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On 19 December 2008 the European Commission announced that due to the exceptional nature of the current economic situation there should be a presumption of urgency for all major public projects when using the accelerated procedure, in order to permit a considerable reduction in the time limits applying to the restricted procedure from 87 days (including the standstill period) to 30 days.
The relevant provisions dealing with the accelerated restricted procedure are contained in Regulation 16(6) of the Public Contracts Regulations 2006. Use of the accelerated procedure is available where compliance with the time limits set out in the restrictive procedure is "rendered impractical for reasons of urgency". The concept of "urgency" has previously been interpreted quite restrictively which made it near to impossible for contracting authorities to make use of it in normal circumstances.
The development is part of a set of coordinated measures adopted by the EU in the hope that a common approach will lighten the recession clouds. The catch is that the scope of the communication is limited to major public projects. One wonders whether the Commission has thought this through properly, as speed and the restricted procedure are often of little relevance in those circumstances where a major project is being procured. Large scale projects by their nature require a lengthier period of time to negotiate and finalise. That, coupled with their complexity is why the competitive dialogue procedure is often used. In such cases it is unlikely that contracting authorities would have any use for a reduction of time forgoing the usual negotiation with bidders.
The announcement does not amend the current law, nor does it have the power to bind the courts to interpret the current law in accordance with the communication. However, the relaxation does signify some willingness to adopt a pragmatic approach in the case of major projects and provides evidence which can be put before the courts should a decision to use the accelerated procedure be challenged.
The OGC's interpretation seems to be more liberal. It considers that the fact that the Commission has not defined "major projects", and has not placed a minimum monetary value on the types of procurement for which it considers the accelerated restricted procedure to be appropriate, gives a free hand for the procedure to be used in all procurement procedures above the relevant thresholds if early execution would be of benefit to industry. The OGC advises that authorities considering the accelerated timescale should first determine whether the procurement in question would meet the aim of boosting the economy through rapid execution of the contract.
Given the lack of definition of 'major projects', the OGC's liberal interpretation of the communication, the temporary nature of the measure (it is only available during 2009 and 2010) and the reasons for its adoption (economic crisis), one could be forgiven for hoping that the Commission has at least temporarily decided to oil the wheels of bureaucracy.
The Communication could not have come at a better time for those able to speed up their procurement process. It may be a good time for government bodies, RSLs and other contracting authorities to take advantage of the brief window of relaxation in the interpretation of the rules by pursuing their procurements in 2009 and 2010, whether concluding framework agreements for future suppliers of works or services or other long term outsourcing contracts.
Contracting authorities should bear in mind that the Communication does not give them a free hand to use the accelerated restricted procedure for all their procurement needs, and decisions on whether to use the accelerated procedure should be considered carefully. Contracting authorities will have to take a view as to whether their particular project would have an impact on the wider economy as it stands at any particular point in time.
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