contratación pública

The regulatory approach in the European Union has taken a major turn since the first regulation on the reuse of public sector information was promoted in 2003. Specifically, as a consequence of the European Data Strategy approved in 2020, the regulatory approach is being expanded from at least two points of view:   

• on the one hand, governance models are being promoted that take into account the need to integrate, from the design and by default, respect for other legally relevant rights and interests, such as the protection of personal data, intellectual property or commercial secrecy, as has happened in particular through the Data Governance Regulation;   

• on the other hand, extending the subjective scope of the rules to go beyond the public sector, so that obligations specifically aimed at private entities are also beginning to be contemplated, as shown by the approval in November 2023 of the Regulation on harmonized rules for fair access to and use of data (known as the Data Act). 

In this new approach, data spaces take on a singular role, both in terms of the importance of the sectors they deal with (health, mobility, environment, energy...) and, above all, because of the important role they are called upon to play in facilitating the availability of large amounts of data, specifically in overcoming the technical and legal obstacles that hinder their sharing. In this regard, in Spain we already have a legal provision in this regard, which has materialized with the creation of a specific section in the Public Sector Procurement Platform.  

The Strategy itself envisages the creation of "a common European data space for public administrations, in order to improve transparency and accountability of public spending and the quality of spending, fight corruption at both national and EU level, and address compliance needs, as well as support the effective implementation of EU legislation and encourage innovative applications". At the same time, however, it is recognized that "data concerning public procurement are disseminated through various systems in the Member States, are available in different formats and are not user-friendly", concluding the need, in many cases, to "improve the quality of the data". 

Why a data space in the field of public procurement?  

Within the activity carried out by public entities, public procurement stands out, whose relevance in the economy of the EU as a whole reaches almost 14% of GDP, so it is a strategic pole to boost a more innovative, competitive and efficient economy. However, as expressly recognized in the Commission's Communication Public Procurement: A Data Space to improve public spending, boost data-driven policy making and improve access to tenders for SMEs published in March 2023, although there is a large amount of data on public procurement, however "at the moment its usefulness for taxpayers, public decision-makers and public purchasers is scarce".  

The regulation on public procurement approved in 2014 incorporated a strong commitment to the use of electronic media in the dissemination of information related to the call for tenders and the awarding of procedures, although this regulation suffers from some important limitations: 

• refers only to contracts that exceed certain minimum thresholds set at European level, which limits the measure to 20% of public procurement in the EU, so that it is up to the States themselves to promote their own transparency measures for the rest of the cases;  

• does not affect the contractual execution phase, so that it does not apply to such relevant issues as the price finally paid, the execution periods actually consumed or, among other issues, possible breaches by the contractor and, if applicable, the measures adopted by the public entities in this respect;  

• although it refers to the use of electronic media when complying with the obligation of transparency, it does not, however, contemplate the need for it to be articulated on the basis of open formats that allow the automated reuse of the information. 

Certainly, since the adoption of the 2014 regulation, significant progress has been made in facilitating the standardization of the data collection process, notably by imposing the use of electronic forms for the above-mentioned thresholds as of October 25, 2023. However, a more ambitious approach was needed to "fully leverage the power of procurement data". To this end, this new initiative envisages not only measures aimed at decisively increasing the quantity and quality of data available, but also the creation of an EU-wide platform to address the current dispersion, as well as the combination with a set of tools based on advanced technologies, notably artificial intelligence. 

The advantages of this approach are obvious from several points of view:   

• on the one hand, it could provide public entities with more accurate information for planning and decision-making;   

• on the other hand, it would also facilitate the control and supervision functions of the competent authorities and society in general;   

• and, above all, it would give a decisive boost to the effective access of companies and, in particular, of SMEs to information on current or future procedures in which they could compete. 

What are the main challenges to be faced from a legal point of view?  

The Communication on the European Public Procurement Data Space is an important initiative of great interest in that it outlines the way forward, setting out the potential benefits of its implementation, emphasizing the possibilities offered by such an ambitious approach and identifying the main conditions that would make it feasible. All this is based on the analysis of relevant use cases, the identification of the key players in this process and the establishment of a precise timetable with a time horizon up to 2025.  

The promotion of a specific European data space in the field of public procurement is undoubtedly an initiative that could potentially have an enormous impact both on the contractual activity of public entities and also on companies and, in general, on society as a whole. But for this to be possible, major challenges would also have to be addressed from a legal perspective: 

Firstly, there are currently no plans to extend the publication obligation to contracts below the thresholds set at European level, which would mean that most tenders would remain outside the scope of the area. This limitation poses an additional consequence, as it means leaving it up to the Member States to establish additional active publication obligations on the basis of which to collect and, if necessary, integrate the data, which could pose a major difficulty in ensuring the integration of multiple and heterogeneous data sources, particularly from the perspective of interoperability. In this respect, the Commission intends to create a harmonized set of data which, if they were to be mandatory for all public entities at European level, would not only allow data to be collected by electronic means, but also to be translated into a common language that facilitates their automated processing. 

Secondly, although the Communication urges States to "endeavor to collect data at both the pre-award and post-award stages", it nevertheless makes contract completion notices voluntary. If they were mandatory, it would be possible to "achieve a much more detailed understanding of the entire public procurement cycle", as well as to encourage corrective action in legally questionable situations, both as regards the legal position of the companies that were not awarded the contracts and of the authorities responsible for carrying out audit functions. 

Another of the main challenges for the optimal functioning of the European data space is the reliability of the data published, since errors can often slip in when filling in the forms or, even, this task can be perceived as a routine activity that is sometimes carried out without paying due attention to its execution, as has been demonstrated by administrative practice in relation to the CPVs. Although it must be recognized that there are currently advanced tools that could help to correct this type of dysfunction, the truth is that it is essential to go beyond the mere digitization of management processes and make a firm commitment to automated processing models that are based on data and not on documents, as is still common in many areas of the public sector. Based on these premises, it would be possible to move forward decisively from the interoperability requirements referred to above and implement the analytical tools based on emerging technologies referred to in the Communication. 

The necessary adaptation of European public procurement regulations  

Given the relevance of the objectives proposed and the enormous difficulty involved in the challenges indicated above, it seems justified that such an ambitious initiative with such a significant potential impact should be articulated on the basis of a solid regulatory foundation. It is essential to go beyond recommendations, establishing clear and precise legal obligations for the Member States and, in general, for public entities, when managing and disseminating information on their contractual activity, as has been proposed, for example, in the health data space.  

In short, almost ten years after the approval of the package of directives on public procurement, perhaps the time has come to update them with a more ambitious approach that, based on the requirements and possibilities of technological innovation, will allow us to really make the most of the huge amount of data generated in this area. Moreover, why not configure public procurement data as high-value data under the regulation on open data and reuse of public sector information? 

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.