When reading the article below on the Government's decision to continue its relationship with Edenred on free school meals, a particular quote jumped out at me:
“It does beg the question of why the Government did not foresee the likelihood of another lockdown and run a tender process at an earlier stage.”
The last year has seen contracting authorities across all sectors having to award urgent over threshold contracts (using Regulation 32(2)(c), Public Contracts Regulations 2015) or varying existing contracts in accordance with Regulation 72 (usually using Regulation 72(1)(c) - unforeseen circumstances).
The quote raises an interesting proposition - are lockdowns and the possible extra demands a pandemic brings, now a foreseeable possibility such that contracting authorities may lose the arguments to utilise these grounds?
Undoubtedly there will also be some needs arising from lockdowns/pandemics that are new/novel/unforeseen. But for things that are known, contracting authorities may be faced with arguments (from potential challengers and others) that they should have been planning and using the time between lockdowns last year to put in place contracts following a full competition. Some authorities will have and will continue to do that. However, we cannot ignore the reality that many contracting authorities were resource-poor before the pandemic and even those that were not have been stretched considerably by the pandemic. Officers have not had the capacity (including the headspace) to plan and implement arrangements for all eventualities. What does this all mean? The practical need to award contracts without competition is not going to go away, but as the pandemic and lockdowns (hopefully, this is the last) continue the arguments put forward to justify the departure from public procurement norms are going to need to be ever more carefully crafted to mitigate the risk of challenge.
Geoff Barton, general secretary at ASCL, said: “It does beg the question of why the Government did not foresee the likelihood of another lockdown and run a tender process at an earlier stage.”