Due to the unusual and uncertain times we are currently living in, several public procurement authorities have published guidance during the COVID-19 crisis. The guidance addresses specific requirements for accelerated procurement procedures for goods and services, direct awards due to extreme urgency, other options available to contracting authorities and ongoing procurement processes.
- Accelerated procurement procedures for goods and services
- Direct awards during extreme urgency
- Other options available to contracting authorities
- Ongoing and future procurement processes
Accelerated procurement procedures for goods and services
Under Colombian law, the general rule for procurement procedures is public tender. However, during the COVID-19 outbreak, government entities may procure goods, services and works to mitigate the state of emergency through simpler procurement processes, such as: (i) direct contracting on the grounds of "extreme urgency" (urgencia manifiesta); (ii) direct procurement of goods and services available under demand aggregation price framework agreements managed by the Colombian state's online store; or (iii) private procurement processes under exceptional events. We explain these alternatives below
Direct awards during extreme urgency
As per Colombian law, "extreme urgency" (urgencia manifiesta) arises when, under prevailing events, it is difficult or even impossible to develop a public tender procedure. The following situations are considered to trigger extreme urgency events:
- when the continuity of the service requires the delivery of goods, the rendering of services or the execution of works in the immediate future
- when there are situations related to a constitutional "state of exception"
- in the process of solving exceptional situations related to the occurrence of events of force majeure or disaster that demand the adoption of immediate actions
- in similar situations that make it impossible to engage in procedures of public procurement or public tenders
These events allow the Colombian government to address the situation immediately through direct contracting due to its need to give an agile response during any of the situations mentioned above.
The Colombian government declared a state of economic, social and ecological emergency in the entire Colombian territory, for a period of 30 days, caused by the COVID-19 pandemic on 17 March 2020 and then declared another state of emergency for 30 days on 6 May 2020. Decrees 440 and 537 of 2020 state that, during the state of emergency declared by the Colombian government, it is understood that the fact that gives rise to the declaration of extreme urgency has been verified. Any government entity may use direct contracting on the grounds of extreme urgency to contract goods, services or works in the immediate future, in order to prevent, contain and mitigate the effects of COVID-19, without the need to argue and demonstrate the existence of the extreme urgency event, given that it has already been verified.
Therefore, governmental entities may approach direct contracting under a manifest urgency due to the state of exception until 6 June 2020.
Additionally, when there is an extreme urgency event, governmental entities may also use direct contracting with other organizations dedicated to cooperation, assistance or international aid if their regulations allow such contracting. The procurement process may be executed in accordance with the rules of said organization; nonetheless, a certificate specifying that the supplier is a public organization issued by the contracting government would be required.
Other options available to contracting authorities
Contracting authorities may procure goods, services and works to mitigate the state of emergency through simpler procurement processes:
1. Direct contracting of goods and services available under demand aggregation price framework agreements managed by the Colombian State's online store
Price framework agreements are demand aggregation tools that allow governmental entities to quickly acquire goods and services with uniform technical characteristics. These agreements help the Colombian government to coordinate and optimize the value of purchases of goods, works or services of its entities. Through price framework agreements, the state entity will only require the issuance of a purchase order for the goods or services included in the agreement. This procedure allows the entity to manage inventories with greater flexibility and through a more expedient process.
According to Decrees 440 and 537 of 2020, during the state of economic, social and ecological emergency in the entire Colombian territory, territorial entities shall prefer direct contracting available under demand aggregation price framework agreements managed by the Colombian state's online store.
2. Private procurement processes
Decree 544 of 2020 authorized private procurement processes in the international market with foreign providers for all governmental entities. This authorization will be valid during the state of emergency and will only be applicable for the acquisition of biomedical equipment, medical furniture, in vitro diagnostic reagents, medical equipment, personal protection equipment and medications.
Additionally, Decrees 440 and 537 of 2020 specifically authorized the Revolving Fund of the Ministry of Foreign Affairs to execute private procurement processes during the state of economic, social and ecological emergency. These private procurement processes will apply for inter-administrative agreements or other agreements with foreign providers for contracting goods, services or works in order to prevent, contain and mitigate the effects of COVID-19.
Under Colombian law, there are no thresholds for direct awards or specific accelerated direct contracting processes. However, due to all of the regulations issued by the Colombian government, it is possible that time limits for these kinds of procurement processes are reduced due to the urgency of the award.
Ongoing and future procurement processes
Ongoing public bidding processes may be suspended due to COVID-19's outbreak. Moreover, if there are sufficient reasons for the governmental entity to revoke the opening notice of the procurement process (acto administrativo de apertura), they are authorized to do so, provided that the date for the submission of tenders has not yet occurred.
Regarding the continuity of public procurement processes, Decrees 440 and 537 of 2020 include the possibility of conducting the hearings of procurement processes by electronic means when the entity's electronic and technological conditions allow it. Upon a reasonable impossibility to perform the abovementioned hearing by electronic means (due to a lack of technological conditions), public entities may suspend the hearing until the health emergency for COVID-19 has ended or until the entity has the technological means to conduct the hearing. The health emergency for COVID-19 in Colombia was declared until 31 May 2020.