Negotiated procedure possible in situations of extreme urgency

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

The aforementioned provision of the Law addresses the situation when a contracting authority needs to act quickly regarding a procurement caused by unforeseeable events.

"Namely, contracting authorities may, as an exception, award contracts through a negotiated procedure without prior publication of a contract notice when, due to demonstrable reasons of extreme urgency caused by events unforeseeable for the contracting authority in question, the minimum deadlines established for regular procedures cannot be met. The circumstances justifying the exceptional urgency must in no case be attributable to the contracting authority. This means that 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 demonstrated to the public or to institutions responsible for controlling public procurement procedures," state from the Public Procurement Agency of BiH.

The second condition, as they add, is that the circumstances of extreme urgency must be caused by events that the contracting authority could not have foreseen (force majeure). Thirdly, the occurrence of such circumstances must be beyond the control of the contracting authority, and a particularly swift action by the contracting authority is required regarding the procurement that acts towards preventing, mitigating, and stopping harmful effects.

Therefore, emphasize from the Agency, the application of the negotiated procedure without prior publication of a contract notice is permitted if the conditions are cumulatively met - the existence of an event that could not have been foreseen; extreme urgency making it impossible to meet the deadlines provided for other, regular public procurement procedures; and a causal link between the unforeseeable event and the extreme urgency arising from it.

The negotiated procedure for reasons of extreme urgency is conducted with one bidder in accordance with Article 28 of the Law, and the contract with them can be concluded immediately upon the adoption of the decision on the award because it is not necessary to wait for the expiry of the 15-day period from the day 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 it is necessary to react immediately, e.g., within one or two hours, or even within a few minutes, i.e., when it is objectively not possible to apply even the negotiated procedure without prior publication of a contract notice, then the procurement can be subsumed under the exemption from the application of the Law from the aspect of "special security measures" from Article 10 of the Law.

 "In case of extreme necessity (e.g., saving human lives, health, etc.) and when it is objectively not possible to apply even the negotiated procedure without prior publication of a contract notice, it is justified to apply the exemption from the application of the Law, relying on the 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 explain that the application of public procurement procedures, i.e., the time required for their implementation, would cause extremely negative consequences, and that the contracting authorities acted and undertook actions immediately based on such an assessment," state from the Public Procurement Agency of BiH.

The Agency clarified that the application of the negotiated procedure without prior publication of a contract notice for urgent procurements when this procedure can be carried out in time, and invoking the 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 relate to those procurements necessary to save human lives, prevent or mitigate an epidemic or material damage, and accordingly cannot be applied to regular procurements, i.e., 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 accompanying by-laws.

The Public Procurement Agency of BiH, in a press release, also draws the attention of bidders to behave in accordance with market circumstances and not to abuse the aforementioned situation, as in that case the competent authorities will be notified.