Regulatory framework for the procurement of research and development services

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The European Framework for State Aid for Research and Development and Innovation (2014/C 198/01, 31-34) sets out the conditions under which the purchase of research and development (R&D) services is compatible with the internal market.

Point 33 of the European Framework for State Aid for R&D and Innovation states that when purchasing R&D services, including pre-commercial procurement, the European Commission considers that no State aid is awarded to undertakings where the price paid for the relevant services fully reflects the market value of the benefits received by the public purchaser and the risks taken by the participating providers, in particular where each of the following conditions is fulfilled:

(a) the selection procedure is open, transparent and non-discriminatory, and is based on objective selection and award criteria specified in advance of the bidding procedure;

(b) the envisaged contractual arrangements describing all rights and obligations of the parties, including with regard to IPR, are made available to all interested bidders in advance of the bidding procedure;

(c) the procurement does not give any of the participant providers any preferential treatment in the supply of commercial volumes of the final products or services to a public purchaser in the Member State concerned; and

(d) one of the following conditions is fulfilled:

  • all results which do not give rise to IPR may be widely disseminated, for example through publication, teaching or contribution to standardisation bodies in a way that allows other undertakings to reproduce them, and any IPR are fully allocated to the public purchaser, or
  • any service provider to which results giving rise to IPR are allocated is required to grant the public purchaser unlimited access to those results free of charge, and to grant access to third parties, for example by way of non-exclusive licenses, under market conditions.

These provisions apply both to the purchase of R&D services under the pre-commercial procurement model described in the European framework[1], which does not fall within the scope of the Public Procurement Act, and to the purchase of R&D services under the Public Procurement Act.

In order to be considered as a pre-commercial procurement, the public purchaser and the contractor must share the costs and benefits of the contract: i. e. the contractor assumes part of the costs of the R&D services, but also receives the intellectual property rights of the results of the R&D services, in accordance with the conditions set out in point 33 of the R&D framework. This exception rule is registered in Article 32 of the Public Procurement Act of 17 June 2016.

The procurement of R&D services within the framework of the Public Procurement Act is mainly based on tendering procedures that allow interaction with bidders such as the competitive procedure with negotiations, the competitive dialogue or the Innovation Partnership.

[1] Communication from the European Commission (COM (2007)799): 'Pre-commercial Procurement (PCP): Driving Innovation to Ensure Sustainable High Quality Public Services in Europe'.

 

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