Extremely urgent public procurement under Directive 2014/24/EU and the COVID-19 pandemic
| Author | Pedro Telles |
| Date | 01 April 2022 |
| Published date | 01 April 2022 |
| DOI | 10.1177/1023263X221077006 |
| Subject Matter | Articles |
Extremely urgent public
procurement under Directive
2014/24/EU and the COVID-19
pandemic
Pedro Telles*
Abstract
The COVID-19 pandemic swept throughout the European Union swiftlyand led to significant changes in
how we live and operate. Some of those changes occurred in public procurement as well, with Member
States struggling to react to the dissemination of the virus. The purpose of this paper is to assess what
scope the EU’s public procurement legal framework provides to deal with a crisis, and how the rules
should be interpreted. This paper will show how the EU public procurement legal framework deals
with extreme urgency situations and how it has been intentionally designed to allow Member States flexi-
bility within very clearly defined boundaries. This means that the path to award contracts without com-
petition on the grounds of extreme urgency is narrow due to Article 32(2)(c) of Directive 2014/24/EU
1
and the case law from the CJEU. The narrowness of this path is due to the exceptional nature of proced-
ure and the obligation for the contracting authority to discharge the tight grounds for use in full for every
contract. Therefore, this paper concludes that the view exposed by the European Commission on its
guidance from April 2020 thatthe pandemic is a single unforeseeable event amounts to an incorrect read-
ing on how the grounds for the use of Article 32(2)(c) operate. If such interpretation was already too
broad in April 2020, it certainly is no longer in line with the transition from an unfolding crisis into a
new and more permanent equilibrium.
In the context of COVID-19, particularly the need for the crisis to be unforeseeable and the
extreme urgency not being attributable to the contracting authority raise significant difficulties for
some contracting authorities to discharge the grounds for use of the negotiated procedure without
prior notice. This is particularly the case in those situations where governments centralized pan-
demic-related procurement.
*
Copenhagen Business School, Frederiksberg, Denmark
Corresponding author:
Pedro Telles, Copenhagen Business School, Frederiksberg, Denmark.
Email: pt.law@cbs.dk
1 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and
repealing Directive 2004/18/EC, [2004] OJ L 94.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(2) 215–228
© The Author(s) 2022
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DOI: 10.1177/1023263X221077006
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