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IPPC 6 2014
Innovation partnership in the new public procurement
regime - shift of focus from procedural to contractual
issues?
Dr Marta Andrecka
Postdoctoral Fellow | PhD | Master of Laws
Department of Law
Business and Social Sciences, Aarhus University
Bartholins Allé 16
building 1328, room 324
8000, Aarhus C
Denmark
Direct phone: 87165183
e-mail: [email protected]
web page: http://pure.au.dk/portal/en/persons/id(8741bfd1-2f33-4038-8f0f-7a127081b574).html
IPPC 6 2014
Agenda:
› Introduction
› Pre-commercial procurement
› Delivery of an innovation contract in a competitive dialogue
› Innovation partnership
› Procedure
› Structure
› Conclusion
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IPPC 6 2014
Introduction
1. What is innovation ?
Article 2(22) :
‘innovation' means the implementation of a new or significantly improved product,
service or process, including but not limited to production, building or construction
processes, a new marketing method, or a new organisational method in business
practices, workplace organisation or external relations inter alia with the purpose of
helping to solve societal challenges or to support the Europe 2020 strategy for smart,
sustainable and inclusive growth;
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IPPC 6 2014
Introduction
2. How to promote innovation in public procurement ?
› Variants
› Functional describtion of a technical specification
› Pre-commercial procurement
› One procedure (for example a competitive dialogue)
› Innovation partnerships
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IPPC 6 2014
Pre-commercial procurement
Aim:
› To award a contract with the objective to develop an invention or an improved product
R & D services other than those where:
(a) the benefits accrue exclusively to the contracting authority for its use in the conduct of its
own affairs, and
(b) the service provided is wholly remunerated by the contracting authority. (Article 14)
› Conflict of interest / unfair competition: › Article 24
› Fabricom case C-21/03 and C-34/03
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IPPC 6 2014
Delivery of an innovation contract in a competitive dialogue
Example:
A contract for the development and delivery of innovative beds.
Challenges:
› Main purpose of the contract
Article 30(3) of the Directive:
“[…] a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs.”
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IPPC 6 2014
Innovation partnership
Aim:
› The development of an innovative product, service or works and the subsequent purchase of the
resulting supplies, services or works
Procedure:
› Competitive procedure with negotiations
› Minimal requirements
› ‘The best price-quality ratio’
› Negotiations
› Confidentiality
› Changes of the technical specification
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IPPC 6 2014
Innovation partnership
› ‘Cherry-picking’ ?
› In accordance with Article 21, the contracting authority shall not reveal solutions
proposed or other confidential information communicated by a partner in the ‘framework
of the partnership’ [emphasise added] in innovation partnership with several partners
without that partner's agreement.
› ‘Cherry-picking’ as a technical requirement?
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IPPC 6 2014
Innovation partnership
Structure:
› In the consecutive stages following the research process, possibly but not necessarily up to the
manufacturing of the supply or the provision of the work or services
› After each phase possibility of termination or reduction of participants’ amount
› Define the arrangements applicable to intellectual property rights
› How long the contract will last,
› The scope of the financial remuneration for the private partner
› Description of how the progress should be documented
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IPPC 6 2014
Innovation partnership
› Wording uncertainties: › ‘research process’
› ‘market-pull incentivizing’
› Value and duration of the subsequent purchasing contract
Proposal Article 29 (4):
› “[…] should remain within appropriate limits, taking into account the need to recover the costs,
including those incurred in developing an innovative solution, and achieve an adequate profit.”
Directive: Article 31(7):
“The estimated value of supplies, services or works shall not be disproportionate in relation to the
investment required for their development.”
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IPPC 6 2014
Innovation partnership
Article 31(2) of the Directive:
“The innovation partnership shall set intermediate targets to be attained by the partners and provide for payment of the remuneration in appropriate instalments.”
› Wild discretion first customer, first products or services ?
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IPPC 6 2014
Conclusion
› Innovation partnership as a hybrid solution
› Shift of focus from procedural to contractual issues
› Flexibility of:
› Negotiations
› Collaboration
› Holistic approach to innovation
› Hardening of:
› Burden of contractual awareness,
› Details and complexity of the post tender phase.
› Time and recourses of the extensive process
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