Collaborative procurement of Digital Services (EOSC hub week, Malaga, 16 - 20 April 2018)

1. Collaborative Procurement of
Digital Services
Under the EU public procurement directives
17 April 2018
Ohad Graber-Soudry
www.xofficio.eu

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. 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. 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. 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. Basic tools

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. 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. 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. Dynamic purchasing systems
(DPS)
Flexible for suppliers to be added at any stage
Increased competition (cost savings)
Opportunity to stimulate markets

11. Common collaborative
procurement methods

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. 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. 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. 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. 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. Cross-border collaborative
procurement

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. 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. 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. Exempt Collaborative
Procurement Arrangements

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. 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. Thank you for your attention!
Ohad Graber-Soudry
ohad.graber-soudry@xofficio.eu
+46 769 435368
www.xofficio.eu