Official Journal of the European Union

CE 67/10

Pre-commercial procurement: driving innovation to ensure sustainable high-quality public services in Europe


European Parliament resolution of 3 February 2009 on pre-commercial procurement: driving innovation to ensure sustainable high-quality public services in Europe (2008/2139(INI))

(2010/C 67 E/03)

The European Parliament,

having regard to the communication from the Commission of 14 December 2007 entitled ‘Pre-commercial Procurement: Driving innovation to ensure sustainable high quality public services in Europe’ (COM(2007)0799) (the ‘Commission communication’),

having regard to Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1),

having regard to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of utilities contracts for entities operating in the water, energy, transport and postal services sectors (2),

having regard to the Commission interpretative communication on the application of Community law on Public Procurement and Concessions to institutionalised PPP (IPPP) (3),

having regard to all applicable competition rules regarding State Aid and intellectual property rights,

having regard to the Commission communication of 21 December 2007 on a lead market initiative for Europe (COM(2007)0860), and to the Commission consultation on establishing public procurement networks in support of this initiative,

having regard to the Commission communication of 25 June 2008 entitled ‘“Think small first” - A “Small Business Act” for Europe’ (COM(2008)0394), and to the Commission staff working document of 25 June 2008 on the European code of Best practices facilitating access by SMEs to public procurement contracts (SEC(2008)2193),

having regard to the Commission communication of 13 September 2006 entitled ‘Putting knowledge into practice: A broad-based innovation strategy for the EU’ (COM(2006)0502) and to the resolution of the European Parliament of 24 May 2007 (4),

having regard to the Commission staff working document of 23 February 2007 entitled ‘Guide on dealing with innovative solutions in public procurement: 10 elements of good practice’ (SEC(2007)0280),

having regard to the report of the Independent Expert Group on R&D and Innovation entitled ‘Creating an Innovative Europe’ (5) (the Aho report),

having regard to the opinion of the Committee of the Regions on Pre-commercial Procurement: Driving innovation to ensure sustainable high quality public services in Europe (6),

having regard to Rule 45 of its Rules of Procedure,

having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on Industry, Research and Energy and the Committee on Legal Affairs (A6-0018/2009),


whereas the Lisbon Strategy calls for Member States to raise research and development investment to 3% of GDP, a key commitment to drive innovation and the knowledge economy,


whereas the Aho Report has identified public procurement as a strategic instrument to achieve this goal,


whereas the Commission and the Member States must help develop the expertise required to make best use of the recommendations of the Commission communication,


whereas there are currently no instruments available to the Commission to promote pre-commercial procurement pilot projects, and the initiative rests solely with the Member States,


Welcomes the Commission communication and supports the proposed risk/benefit sharing pre-commercial procurement model as one of the drivers of innovation;


Endorses the Aho Report and in particular the view that Member States should use public procurement to drive demand for innovative goods whilst improving the quality and accessibility of public services;


Notes that, in spite of the numerous European research programmes, the results thereof have not yet been exploited by public authorities through public procurement;


Notes the attention already given to pre-commercial procurement, in particular in the USA, China and Japan, who are actively exploiting the potential through a range of public policy instruments, such as the Defence Acquisitions Performance Assessment (DAPA) project in the USA;


Considers that pre-commercial procurement constitutes an under-exploited driver of innovation-led growth for the EU with significant potential to achieve high-quality and readily accessible public services for example healthcare and transport, as well as to address the social challenges of climate change, sustainable energy and an ageing population;


Regrets that many public authorities are not aware of the potential of pre-commercial procurement and do not yet act as ‘intelligent customers’;


Considers that the optimum benefits of this initiative will only be realised if contracting authorities include innovation as one of the goals of their procurement programme;


Notes that pre-commercial procurement can be deployed within the existing legal framework of Directives 2004/17/EC and 2004/18/EC, which exempt research and development services from their scope (7) unless the services procured are fully paid for by, and the benefits accrue solely to, the contracting authority;


Urges Member States to screen national legislation to ensure that public authorities are not limited in pre-commercial procurement through inexistent, incorrect, or unnecessarily complex transposition of the relevant exemptions and unnecessarily elaborate national tendering requirements and procurement models;


Notwithstanding the distinctive approach taken in pre-commercial procurement, notes that good principles of procurement should still apply, namely transparency and competitiveness, to ensure that integrated end-solutions meet customer needs;


Endorses the Commission communication, which provides a potential conceptual basis for pre-commercial procurement and its implementation, but considers that there are some gaps regarding the manner of giving effect to the procedure proposed, especially at local and regional level;


Considers, as far as local and regional authorities are concerned, that there is still not enough information about the continuing obstacles preventing them from implementing pre-commercial procurement with the aim of promoting genuinely innovative solutions in the public interest;


Urges the Commission and Member States to work together to ensure that contracting authorities in local, regional, and other authorities removed from central administration develop the required expertise to implement innovative procurement;


Urges the Commission and the Member States to provide local and regional contracting authorities with training guidelines and tools showing how pre-commercial procurement might be used in research and development;


Welcomes, therefore, the Commission initiative to fund exchange of good practices and training on pre-commercial procurement in the 2009 work programme of the Seventh Framework Programme;


Commends the above-mentioned Commission staff working document on 10 elements of good practice for innovative solutions in public procurement and welcomes the broader activities of Pro Inno Europe in support of innovation; calls on the Commission to draw up a similar best practice guide for pre-commercial procurement;


Considers that pre-commercial procurement has very great potential as a further step towards embedding innovative procurement, but recognises the need for specialist procurement skills and for Member States, in partnership with business, universities, and training centres, to sponsor training activities for the development of management tools;


Calls on the competent Commission Directorates-General to cooperate with each other in producing a comprehensive, easy-to-understand but legally watertight handbook in all the official languages with practical case illustrations showing how the relevant legal principles can be applied correctly in practice, particularly for the use of small and medium-sized enterprises (SMEs) and contracting authorities;


Urges the Commission to provide in the handbook, in particular, practical examples of risk-benefit sharing according to market conditions; considers, in addition, that intellectual property rights must be vested in the companies participating in pre-commercial procurement, inasmuch as the US and Japan work on the basis of this model, which encourages numerous companies to become involved in pre-commercial procurement procedures;


Notes in particular the importance for successful pre-commercial procurement of developing risk/benefit sharing according to market conditions and the vesting of intellectual property rights in participating undertakings;


Calls on the Member States and the Commission to identify in the innovation policy mix medium- to long-term public challenges to be solved by technological solutions developed through pre-commercial procurement; is of the opinion that such solutions could include design contests and challenge funds, such as the US Driverless Vehicle Challenge;


Considers that knowledge transfers between technologically innovative universities, research centres and contracting authorities form an integral part of successful pre-commercial procurement;


Notes that European innovation agencies, such as VINNOVA in Sweden, Tekes in Finland, Senternovem in the Netherlands and Innovation Norway, play an integral part in the transfer of knowledge between prospective customers and researchers; by fostering cooperation between parties involved in research and development, they encourage the uptake of pre-commercial procurement; therefore encourages the Member States to examine the operation of these agencies as a benchmark for their own activities;


Notes the importance of EU Technology Platforms in providing a framework to define research and development priorities and in linking innovations which are ready for exploitation to the needs of prospective customers; also notes that Technology Platforms can align the early market development of new technologies with the needs of public authorities; calls on the Commission, therefore, to ensure better involvement of Technology Platforms in pre-commercial procurement;


Welcomes the Commission's Lead Market Initiative (LMI) as a strong catalyst for the use of pre-commercial procurement in support of innovation with a view to the development of key markets of scale, noting in particular the initiative to establish public procurement networks to support the LMI;


Welcomes the Commission's efforts to improve access to public procurement for EU SMEs in the Small Business Act's European Code of Best Practices;


Welcomes the Commission's clarification that pre-commercial procurement can be carried out by contracting authorities at all stages of developing and rolling-out a new product or service, and not only for fundamental research; notes that this comprehensive approach encourages access by SMEs to public procurement;


Commends the Commission proposal for clarifying the role of public authorities in fostering research and development and stimulating innovation through their procurement activities; stresses that Member States' procurement policies should not be overly prescriptive, since pre-commercial procurement can be practically organised in different ways to suit specific projects and needs whilst still complying with Community rules;


Considers that the concept of pre-commercial procurement is important, but fears that it will be unsuccessful in drawing in SMEs unless it is clearly understood how pre-commercial procurement is to work, particularly in a cross-border context; points out that the key principle of pre-commercial procurement – namely that the public authority does not keep all benefits resulting from the research and development, but that each company retains the ownership rights in respect of the new ideas it generates – ensures legal certainty and the protection of ideas for participating businesses;


Recognises that SMEs can benefit from pre-commercial procurement through risk sharing (given their more limited investment capabilities), progressive growth (in size and experience) at each stage of the research and development process and the streamlined bidding process compared to traditional procurement;


Calls on the Commission to consolidate these strategies into one single public procurement policy aimed at encouraging innovation through public procurement, pre-commercial procurement, the development of lead markets and SME growth through public procurement;


Considers, as part of a consolidated strategy to promote innovation through pre-commercial procurement, that public campaigns would provide an improved climate for contracting authorities to invest more in activities encouraging innovation with a longer-term return on investment; supports in this regard opportunities for networking between local, regional and national public authorities as regards pre-commercial procurement;


Considers that pre-commercial procurement can work most effectively if there are sufficient incentives for public authorities to tap into research and development markets and for suppliers to become involved in government projects; notes therefore that financial incentives are extremely important in the uptake of pre-commercial procurement and already exist in certain Member States, where a substantial proportion of the costs of the first pre-commercial procurement can be matched by a central authority;


Considers that, within the scope of Community programs to stimulate innovation, financial incentives for public authorities across the EU to jointly undertake pre-commercial procurement of innovative technology in lead markets and other areas of common European interest should be considered;


Notes that such Community pilots would benefit from an automatic Commission review and wide publication of practical experiences and contract clauses enabling procurers to refer to sound precedents which could also be used in a best practice guide;


Identifies the need for a European pilot project in the context of pre-commercial procurement in order to show by example an implementation approach that ensures maximum legal certainty and protection for businesses, in particular for SMEs, which, by definition, are the weaker parties compared with contracting authorities and the large undertakings generally involved in public procurement;


Notes that strengthening pre-commercial procurement remains one way among many for Member States to raise their game in innovation and research; calls therefore on Member States to promote innovation by engaging all stakeholders, including universities, research institutes and other bodies involved in the promotion of economic development, so as to better engage public authorities with innovative enterprise; considers that this engagement should be included in a consistent strategy for research, innovation and development;


Recommends to the Commission and the Member States that, with the aim of encouraging competition, the use of electronic procurement systems and dynamic procedures be promoted in order to facilitate the process of pre-commercial procurement;


Instructs its President to forward this resolution to the Council and Commission.

(1)  OJ L 134, 30.4.2004, p. 114.

(2)  OJ L 134, 30.4.2004, p. 1.

(3)  OJ C 91, 12.4.2008, p. 4.

(4)  OJ C 102 E, 24.4.2008, p. 455.

(5)  http://ec.europa.eu/invest-in-research/action/2006_ahogroup_en.htm

(6)  OJ C 325, 19.12.2008, p. 44.

(7)  Article 16(f) of Directive 2004/18/EC and Article 24(e) of Directive 2004/17/EC.