Resources on COVID-19 and Public Procurement

INTERNATIONAL

Competition Policy International, COVID-19 and Antitrust (resources from around the world on national competition policies announced to address the COVID-19 crisis)

Simon Evenett (University of St. Gallen, Switzerland)

Evenett, Simon J., Tackling COVID-19 Together (Global Trade Report, 23 March 2020) (“The past fortnight has witnessed a sharp increase in zero-sum, unilateral trade policy acts as governments scramble for medical supplies and equipment. During a pandemic such zero-sum behaviour risks inflicting an unconscionable human toll, as a case study on medical ventilators in this note makes clear. Rather than dwell exclusively on negative developments in this note, the case is also made for a bottom-up, cooperative trade policy initiative in which governments working together can exploit scale and ensure that trade policy does not diminish the payoff from public health interventions.”  FROM POLITICO MORNINGTRADE (Mar. 24, 2020):  “Fifty-four governments around the world have imposed export restrictions on medical supplies and drugs in response to the coronavirus pandemic, according to [the study]. . . .The United States is not one of those countries, but the list includes the United Kingdom, Germany, France, Italy and other countries in Europe, as well as China, India, Russia, Saudi Arabia, Egypt, Pakistan, Vietnam, Indonesia and Malaysia. The study, authored by Simon Evenett, an economist at the University of St. Gallen in Switzerland, lays out some of the issues countries face as they struggle to ensure they have medical supplies.  There are 25 nations that report $10 million or more in ventilator exports. The biggest producers — the United States, Germany and China — had more than $500 million in sales. Only one of the producing countries is in Latin America and none are in Africa, the Middle East, South Asia or Central Asia. Half of the world’s ventilator producers are located in the EU and are unavailable to other countries because of export restrictions. The total value of trade in six categories of items identified by the World Customs Organization as COVID-19 medical supplies was just below $715 billion in 2018.  Disinfectants and sterilization products accounted for the most trade, or $308.6 billion, followed by test kits and related apparatus, which totaled $185.3 billion. Canceling tariffs on medical supplies and soap worldwide to facilitate trade would reduce public revenues anywhere between $4.5 billion and $9 billion, a minimal impact on large economies, the report found. Supply chain concerns: Although experts warn of the unintended consequences of restricting trade, the pandemic has put momentum behind efforts to reshore supply chains or at least guarantee domestic supplies of masks, gloves and medicines are adequate. Evenett said the export restrictions of other countries only provide a ‘political gift to nationalists and populists.’”).

Dr. David Price

Price, David, COVID-19 – Protecting Your Family (Dr. Price, an accomplished physician who is treating many COVID-19 patients in New York City and has researched the disease extensively, briefs his family on how to protect themselves from — and deal with — COVID-19 in a very commonsense way).

AFRICA

South Africa

Contributor Geo Quinot (Stellenbosch University)

South Africa, National Treasury, Media Statement:  COVID 19 Instruction Note (Mar. 19, 2020) (“To support the declaration by President Cyril Ramaphosa on 15 March 2020 regarding the COVID-19 virus, National Treasury has issued an Instruction Note 8 of 2019/20” applicable to covered national institutions and municipalities, “to speed up the procurement of goods/commodities required to reduce and control the spread of the virus.” [The Instruction Note calls for centralized purchasing to ensure security of supply and concentrate purchasing power, and notes that prices and supplies may vary rapidly. Institutions not members of the relevant Transversal (framework) contracts (list of contracts) may use those framework agreements in this emergency. The Instruction Note cites emergency procurement authorities, requires timely reporting of purchases, and limits prices paid to those in Transversal contracts subject to coordination by National Treasury and using approved suppliers.] “The Instruction Note and MFMA Circular aim to augment and enhance uniformity across organs of state, decisions by Accounting Officers and Accounting Authorities in their emergency procurement, in support of effective and efficient service delivery and curb the possible abuse of Supply Chain Management (SCM) systems during the period of managing this national disaster. The Instruction Note and the Circular also list prices of goods/commodities in efforts to curb opportunistic use of this disaster to drive profit margins. Both the Instruction Note and the Circular provide annexures outlining the list of available goods/commodities and items not catered for on the Transversal Contracts [Annex listing items available on public Transversal contracts] [Annex of items not on Transversal contracts], but can be procured from the enclosed list of compliant service providers.” [Annex listing providers’ contact details]).

ASIA

India

Verma, Sandeep, Is It a Bird? Is It A Plane? Categorising COVID-19 Events into “Force Majeure” Versus “Change of Law” (Oct. 2020) (summary of law paper and book chapter on COVID-19 procurement published by the Public Procurement Research Group, University of Nottingham, a leading international center of procurement law).

Contributor Sandeep Verma (India)

Verma, Sandeep, No Longer “Heads I Win, Tails You Lose”: Reforming Uncertainties of Payment, Refunds and Recoveries in Government Contracts During CoronaTimes in India (May 2020)

Verma, Sandeep, Procurement Reform: Jugaad Legislation in India, Financial Express, Mar. 20, 2020 (discussing problems with copy-and-paste adoption of international model procurement laws).

Verma, Sandeep, Schadenfreude during Public Health Emergencies: Professionalising Public Procurement during Coronavirus and Beyond… (Mar. 2020) (reviewing key procurement developments in India to prepare for the pandemic)

EUROPE

European Union

Aris Georgopoulos, University of Nottingham

European Commission, Coronavirus COVID-19: How the Commission Supports Member States (Apr. 3, 2020) (presentation)

European Commission, Coronavirus: European standards for medical supplies made freely available to facilitate increase of production (Mar. 20, 2020) (protected product standards released for emergency production)

European Commission, Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis, 2020/C 108 I/01 (Apr. 1, 2020) (“COVID-19 is a health crisis that requires swift and smart solutions and agility in dealing with an immense increase of demand for similar goods and services while certain supply chains are disrupted. Public buyers in the Member States are at the forefront for most of these goods and services. They have to ensure the availability of personal protective equipment such as face masks and protective gloves, medical devices, notably ventilators, other medical supplies, but also hospital and IT infrastructure, to name only a few. At [the] European level, the Commission together with the Member States has already stepped up efforts by launching joint procurement actions for various medical supplies. To further tailor its assistance to this emergency situation the Commission explains in this guidance . . . , which options and flexibilities are available under the EU public procurement framework for the purchase of the supplies, services, and works needed to address the crisis. Public buyers have several options they can consider: — Firstly, in cases of urgency they can avail themselves of possibilities to substantially reduce the deadlines to accelerate open or restricted procedures. — Should those flexibilities not be sufficient, a negotiated procedure without publication can be envisaged. Eventually, even a direct award to a preselected economic operator could be allowed, provided the latter is the only one able to deliver the required supplies within the technical and time constraints imposed by the extreme urgency. — In addition, public buyers should also consider looking at alternative solutions and engaging with the market.”) (Click here for a summary of the European Commission guidance by Professor Michal Kania)

Ivo Locatelli, Senior Expert at the European Commission

European Commission press release regarding April 1 guidance: “Coronavirus: Commission issues practical guidance on using the flexibilities of the EU public procurement framework: Today, the Commission is making available guidance on how to use all the flexibilities offered by the EU public procurement framework in the emergency situation caused by the coronavirus outbreak. EU legislation already provides public buyers in Member States with flexible solutions for rapidly satisfying urgent needs such as purchasing personal protective equipment, medicines and ventilators, to be supplied to those who need them as quickly as possible. Commissioner Breton, in charge of the Internal Market, said: “Public buyers are under immense pressure in the current emergency situation to ensure the availability of personal protective equipment such as face masks and protective gloves, of lifesaving ventilators and other medical supplies for all of those working relentlessly in the face of this crisis. I want to help them by fully explaining all the flexibilities and solutions provided by the EU public procurement framework to buy such material fast. The current coronavirus crisis presents an extreme and unforeseeable urgency – precisely for such a situation our European rules enable public buyers to buy within a matter of days, even hours, if necessary. I urge all public buyers to fully exploit these flexibilities and to not hesitate and ask for further guidance from the Commission if needed.” The guidance outlines the options and flexibilities provided by the EU legislation. It provides an overview of the choice of tendering procedures available to public buyers and applicable deadlines. The guidance points out possibilities, which range from considerable shortening of the generally applicable deadlines to procuring without prior publication of tender notices in exceptional circumstances, such as the extreme urgency linked to the fight against the coronavirus. It also provides clarification for example on how in this situation of scarcity of key supplies public buyers could find alternative solutions and ways of engaging with the market. The guidance is available here.”)

Albert Sanchez-Graells (University of Bristol)

Albert Sanchez-Graells, European Commission’s Guidance on Extreme Emergency Procurement and COVID-19 — some thoughts and a word on the Dyson contract (“How to Crack a Nut” blog, April 1, 2020) (concurring with Commission’s very pragmatic approach to emergency COVID-19 procurement, and noting the ongoing debate over the UK Dyson ventilator contract)

European Commission, Public Procurement rules in connection with the current asylum crisis (2015) (guidance for emergency procurement to address asylum crisis, under 2004 and 2014 directives and caselaw of the Court of Justice of the EU)

Contributor Andrea Sundstrand (Stockholm University)

European Commission, Press release: State aid: Commission adopts Temporary Framework to enable Member States to further support the economy in the COVID-19 outbreak (Mar. 19, 2020) (“The European Commission has adopted a Temporary Framework to enable Member States to use the full flexibility foreseen under State aid rules to support the economy in the context of the COVID-19 outbreak. Together with many other support measures that can be used by Member States under the existing State aid rules, the Temporary Framework enables Member States to ensure that sufficient liquidity remains available to businesses of all types and to preserve the continuity of economic activity during and after the COVID-19 outbreak.”)

Andrea Biondi, Director, Centre of European Law, King’s College, London

Biondi, Andrea, State Aid in the Time of COVID 19 (March 2020) (“The Commission fully acknowledges that as well as being a major public health emergency, Covid-19 also represents a major shock to both the global and Union’s economies. Unlike any other past crises, the COVID-19 pandemic is having an impact on every single sector of the economy from transport to SMEs, to retail and banking. The Framework therefore addresses an extensive range of possible state interventions: from sector-specific support to more general measures to incentivise the flow of liquidity and access to credit. The Framework is also extremely candid in reminding all interested parties of a basic truth: that the money to support the economy at this stage will have to come mostly from the pockets of national governments, however a coordinated effort will make the measures adopted more effective and may even foster a quicker recovery. The Framework also emphasizes that this is really not the time for a harmful subsidies race. In the Commission’s view, a coordinated and proportionate application of state aid rules could be vital in preserving at least some level of European solidarity. . . . Clearly the hard lessons of the 2008 financial crisis have been learned and it seems that both Member States and the Commission realise the importance of following an orderly and transparent set of rules. Of course the temptation to sweep under the carpet of these new and more flexible state aid rules, dubious rescue packages for weak and ailing companies may soon appear, and further action will surely needed in the future but at the moment one can hope that every party is only interested in the safety of our continent. Then surely tutto andra’ bene. Everything will be all right.”).

Wilmer Hale (John Ratliff, Hans-Georg Kamann, Anne Vallery, Christian Duvernoy & Frederic Louis), COVID-19: EC Rapidly Approves 21 State Aid Schemes under the Temporary Framework (Mar. 27, 2020) (listing approved schemes).

France

Contributor Laurence Folliot Lalliot, University of Paris Nanterre

From Professor Laurence Folliot Lalliot (LFL):

On March 18, 2020, the French Treasury Department enacted a Guidance Note on the impact of the COVID pandemia on the formation and performance of public procurement contracts. These rules will apply until the enactment of an Emergency law/act in the coming days. It is available in French; automated English translation

  • Regarding contract performance: per the Guidance Note, the “Force majeure” regime will apply even if the contract is silent. No default nor any contractual liability for the contractor under such circumstances. (LFL comment: This is just a reminder of a well-established case law rule from the early XXth century). In addition, Contracting Authorities (C.A.) may, when the contractor is prevented from carrying out the contract, have the services carried out by other companies without this constituting a contractual fault.
  • LFL comment : Nothing is said in the Guidance Note about the performance of long-term contracts, such as Public-paid Public-Private Partnerships (PPP’s) or User-paid PPP’s (Concessions). The Force majeure rule must apply as well to excuse any default due to th e exceptional situation. It is my understanding that the “Imprevision rule” will also apply, to support the continuity of the public service delivery. Imprevision is the name of the French “sort of Hardship” administrative case law rule (applied even in the silence of the contract), allowing the contractor to get  up to 85 or 90 % indemnification of all losses during a short period due to unpredictable and unresistable economic constraints. 
  • On the formation of contracts, the Guidance Note states : If necessary, if the need is urgent, C.A. can apply the reduced advertising deadlines (3 ° of article R. 2161-8 of the French public purchasing code = 10 days,  in the context of a Restricted Procedure). Or the direct Negotiated Procedure without publicity and prior competition in the event of a pressing emergency incompatible with the reduced deadlines (article R. 2122-1 of the Public purchasing code). Where applicable, such purchases should only be made for the amounts and durations strictly necessary to meet urgent needs. They may be renewed if the blocking situation was to extend.
  • LFL comment: These articles of the French 2019 Public Purchasing Code come from the EU Directives. Nothing is said in the Guidance note about contracts below the EU Thresholds. However, much more flexibility is offered by the French rules under the EU thresholds, even without specific emergency context: (1) For purchases below 40 000 Euros no publicity nor competition is required (Decree December 11, 2019) ; (2) From 40 000 to the EU Thresholds the so-called “adapted procedures” apply, with miminal publicity and competition requirements.
  • LFL: More information is available in another 2019 French guidance note on “Emergency in public procurement contracts”,  available here. There is also a dedicated provision in the French Public Health Code (Art. L. 1311-4 du code de la santé publique).
  • LFL : Finally, there are also French provisions on “Requisitions” that could be analyzed as (1) unilateral public appropriation of existing goods and properties on a  temporary basis, or (2) “forced procurement” when industries are required to produce specific goods to be only purchased by public C.A. This is an ongoing debate . . . .
Laurence Folliot Lalliot

France enacted an Emergency Act on March 23, 2020. It enables the Executive branch to govern by Ordonnances (akin to executive orders) in several areas. One such order, Ordonnance n° 2020-319 du 25 mars 2020 portant diverses mesures d’adaptation des règles de passation, de procédure ou d’exécution des contrats soumis au code de la commande publique et des contrats publics qui n’en relèvent pas pendant la crise sanitaire, is about public contracts, public procurement and concessions. It covers: 1. Measures relating to the award procedures in progress (retroactive from March 12): extension of the tendering process; 2. Measures relating to the performance of existing contracts: extension of the duration; advance payment rates may be increased to an amount greater than 60% of the amount of the contract or the purchase order; no penalty for delay based on the force majeure situation; damages for suspended or terminated contracts; and, 3. Measures relating to the emergency procurement of purchasing contracts: in fact, these measures are already mentioned in the Public Purchasing Code; these rules are based on the EU  Directives (reducing the advertising time) direct contracting based on imperative urgency . Where applicable, such purchases should only be made for the amounts and duration strictly necessary to meet the urgent needs. They can be renewed if the deadlock situation continues.

Laurence Folliot Lalliot, La concurrence entre Etats sur l’achat de matériel médical et sanitaire aggrave le problème [Interstate competition in public supply chains worsens COVID-19 health crisis], Le Monde, Mar. 30, 2020 [informal English translation]

Mme Laurence Folliot Lalliot, Professeur de droit public, Co-Directrice du Master 2 Droit de l’Economie, http://crdp.parisnanterre.fr/Université Paris Nanterre (France)

Mme Laurence Folliot Lalliot, Professor of Public Law, Co-Director of the Masters 2 Program in Economic Law, Center for Research on Public Law (CRDP), University of Paris Nanterre (France)

Italy

Gobbato, Illaro (Dentons), COVID-19 and derogations from the procurement code in Italy (Mar. 16, 2020) (discussing emergency liberalization of procurement laws, and special procurement authority to CONSIP, the Italian centralized purchasing agency)

Official website of the Italian Government – all the emergency measures adopted are available (in Italian)

Contributor Professor Gabriella Racca (University of Turin)

Emergency measures in Piedmont Region (Italy)

Poland

Michal Kania (University of Silesia in Katowice)

Michał Kania (University of Silesia in Katowice) (March 31, 2020), Public Procurement and COVID-19 in Poland (detailed discussion of statutes and regulations governing public procurement in Poland during the COVID-19 crisis, including contract changes; special exceptions from procurement law; rapid but limited modifications to contracts; performance changes; notice of performance changes; notice of impracticability of performance; application to subcontractors; waiver of receivables due to failed contractor performance; negotiations without publication allowed under appropriate circumstances).

United Kingdom

Telles, Pedro, UK sits out on the EU’s joint procurement of medical equipment (Mar. 24, 2020).

United Kingdom Government Procurement Policy Note 01/20 Responding to COVID-19 (Mar. 18, 2020) (Applies to all contracting authorities and runs through procurement methods available in urgent/emergency situations – covers direct (non competitive award) but also encourages use of existing framework agreements and dynamic purchasing systems as well as referring to accelerated competition procedures).

Contributor Susie Smith (UK)

United Kingdom Government Procurement Policy Note (PPN) 02/20 – Supplier relief due to COVID-19 (Mar. 20, 2020) (Applies to all contracting authorities and provides recommendations and guidance on payment to suppliers to ensure service continuity during and after the current COVID-19 outbreak, including immediate payment of invoices (with later reconciliation), identifying “at risk” businesses and continuing to pay those businesses even if contract delivery is suspended – subject to transparency “open book” principles, also recommendations of availability of contract variation provisions and permissibility under procurement rules. Also includes more advice than we would usually see in a PPN on legal provisions – force majeure, frustration, excusing causes, relief events and other options.) Per Ruari Macdonald, under this directive all contracting authorities should:

  • Urgently review their contract portfolio and inform suppliers who they believe are at risk that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least the end of June.
  • Put in place the most appropriate payment measures to support supplier cash flow; this might include a range of approaches such as forward ordering, payment in advance/prepayment, interim payments and payment on order (not receipt).
  • If the contract involves payment by results then payment should be on the basis of previous invoices, for example the average monthly payment over the previous three months.
  • To qualify, suppliers should agree to act on an open book basis and make cost data available to the contracting authority during this period. They should continue to pay employees and flow down funding to their subcontractors.
  • Ensure invoices submitted by suppliers are paid immediately on receipt (reconciliation can take place in slower time) in order to maintain cash flow in the supply chain and protect jobs.”

NORTH AMERICA

Canada

Paul Emanuelli – The Procurement Office (Canada)

Emanuelli, Paul, Procurement Continuity Critical to Managing Pandemic (key steps for procurement offices and contractors to take, with extensive links to Canadian and global resources)

United States

Adalja, Amesh A.; Toner, Eric; Inglesby, Thomas V., Priorities for the U.S. Health Community Responding to COVID-19, JAMA, Mar. 3, 2020.

Daily Beast, Tapper Grills FEMA Chief on Mask Shortage (Mar. 22, 2020) (FEMA Administrator Peter Gaynor confirmed in CNN interview that Defense Production Act had not been triggered yet by federal government for emergency supplies)

Defense Production Act

Federal Acquisition Regulation (FAR), Title 48 of the U.S. Code of Federal Regulations:

Contributor Ruairi Macdonald (PhD cand. (GWU), research assoc., Gov. Outcomes Lab, Oxford U.)

Forgey, Quint, ‘We’re not a shipping clerk’:  Trump tells governors to step up efforts to get medical supplies, POLITICO, Mar. 19, 2020.

Hamby, Chris; Stolberg, Sheryl Gay, How One Firm Put an ‘Extraordinary Burden’ on the U.S.’s Troubled Stockpile, N.Y. Times, Mar. 6, 2021 (firewall)

Kliff, Sarah; Satariano, Adam; Silver-Greenberg, Jessica; Kulish, Nicholas, There Aren’t Enough Ventilators to Cope with the Coronavirus, N.Y. Times, Mar. 18, 2020.

Legislation – U.S. Federal:

McGinn, Jerry, Sending in the Cavalry: How the Defense Production Act can assist during the COVID-19 crisis, The Hill, Mar. 19, 2020

MITRE, COVID-19 Authorities, Contract Vehicles and Initiatives (page includes updated information regarding federal authorities, contractual vehicles and procurement opportunities, and initiatives available to support the COVID-19 response).

Navarro, Peter, Whitehouse Briefing on Coronavirus Response (C-SPAN, April 2, 2020) (advocating requiring U.S. domestic sourcing of all essential medical supplies)

New York State, Executive Order 202.1 (Mar. 12, 2020) (Governor Cuomo suspending until April 11, 2020 “Sections 553(22), 559, 1209, and 1265-a of the [New York] Public Authorities Law, and 21 NYCRR [New York Codes Rules & Regulations] Part 1002, to the extent necessary to purchase necessary equipment, materials, supplies, or services, without following the standard procurement processes, including the standard prompt payment policy”)

Contributor J. Ryan Frazee (Wiley Law Firm – US)

Pipes, Sally, Pending “Buy America” Executive Order Threatens Coronavirus Response, Forbes (Mar. 17, 2020).

Public Spend Forum, Using Machine Learning to Rapidly Identify a Global Ecosystem of Suppliers and ExpertsUS Government Accountability Office (GAO) reports and testimony regarding Hurricane Katrina.

Small Business Resources (page)

Stateside, 2020 State Government Responses to COVID-19 (regularly updated)

U.S. Department of Defense, Defense Pricing and Contracting, Kim Herrington, Acting Principal Director, Class Deviation—Progress Payment Rates (Mar. 20, 2020) (raising contract progress payment rates in response to COVID-19 pandemic).

U.S. Department of Defense, Defense Pricing and Contracting, Kim Herrington, Acting Principal Director, Managing Defense Contracts Impacts of the Novel Coronavirus (Mar. 30, 2020) (summary of memorandum by C. Yukins)

U.S. Department of Defense, Undersecretary of Defense for Acquisition and Defense Ellen M. Lord, Memorandum for the Defense Industrial Base, re: Defense Industrial Base Essential Critical Infrastructure Workforce (Mar. 20, 2020) (“The Defense Industrial Base (DIB) is identified as a Critical Infrastructure Sector by the Department of Homeland Security. The DIB sector is defined as the worldwide industrial complex that enables research and development as well as design, production, delivery, and maintenance of military weapons systems/software systems, subsystems, and components or parts, as well as purchased services to meet U.S. Military requirements. . . . Companies aligned with the essential critical infrastructure workforce definition are expected to maintain their normal work schedules. Everyone should follow guidance from the Centers for Disease Control and Prevention as well as State and local government officials regarding strategies to limit disease spread. . . . [From attached Department of Homeland Security memo: “We recognize that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction. while the Federal Government is in a supporting role.”]).

Contributor David Drabkin (US)

U.S. Department of Justice & U.S. Securities and Exchange Commission, Joint Antitrust Statement Regarding COVID-19 (March 2020) (“Addressing the spread of Coronavirus Disease 2019 . . . will require
unprecedented cooperation between federal, state, and local governments and among private
businesses to protect Americans’ health and safety. The Antitrust Division of the Department of
Justice . . . and the Bureau of Competition of the Federal Trade Commission . . . wish to make clear to the public that there are many ways firms, including competitors, can engage in procompetitive collaboration that does not
violate the antitrust laws. The Agencies are committed to providing individuals and businesses in any sector of the economy that are responding to this national emergency expeditious guidance about how to ensure their efforts comply with the federal antitrust laws.”).

U.S. Federal Emergency Management Agency, Information for Contractors About Priority-Rated Orders [under the Defense Production Act]

U.S. Federal Emergency Management Agency, Stafford Act, as Amended, and Related Authorities (FEMA Report P-592, May 2019)

U.S. General Services Administration (GSA), COVID-19 Fraud and Price Gouging (Mar. 19, 2020) (noting that reference prices are available at www.gsaadvantage.gov).

U.S. General Services Administration (GSA), COVID-19 Frequently Asked Questions for GSA Global Supply Contractors (May 2020)

U.S. Government Accountability Office (2015), Disaster Contracting: FEMA Needs to Cohesively Manage Its Workforce and Fully Address Post-Katrina Reforms, GAO-15-783, https://www.gao.gov/products/GAO-15-783

U.S. Government Accountability Office (2006) Hurricane Katrina: GAO’s Preliminary Observations Regarding Preparedness, Response, and Recovery, GAO-06-442T, https://www.gao.gov/products/GAO-06-442T

U.S. Government Accountability Office (2006), Agency Management of Contractors Responding to Hurricanes Katrina and Rita, GAO-06-461R, https://www.gao.gov/products/GAO-06-461R

U.S. Government Accountability Office (2006) Hurricane Katrina: Improving Federal Contracting Practices in Disaster Recovery Operations [Statement to Congress] GAO-06-714T, https://www.gao.gov/assets/120/113786.pdf

U.S. Government COVID-19 Response Plan (Mar. 13, 2020) (republished by New York Times) (notes at page 63 that domestic content requirements can be waived in time of declared catastrophe)

U.S. Office of Federal Procurement Policy, Emergency Acquisitions Guide

U.S. Office of Management & Budget (OMB), OMB Memorandum M-20-17, Administrative Relief for Recipients and Applicants of Federal Financial
Assistance Directly Impacted by the Novel Coronavirus (COVID-19) due to Loss
of Operations (Mar. 19, 2020) (guidance on flexibility afforded federal grantees to respond to the COVID-19 crisis)

U.S. Office of Management & Budget (OMB), OMB Memorandum M-20-18, Managing Federal Contract Performance Issues Associated with the Novel Coronavirus (COVID-19) (20 March 2020) (“The health and safety of all Americans, including our Federal contractors, remains the top priority. This memorandum identifies steps to help ensure this safety while maintaining continued contract performance in support of agency missions, wherever possible and consistent with the precautions issued by the Centers for Disease Control and Prevention (CDC). . . . As the impact of COVID-19 continues to evolve, many Federal government contractors that ordinarily work side-by-side with the Federal workforce may currently be unable to access their Federal work sites as a result of building closures, quarantines or implementation of social distancing practices. Agencies are urged to work with their contractors, if they haven’t already, to evaluate and maximize telework for contractor employees, wherever possible. Telework is an important tool for enabling continued contract performance in a manner that can meet health and safety guidelines from the CDC and State and local public health authorities. Equally important, agencies should be flexible in providing extensions to performance dates if telework or other flexible work solutions, such as virtual work environments, are not possible, or if a contractor is unable to perform in a timely manner due to quarantining, social distancing, or other COVID-19 related interruptions. . . . Additionally, agencies should also consider whether contracts that possess capabilities for addressing impending requirements such as security, logistics, or other function, may be retooled for pandemic response consistent with the scope of the contract “).

U.S. Office of Management & Budget, Memorandum M-20-22, Preserving the Resilience of the Federal Contracting Base in the Fight Against the Coronavirus Disease 2019 (COVID-19) (Apr. 17, 2020) (first governmentwide guidance implementing Section 3610 of the CARES Act, which allows for contractor reimbursement for paid leave).

U.S. Office of Management & Budget, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”) (2014) (sets standards for federal grantees, including (in secs. 200.317-200.326) standards for procurement by states and other grantees procuring with federal grants funds).

U.S. Small Business Administration, SBA Disaster Assistance in Response to the Coronavirus (discussing loans and interest rates, with links to application materials)

White House, Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of Covid-19 (Mar. 19, 2020).

White House, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing (Mar. 19, 2020) (President Trump remarked that states should purchase medical equipment, “We are not a shipping clerk”).

Response: MSNBC (Mar. 19, 2020) (“Former [Department of Homeland Security] Secretary Jeh Johnson refutes President Trump’s notion that the federal government is not a ‘shipping clerk’ and that the marshaling of resources to fight coronavirus should be left to state and local governments.”

White House, Executive Order on Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19 (Mar. 23, 2020) (“To ensure that our Nation’s healthcare systems are able to surge capacity and capability to respond to the spread of COVID‑19, it is the policy of the United States that health and medical resources needed to respond to the spread of COVID-19, such as personal protective equipment and sanitizing and disinfecting products, are not hoarded.  Accordingly, I am delegating to the Secretary my authority under section 102 of the [Defense Production] Act (50 U.S.C. 4512) to prevent hoarding of health and medical resources necessary to respond to the spread of COVID-19 within the United States.  I am also delegating to the Secretary my authority under the Act to implement any restrictions on hoarding, including my authority under section 705 of the Act (50 U.S.C. 4555) to gather information, such as information about how supplies of such resources are distributed throughout the Nation.”).

White House, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing (Mar. 24, 2020) (discussing Executive Order on price gouging, and President Trump stated:  “We also have a large team working on what the next steps will be once the medical community gives a region the okay — meaning the okay to get going, to get back; let’s go to work.”)

New report on Executive Order: Chalfant, Morgan, Trump signs executive order to prevent price gouging, hoarding of medical supplies, The Hill, Mar. 23, 2020 (“The executive order signed by Trump on Monday gives Health and Human Services (HHS) Secretary Alex Azar the authority to designate certain supplies as critical, meaning those found to be hoarding or price gouging such equipment could face criminal action, Barr said.  “Once specific materials are so designated, persons are prohibited from accumulating those items in excess of reasonable personal or business needs or for the purpose of selling them in excess of prevailing market prices,” Barr said. ‘It is a crime to engage in prohibited activity,’ the attorney general continued.  No materials have been designated as critical, Barr said, but the DOJ and HHS are working together to identify possible cases where hoarding is hampering response efforts amid the coronavirus outbreak.”).

Yukins, Christopher, Trump’s Procurement Mistake May Cost American Lives (Mar. 20, 2020) (discussing President Trump’s insistence that emergency procurement responsibility rest first with the states)

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