Innovation Partnership in the New Public Procurement Regime A Shift of Focus from Procedural to Contractual Issues?

Abstract

At the beginning of 2014, the European Parliament and the Council adopted the new directive on public procurement. Inter alia, the new Directive introduces a new procedure called the innovation partnership. The availability of the new provisions maybe valuable particularly from the perspective of complex contracts, which are characterised as mixed contracts.This is because the innovation partnership has a potential to enable a contracting authority to procure complex contracts with more than one type of subject matter regarding development of innovation and its delivery. On the one hand, the innovation partnership has a potential to overcome the primary challenge and uncertainty regarding the usage of a two-stage procedure divided into pre-commercial and commercial procurement, relating to the unfair competition and the conflict of interest that may occur based on cooperation within the pre-commercial phase. On the other hand, the establishment of an innovation partnership may be seen not only as an answer to existing challenges, but also as a new way of realising the objective of a smart, sustainable and inclusive growth that characterises the Europe 2020 strategy. However, at the same time the application of the innovation partnership provisions may pose certain challenges. The aim of this article is to identify and discuss these challenges. To achieve this aim firstly, the scene for the discussion will be set by a presentation of background information. Secondly, three methods of procuring innovation will be discussed: first, the pre-commercial procurement; secondly, delivery of innovation throughout the competitive dialogue procedure; and, finally, the newly introduced innovation partnership. Thirdly, particular attention will be given to the innovation partnership provision in the Directive. Focus will be given to the proposed procedure and structure of the partnership. Fourthly, the article will consider what new solutions the new procedure introduces. Finally, the last section will conclude the discussion.