Prepared by Guido Ajello, Claudio Costantino e Arianna Mariani
With the Notice published last 6 July 2021 in the Official Journal of the European Union (2021/C 267/01), the European Commission has provided practical guidance on public procurement in the field of innovation (the “Guidance”), offering multiple interesting indications for the benefit of public administrations and economic operators.
After clarifying that any procurement direct to buy the process of innovation (research and development services) or to buy the outcomes of innovation falls within the category of “innovation procurement”, the Commission clarified that Public investment and innovation are two essential ways to meet the challenges of the recovery, the green and digital transition and the creation of a more resilient economy in the European Union.
The Commission, preliminarily, noted that the public procurement rules are no longer only concerned with “how to buy” but they also provide scope for incentives on “what to buy”, without prescribing them. In this regard, the objective of spending tax-payers’ money well is gaining new dimensions, beyond merely satisfying the primary needs of public entities.
These needs appear even more relevant in the light of the innovations introduced by the Next Generation EU program, which will stimulate public investments after the crisis due to COVID-19; investments that will be largely channelled precisely through public procurement able to help companies developing innovative solutions in the main industrial ecosystems for:
- delivering higher quality public service on an optimal budget;
- modernising public services;
- helping start-ups and innovative SMEs launch and grow;
- moving markets towards innovation.
In addition, the Commission, in setting out the policy framework needed to make decisive the use of procurement for innovation (see Chapter 2), focusing on the need to open the doors of public procurement to potential innovators, has developed a series of proposals aimed at attracting innovative solutions as part of each public procurement process (see Chapters 3 and 4).
In this regard, the Guidance identify (i) the Innovation-friendly tools that can be used for all types of procedures, and (ii) specific innovation friendly procurement procedures.
As to (i), the Commission has provided with several suggestions that can be used in all types of public procurement, including:
- the necessary preliminary assessment of the needs of users of public services;
- the initiation of a preliminary market consultation in order to assess the state of play, allowing the drafting of realistic or updated specifications before launching a tender process;
- the use of new and updated standard forms, as prescribed by Commission Implementing Regulation (EU) 2019/1780 of 23 September 2019 establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) 2015/1986;
- the definition of better technical specifications that allow the most efficient and innovative solutions, including the latest ones, to be competitive and to provide the best benefits to the public buyer;
- the possibility of submitting tenders with variants, consisting of the proposal of one or more alternative solutions generally based on alternative technologies or processes: in this way, economic operators will be able to propose, along with a traditional “safe” solution, another more innovative one, which may attract the attention of public buyers because of the possibility of determining better-than-expected results in terms of cost, quality or flexibility, thus facilitating the participation of start-ups and innovative SMEs;
- the definition of new award criteria of the economically most advantageous tender, which can reward both quality and price;
- the introduction of specific contract performance clauses that enhance the adoption of innovative solutions such as, for example, the presence of measurable quality indicators.
As for point (ii), the Commission has identified various procurement procedures deemed most appropriate for the purpose of enhancing innovative solutions, including, by way of example, the competitive procedure with negotiation, the competitive dialogue, design contests, procurement of research and development services (with or without allocation of intellectual and property right), and innovation partnerships.
In conclusion, the European Commission, not by chance in this crucial historical moment, has decided to trace the furrow for the benefit of the public-private sector called upon to seize the opportunities of the National Recovery and Resilience Plan (NRRP); an accomplished innovation, in fact, can only be generated precisely by the innovativeness of the supply instruments, to ensure a qualified public demand, in order to promote the development of innovative products and services, maintaining high competitiveness on the national and international market, as well as quality performance.
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti