PPI IN THE FRENCH REGULATION Bordeaux meeting, Oct , 2014 Jean-Philippe Méchin on behalf of Topos Aquitaine of which Cerema is a member

History of Procurement for Innovation in France

2004: Integration of Market Definition into the Public Procurement Code When a public entity is unable to specify the objectives and performances to be attained, the basic techniques to be applied and the human & material means to be mobilised, it can resort to a market definition procedure.public entity Such contracts aim to explore, sometimes by producing à model or a demonstrator, the possibilities and terms of a contract to be established later. They must also provide an estimate of the cost of the provision and explain how this is determined, as well as predict the different phases of execution.model (Source: publics/Definitions/Entrees/Marches-definition.htm)

2006: Modification of Market Definition This procurement category was repealed by Decree n° of 26 April 2010 relating to public works concession contracts and including various clauses on public procurement - NOR: ECEM D.Decree n° of 26 April 2010 When the procuring body is unable to specify the objectives and performances to be attained, the techniques to be applied and the human & material means to be mobilised, it can resort to a market definition procedure.procuring body Such contracts aim to explore, sometimes by producing à model or a demonstrator, the possibilities and terms of a contract to be established later. They must also provide an estimate of the cost of the provision and explain how this is determined, as well as predict the different phases of execution.model (Source : Art. 73 Public Procurement Code 2006 [Repealed by Decree n° of 26 April 2010 relating to public works concession contracts and including various clauses on public procurement - NOR: ECEM D])Art. 73 Public Procurement CodeDecree n° of 26 April 2010 In a statement on 28 February 2008 the European Commission decided to ask the Court of Justice of the European Communities to appeal against France concerning the public procurement code provisions relating to the procedure known as market definition.statement on 28 February 2008

2010: End of Market Definition Contracts Condemnation by decision of the Court of Justice of the European Union of 10 December The reasons for this condemnation are explained in the judgement as follows : “… inasmuch as these provisions allow for a market definition procedure enabling the procuring body to award the implementation contract to one of the initial market definition contract holders, the French Republic has failed to fulfil its obligations under Articles 2 and 28 of Directive 2004/18/EC”

Why did France transpose PPI so quickly?

The Reasons Historical reasons: the PPI principle was integrated into France’s Public Procurement Code before the existence of the European provision Measures for innovation are part of economy-boosting actions, especially in times of crisis The French government developed a PPI guide even before the European Directive

Extract from the PPI Guide of January 2014

15 Key Factors for Success 15 key success factors for the development of innovation via 4 main objectives: –Create favourable conditions for the emergence of innovative solutions (1-7) –Open up consultations to innovation (8-11) –Make the procedure help innovation (12) –Help pioneering economic operators in their efforts (13-15)

Factor 1 Key Success Factor 1Good practiceMalpractice PPI is handled by a teamInclude operational teams, internal purchasing advisors and purchasers. Sectoral approach without dialogue with other departments that may be concerned.

Factor 2 Key Success Factor 2Good PracticeMalpractice Encourage exchanges upstream between public procurers and economic players Public procurer organises discussions before needs definition with economic players, to obtain an overview of their capabilities and, where appropriate, of pioneering solutions. Respect deontological principles. No discussion between public procurer and economic players. Divert the discussions upstream in order to favour a company.

Factor 3 Key Success Factor 3Good PracticeMalpractice Good technical, economic and regulatory knowledge of the market Organise an economic, technological and regulatory watch: encourage players to gather information, understand information needs and pilot and coordinate the watch device. Poor knowledge of pioneering potential in the procurement domain and of regulatory demands.

Factor 4 Key Success Factor 4Good PracticeMalpractice Openness to receiving information from companies on innovative solutions Welcome spontaneous approaches from companies, adapting methods to the scale of the public procurer. Resort to sourcing: identification of innovating providers and economic players. Respect deolontogical principles. Refuse external requests. Divulge to other companies information obtained in this context.

Factor 5 Key Success Factor 5Good PracticeMalpractice Deontology and rules of confidentiality Make known and respected, internally and externally, the principles of deontology and confidentiality. Use a candidate’s innovative idea, declaring a call for proposals unfruitful, to negotiate with other candidates on the basis of the same innovation.

Factor 6 Key Success Factor 6Good PracticeMalpractice Communicate widely on procurement domains and intentions, and identify the domains which potentially require innovation Publish on Internet procurement intentions and expected innovation domains, as well as a contact point for economic players. Publish a pre-information notice. Fail to communicate procurement intentions. Reduce the consultation time after publication of a pre-information notice.

Factor 7 Key Success Factor 7Good PracticeMalpractice Facilitate market accessibility and simplify consultation procedures Set up allotment (except in the specific case of contracts in a processing branch – where allotment makes the project technically difficult). Facilitate the setting up of company associations (without covering skills). Pragmatic assembling of the file: define selection criteria adapted to the market, simplify document requirements. Train economic players to adapt to the procurer’s specific markets (assistance in writing up documents, points requiring vigilance, etc.) In the case of processing amenities, allotment in the process part will be a handicap to innovative solutions. Demanding financial solidarity within an association of companies, discouraging small enterprises from participating. Criteria too demanding in relation to the company’s capacity and with no added value for the contract. Setting up standard contracts can lead to incoherencies, especially in the building sector. Provide à rigid technical brief that prevents an innovating company from developing its products.

Factor 8 Key Success Factor 8Good PracticeMalpractice Define a need based on performances or functional requirements Leave the “how” to the contract holder. Define clearly the need in terms of expected objectives and leave the field open for possible solutions. Define a need by a solution. Change your needs during the procedure, especially in adapted-procedure contracts.

Factor 9 Key Success Factor 9Good PracticeMalpractice Draw up a list of specifications that takes into account the state of the art and innovation potentialities Use or carry out market studies whenever needed. Call upon a contracting authority assistant or a project manager, as appropriate.

Factor 10 Key Success Factor 10Good PracticeMalpractice Favour the use of variants Explicitly authorise variants, whatever the procedure. Indicate practical arrangements for presenting variants. In case of presentation of a main proposal and a variant, in the variant limit oneself to the elements distinguishing it from the main proposal. Plan and organise the means and skills enabling a rigorous assessment of basic solutions and variants on the basis of the same proposal judgement criteria. Refusal of variants. Acceptance of variants without anticipating on adequate means of evaluation. Define distinct proposal judgement criteria for variants and main proposals.

Factor 11 Key Success Factor 11Good PracticeMalpractice Define a set of criteria to develop innovative solutions. Define, as appropriate, a criterion or sub-criterion “of innovative nature”. The innovative nature is defined as a criterion or sub-criterion, as appropriate; in both cases it should be judged on its level of innovation (scope and intensity). The definition of criteria such as sustainability or technical value enable innovative solutions to demonstrate their added value. It is preferable to reason in terms of cost assessment over the life of the facility (overall cost, operating results) which also shows the added value of innovative solutions. Proposal assessment with too much emphasis on cost criteria.

Factor 12 Key Success Factor 12Good PracticeMalpractice Procurement procedures adapted to cater for innovative solutions Full compliance with general principles of the public procurement code. When competitive dialogue is chosen, solutions should not be mixed and open negotiation should be avoided.

Factor 13 Key Success Factor 13Good PracticeMalpractice Contract piloting that takes into account the specificity of the innovation procurement

Factor 14 Key Success Factor 14Good PracticeMalpractice Partnership follow-up in the contract implementation: measure performance, anticipate difficulties, invent solutions and handle the risk

Factor 15 Key Success Factor 15Good PracticeMalpractice Development/promotion of innovation shared by companies and authorities

A Provision of the New Public Procurement Code

Decree n° of 26 September 2014 – public procurement simplification measures JORF n°0225 dated 28 September 2014 Text n°31 NOR: EINM D Public concerned: public procurers and economic players Subject: modification of certain provisions of the public procurement code or the implementing regulations of Order n° of 6 June 2005 relating to contracts signed by certain public or private entities not subject to the public procurement code. Date of effect: the clauses of this decree come into force on 1 October It applies to contracts and framework agreements whose procurement procedures are initiated as from that date. Notice: in compliance with the simplification programme in favour of companies, this decree transposes on an expedited basis certain simplification measures planned in the new European Directives 2014/24/UE and 2014/25/UE on public procurement. Access by companies to public purchasing is facilitated by the limitation of public procurer demands in terms of the financial capacity of candidates. The impossibility for public procurers to demand from candidate companies documents that are accessible on line and free of charge is consecrated. Public procurers are no longer required to request documents that they have already obtained under a previous public procurement procedure, on condition that such documents are still valid. Finally, a new type of public procurement, the PPI, is created in order to encourage research and innovation in the scope of public procurement. These measures are integrated into the public procurement code and the implementing regulations of Order n° of 6 June 2005 relating to contracts signed by certain public or private entities not subject to the public procurement code.

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