In situations of extreme urgency, a negotiated procedure is possible

SARAJEVO, (Patria) - Regarding the current developments related to the coronavirus (COVID-19) in BiH and the necessary procurements to prevent its spread and mitigate its consequences, the Public Procurement Agency of BiH announced that "in situations of extreme urgency, when regular public procurement procedures cannot be applied, but there is still sufficient time, a negotiated procedure without prior publication of a procurement notice may be used under the conditions specified in Article 21 of the Public Procurement Law".

The aforementioned provision of the Law addresses situations where the contracting authority needs to act quickly regarding procurement caused by unforeseen events.

"Namely, contracting authorities may, exceptionally, award contracts through a negotiated procedure without prior publication of a procurement notice when, due to justifiable reasons of extreme urgency, caused by events that were unforeseeable for the given contracting authority, the minimum deadlines set for regular procedures cannot be met. The circumstances justifying exceptional urgency must not, under any circumstances, be attributable to the contracting authority. Therefore, the first condition for applying this procedure is that the contracting authority must provide clear and objective evidence for urgent action, supported by arguments that can be convincingly proven to the public or to the institutions responsible for controlling public procurement procedures," states the Public Procurement Agency of BiH.

The second condition, they add, is that the circumstances of extreme urgency must be caused by events that the contracting authority could not foresee (force majeure). Third, the occurrence of such circumstances must be beyond the control of the contracting authority, and particularly rapid action by the contracting authority is required regarding procurement that aims to prevent, mitigate, and stop harmful effects.

Thus, the Agency emphasizes, the application of a negotiated procedure without prior publication of a procurement notice is permitted if the conditions are cumulatively met - the existence of an unforeseeable event; extreme urgency that makes it impossible to meet the deadlines stipulated for other, regular public procurement procedures; and a causal link between the unforeseeable event and the extreme urgency arising from it.

A negotiated procedure due to extreme urgency is carried out with a single bidder in accordance with Article 28 of the Law, and a contract can be concluded with them immediately after the decision on selection is made, as there is no need to wait for the expiry of the 15-day period from the date bidders were notified of the selection of the most favorable bidder, in accordance with Article 98 of the Law.

In situations of extreme urgency, when immediate action is required, e.g., within one or two hours, or even within a few minutes, i.e., when it is objectively impossible to apply even a negotiated procedure without prior publication of a procurement notice, then the procurement can be considered an exemption from the application of the Law in terms of "special security measures" from Article 10 of the Law.

"In cases of extreme necessity (e.g., saving human lives, health, etc.) and when it is objectively impossible to apply even a negotiated procedure without prior publication of a procurement notice, it is justified to apply an exemption from the application of the Law, relying on public interest (e.g., Laws on the Protection of the Population from Infectious Diseases in BiH, Laws on the Protection and Rescue of People and Material Goods in BiH from Natural and Other Disasters, etc.). It is important to justify that the application of public procurement procedures, or the time required for their implementation, would cause exceptionally negative consequences, and that contracting authorities acted and took measures immediately based on such an assessment," states the Public Procurement Agency of BiH.

The Agency clarified that the application of a negotiated procedure without prior publication of a procurement notice for urgent procurements when this procedure can be carried out in terms of time, and the reliance on an exemption from the application of the Law when no procedure can be carried out in accordance with the above, is justified only if the procurement is not delayed and can only apply to those procurements that are necessary to save human lives, prevent or mitigate an epidemic or material damage, and therefore cannot be applied to regular procurements, or to procurements that are not truly necessary.

They emphasize that even in the aforementioned cases, contracting authorities are obliged to comply with all provisions of the Law and related bylaws.

In a press release, the Public Procurement Agency of BiH also draws the attention of bidders to behave in accordance with market conditions and not to abuse the mentioned situation, as in that case, the competent authorities will be informed."