IT lawyers should be aware that the European Commission has recently issued an information gathering exercise in the area of IT Public Procurement.[1] The Directorate General for Internal Market and Services, which is responsible for Public Procurement policy, is conducting an analysis of how public procurement rules function in a number of different economic sectors. One of the sectors selected for review is IT procurement. This exercise aims to improve European Commission understanding of the IT sector and to identify best practice as well as common problems. The long-term goal of this initiative is to improve the Commission’s policies in the area of public procurement, thus fostering a more efficient internal market. The background is the adoption and transposition of the 2014 Public Procurement Directives by the Member States.[2] Having selected IT as an area for review, DG Internal Market and Services is conducting a broad review exercise. A questionnaire has been issued which contains high-level questions, applicable across a range of stakeholders.
The response date is 20 September 2014. The questionnaire includes nine questions, summarised as follows:
1. provide examples of good IT procurement practice, with good practice defined as “practices which led to the contracting authority transparently getting what it needed for a good price”;
2. whether respondents are aware of the IT “lock-in” phenomenon, defined as “when a contracting authority must for various reasons keep contracting with one company”;
3. whether respondents are aware of “any other cross-cutting problems affecting the possibility of transparent, fair and efficient procurement of IT”;
4. whether participation by SMEs in IT public procurement is above or below the average share that they have in the IT sector generally? – in addition, it is enquired whether they have to form consortia in order to bid for larger tenders and whether there is potential for SME participation in large IT procurements;
5. what are respondents’ experiences with the various remedies available under the public procurement regime;
6. whether respondents are aware of any studies or data on IT public procurement in your Member State;
7. what are the sectors where respondents encounter most problems with IT procurement;
8. what problems are faced when participating in IT public procurement; and
9. what is respondents’ estimated value of contracts which respondent member association members win that are below and above the procurement directives thresholds.
DG Internal Market and Services seem to be conducting a broad-based information gathering exercise. From an IT lawyer’s perspective, the queries are so broad that it may be challenging for the DG to collate the information and apply it in the formulation of IT-related public procurement. Nevertheless, the European Commission focus on IT procurement is to be welcomed and the area is overdue for review. We await with interest the DG’s next steps in this area.
Pearse Ryan is a partner in the Technology and Innovation Group in Arthur Cox, Dublin office
Patrick McGovern is a partner in the Public Procurement Group in Arthur Cox, Dublin office, specialising in Public Procurement advisory matters.
[1] Request for contributions dated 7th July 2014
[2] See
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.094.01.0001.01.ENG
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.094.01.0065.01.ENG
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.094.01.0243.01.ENG
