On 14 December 2022, Professor Sue Arrowsmith made a presentation to the annual conference of the Eurosystem Procurement coordination Office (EPCO), which is the function established by the Governing Council of the European Central Bank to coordinate joint procurement activities for the benefit of the central banks of the Eurosystem/European System of Central Banks (ESCB).
Professor Arrowsmith’s contribution, “Regulating Emergency Procurement in the EU: Some Insights from the Regulatory Experience of the Pandemic”, presented research drawn from chapter 3 of her co-edited book, Public Procurement Regulation in (a) Crisis? Global Lessons from the Covid-19 Pandemic (Arrowsmith. Butler, La Chimia and Yukins (eds), 2021, Hart Publishing). The presentation summarised her recommendations for adapting the EU procurement Directives to deal better with emergency procurement, whether “crisis” situations or more regular, one-off situations of urgency, based on global experiences in the pandemic and a broader study of other procurement frameworks.
The research suggests that the EU’s current legal framework is reasonably suitable for balancing the interests involved in emergency procurement, but also highlights some important areas for development. While some early analysis anticipated the debate on the pandemic’s lessons as being broadly between treating procurement rules as an obstacle that need removing to allow better procurement and promoting more regulation to prevent “bad” procurement, Professor Arrowsmith advocates a more nuanced approach, with recommendations in both directions. She also suggests there is a need to acknowledge the special circumstances of crisis events both to deal appropriately with crisis situations and to prevent the “regular” urgency provisions from being watered down.
More specifically, her key recommendations include, on the one hand, introducing broader exceptions to public tendering for crisis situations and allowing national rules to designate categories of procurement as urgent at the expense of a case-by-case approach and, on the other hand, enhanced information transparency, including mandatory ex ante notices, open contracting and an expansive interpretation of justification provisions, which will not create an undue burden in cases of crisis if accompanied by the other proposed reforms. She also recommends some changes – such as allowing additional entities to use existing framework agreements in emergencies and reduced timescales for call offs from dynamic purchasing systems – that will enhance both flexibility and competition and transparency and are suitable for both crisis and non-crisis situations.
The book, first published in November 2021, is now available in paperback form. Professor Arrowsmith’s analysis of EU law can be read here.
Posted on Tuesday 3rd January 2023