Public sector procurement, technological innovation and open data: towards open purchases

Public procurement represents around 20% of GDP in Spain and, therefore, it is a sector in which transparency plays a doubly important role: on the one hand, because it is an essential mechanism to facilitate the effective control of public spending and, secondly, to the extent that it is an essential boost to increase competition on the part of companies interested in participating in tendering processes.

In this sense, the current legal regulation of public sector procurement  includes, as essential principles, the use of Internet to facilitate access to tenders, publicity and transparency of procedures, as well as non-discrimination and equality among candidates. Specifically, since 2007, legislation in the area of ​​public procurement has promoted the implementation of tools such as the contractor profile and the public sector procurement platform, sponsored by the General Government Administration, which integrates information from numerous public entities. This has led to an important step forward in that a large volume of information of great relevance to tenderers has been made available electronically.

Furthermore, it is essential to carry out a systematic, joint interpretation of the various rules governing transparency and access to information in this area, since otherwise there is a risk of an excessively fragmented view of the applicable legal framework. Indeed, public procurement law focuses on the aspects relating to the awarding procedure used and the identity of the successful tenderer, as well as the amount and duration of the contract. On the other hand, transparency legislation has reinforced the use of electronic means in the dissemination of information relating to a later point in the contractual cycle, that is, the execution of the contract, in such a way that requires that transparency portals should divulge the number of tenderers who have participated and the modifications of the contract, together with incidents related to withdrawal and renunciation by the successful tenderers.

The regulatory duality referred to also implies a plurality of diffusion instruments - contractor profile, contracting platform and transparency portal -, which implies an added difficulty and obliges Public Administrations to make an additional effort at coordination centered on the requirements of interoperability based on technical, legal and organizational standards that facilitate interconnection between the various information sources. Moreover, in addition to the above requirement, it is essential that when considering data openness, public entities should consider the whole cycle of contractual management as a single unit, which implies taking into account not only the legal insufficiencies of information as regards the adjudication phase - minor contracts, identity of unsuccessful tenderers and their economic proposals, unit prices of goods, possible recklessly low bids ... - but also, later, those relating to the implementation of the contract - subcontracting, extensions, supplementary benefits... -. In other words, regardless of whether the new regulation accepts this approach or not, a real, effective commitment by public entities is essential beyond what is established in the legal provisions.

In this line and despite these shortcomings, there are important examples that not only seek to overcome the restrictive vision of the legislator  by addressing several of the aforementioned dysfunctions, but also offer a recognized and alternative model of transparency, thus demonstrating that effective commitment for a truly open contracting project is more powerful than any pretended regulatory hurdle. However, in addition to the fact that initiatives must be based on advanced, interoperable technical parameters that specifically refer to the field of public procurement, the effective commitment to an open model of public procurement requires commitment to a broader perspective encompassing all types of standards and, therefore, adopting a more consistent view.

This approach can only be addressed if the requirements of the Open Government are taken into account. Consequently, above and beyond the simple technological modernization of public procurement management under the eGovernment reform, it is imperative to strongly encourage a new open purchasing model, in which the perspective of technological innovation in access to information plays an essential role. Only in this way can the collaboration of the private sector be encouraged with the development of tools that offer an undeniable added value, either from the perspective of the business environment or from that of civil society. This has already demonstrated its maturity in strengthening transparency in the area of ​​public procurement, both in relation to the most relevant contractual modality from the perspective of public expenditure, as well as, more generally and more recently, offering an interesting tool that is destined to become an indisputable reference even in the international arena.

In short, based on these key points the challenge of transparency in public procurement has to be faced while taking into account the current requirements of technological innovation, so that it will no longer continue to be one of the great future challenges when definitively addressing its modernization. It is therefore necessary to promote a decisive advance in this area where, despite their enormous economic potential and precisely because of this, the problems of coordination of the various agents can discourage the availability of information in the right conditions. Only through a decisive legislative impulse will it be possible to move from mere publicity and transparency by electronic means as a requirement of strict "normative compliance" to an open public purchase scenario based on technological innovation. Let us hope that the parliamentary process of the bill that is being processed in Congress will help clear the doubts and overcome the deficiencies that make this important challenge difficult.