This section uses the term direct award to denote not only contracts that are awarded without any public procurement procedure, but also those that are awarded pursuant to a negotiated procedure without the conduct of any competition. In the classic EU regime, such directly negotiated contracts are provided for under Article 32 of Directive 2014/24, which sets out the exceptional circumstances in which such a direct award can be made – for example, where competition is wholly absent for technical reasons.
In the UK, the Procurement Act 2023 provides for the making of a direct award in special cases (section 41), with Schedule 5 setting out specific justifications for the making of a direct award. Although the UK provisions are somewhat more detailed, they are quite similar to the provisions of Directive 2014/24, with all of the main grounds for direct awards maintained (technical reasons, for example). The general principles developed in the case law, which emphasise the exceptional nature of direct awards and the necessity for for such awards to be shown convincingly, will very likely continue to apply.
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EU
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Directive 2014/24
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Article 32 Use of the negotiated procedure without prior publication
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1. In the specific cases and circumstances laid down in paragraphs 2 to 5, Member States may provide that contracting authorities may award public contracts by a negotiated procedure without prior publication.
2. The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases:
(a) where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission where it so requests.
A tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents. A request for participation shall be considered not to be suitable where the economic operator concerned is to be or may be excluded pursuant to Article 57 or does not meet the selection criteria set out by the contracting authority pursuant to Article 58;
(b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:
(i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
(ii) competition is absent for technical reasons;
(iii) the protection of exclusive rights, including intellectual property rights;
The exceptions set out in points (ii) and (iii) shall only apply when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
(c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting authority.
3. The negotiated procedure without prior publication may be used for public supply contracts:
(a) where the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point shall not include quantity production to establish commercial viability or to recover research and development costs;
(b) for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years;
(c) for supplies quoted and purchased on a commodity market;
(d) for the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
4. The negotiated procedure without prior publication may be used for public service contracts, where the contract concerned follows a design contest organised in accordance with this Directive and is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
5. The negotiated procedure without prior publication may be used for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded pursuant to a procedure in accordance with Article 26(1). The basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded.
As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply Article 4.
This procedure may be used only during the three years following the conclusion of the original contract.
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Recital 50
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In view of the detrimental effects on competition, negotiated procedures without prior publication of a contract notice should be used only in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of extreme urgency brought about by events unforeseeable for and not attributable to the contracting authority, or where it is clear from the outset that publication would not trigger more competition or better procurement outcomes, not least because there is objectively only one economic operator that can perform the contract. This is the case for works of art, where the identity of the artist intrinsically determines the unique character and value of the art object itself. Exclusivity can also arise from other reasons, but only situations of objective exclusivity can justify the use of the negotiated procedure without publication, where the situation of exclusivity has not been created by the contracting authority itself with a view to the future procurement procedure.
Contracting authorities relying on this exception should provide reasons why there are no reasonable alternatives or substitutes such as using alternative distribution channels including outside the Member State of the contracting authority or considering functionally comparable works, supplies and services.
Where the situation of exclusivity is due to technical reasons, they should be rigorously defined and justified on a case-by-case basis. They could include, for instance, near technical impossibility for another economic operator to achieve the required performance or the necessity to use specific know-how, tools or means which only one economic operator has at its disposal. Technical reasons may also derive from specific interoperability requirements which must be fulfilled in order to ensure the functioning of the works, supplies or services to be procured.
Finally, a procurement procedure is not useful where supplies are purchased directly on a commodity market, including trading platforms for commodities such as agricultural products, raw materials and energy exchanges, where the regulated and supervised multilateral trading structure naturally guarantees market prices.
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Recital 80
View section / regulation
In order to make procedures faster and more efficient, time limits for participation in procurement procedures should be kept as short as possible without creating undue barriers to access for economic operators from across the internal market and in particular SMEs. It should therefore be kept in mind that, when fixing the time limits for the receipt of tenders and requests to participate, contracting authorities should take account in particular of the complexity of the contract and the time required to draw up tenders, even if this entails setting time limits that are longer than the minima provided for under this Directive. The use of electronic means of information and communication, in particular full electronic availability to economic operators, tenderers and candidates of procurement documents and electronic transmission of communications leads, on the other hand, to increased transparency and time savings. Therefore, provision should be made for reducing the minimum time limits in line with the rules set by the GPA and subject to the condition that they are compatible with the specific mode of transmission envisaged at Union level. Furthermore, contracting authorities should have the opportunity to further shorten the time limits for receipt of requests to participate and of tenders in cases where a state of urgency renders the regular time limits impracticable, but does not make a regular procedure with publication impossible. Only in exceptional situations where extreme urgency brought about by events unforeseeable by the contracting authority concerned that are not attributable to that contracting authority makes it impossible to conduct a regular procedure even with shortened time limits, contracting authorities should, in so far as strictly necessary, have the possibility to award contracts by negotiated procedure without prior publication. This might be case where natural catastrophes require immediate action.
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Article 32 Use of the negotiated procedure without prior publication
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Directive 2014/24
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UK
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Procurement Act 2023
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Section 41 Direct award in special cases
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(1) If a direct award justification applies, a contracting authority may award a public contract directly—
(a) to a supplier that is not an excluded supplier, or
(b) in accordance with subsection (2).
(2) A contracting authority may award a contract to a supplier that is an excluded supplier if the contracting authority considers that there is an overriding public interest in awarding the contract to that supplier.
(3) A contracting authority may carry out a selection process or take such other preliminary steps as it considers appropriate for the purpose of awarding a contract under this section.
(4) Before awarding a contract to a supplier under this section, a contracting authority must consider whether the supplier is an excludable supplier.
(5) There is an overriding public interest in awarding a public contract to an excluded supplier if—
(a) it is necessary in order to construct, maintain or operate critical national infrastructure,
(b) it is necessary in order to ensure the proper functioning of a sector on which the defence, security or economic stability of the United Kingdom relies,
(c) failure to do so would prejudice the conduct of military or security operations, or the effective operation of the armed forces or intelligence services, or
(d) the contract is being awarded by reference to paragraph 13 of Schedule 5 (extreme and unavoidable urgency) and cannot be awarded to, or performed by, a supplier that is not an excluded supplier within the necessary time frame.
(6) The direct award justifications are set out in Schedule 5.
(7) In this section, “intelligence services” means the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.
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Section 42 Direct award to protect life, etc
View section / regulation
(1) If a Minister of the Crown considers it necessary, the Minister may by regulations provide that specified public contracts may be awarded under section 41 as if a direct award justification applies.
(2) In subsection (1), “necessary” means necessary to—
(a) protect human, animal or plant life or health, or
(b) protect public order or safety.
(3) Provision under subsection (1) may—
(a) specify contracts or classes of contract, or otherwise describe contracts by reference to purpose, subject-matter or contracting authority;
(b) include other conditions or limitations;
(c) confer a discretion.
(4) A Minister of the Crown must—
(a) keep regulations made under subsection (1) under review, and
(b) if the Minister considers that direct award under section 41 is no longer necessary, revoke the regulations.
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Section 43 Switching to direct award
View section / regulation
(1) A contracting authority may award a public contract directly to a supplier that is not an excluded supplier if—
(a) the authority has invited suppliers to submit tenders as part of, or requests to participate in, a competitive tendering procedure in respect of the contract,
(b) it has not received any suitable tenders or requests in response, and
(c) it considers that award under section 19 is not possible in the circumstances.
(2) A tender or request is not suitable if the contracting authority considers that—
(a) it would be disregarded in an assessment of tenders under section 19(3)(a), (b) or (c);
(b) it does not satisfy the contracting authority’s requirements or the award criteria when assessed by reference to the assessment methodology and the relative importance of the criteria indicated under section 23(3);
(c) there is evidence of corruption or collusion between suppliers or between suppliers and contracting authorities;
(d) it materially breaches a procedural requirement in the tender notice or associated tender documents.
(3) A reference to a tender breaching a procedural requirement includes a reference to a supplier breaching a procedural requirement in relation to the tender.
(4) A breach is material if the contracting authority considers that ignoring it would put the tender at an unfair advantage.
(5) A contracting authority may carry out a selection process or take such other preliminary steps as it considers appropriate for the purpose of awarding a contract under subsection (1).
(6) Before awarding a contract to a supplier under this section, a contracting authority must consider whether the supplier—
(a) is an excludable supplier, or
(b) submitted an unsuitable tender or request in response to the invitation referred to in subsection (1)(a).
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Section 42 Transparency notices
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(1) Before awarding a contract under section 41 or 43 a contracting authority must publish a transparency notice.
(2) A “transparency notice” means a notice setting out—
(a) that a contracting authority intends to award a contract directly, and
(b) any other information specified in regulations under section 95.
(3) This section does not apply in relation to the award of a contract under section 41 by virtue of paragraph 15 of Schedule 5 (direct award: user choice contracts).
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Schedule 5 Direct Award Justifications
View section / regulation
1 This Schedule contains the direct award justifications.
Prototypes and development
2 The public contract concerns the production of a prototype, or supply of other novel goods or services, for the purpose of—
(a) testing the suitability of the goods or services,
(b) researching the viability of producing or supplying the goods or services at scale and developing them for that purpose, or
(c) other research, experiment, study or development.
3 In paragraph 2, “novel goods or services” means goods or services designed or developed at the request of the contracting authority.
Single suppliers
4 The public contract concerns the creation or acquisition of a unique work of art or artistic performance.
5 The following conditions are met in relation to the public contract—
(a) due to a particular supplier having intellectual property rights or other exclusive rights, only that supplier can supply the goods, services or works required, and
(b) there are no reasonable alternatives to those goods, services or works.
6 The following conditions are met in relation to the public contract—
(a) due to an absence of competition for technical reasons, only a particular supplier can supply the goods, services or works required, and
(b) there are no reasonable alternatives to those goods, services or works.
Additional or repeat goods, services or works
7 The public contract concerns the supply of goods, services or works by the existing supplier which are intended as an extension to, or partial replacement of, existing goods, services or works in circumstances where—
(a) a change in supplier would result in the contracting authority receiving goods, services or works that are different from, or incompatible with, the existing goods, services or works, and
(b) the difference or incompatibility would result in disproportionate technical difficulties in operation or maintenance.
8 The public contract concerns the supply of goods, services or works by the existing supplier that are similar to existing goods, services or works where—
(a) the existing goods, services or works were supplied under a public contract that was awarded in accordance with a competitive tendering procedure within the period of five years ending with the day on which the transparency notice is published, and
(b) the tender notice or any tender document in respect of that earlier contract set out—
(i) the contracting authority’s intention to carry out a subsequent procurement of similar goods, services or works in reliance on this direct award justification, and
(ii) any other information specified in regulations under section 95.
9 In paragraphs 7 and 8—
“existing goods, services or works” means goods, services or works already supplied, or contracted to be supplied, to the contracting authority;
“existing supplier” means the supplier that has already supplied, or contracted to supply, the existing goods, services or works.
Commodities
10 The public contract concerns goods purchased on a commodity market.
Advantageous terms on insolvency
11 The award of the public contract to a particular supplier will ensure terms particularly advantageous to the contracting authority due to the fact that a supplier, whether or not the one to whom the contract is to be awarded, is undergoing insolvency proceedings.
12 A supplier is “undergoing insolvency proceedings” if it has—
(a) become bankrupt or, in Scotland, the estate of the supplier has been sequestrated,
(b) become subject to insolvency or winding-up proceedings,
(c) had its assets subject to administration or receivership, including by a liquidator or court,
(d) entered into an arrangement with its creditors,
(e) become subject to a petition or application for any such procedures or arrangements, or
(f) in any jurisdiction, been subject to a procedure or an application that corresponds to any procedure or application mentioned in paragraphs (a) to (e).
Urgency
13Where—
(a) the goods, services or works to be supplied under the public contract are strictly necessary for reasons of extreme and unavoidable urgency, and
(b) as a result the public contract cannot be awarded on the basis of a competitive tendering procedure.
14 For the purpose of paragraph 13, urgency is unavoidable if it—
(a) is not attributable to any act or omission of the contracting authority, and
(b) could not have been foreseen by the contracting authority.
User choice contracts
15 The public contract is a contract for the supply of user choice services and the conditions in paragraph 17 are met.
16 In paragraph 15, “user choice services” means services—
(a) that are of a kind specified in regulations under section 9 (light touch contracts),
(b) that are supplied for the benefit of a particular individual, and
(c) in respect of which a contracting authority would, in awarding a contract for their supply, be required under an enactment to have regard to the views of the individual, or a person providing care to the individual (their “carer”), in relation to who should supply the services.
17 The conditions are that—
(a) the individual to whom the services are to be supplied or their carer has expressed a preference as to who should supply the services, or the nature of the services to be supplied is such that only one supplier is capable of providing them, and
(b) the contracting authority considers that it is not in the best interests of the individual to award the contract under section 19.
Defence and security
18 The following conditions are met in relation to the public contract—
(a) the contract is a defence and security contract,
(b) the contract relates to the supply of air or maritime transport services to the armed forces or the security services—
(i) while they are deployed outside the United Kingdom, or
(ii) in order for them to be so deployed, and
(c) the nature of the services is such that no reasonable supplier would be able to guarantee that all of the terms that would be contained in a tender submitted for the supply of those services by such a supplier would remain in effect for the period of 10 days beginning with the day of submission.
19(1) The following conditions are met in relation to the public contract (the “new contract”)—
(a) there is another contract between the contracting authority and the supplier (the “existing contract”),
(b) either of the conditions in sub-paragraphs (2) and (3) is met in relation to the new contract, and
(c) the new contract would, if awarded directly, be a “qualifying defence contract” under section 14(2) of the Defence Reform Act 2014 (regulations relating to qualifying defence contracts).
(2) The condition in this sub-paragraph is met if, treating the new contract as a modification of the existing contract, the new contract would not be a substantial modification of the existing contract within the meaning given in section 74(3).
(3) The condition in this sub-paragraph is met if, treating the new contract as a modification of the existing contract, the new contract would be a modification of the existing contract of a kind described in—
(a) paragraph 4 of Schedule 8 (unforeseeable circumstances), or
(b) paragraph 8 of that Schedule (additional goods, services or works).
20 The following conditions are met in relation to the public contract—
(a) the contract is a defence authority contract,
(b) the contract is not a defence and security contract only by virtue of section 7(1)(g) (or, in the case of a framework, section 7(1)(g) and (2)), and
(c) it is necessary for the contract to be awarded directly in order to enhance or maintain the operational capability, effectiveness, readiness for action, safety or security of the armed forces.
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Section 41 Direct award in special cases
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The Procurement Regulations 2024
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Regulation 29 Contract award notices published by private utilities: direct awards
View section / regulation
29.—(1) This regulation sets out other information which must be included in a contract award notice published by a private utility under section 50(1) of the PA 2023 where the contract was awarded directly in accordance with section 41 or 43 of the PA 2023.
(2) The information is—
(a)the same information referred to in regulation 27(2)(a) to (r), except sub-paragraphs (c)(iii) and (iv), (h) to (j), (l), (n) and (o),
(b)the estimated date when the contract will be entered into,
(c)a description of any option in the public contract—
(i)to supply additional goods, services or works, or
(ii)to extend or renew the term of the contract,
(d)whether the contract is being awarded directly to a supplier that is not an excluded supplier because a direct award justification applies in accordance with section 41(1)(a) of the PA 2023,
(e)if sub-paragraph (d) applies, the direct award justification in Schedule 5 which applies and an explanation of why the contracting authority considers that it applies,
(f)whether the contract is being awarded directly to a supplier that is an excluded supplier because the contracting authority considers that there is an overriding public interest in awarding the contract to that supplier in accordance with section 41(2) to (5) of the PA 2023,
(g)if sub-paragraph (f) applies—
(i)the offence or other event mentioned in Schedule 6 to the PA 2023 by virtue of which the supplier is an excluded supplier, and
(ii)which ground in section 41(5) of the PA 2023 applies and an explanation of why the contracting authority considers that it applies,
(h)whether the contract is being awarded directly to a supplier pursuant to regulations made under section 42 of the PA 2023 (direct award to protect life, etc),
(i)if sub-paragraph (h) applies, the title and registration number of the statutory instrument containing those regulations,
(j)whether the contract is being awarded directly to a supplier that is not an excluded supplier by virtue of section 43 of the PA 2023 (switching to direct award), and
(k)if sub-paragraph (j) applies, the reason the contracting authority considers there were no suitable tenders or requests to partipate by reference to section 43(2) of the PA 2023 and why it considers that an award under section 19 is not possible in the circumstances.
(3) Nothing in this regulation prevents a contracting authority from publishing other information that relates to the same procurement in the notice.
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Regulation 35 Contract details notices: direct award
View section / regulation
35.—(1) This regulation sets out other information which must be included in a contract details notice published under section 53(1) of the PA 2023 where the public contract was awarded directly in accordance with section 41 or 43 of the PA 2023.
(2) The information is—
(a)the same information referred to in regulation 32(2), except sub-paragraphs (e), (h) and (n),
(b)whether the contract was awarded directly to a supplier that is not an excluded supplier because a direct award justification applies in accordance with section 41(1)(a) of the PA 2023,
(c)if sub-paragraph (b) applies, the direct award justification in Schedule 5 which applies and an explanation of why the contracting authority considers that it applies,
(d)whether the contract was awarded directly to a supplier that is an excluded supplier because the contracting authority considered that there was an overriding public interest in awarding the contract to that supplier in accordance with section 41(2) to (5) of the PA 2023,
(e)if sub-paragraph (d) applies, which ground in section 41(5) of the PA 2023 applies and an explanation of why the contracting authority considers that it applies,
(f)whether the contract was awarded directly to a supplier pursuant to regulations made under section 42 of the PA 2023 (direct award to protect life, etc),
(g)if sub-paragraph (f) applies, the title and registration number of the statutory instrument containing those regulations,
(h)whether the contract was awarded directly to a supplier that is not an excluded supplier by virtue of section 43 of the PA 2023 (switching to direct award),
(i)if sub-paragraph (h) applies, the reason the contracting authority considers there were no suitable tenders or requests to participate by reference to section 43(2) of the PA 2023 and why it considers that an award under section 19 of that Act is not possible in the circumstances,
(j)whether the contract was awarded to a supplier that is an excluded supplier by virtue of section 41(2) of the PA 2023, and
(k)if sub-paragraph (j) applies, the offence or other event mentioned in Schedule 6 to the PA 2023 in question.
(3) Nothing in this regulation prevents a contracting authority from publishing other information that relates to the same procurement in the notice.
(4) This regulation does not apply to a contract details notice where the public contract is a framework (see instead regulation 33).
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Regulation 29 Contract award notices published by private utilities: direct awards
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Procurement Act 2023
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England and Wales
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R (On the Application Of The Good Law Project)) v Minister for the Cabinet Office [2022] EWCA Civ 21
Region: England and Wales
Extreme urgency exemption could be used to award 6-month communications contract at the start of COVID pandemic; no apparent bias
The contract was for the the provision of focus group and communications support services designed to inform government public messaging and communications strategy for the pandemic crisis.
Regulation 32(2)(c) of the Public Contracts Regulations 2015 was relied on to award the contract without a competition: “(2) The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases: (c) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with … (4) For the purposes of paragraph (2)(c), the circumstances invoked to justify extreme urgency [must] not in any event be attributable to the contracting authority.”
“Existing Suppliers
[The argument that only existing suppliers should have been considered]
51. … The question whether the negotiated procedure is strictly necessary for the purposes of Regulation 32 is one of evaluation based upon the complete range of factual circumstances accepted by the judge to have been in play. It is not subject to artificial constraints of the sort contended for by Good Law. It would be wrong in principle to find that a contracting authority in a situation of extreme urgency could only contract with existing suppliers irrespective of their judgement about who was the most appropriate supplier of the services urgently needed.
…
Duration
[The argument that 6 months was too long]
53. The first difficulty with Mr Coppel’s submission is that it seems to us to be inescapably dependent on the benefit of hindsight, as the Judge found at [116]. The underlying premise is that six months was obviously too long a duration for the contract. But at the height of the original Covid-19 crisis, it was impossible for anyone to say that such a period was too long or more than was strictly necessary.
54. Furthermore, it could not be said that the duration of the Public First contract was a matter of indifference to the Minister. The original proposal had been for nine months, and that had been reduced to six.
…
56. In the round, therefore, we are unpersuaded that the judge was wrong to reject that, in some way, the six-month contract was longer than was “strictly necessary” in all the circumstances.
Scope
[The argument that the scope went beyond what was strictly necessary as work unrelated to the pandemic was performed]
58. There was nothing objectionable about the original scope of work, which was widely defined in the contract itself (presumably to give the contracting authority the maximum flexibility). Furthermore, if there had been a complaint that the services being carried out by Public First pursuant to those instructions went beyond that which was legitimate, and amounted to an improper modification of the contract, then Regulation 72 provides the mechanism by which that extension could have been challenged by an economic operator. There has never been a challenge to the Public First contract under Regulation 72 nor did Good Law rely upon it.”
Apparent Bias
See paras 60-90, concluding that there was not apparent bias (overturning the Judge’s finding that the failure by the Minister to consider any other research agency did amount to objective bias)
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R (On the Application Of The Good Law Project)) v Minister for the Cabinet Office [2022] EWCA Civ 21
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EU - CJEU
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Case C-385/02 Commission v Italy
Region: EU - CJEU
Conditions for use of negotiated procedure without a competition for repeat works/services to original contractor were not satisfied (relevant provision: now Article 32(5) of Directive 2014/24), where it was more than 3 years since original contracts were entered into
Italy sought to rely on the equivalent of what is now Article 32(5) of Directive 2014/24, which limited use of this exemption to the period of three years following the conclusion of the original contract. The exemption also requires the original project to indicate the extent of possible additional works/services and the conditions under which they would be awarded.
“21. It is true that the aim of ensuring the continuity of works under complex projects which relate to the flood safety of an area is a technical reason which must be recognised as being important. However, merely to state that a package of works is complex and difficult is not sufficient to establish that it can only be entrusted to one contractor, particularly where the works are subdivided into lots which will be carried out over many years.
22. In the present case, the Italian Government has confined itself to referring in general terms to the contents of an opinion of the Public Works Authority, without providing the detailed explanations on which the need to use a single contractor could be based.”
“37 First, as it is a derogating provision which falls to be strictly interpreted, the interpretation which restricts the period during which the derogation applies must be preferred rather than that which extends it. That objective is met by the interpretation which takes the starting point as being the date on which the original contract is entered into rather than the, necessarily later, date on which the works which are its subject-matter are completed.
38 Secondly, legal certainty, which is desirable where procedures for the award of public procurement contracts are involved, requires that the date on which the period in question begins can be defined in a certain and objective manner. While the date on which a contract is entered into is certain, numerous dates may be treated as representing the completion of the works and thus give rise to a corresponding level of uncertainty. Moreover, while the date on which the contract is entered into is clearly established at the outset, the date of completion of the works, whatever definition is adopted, may be altered by accidental or voluntary factors for so long as the contract is being carried out.
39 It follows that in the present case the period of three years laid down in the final sentence of Article 7(3)(e) of the Directive ran from the date on which the original contracts were entered into in 1982 and 1988. As the relevant contracts were awarded in 1997, the derogation laid down by the provision concerned accordingly did not apply.”
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Case C‑337/05 Commission v Italy
Region: EU - CJEU
Italy failed to discharge the burden of showing that due to technical specificity and interoperability reasons, only the incumbent manufacturer could provide helicopters for use by the State
“55. To justify the use of the negotiated procedure, the Italian Republic also invokes Article 6(3)(c) and (e) of Directive 93/36. It maintains, first, that, having regard to their technical specificity, the manufacture of the helicopters in question could be entrusted only to Agusta and, second, that it was necessary to ensure the interoperability of its fleet of helicopters, in order, particularly, to reduce the logistic, operational and pilot-training costs.
56 As is clear, in particular, from the 12th recital in the preamble to Directive 93/36, the negotiated procedure is exceptional in nature and may be applied only in cases which are set out in an exhaustive list. To that end, Article 6(2) and (3) of Directive 93/36 exhaustively and expressly lists the only exceptions for which recourse to the negotiated procedure is allowed (see, to that effect, as regards Directive 77/62, Case C‑71/92 Commission v Spain [1993] ECR I‑5923, paragraph 10; as regards Directive 93/36, see Teckal, paragraph 43, and Case C‑84/03 Commission v Spain, cited above, paragraph 47).
57 According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public contracts must be interpreted strictly (see Case C‑57/94 Commission v Italy [1995] ECR I‑1249, paragraph 23; Case C‑318/94 Commission v Germany [1996] ECR I‑1949, paragraph 13; and Case C‑394/02 Commission v Greece [2005] ECR I‑4713, paragraph 33). To prevent Directive 93/36 being deprived of its effectiveness, the Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for by that directive, or add new conditions to the cases expressly provided for by the directive in question which make that procedure easier to use (see, to that effect, Case C‑84/03 Commission v Spain, paragraph 48).
58 In addition, it must be recalled that the burden of proving the existence of exceptional circumstances justifying the derogation from those rules lies on the person seeking to rely on those circumstances (see Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14, and Commission v Greece, cited above, paragraph 33).
59 In this case, the Italian Republic has not discharged the burden of proof as regards the reason for which only helicopters produced by Agusta would be endowed with the requisite technical specificities. In addition, that Member State has confined itself to pointing out the advantages of the interoperability of the helicopters used by its various corps. It has not however demonstrated in what respect a change of supplier would have constrained it to acquire material manufactured according to a different technique likely to result in incompatibility or disproportionate technical difficulties in operation and maintenance.
60 Having regard to all the foregoing, it must be declared that, by adopting a procedure, which has been in existence for a long time and is still followed, of directly awarding to Agusta contracts for the purchase of Agusta and Agusta Bell helicopters to meet the requirements of several military and civilian corps of the Italian State, without any competitive tendering procedure, and, in particular, without complying with the procedures provided for by Directive 93/36 and, previously, by Directive 77/62, the Italian Republic has failed to fulfil its obligations under those directives.”
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Case C‑250/07 Commission v Greece
Region: EU - CJEU
Contracting entity entitled to consider that tenders were unsuitable where they did not meet technical requirements, justifying use of the negotiated procedure without a competition; conditions of the contract were not substantially altered
Two tendering procedures had been abandoned on the basis that no suitable tenders were submitted/tenderers did not comply with technical specifications. There was then a request to five of the tenderers in the second tender to submit final offers and correct technical issues. One of the tenderers was excluded and was initially given no reasons, but was later provided with reasons. Following a compliant from the excluded tenderers, the Commission took infringement proceedings against Greece for breaching the procurement rules.
“42 It must be held that technical specifications such as those at issue in the present case, which stem from the national and Community legislative requirements on protection of the environment, must be regarded as essential if the installations – the supply and bringing into operation of which is the aim of the contract – are to enable the contracting entity to meet the objectives imposed upon it by legislation.
43 Since the proper completion of the project for which the call for tenders was issued is not possible for the contracting entity if the tenders are not in conformity with those specifications, that non-conformity does not constitute a mere inaccuracy or a mere detail: on the contrary, it must be regarded as precluding those tenders from meeting the needs of the contracting entity.
44 Such tenders must, as the Commission itself conceded before the Court, be categorised as ‘unsuitable’ for the purposes of Article 20(2)(a) of Directive 93/38.
45 It should be added that, in the present case, there are no grounds for the Commission’s fear that contracting entities will circumvent the obligation under Directive 93/38 to issue a call for competition by setting conditions which are overly strict or impossible to comply with, in order to be able to categorise all the tenders submitted as ‘unsuitable’ before awarding the contract to another tenderer without a prior call for competition.
46 First, after holding that the tenders submitted during the first procedure with a call for competition did not meet the fixed technical specifications, the contracting entity issued a second call for tenders and thus did not immediately proceed on the basis of Article 20(2)(a) of Directive 93/38.
47 Secondly, in the negotiated procedure which it initiated on the basis of Article 20(2)(a) of Directive 93/38, the contracting entity requested all the candidates which had participated in the second procedure with a call for competition to submit ‘financial offers’, even though the provisions of Directive 93/38 which relate to the negotiated procedure, and specifically Article 1(7)(c) of that directive, did not require this.
48 Lastly, it has been neither proved nor even claimed that the technical specifications which had been fixed by the contracting entity and which had led that entity to regard the tenders received as unsuitable were overly strict or impossible to comply with.
49 On the contrary, as the Hellenic Republic stated without being contradicted on that point by the Commission, the requirements relating to guaranteed volumes, with which the tenderers were obliged to comply, were finally met by some of the candidates for the award of the contract.
50 In the light of those considerations, it must be held that the contracting entity was entitled to categorise the tenders at issue as ‘unsuitable’ for the purposes of Article 20(2)(a) of Directive 93/38.
51 In those circumstances, it must also be ascertained whether, as the Commission maintains, the contracting entity – contrary to the terms of Article 20(2)(a) of Directive 93/38 – substantially changed the original contract conditions during the negotiated procedure without a prior call for competition.
52 In that connection, it should be noted that, by analogy with the Court’s dicta regarding the renegotiation of contracts already awarded (see Case C‑454/06 pressetext Nachrichtenagentur [2008] ECR I‑4401, paragraph 35), the amendment of an initial contract condition can be regarded as substantial for the purposes of Article 20(2)(a) of Directive 93/38, inter alia, where the amended condition, had it been part of the initial award procedure, would have allowed tenders submitted in the procedure with a prior call for competition to be considered suitable or would have allowed tenderers other than those who participated in the initial procedure to submit a tender.
53 In so far as the Commission – as emerges from its observations – regards the facts in question as falling clearly within the former of those two situations, it is necessary to examine whether the original contract conditions, the non-conformity with which led the contracting entity to categorise the tenders submitted as unsuitable, were substantially changed in the negotiated procedure.
54 In respect of those conditions, the Hellenic Republic contends, without being contradicted on that point by the Commission, that the tenders submitted under the second procedure with a call for competition were all declared unsuitable because they did not comply with the requirements relating to the guaranteed volumes of waste emissions.
55 It must be stated that, in the third procedure, those requirements were not changed and the contracting entity was obliged, as it was in the first two procedures, to meet those requirements. Furthermore, it is precisely because no discrepancy with those specifications was permissible that the candidates had to submit a binding declaration by which they undertook to bring their tenders into conformity with the requirements set out in the contract notice concerning those guaranteed volumes.
56 As regards the other technical specifications, it should be pointed out that, although some discrepancies with those specifications were acceptable under the second procedure with a call for competition, the costs entailed in correcting those discrepancies could, as the Hellenic Republic contended without being contradicted by the Commission, be left to the tenderers to bear. The fact that, under the third procedure, the tenderers had to bear the costs of correcting the technical discrepancies themselves cannot thus be regarded as a new obligation.
57 During that third procedure, moreover, the tenderers were not required to make the corrections in question, but only to provide an estimate of the total cost of those corrections and to submit a final financial offer. The third procedure thus offered all the tenderers who had participated in the second procedure the possibility of reviewing some of their proposals in the context of a final financial offer and of assessing once again the discrepancies with the technical specifications set out in the call for tenders.
58 It follows that, during the negotiated procedure without a prior call for competition, the contracting entity did not substantially change the original contract conditions for the purposes of Article 20(2)(a) of Directive 93/38.
59 In those circumstances, it must be held that the Commission has failed to prove that the Hellenic Republic infringed Article 20(2)(a) of Directive 93/38. Consequently, the first part of its first plea in law must be rejected.
60 So far as the alleged infringement of Article 20(2)(d) of Directive 93/38 is concerned, it should be recalled that, as is apparent from paragraph 34 of this judgment, Article 20(2)(d) is in the nature of a derogation and the burden of proving that the conditions for its application are fulfilled lies on the party seeking to rely on it.
61 It is sufficient to observe, in this connection, as the Advocate General did in point 25 of his Opinion, that the Hellenic Republic did not invoke Article 20(2)(d) of Directive 93/38 in support of the decision by which DEI awarded the contract at issue without a prior call for competition, but merely stated that that decision had been adopted on the basis of Article 20(2)(a) of Directive 93/38.
62 The Commission cannot legitimately allege that the Hellenic Republic infringed a provision upon which that Member State did not actually rely and, in consequence, the second part of the first plea in law must also be rejected.
63 In those circumstances, the first plea in law relied upon by the Commission must be rejected in its entirety as unfounded.”
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Case C 578/23 GFD
Region: EU - CJEU
To avail of the exception allowing use of the negotiated procedure without a competition based on technical necessity, the contracting authority must establish that the technical reasons connected with the protection of exclusive rights is not attributable to it
The case concerned an information system used by the Czech tax authorities. The original contract with IBM dated from 1992. In 2016, the General Finance Directorate (GFD), which had replaced the relevant ministry, used the negotiated procedure without a competition to award IBM a contract for the maintenance of the system. The GFD maintained that it attempted to put an end to the situation of exclusivity of IBM Česká republika but that IBM Česká republika refused to transfer the economic copyright in the source code of the information system in question, with the result that, if it had not opted for the negotiated procedure without prior publication of a contract notice, that information system would have become unusable, thus preventing the tax authority from carrying out its task. The Czech competition authority found that GFD had awarded the contract without the conditions for use of this procedure being fulfilled. After various appeals, this led to a reference concerning when the negotiated procedure without a competition could be used.
“24. [The] negotiated procedure without prior publication of a contract notice may only be used in the circumstances precisely delimited in Article 31 of Directive 2004/18 and that, as compared with open and restricted procedures, referred to in Article 28 of that directive, that procedure is exceptional (see, to that effect, judgments of 23 April 2009, Commission v Belgium, C‑292/07, EU:C:2009:246, paragraph 106, and of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 49).
25 In particular, Article 31(1)(b) of Directive 2004/18 provides that, in the case of public works contracts, public supply contracts and public service contracts, contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator.
26 That provision allows the use of that procedure if two cumulative conditions are satisfied, namely, first, the existence of technical or artistic reasons or reasons connected with the protection of exclusive rights linked to the subject matter of the contract and, second, the fact that those reasons make it absolutely necessary to award the contract to a particular economic operator (see, by analogy, judgments of 18 May 1995, Commission v Italy, C‑57/94, EU:C:1995:150, paragraph 24, and of 2 June 2005, Commission v Greece, C‑394/02, EU:C:2005:336, paragraph 34).
27 As a derogation from the rules intended to ensure the effectiveness of the rights conferred by EU law in the field of public contracts, that provision must be interpreted strictly and it is for the person seeking to rely on it to prove that those cumulative conditions are satisfied (see, by analogy, judgments of 10 March 1987, Commission v Italy, 199/85, EU:C:1987:115, paragraph 14, and of 15 October 2009, Commission v Germany, C‑275/08, EU:C:2009:632, paragraphs 55 and 56).
28 In those circumstances, it is necessary, in the first place, to ascertain whether, as the referring court states, the contracting authority must also establish that the situation of exclusivity is not attributable to it. The wording of Article 31(1)(b) of Directive 2004/18 does not lay down that requirement. On the other hand, Article 31(1)(c) of that directive expressly requires that the circumstances invoked to justify extreme urgency, permitting the use of a negotiated procedure without prior publication of a contract notice, must not in any event be attributable to the contracting authority.
29 However, to take account exclusively of the difference in the wording of Article 31(1)(b) and Article 31(1)(c) of Directive 2004/18 could lead to a failure to comply with, first, the need to interpret Article 31 of that directive strictly and, second, the main objective of the rules of EU law in the field of public contracts, namely the free movement of goods and services and the opening up of public contracts to competition in all the Member States (see, to that effect, judgments of 8 December 2016, Undis Servizi, C‑553/15, EU:C:2016:935, paragraph 28, and of 4 June 2020, Asmel, C‑3/19, EU:C:2020:423, paragraph 58).
30 In addition, the Court has previously held that the use of the negotiated procedure without prior publication of a contract notice cannot be justified by invoking the technical specificity of software used in the national administration, which is the subject matter of the supply contract, in the absence of evidence establishing that thorough research was carried out with a view to identifying operators, different from the supplier to whom the contract was awarded, who are able to present suitable software (judgment of 15 October 2009, Commission v Germany, C‑275/08, EU:C:2009:632, paragraphs 57 to 64).
31 Therefore, a contracting authority is required to do everything that can reasonably be expected of it in order to avoid the application of Article 31(1)(b) of Directive 2004/18 and to use a procedure that is more open to competition. It would be incompatible with that requirement to allow such a contracting authority to apply that provision when the creation or maintenance of the situation of exclusivity which it invokes for that purpose is attributable to it, on account, inter alia, of the fact that, in order to achieve the result sought by the contract concerned, that contracting authority did not need to create such a situation of exclusivity, or that it had real and reasonable means from an economic point of view to put an end to such a situation.
32 It follows that, for the purposes of applying Article 31(1)(b) of Directive 2004/18, a contracting authority must establish, first, that the two cumulative conditions referred to in paragraph 26 above are satisfied and, second, that the existence of technical or artistic reasons or reasons connected with the protection of exclusive rights linked to the subject matter of the contract is not attributable to it.
33 As regards, in the second place, the assessment by a competent national court of whether such reasons are attributable to the contracting authority, it is for that court to determine whether the conduct of that contracting authority, in particular when concluding a previous contract which gave rise to the public contract concerned, created a situation of exclusivity, which is capable of justifying, in theory, the application of Article 31(1)(b) of Directive 2004/18 for the award of the public contract concerned. That national court must also examine whether the perpetuation of such a situation of exclusivity until the decision of that contracting authority to follow the negotiated procedure without prior publication of a contract notice is due to the action or inaction of that contracting authority.
34 For the purposes of that verification, it should be observed, as the Advocate General did in points 51 and 59 of his Opinion, that a situation of exclusivity cannot be found to be attributable to the contracting authority solely on the basis of the fact that it created that situation by concluding a previous contract, when, at the time of concluding that contract, the EU legislation on public contracts was not applicable to it. On the other hand, it is not necessary for such a situation to have been intentionally created or maintained by that contracting authority with a view to limiting competition in the award of future public contracts.
…
39 In the light of the foregoing, the answer to the question raised is that Article 31(1)(b) of Directive 2004/18 must be interpreted as meaning that in order to justify the use of the negotiated procedure without prior publication of a contract notice, within the meaning of that provision, the contracting authority may not invoke the protection of exclusive rights where the reason for that protection is attributable to it. The attributing of such a reason is to be assessed on the basis not only of the factual and legal circumstances surrounding the conclusion of a contract for an initial service, but also of all those which characterise the period between the date of concluding that contract and the date on which the contracting authority chooses the procedure to be followed for the award of a subsequent public contract.”
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Case C-385/02 Commission v Italy
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Scotland
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Salt International Ltd v The Scottish Ministers [2015] CSIH 85
Region: Scotland
Purchase of de-icing salt over two winters without a competition was justified on the basis of extreme urgency, where there was danger to public safety and a threat to the economy and where salt would not have arrived in time had restricted/open procedures been used
“[46] The commercial judge found in fact that, in relation to both winters 1 and 2, at the point when the defenders contracted for more salt, the situation was one of extreme urgency. It is perhaps difficult to envisage why the defenders would have contracted at all, if that were not so, given the contractual arrangements with the OCs. Be that as it may, the judge adequately, and succinctly, explains the rationale for his findings based on the evidence, notably the danger to public safety and the threat to the economy caused by the early onset, and continuation, of extreme weather conditions in circumstances where the stocks of salt were almost exhausted. He concluded that the salt would simply not have arrived on time had the open or restricted procedures been adopted. The pursuers’ submissions to the contrary amount simply to a disagreement with the judge’s findings. They rely upon the shortest possible period for tendering under the accelerated restricted procedure. However, these periods are only one element in a heavily regulated tendering exercise. Time requires to be taken in relation to, amongst other things, the preparation of offers, the appointment of examiners, and the consideration of tenders and tenderers. The judge heard evidence on the time which a tender process under the accelerated restricted procedure usually takes. He was entitled to have regard to this in making his findings-in-fact.
[47] In relation to whether the urgency was attributable to the defenders, the commercial judge made different findings in respect of winters 1 and 2. Once more, he adequately explains these findings as based on the evidence which he had heard. For winter 1, the severity and prolonged nature of the winter weather had not been forecast and, as the judge found, the defenders had no reason to think that the normal quantities of salt bought by the OCs would not suffice. The pursuers point to the 2009 report, which suggested the creation of a salt reserve in England, and to the warning by a commercial company about salt supplies. These were two factors which might have persuaded the judge to reach a different conclusion. They were considered by him, but not regarded as significantly persuasive. The difference between both weather conditions and contractual arrangements between Scotland and England may have played a part. Whether that is so or not, the judge reached a conclusion which was based on the evidence and is rationally explained.
[48] Equally, in relation to winter 2, the judge was entitled to take into account what was known to have happened in winter 1 and thus to reach the opposite conclusion. The defenders complain that the judge ought to have held that the review should have been completed earlier, given the time it took in England. That, once more, was a factor for the judge to consider. He did not regard it as decisive. Once the winter 1 problems had been recognised, it is a short step, in a matter concerning public safety, to anticipate that the same situation may arise in the future, notably the next winter, and to take immediate steps to deal with the risk.
[49] For these reasons, the contentions of the pursuers on the first ground of appeal are rejected and the cross appeal from the defenders is refused. There is simply no basis, applying the proper test for the review of fact, to interfere with the commercial judge’s findings. For completeness, the absence of certain records is of no materiality in this area.”
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Salt International Ltd v The Scottish Ministers [2015] CSIH 85
The following discussion refers to both the EU and the UK regime
General
The provisions allowing use of the negotiated procedure without a competition/direct awards are to be interpreted strictly
“The provisions of …the Directive, which authorise derogation from the rules intended to ensure the effectiveness of the rights conferred by the EC Treaty in relation to public works contracts must be interpreted strictly and the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances …” (Case C-385/02 Commission v Italy, [19])
The contracting authority has the burden of proving that the circumstances justifying the derogation are met
“[The] Italian authorities must prove that technical reasons made it necessary to award the relevant contracts to the contractor who was entrusted with the original contract ….” (Case C-385/02 Commission v Italy, [20])
It must be shown that the reasons make it absolutely essential that the contract is awarded to one particular economic operator
“[The] Italian Government was obliged, in order to justify recourse to a private contract procedure for the works in question, not only to establish the existence of “technical reasons” within the meaning of that provision, but also to prove that those “technical reasons” made it absolutely essential that the contract in question be awarded to the undertaking Rozzi Costantino, which was responsible for the works in progress” (Case C-57/94 Commission v Italy (Ascoli-Mare), [24]) (see, also, Case C-394/02 Commission v Greece at [34]).
The duration of any contract concluded without a competition should be limited to what is strictly necessary
“[The] scope and duration of the procurement in question must be limited to what is strictly necessary” (R (on the application of Good Law Project) v Minister for the Cabinet Office [2021] EWHC 1569 (TCC) at [93]; upheld on appeal [2022] EWCA Civ 21 at [56]).
No Suitable Tenders
Direct award can be made where there are no suitable tenders
The negotiated procedure without a competition can be used “where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure” (Article 32(2)(a), Directive 2014/24).
A tender is not suitable “where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents” (Article 32(2)(a), Directive 2014/24).
A request to participate is not suitable “where the economic operator concerned is to be or may be excluded pursuant to Article 57 or does not meet the selection criteria set out by the contracting authority pursuant to Article 58” (Article 32(2)(a), Directive 2014/24).
Where tenders did not meet the technical specifications, they “must be regarded as precluding those tenders from meeting the needs of the contracting entity” and “must be categorised as ‘unsuitable’” Case C-250/07 Commission v Greece, [43]-[44].
The “initial conditions of the contract” must not be “substantially altered” (Article 32(2)(a), Directive 2014/24).
The UK Procurement Act 2023 also provides for a direct award where the contracting authority has “not received any suitable tenders or requests in response” (section 43(1)). A tender is not suitable where it would be disregarded in any assessment of tenders; does not satisfy the authority’s requirements or award criteria; there is corruption/collusion; there is a material breach of a procedural requirement (section 43(2)).
Only a particular economic operator can supply
Unique work of art
“[The] aim of the procurement is the creation or acquisition of a unique work of art or artistic performance” (Article 32(2)(b)(i) of Directive 2014/24)
“… because there is objectively only one economic operator that can perform the contract. This is the case for works of art, where the identity of the artist intrinsically determines the unique character and value of the art object itself” (Recital 50, Directive 2014/24).
“The public contract concerns the creation or acquisition of a unique work of art or artistic performance” (UK Procurement Act 2023, Schedule 5, para 4).
Technical reasons; exclusive rights
“[Competition] is absent for technical reasons” (Article 32(2)(b)(ii) of Directive 2014/24)
“[The] protection of exclusive rights, including intellectual property rights” (Article 32(2)(b)(iii) of Directive 2014/24)
“Where the situation of exclusivity is due to technical reasons, they should be rigorously defined and justified on a case-by-case basis. They could include, for instance, near technical impossibility for another economic operator to achieve the required performance or the necessity to use specific know-how, tools or means which only one economic operator has at its disposal. Technical reasons may also derive from specific interoperability requirements which must be fulfilled in order to ensure the functioning of the works, supplies or services to be procured” (Recital 50, Directive 2014/24)
“(a) [Due] to a particular supplier having intellectual property rights or other exclusive rights, only that supplier can supply the goods, services or works required, and (b) there are no reasonable alternatives to those goods, services or works” (UK Procurement Act 2023, Schedule 5, para 5).
“(a) Due to an absence of competition for technical reasons, only a particular supplier can supply the goods, services or works required, and (b) there are no reasonable alternatives to those goods, services or works (UK Procurement Act 2023, Schedule 5, para 6).
Extreme, Unforeseen, Urgency
“[In] so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting authority” (Article 32(2)(c) of Directive 2014/24)
“13 Where—
(a) the goods, services or works to be supplied under the public contract are strictly necessary for reasons of extreme and unavoidable urgency, and
(b) as a result the public contract cannot be awarded on the basis of a competitive tendering procedure.
14 For the purpose of paragraph 13, urgency is unavoidable if it—
(a) is not attributable to any act or omission of the contracting authority, and
(b) could not have been foreseen by the contracting authority.” (UK Procurement Act 2023, Schedule 5, paras 13-14).
Repeat Goods or Services
“[For] additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years” (Article 32(3)(b) of Directive 2014/24)
“The public contract concerns the supply of goods, services or works by the existing supplier which are intended as an extension to, or partial replacement of, existing goods, services or works in circumstances where—
(a) a change in supplier would result in the contracting authority receiving goods, services or works that are different from, or incompatible with, the existing goods, services or works, and
(b) the difference or incompatibility would result in disproportionate technical difficulties in operation or maintenance.” (UK Procurement Act 2023, Schedule 5, para 7).
“The public contract concerns the supply of goods, services or works by the existing supplier that are similar to existing goods, services or works where—
(a) the existing goods, services or works were supplied under a public contract that was awarded in accordance with a competitive tendering procedure within the period of five years ending with the day on which the transparency notice is published, and
(b) the tender notice or any tender document in respect of that earlier contract set out—
(i) the contracting authority’s intention to carry out a subsequent procurement of similar goods, services or works in reliance on this direct award justification, and
(ii) any other information specified in regulations under section 95.” (UK Procurement Act 2023, Schedule 5, para 8).