Is innovation in the provision of services and public procurement an opportunity to boost of open data?

The public procurement reform that has taken place in Europe has incorporated innovation as a new public policy that must be promoted through contractual tools. Although innovation can be understood as a concept that is difficult to pinpoint, the Directive 2014/24 / EU has incorporated a legal definition that helps to define it by indicating that it corresponds to the

introduction of a new or significant product, service or process including, but not limited to, production, building or construction processes, a new marketing method, or a new method of organising business practices, workplace organisation or external relations, among others, with the aim of helping to solve societal challenges or supporting the Europe 2020 Strategy for smart, sustainable and inclusive growth.

Innovation in the delivery of services is one of the main challenges currently faced by public entities, especially with regards to the advanced use of technology. In this respect, the release of the data held by them can give companies and society in general the incentive necessary to offer new services or, if necessary, to improve existing ones by offering innovative delivery modalities based on technological innovation.

Moreover, in the context of Open Government, collaboration is one of the pillars on which public policies must be sustained, along with transparency and participation. Consequently, the promotion of open data makes it possible for the private sector to consider collaborating to meet public needs from a new perspective by offering advanced services that focus on data from the public sector.

However, to the extent that such services require public funding, an unexpected difficulty arises which ultimately disincentives the spontaneous predisposition of reusable agents: the need to proceed with the processing of a procurement procedure which, by legal requirement, must be based on the principles of publicity and competition. In this scenario, the reluctance to participate in a competitive and formalised procedure may end up becoming a definitive barrier that, after all, hinders - when it does not directly impede - suggestive and disruptive ideas based on the reuse of public information being converted into innovative services that contribute significant added value.

There are formalised instruments such as the so-called public procurement of innovation solutions (PPI) , which can be of great help in promoting new services based on the release of data from public entities, especially taking into account the interpretative guidelines and criteria that have been issued from the within the EU and by the General State Administration and, also, through the most specialised doctrine on public procurement.

The flexibility demanded by the collaboration inspired by the principles of Open Government needs a broader vision that not only takes this instrument into account but also, in general, the use of the various non-bid contract procedures - with all their legal guarantees, of course, to avoid unacceptable abuses - and, above all, an intelligent promotion action that does not only contemplate economic incentives in the form of direct subsidies. Always bearing in mind that, as it has sought to ensure after the reform of the European Directive on Reuse in 2013 and Spanish legislation in 2015, exclusive agreements will only be admissible under very exceptional circumstances.