Reg.32 of the Public Contracts Regulations 2015 (PCR2015) transposes Art 32 of Directive 2014/24 as the grounds for the use of the negotiated procedure without prior publication (aka direct award) can be used. It is worth reminding that according to Art 26(6) Dir 2014/24 (not transposed in reg.26 PCR2015), Member States may provide that contracting authorities may apply a
negotiated procedure without prior publication of a call for
competition only in the specific cases and circumstances referred to expressly in Art
32, and that Member States shall not allow the application of that
procedure in any other cases.
This is reiterated in reg.32(1) PCR2015 [and art 32(1) dir 2014/24], whereby contracting authorities may award public contracts by a negotiated procedure without prior publication in the specific cases and circumstances laid down in that regulation. The general restrictive tone should by now be obvious.
Reg.32 PCR2015 alters the order of Art 32 Dir 2014/24 significantly, but it does not expand any of the grounds for the use of the negotiated procedure without prior publication, which include some general grounds (derived from previous tenders where no or only unsuitable tenders or requests to participate where submitted, from exclusivity rights, or extreme urgency) [regs.32(2) to (4) PCR2015]; grounds relevant to public supply contracts (for R&D products under limited conditions, replacements required to avoid technical incompatibility or disproportionate technical difficulties in operation and maintenance, purchases from commodity markets, and advantageous purchases from bankrupt firms) [regs.32(5) & (6) PCR2015]; grounds relevant to public service contracts following a design contest [regs.32(7) & (8) PCR2015]; and grounds relevant to repeated works or services [regs.32(9) to (12) PCR2015].
It is important to stress that the eventual abusive recourse to negotiated procedures with no transparency requirement whatsoever constitutes a potential restriction of access to the tender procedure with very significant anti-competitive effects. This has been permanently stressed in the case law, and the CJEU has permanently stressed the strict requirements that control decisions to proceed to the direct award of contracts under this ‘non-procedure’, which are subject to a strict assessment of whether the contracting authority "acted diligently and whether it could legitimately hold that the conditions [for recourse to this procedure] were in fact satisfied" [Fastweb, C-19/13, EU:C:2014:2194, para 50]. Consequently, there is no doubt that this procedure must be understood as exceptional [Fastweb, para 106; see my comments on the case here].
As briefly mentioned, this is now (too?) clearly indicated in Art 26(6) Dir 2014/14, which establishes that Member States shall not allow the application of those procedures in any other cases than those referred to in Art 32. In turn, the numerus clausus of exceptions in Art 32/reg.32 PCR2015 must be interpreted strictly, in order to prevent competitive distortions [for an empirical approach to the use of negotiated procedures without prior transparency and their justification, see GS Ølykke, On Actual and Perceived Monopolies (Working Paper, 2013)].