Urgent procurements under the EPP Direction

Clause 15(1)(b) of the EPP Direction allows you to use limited tendering where, for reasons of extreme urgency because of unforeseen events, the goods or services cannot be obtained in time under an open approach to market.

For example, in an emergency, you might run a limited tender if the time required by an open approach to market poses an unacceptable risk that outweighs the risk of supplier complaints about the limited tender.

If you use this clause to justify a limited tender, you must establish and document in your tender report that:

• there are genuine reasons why there is extreme urgency for your procurement, for example:
  • you need to respond to the emergency immediately because of public health risks, loss of existing supply at short notice and others
  • you are reacting to a current situation that is a genuine emergency, not planning for one.
• the events were unforeseeable by your agency, for example the COVID-19 pandemic was sudden and the circumstances so unusual that you could not have predicted them
• there isn't enough time to get the goods or services using an open approach to market, for example there is no time to run an accelerated open approach to market (clause 23(3)(d) of the EPP Direction allows you to reduce the time to respond to an open tender to 10 days, see below)
• you haven't caused or contributed to the need for extreme urgency, such as delaying or failing to do something in time.

Clause 15(1)(d) of the EPP Direction allows you to use limited tendering where the goods or services can only be supplied by a particular supplier and there is no reasonable alternative or substitute due to, amongst other reasons:

• existing patents, copyrights, other exclusive rights or proprietary information
• an absence of competition for technical reasons.

As an example, in responding to an emergency, you may need to use this provision to source from one supplier as they:

• are the only available supplier that has the required expertise
• are the only supplier with the capacity to supply
• own the rights (including intellectual property rights) to the goods, services or processes.

You can use this provision for covered procurements if:

• there is no reasonable alternative or substitute available, and
• you have not done something which artificially narrows the scope of the procurement, for example by over-specifying the procurement.

You are not constrained by many of the requirements in the EPP Direction when you use limited tendering. You can:

• publish the invitation to tender where you choose or send the invitation directly to your chosen suppliers
• publish the procurement documentation on your agency website rather than on eTendering (you must still publish the procurement documentation)
• set conditions for participation of your choice, exempt from clause 16
• set specifications in any way you choose, exempt from clause 17
• include or exclude information from the procurement documentation as you see fit, exempt from clause 18
• negotiate directly with your chosen suppliers, exempt from clause 21
• award or not award contracts as you see fit, whether or not a supplier meets all criteria, exempt from clause 22
• set any deadline for submissions from your chosen suppliers, exempt from clause 23.

You must comply with all other provisions in the EPP Direction when using limited tendering.

You must write a report for each procurement contract you award by limited tendering. The report must:

• state the circumstances and conditions justifying the use of limited tendering
• include the value and type of goods and services procured.

You must also comply with the contract disclosure requirements of the Government Information (Public Access) Act 2009.