However, due to the COVID-19 pandemic, the Commonwealth is being required to procure goods and services (including at a high value) urgently. This article outlines some of the procurement rules that might be relied on by Commonwealth entities to procure services urgently while maintaining a value for money outcome.

Procurements

There are a number of clauses in the CPRs that could be relied upon to rapidly procure goods and services, including for procurements at or above the relevant procurement thresholds (defined in Rule 9.7 of the CPRs). For example:

• Under Rule 2.6, the CPRs do not apply to the extent an official conducting a procurement applies measures determined by the Accountable Authority of their entity to be necessary to, among other things, protect human health. Under Rule 2.6, an Accountable Authority could, for example, determine that, in order to protect human health, the rules in Division 2 relating to minimum time limits do not apply. This would enable an open-market procurement to be conducted more quickly.
• Rule 10.3.b enables entities to conduct limited tender processes when, for reasons of extreme urgency brought about by events unforeseen by the relevant entity, the goods and services could not be obtained in time under an open tender. As Rule 10.4 then provides that a limited tender is not required to meet (among other rules) the rules in Division 2 relating to minimum time limits, a limited tender can be conducted as quickly as is reasonably possible. Entities should also ensure any limited tender documentation does not, for example, include the strict rules around excluding late tenders that are found in Rule 10.28, as this is also not a requirement for limited tenders (see Rule 10.4).
• Rule 10.24.c allows for the closing time for open market procurements to be less than the ordinarily required minimum of 25 days, although not less than 10 days, where a genuine state of urgency renders the normal time limit impracticable.

Procuring entities should also consider whether there is an existing Commonwealth panel from which they can urgently procure the goods or services.

Depending on which Rule is applied, the result could include a compressed timeframe for responses to be submitted; more high-level evaluation criteria; and use of a limited tender process where an open approach to market would otherwise be required.

Careful consideration must be given to the particular circumstances of the procurement; and the reasons for relying on any of the above Rules appropriately documented. Procuring entities should also remember that they have an obligation to comply with some or all of Division 1 of the CPRs (even if one of the above Rules is used), and that they must ensure the procurement is conducted in a way that maximises a value for money outcome.

An entity procuring goods or services rapidly may have to accept more risk than otherwise would be the case in order to implement the Government’s mandate. However, even where one of the levers described above can be used, procuring entities will still be required to conduct their process in a way that enables the efficient, effective, economical and ethical use of public resources as required under the Public Governance, Performance and Accountability Act 2013.

It is therefore important that, notwithstanding the urgency, entities implement a process that is as fair and transparent as possible given the particular circumstances; and ensure an appropriate audit trail is maintained and all other reporting requirements complied with.

As the Government Procurement (Judicial Review) Act 2018 still applies to an urgent procurement, an appropriate audit trail will help entities respond to complaints.

Exemptions

Despite the current COVID-19 pandemic, Commonwealth procurement can continue. Importantly, the CPRs can facilitate entities progressing procurements urgently in order to respond to the COVID-19 outbreak.

However, procuring entities must remain mindful of the obligations imposed on them, even during the urgency, such as the need to ensure a fair, transparent, defensible and value for money outcome. Importantly, an appropriate audit trail should be maintained.

Given these obligations, potential tenderers should:

• respond to any procurement in a way that, in the available time, comprehensively addresses the evaluation criteria (and only the evaluation criteria)
• start their tender responses early, especially where procurements have a compressed timeframe
• seek all supporting documentation early, including documentation that needs to be obtained from a third party such as a Statement of Tax Record or accreditation
• seek to lodge responses early, noting tender lodgement portals may take longer than normal near the closing time.

Further information

Maddocks has significant experience in providing legal and probity advice on Commonwealth procurements within unusual or urgent situations. Should you like further advice on any of the above topics or to discuss your procurement requirements please feel free to contact us.

Maddocks has produced guides on legal issues raised by the coronavirus which may be of interest, and we encourage you to share these with colleagues who may also find them useful.