Opinion of the Committee of the Regions on Pre-commercial Procurement: Driving innovation to ensure sustainable high quality public services in Europe
Date: 2008-10-08
Institutions: European Committee of the Regions
Subjects: EU law, EU research policy, innovation, intellectual property, marketing, research and development

C 325/44

EN

Official Journal of the European Union

19.12.2008

Opinion of the Committee of the Regions on ‘Pre-commercial Procurement: Driving innovation to
ensure sustainable high quality public services in Europe’

(2008/C 325/06)

THE COMMITTEE OF THE REGIONS

— welcomes Commission communication as a satisfactory first introduction to the basic concept of
pre-commercial procurement and the way in which it can be organised, although there are certain
oversights with regard to the actual implementation of the procedure proposed;

— emphasises that where local and regional authorities choose pre-commercial procurement in order to
promote innovation as a way of addressing problems they are seeking to resolve through the effects
of this instrument, they will be have to face various challenges that are not adequately analysed in the
communication;

— thinks that the European Commission should provide a clear and detailed guide, as well as training
opportunities, to contracting local and regional authorities on how to use pre-commercial procure-
ment of R&D services so that European law is not infringed;

— also considers the guidance and training that must be provided to be all the more urgent given that
pre-commercial procurement raises serious questions of intellectual and industrial property rights, a
legal
issue to which even the legal services of central governments have not yet paid particular
attention;

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Official Journal of the European Union

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Rapporteur: Dimitrios TSIGKOUNIS (EL/EPP), Mayor of Leonidio (Arcadia)

Reference document

Communication from the Commission to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of the Regions — Pre-commercial Procurement: Driving inno-
vation to ensure sustainable high quality public services in Europe

COM(2007) 799 final

POLICY RECOMMENDATIONS

THE COMMITTEE OF THE REGIONS

General comments on the role of
authorities

local and regional

calls for consideration to be given in the forthcoming
1.
debate to the role played by local and regional authorities in
addressing major social problems, e.g. ensuring high-quality
to
affordable
population,
geared
healthcare
improving energy efficiency,
responding to climate change,
ensuring higher quality education and better access to it, and
more effective management of security threats;

ageing

an

since new, innovative solutions are likely to be called for
2.
in addressing the problems, since solutions either are not
commercially viable owing to technological requirements or,
where they exist, do not yet satisfy requirements — meaning
that new R&D is imperative — proposes that local and regional
authorities be actively involved in developing the new frame-
work for pre-commercial public procurement and that their
opportunities for effectively managing and implementing this
new type of procurement be strengthened;

3. maintains that including R&D in public procurement with
a view to promoting innovative solutions allows local and
regional authorities to make a key contribution to the medium
and long-term profitability and effectiveness of the services they
provide, and to promoting the competitiveness of European
industry through innovation;

4.
considers that since a significant proportion of such
spending falls to local and regional authorities, those authorities
must be fully prepared to play a major role in promoting R&D
across Europe;

calls on the European Commission to take into account
5.
the Committee for
the period
the political priorities of
implementing the Lisbon strategy
2008-2010, which include:
for growth and employment; addressing the challenges of
climate change; diversification and sustainable use of energy
resources;
life, which includes
cross-border cooperation on civil protection and access to better
healthcare services; promotion by local and regional authorities
of solidarity, and intercultural and interfaith dialogue, and
promotion of all forms of local culture and traditions; taking
part in dialogue on a common migration and asylum policy,

improving citizens' quality of

especially in terms of exchanging best integration practice; prior-
itising the single market and strategically enhancing the quality
of public services. These are matters relevant
to local and
regional authorities which are likely to be included as particu-
larly promising within the sphere of public procurement in
order to support R&D in information and communication tech-
nologies, these being the priority choice for pre-commercial
procurement;

6.
welcomes Commission communication COM(2007) 799
final as a satisfactory first introduction to the basic concept of
pre-commercial procurement and the way in which it can be
organised, although there are certain oversights with regard to
the actual implementation of the procedure proposed;

emphasises

that where local and regional authorities
7.
choose pre-commercial procurement in order to promote inno-
vation as a way of addressing problems they are seeking to
resolve through the effects of this instrument, they will be have
to face various challenges that are not adequately analysed in
Commission communication COM(2007) 799 final;

8.
believes that existing procurement legislation is already
quite complicated, and that many local and regional authorities
have particular problems implementing it correctly, so that they
would be very hesitant to add another complicated mechanism,
like this European Commission initiative, to their administrative
system and procedures; therefore urges that the public procure-
ment legislation not be applied to pre-commercial procurement;

proposes that the Commission look into the possibility of
9.
whether the procurement directive could be amended so that
innovations might, for example, be generated within the frame-
work of partnership projects. The rigid procurement process is a
major obstacle to new innovations. The requirement of fair and
non-discriminatory treatment derived from the Treaty estab-
lishing the European Community should not be interpreted in
such a way that, in practice, precludes companies and procuring
entities from benefiting from companies' R&D efforts;

10.
believes that designing and drawing up very technical
versions of public tenders to promote innovation calls for par-
ticular knowledge and skills which local and regional authorities
do not generally have, considering that even in many national
central governments such knowledge and skills are found in
only a small number of departments;

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the

that

thinks

11.
the
various
pre-commercial procurement process for R&D services similarly
require a level of technical knowledge and understanding of the
issues concerned that cannot generally be provided by local and
regional authorities;

selection stages of

notes that even if pre-commercial procurement of R&D
12.
services ultimately proves successful, it will still be difficult to
mobilise and activate citizens politically at local and regional
level. One factor that makes decision-making by local and
regional authorities particularly problematic is that the public
cost of organising pre-commercial procurement of R&D services
is immediate and affects the ongoing management period,
whereas the benefits are usually seen in the medium term and it
may be some time before the general public becomes aware of
them, usually longer than the time between two consecutive
elections at local and regional level;

is concerned that should the advisability of publishing a
13.
pre-commercial procurement tender for R&D services have been
politically controversial,
it is likely that following an election
that produces a new local and regional authority consisting of
parties that have expressed such objections,
they will raise
doubts about whether the procurement procedure will continue
for a product that is already on the market, ultimately obscuring
the real benefits that were sought by the contracting authority
with the original pre-commercial procurement tender for R&D
services;

believes that a major political problem would arise for
14.
the successful bidders in a
local and regional authorities if
pre-commercial procurement procedure for R&D services were
not based in the area where the contracting local or regional
authority had its seat, or if they were even based in another
Member State;

15.
suspects that if a pre-commercialisation tender for R&D
services is unsuccessful, an eventuality which cannot be ruled
out, especially in certain areas of R&D where the success rate is
still quite low,
local and regional authorities will find it very
difficult to justify their action and convince the general public
that even with this outcome it was better to issue the tender
than to invest in existing, commercially proven technology;

16.
in view of the above-mentioned problems which local
and regional authorities may face in relation to pre-commercial
procurement of R&D services, proposes that
the European
Commission and the Member States should design and imple-
ment a series of measures that it considers essential to ensure
that pre-commercial procurement of R&D fulfils its purpose at
local and regional level, which will have a major impact on the
wider R&D performance of the European Union compared with
its competitors in the global market;

17.
notes that it should be borne in mind that if the intro-
duction of pre-commercial procurement procedures for R&D
services at local and regional level is not smooth and efficient,

which seems likely, then R&D may be deprived of funding at
European Union level;

18.
thinks that the European Commission should provide a
clear and detailed guide, as well as training opportunities, to
contracting local and regional authorities on how to use
pre-commercial procurement of R&D services so that European
law is not infringed;

also considers the guidance and training that must be
19.
provided to be all the more urgent given that pre-commercial
procurement raises serious questions of intellectual and indus-
trial property rights, a legal
issue to which even the legal
services of central governments have not yet paid particular
attention;

urges the Member States and the European Commission
20.
to develop support structures which local and regional authori-
ties can use whenever they decide to practise pre-commercial
procurement of R&D services,
to obtain clear and practical
information and real assistance, especially regarding the most
risks and benefits between the
appropriate distribution of
contracting authority and the successful candidates;

the

level of

contracting authority, whereas

given that pre-commercial procurement of R&D services
21.
the local and
entails clearly identifiable short-term risks at
the
regional
long-term benefits are difficult
to identify and often vague,
which causes understandable concern for local and regional
and the
authorities,
European Commission must provide clear support at various
levels so as to ensure that all those concerned understand that
occasional failures are a necessary part of such a procedure
which involves seeking innovative solutions to chronic or more
recent problems faced by European societies;

the Member States

emphasises

that

22.
notes that because pre-commercial procurement tenders
for R&D services are open to candidates from all the Member
States, they may unavoidably lead to at least partial transfer of
resources for R&D funding from one region of a Member State
to that of another Member State. At European Union level
obviously this is not a problem, but at local or regional level it
is a factor
the funding of
that may significantly hamper
pre-commercial procurement of R&D services;

urges the European Commission to demonstrate that
23.
pre-commercial procurement can be useful
for the regional
authority managing the tender procedure, even where candidates
are not based in the region;

urges

the European Commission to encourage and
24.
strengthen large groupings of
local and regional authorities
which agree to conduct a pre-commercial procurement proce-
dure jointly so as to reduce the risks that would be faced by a
single local or regional authority organising the same procedure
in a Member State;

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25.
recognises that creating intra-European networks and
establishing regular contacts between local and regional authori-
ties with similar needs in the different Member States represent
the only binding elements in inter-governmental/interregional
cooperation and coordination relating to pre-commercial
procurement of R&D services;

small and medium-sized enterprises (SMEs) as part of a new
framework of cooperation with local and regional authorities in
the Member State where they are located and networking
through them with local and regional authorities in other
Member States and counterpart universities, research centres
and small and medium-sized companies;

26.
supports funding of measures to develop and consolidate
local and
pre-commercial procurement of R&D services at
regional level by re-allocating European Union budget resources
that may be provided by the revision of the Common Agri-
cultural Policy;

believes that the single European R&D area (European
27.
Research Area, or ERA) could potentially be transformed and
strengthened if pre-commercial procurement of R&D services
was incorporated into the existing public procurement process;

emphasises that the creation in the various local and
29.
regional authorities of information/database points on the local
and regional problems that need to be urgently addressed with
innovative solutions, and providing information on local R&D
capacity, can bring closer together regions facing the same
problems, as well as research centres and companies with
complementary or supplementary potential for finding innova-
tive solutions through cooperation;

believes that the strategy of promoting pre-commercial
28.
procurement of R&D services would be substantially facilitated
by utilising knowledge-intensive and technologically innovative
local and regional universities, research centres and above all

proposes that funding through the European Regional
30.
Development Fund, the Cohesion Fund and the European Social
Fund should be targeted at measures relating to R&D via
pre-commercial procurement in areas covered by the funds.

Brussels, 8 October 2008.

The President

of the Committee of the Regions

Luc VAN DEN BRANDE