Något om det nya innovationspartnerskapet - En innovativ upphandlingslagstiftning?

Sammanfattning: Public procurement of innovative goods, services and works leads to better use of public funds, that solutions to societal problems can be developed, and overall economic growth by generating new ideas and translating them into innovative products and services. Against this background, Directive 2014/24/EU introduces several novelties designed to allow for strategic use of public procurement to stimulate innovation. One of these novelties is a new award procedure – the innovation partnership. The purpose of this thesis is to examine how the new innovation partnership affects the possibilities to procure innovations. The thesis examines the possibilities of procuring an innovation in accordance with applicable law. Firstly, the thesis examines when and how the special award procedures, the competitive dialogue and the negotiated procedure with prior notice, can be used to procure an innovation. The competitive dialogue appears to be particularly well suited for this purpose. An alternative method for authorities that wants to procure an innovation is to use the pre-commercial procurement (PCP). Through a PCP the authorities can procure a research and development service, which aims at the development of an innovative solution, outside the scope of the public procurement legislation. However, the result from the PCP has to be acquired through a separate public procurement. The innovation partnership gives authorities an opportunity to procure both the development of an innovative solution, and the subsequent purchase of the resulting product, in a single tendering process. Further, the innovation partnership is the first award procedure that governs both the award of a contract and the contractual relationship for the awarded innovation partnership contract. The thesis examines the different phases of an innovation partnership: the selection and award phase, the developmental phase and the purchase phase. The thesis’ analysis considers inter alia how the innovation partnership relates to the possibilities provided in the applicable law for procuring an innovation. It is clear that the innovation partnership solves the problems, which resulted from the absence of a legal link between the PCP and the commercial procurement. However, the Directive’s provisions on innovation partnerships can be criticised in some respects, since they establish high demands but provides poor guidance on how the authorities in practice should live up to these demands. The innovation partnership should not be seen as the sole procurement procedure that can be used for procuring innovations. For example, if the authority seeks an innovation in a short time frame, with a lower degree of innovation, it may be more appropriate to apply one of the award procedures competitive dialogue or negotiated procedure with prior notice.