First, it raises questions on whether or not, at the same time as a ‘non-procurement’ alternative, this was carried out in a correct approach aligned with greatest follow. An 8-day window to specific curiosity appears very quick, particularly as probably consultants/consultancies got very restricted data to estimate the scope of works and perceive the associated fee (to them) of supporting the event of the proof-of-concept on a professional bono foundation.
On the identical time, assembly the ‘minimalistic’ choice standards and technical necessities might have been difficult, particularly in such quick time scale, as they contained some points that will have been troublesome or unattainable to satisfy aside from by entities that already met the necessities on the time of the discover (eg acquiring BPSS safety clearance is presumably not instantaneous) and had been very conversant in the open supply and different design requirements referred to.
It doesn’t appear unreasonable to suspect that the Ministry of Justice could have been in prior talks with some firm/ies probably fascinated with offering these professional bono companies and that this created an insider benefit in making sense of the in any other case seemingly inadequate particulars given within the discover. This is able to make a mockery of the commercial of the chance, even when not underneath procurement guidelines.
Cynically, it’s also not clear what would occur if the present view modified and the Ministry later determined to acquire the additional levels of growth — for in search of exterior enter already at proof-of-concept stage (strongly) means that the in-house groups don’t have (confidence of their) digital abilities as required to hold out such digital innovation work.
In that case, an argument may very well be made that solely the consultancy that participated within the proof-of-concept might present the companies for some particular technical / know the way motive and that would search for use as justification for a direct award. It is a non-trivial threat. Even when this was not the case, an extra procurement would create vital problems with prior involvement and would require deploying difficult options to attempt to neutralise the benefit gained by the consultancy. Total, this doesn’t appear to be a fool-proof approach of managing early collaborations in digital innovation initiatives.
Second, and maybe extra controversially, it’s also not fully clear to me that the contract would even have ‘zero-value’ for the consultancy and was thus not likely lined by the procurement guidelines.
The discover makes it clear that the Ministry of Justice would search to retain the information arising from the pilot by sharing it ‘inside inside groups who can stick with it constructing on high of the deliverables, but in addition with the broader groups that which might be fascinated with utilizing these new instruments.’ Nevertheless, this doesn’t imply that the consultancy is not going to purchase probably (nearly) unique rights over the information vis-à-vis third events. There is no such thing as a indication that the Ministry of Justice will publish the end result of the mission and, consequently, there appears to be no impediment to the contribution of the Ministry being appropriated and integrated into the consultancy’s know the way (or future IP).
On shut evaluation of the phrases of the ‘alternative’ marketed by the Ministry of Justice, it’s also clear that the Ministry would make obtainable ‘A restricted variety of redacted instance instances [to] be used for experimentation’ and that the advisor can be given entry to the Ministry’s then present pondering and experience on the mission. These will also be beneficial non-monetary property on their very own.
All in all, that is in itself worrying and raises questions on whether or not this was really a £0 contract (from the angle of the consultancy). Two authorized points are related right here. First, (partly pre-Brexit) ECJ case regulation distinguishes between pecuniary curiosity and financial funds (IBA Molecular Italy and Tax-Fin-Lex), and stresses that ‘It’s clear from the same old authorized which means of “for pecuniary curiosity” that these phrases designate a contract by which every of the events undertakes to offer a service in alternate for an additional’ (IBA Molecular Italy, C‑606/17, EU:C:2018:843, para 28). Whether or not this case—by way of the combination of entry to anonymised examples, entry to in-house know-how and risk to retain know-how over the proof-of-concept and associated studying vis-à-vis third events—crosses the edge and would have required promoting as a ‘procurement’ alternative is at the very least debatable.
Second, this was clearly at all times going to be a ‘loss’ contract for the ‘professional bono volunteer’, and the truth that it’s marketed as ‘professional bono’ solely masks the truth that the Ministry (a contracting authority usually phrases) imposed on tenderers a requirement to submit abnormally low tenders. This raises questions on ‘combined professional bono’ justifications that may very well be put ahead in different instances to justify {that a} very low-cost tender just isn’t really abnormally low, however within the context of a procurement estimated at a worth above the related threshold. Such justifications would in precept appear impermissible and, extra typically, there are very huge questions as to why the general public sector must be in search of to acquire ‘free consultancy’—aside from by way of totally open mechanisms, akin to eg hackatons (is that also a factor) or different kinds of non-procurement competitions.
Which results in the associated query why would anybody willingly enter into such a contract? Not less than a partial rationalization is that the ‘professional bono volunteer’ would probably see a doable market benefit—for there are countless potentialities to hold out professional bono work in any other case. If not on this case, usually the place related situations come up, there’s a clear ‘advertising and marketing’ drive that may be masked as professional bono generosity. This may simply turn out to be an embedded factor of methods to ‘land and conquer’, or to construct a portfolio of professional bono initiatives that’s later used eg to reveal technical functionality for qualitative choice functions in future procurement processes (with different contracting authorities).
Total, I believe that is an instance of worrying developments within the (side-stepping of) ‘procurement’ of digital innovation help companies, and that such developments must be resisted. Solely correct procurement processes and strong guardrails to safeguard from the dangers of seize, aggressive distortion and extra typically long-term difficulties in guaranteeing aggressive pressure for digital innovation contracts, can minimise the results of preparations that appear too good to be true.
