The European Commission published a communication today entitled ‘Public procurement rules in connection with the current asylum crisis.’ This:
• Acknowledges the need for public authorities to act quickly to provide housing, supplies and services to meet the immediate needs of asylum seekers;
• Sets out the rules and thresholds applying to works, supplies and services contracts under both the 2004 and 2014 procurement directives;
• Identifies the existing legal possibilities to use an accelerated restricted or (if the 2014 directives have been implemented in the country in question) accelerated open procedure, or a negotiated procedure without prior publication in cases of extreme urgency;
• Provides some support for invoking the negotiated procedure without prior publication in order to meet the immediate needs of asylum seekers; for example by stating that the current events are in general unforeseeable and causally linked to the need for urgent provision.
Contracting authorities must therefore establish on a case-by-case basis that urgency merits application of an accelerated or negotiated procedure –no general presumption or derogation is provided. Sadly, the risk both of procurement procedures stalling provision for asylum seekers, and some authorities or suppliers abusing the crisis mentality are all too real.
One might consider that the communication strikes the appropriate balance between these concerns (within the powers of the Commission) – if it were not for a Commissioncommunication published in 2008 in response to the financial crisis. This provided a much simpler recognition that the use of the accelerated procedure was justified for all major public contracts awarded in 2009 and 2010 – arguably a bigger derogation from normal procedures.
It is not clear why the current situation should not merit at least the same level of relaxation of the rules. Failure to provide for asylum seekers risks lives, as opposed to just livelihoods, and the presumed level of urgency for contract awards should reflect this. This could be achieved by providing a clear justification to accelerate contract awards directly related to asylum provision, as well as support for use of the negotiated procedure without publication where strictly necessary.