Authors: Adrian Cristea (senior associate), Carmen Calabache (associate)
According to the statements of 15 March 2020 made by the president of the European Commission, Ursula von der Leyen, joint public procurement would be launched with member countries for testing kits and respiratory ventilators as of 16 March 2020.
The possibility to resort to such a mechanism has been available since 10 April 2014, when the European Commission approved the Joint Procurement Agreement (JPA). Romania signed the agreement on 23 September 2014, the last signatory countries being Sweden (on 28 February 2020) and Poland (on 6 March 2020).
As a result of this agreement, EU institutions, together with the Member States which adhered thereto, may launch a joint procurement procedure with a view to purchase medicines and equipment to limit serious cross-border threats to the health of European citizens.
The possibility to organize a joint procurement is also stipulated by Directive 2014/24/EU on public procurement (art. 38-39)
- Benefits of joint procurement
The use of this joint procurement procedure would bring a number of benefits to Member States, such as: low administrative costs, security of supply, sharing of procurement specialists’ experience, as well as lower purchase prices for Member States as they would purchase much larger quantities of testing kits and respiratory ventilators.
- Conduct of a joint procurement procedure. Creation of a Steering Committee
Each JPA signatory Member State will designate a representative, who will act as a member of the Steering Committee. Each member of the Committee may propose the launch of a joint procurement procedure, at least 5 Member States, including the Committee, being required to vote in favour thereof. The Steering Committee will be chaired by a representative of the European Commission who will act as Chairman of the Committee.
The Steering Committee will have several duties, among which the most important are:
- to establish the types of medical countermeasures that will be purchased;
- to actually determine the procedures, the award documentation, as well as the amicable settlement of disputes between two or more Member States which are party to the Agreement;
The Commission will grant, after consulting the other signatory Member States, a reasonable deadline by which the signatory Member States can express their interest in participating in the procurement procedure. Each Member State that has expressed its interest in participating in the joint procurement procedure must detail its medical countermeasure needs within a timeframe specified by the Commission.
- Medical countermeasure allocation criteria
The quantities allocated between the participating contracting parties will be submitted to the Committee for approval, in accordance with article 7 of the Agreement (the vote of a qualified majority, which is defined as representing 55% of the present members and representing the signatory Member States comprising at least 65% of the total amount of medical countermeasures covered by the joint procurement).
In principle, Member States will receive the total quantity of the medical countermeasures they have reserved or ordered, but the delivery rate will depend on the production capacity of the procurement procedure winning co-contractor. A Member State may, for well-founded and justified reasons (e.g. problems encountered in delivery or due to urgent needs, request derogation from the allocation criteria for a specified time period). Derogation is only permitted following the approval of the Steering Committee.
The Member States parties to the Agreement may also carry out the following operations in relation to medical countermeasures: reallocation of reserved quantities (under an agreement concluded between two signatory Member States), redirection of orders, resale of some of these products, as well as donation of some of these products.
As regards the resale of products, this operation must comply with the general principles imposed by public procurement law and competition law and any contractual provisions by which the initial purchaser may be bound.
Thus, as stipulated by Decision no. 1082/2013/EU of the European Parliament and of the Council of the European Union, we consider that these measures will help support the cooperation and coordination between Member States with a view to fight the serious cross-border threat to health posed by the virus causing COVID-19.