Emerging Challenges to Public Procurement: Covid 19 and Regulatory Approaches to Public Contracting in the EU, United Kingdom and France

Promoting environmental or societal goals through public procurement has long been subject of debate as this might undermine public procurement basic principles, expanding in an unjustified manner the discretion of public authorities on how to spend public money. Following the COVID-19 health crisis, procurement is once again on the spotlight, with contracting authorities across the EU taking emergency steps to protect their critical health services. On its turn, the European Commission gave up its discretion to scrutinize and pursue pandemic-related procurement contracts that do not follow the principles written down in hard law. It resorted to soft law guidance to explain notions such as ‘urgency’ or ‘extreme urgency’ under the public procurement directives and qualify the sanitary crisis as falling under these definitions. An example of commitment to the EU solidarity goal, this guidance has effectively put in abeyance public procurement rules related to transparency and legal certainty. Against this background, this paper studies public procurement regulation as a tool to tackle the health crisis. It outlines the adaptations made at the EU level, before studying the national regulatory response from France and the UK. Given that Brexit occurred at roughly the same time as the pandemic, such comparison would be particularly useful to determine the existence of a shared understanding of the use of public procurement as a crisis management tool beyond EU frameworks. The paper is particularly interested in evaluating the discretion left to the contracting authorities in France and the UK during the Covid pandemic and the extent to which allowing such discretion can impact negatively public procurement principles such as transparency, legal certainty, and fair competition.