the extreme urgency not being attributable to the contracting authority raise significant difficulties for some contracting authorities to discharge the grounds for use of the negotiated procedure without prior notice. This is particularly the case in those situations where governments centralized pandemic-related procurement. As such, the paper concludes that existing substantive rules for extremely urgent procurement are adequate and, albeit sufficient to respond to crisis ...

On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in Article 50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK's and EU's legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing (August 2018), provides explicit rules on public procurement bound to regulate 'internal' procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU-UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU-UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a 'cliff-edge' disconnection post-Brexit, but rather solely deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK's and EU's repositioning within the World Trade Organisation Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of 'external' trade in procurement markets due to the absence of a 'WTO rules' default applicable to public procurement. Against the backdrop of this legal uncertainty, this paper critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of 'internal' EU-UK procurement, and for the re-positioning of both the EU and the UK within the WTO GPA, as the basis for their 'external' procurement trade with third countries. The paper concludes that it is in both the UK's and the EU's interest to reach a future EU-UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. The paper constitutes a detailed case study that provides insights applicable to other areas of Brexit-related trade re-regulation.