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Collaborative procurement of Digital Services

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Collaborative procurement of Digital Services

  1. 1. Collaborative Procurement of Digital Services Under the EU public procurement directives 17 April 2018 Ohad Graber-Soudry www.xofficio.eu
  2. 2. Background Examples of collaborative procurement (by two or more purchasing entities): - Information sharing - Joint market research - Preparation of common technical specifications - Joint procurement procedures - Central purchasing body - Joint ventures
  3. 3. Regulated Procurement Directive 2014/24/EU Principles and detailed procedures to be applied by ‘contracting authorities’ Prohibit preference to national or local suppliers in their procurement Directives are implemented at the national level by secondary legislation
  4. 4. Regulated Procurement International Organizations / ERICs Principles and procedures prescribed by the organization’s own rules In cases of joint or collaborative procurement some ERICs may follow the EU Directive (e.g., European Spallation Source ERIC) Some organizations apply the principle of ‘juste retour’ which conflicts with EU law
  5. 5. Presentation overview (1) Basic tools • Framework agreements • Dynamic purchasing systems (DPS) (2) Common collaborative procurement methods • Joint procurement procedures • Central purchasing bodies (CPB) • Joint ventures (3) Cross-border collaborative procurement (4) Exempt collaborative procurement arrangements • ‘In-house arrangements’ • Public-public collaboration
  6. 6. Basic tools
  7. 7. Framework agreements An agreement between one or more contracting authorities and one or more service providers Establish the terms governing contracts to be awarded during a given period May be a single or a multi-supplier framework agreement
  8. 8. Framework agreements Call-offs Relevant in the case of multi-provider frameworks There potential ways to place specific contracts: - direct award - mini-competition; or - a combination of both
  9. 9. Dynamic purchasing systems (DPS) An electronic system Open throughout the period of validity For purchase of goods and services that are: - Generally available on the market - Commonly used by your organization
  10. 10. Dynamic purchasing systems (DPS) Flexible for suppliers to be added at any stage Increased competition (cost savings) Opportunity to stimulate markets
  11. 11. Common collaborative procurement methods
  12. 12. Joint procurement Two or more procuring entities perform a specific procurement jointly - one tender published on behalf of all parties - All parties are acting together, or: - one is acting in the name and on behalf of the rest All purchasing entities are jointly responsible for the parts of the procurement carried out jointly
  13. 13. Central purchasing body (CPB) A contracting authority that provides centralized purchasing activities • The award of contracts, framework agreements or DPS for services intended for other contracting authorities (“intermediaries”) • The acquisition of services intended for other contracting authorities (“wholesale dealer”)
  14. 14. Central purchasing body (CPB) Example 1: ‘intermediate’ Contracting authority A can act as a CPB and award public contracts, or conclude framework agreements intended also for use by contracting authorities B and C • The requirement: contracting authority A has itself complied with the EU Directive and has clearly identified the other entities it intends to procure on behalf of Contracting authorities B and C can rely on this procurement process and will be deemed to have complied with the EU Directive The use of a CPB is especially effective in procuring services in combination with framework agreements or DPS
  15. 15. Central purchasing body (CPB) Example 2: ‘wholesale’ Contracting authority A can act as a CPB and purchase services intended for use by contracting authorities B and C • The requirement: contracting authority A has itself complied with the EU Directive and has clearly identified the other contracting authorities it intends to procure on behalf of Contracting authorities B and C can purchase services from contracting authority A and will be deemed to have complied with the EU Directive
  16. 16. Joint ventures • Two or more contracting authorities set up a joint entity (e.g. SPV) to carry out procurement on their behalf (relying on the in-house “Teckal” arrangement) SPV A B C
  17. 17. Cross-border collaborative procurement
  18. 18. Cross-border joint procurement Two or more procuring entities from different Member States may perform a specific procurement jointly • There must be an agreement that determines the organization of the procurement and applicable law All purchasing entities are jointly responsible for the parts of the procurement which is carried out jointly
  19. 19. Cross-border CPB Purchasing entities in Member State A may rely on a CPB established in Member State B • Either as an ‘intermediary’ or as a ‘wholesale dealer’ or both (depending on national laws) The national law of the CPB will apply to the procurement
  20. 20. Cross-border joint ventures Two or more contracting authorities from different Member States set up a joint entity (e.g. SPV) to carry out procurement on their behalf • Must agree on the applicable national procurement law (either were the SPV is established or where it carries out its activities) • May be limited in time, to certain types of contracts or to a limited number of contracts
  21. 21. Exempt Collaborative Procurement Arrangements
  22. 22. The ‘in-house’ (‘Teckal’) exemption • The award of contracts from A, B and C to the SPV will be exempt, provided certain conditions are met (additional variations possible) SPV A B C
  23. 23. Public-public cooperation A contract concluded exclusively between two or more ‘contracting authorities’ (no private entities involved), provided that: • It implements cooperation with the aim of ensuring that public services are provided with a view of achieving common objectives • The implementation of the cooperation is governed solely by considerations relating to the public interest; and • The participating entities perform on the market less than 20% of the activities concerned by the cooperation.
  24. 24. Thank you for your attention! Ohad Graber-Soudry ohad.graber-soudry@xofficio.eu +46 769 435368 www.xofficio.eu

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