One of my former student's from Bangor pinged me on Facebook yesterday, inquiring how many candidates were needed for a innovation partnership. He pointed out that in my commentary to Regulation 31 I argued that only a single supplier is needed for the procedure to run from start to finish, but Regulation 65 on the other hand mandates that the minimum number of candidates on an innovation partnership is at least 3. Roman, you have a point...
My original argument was based on paragraph 4 of Regulation 31 and paragraph 1 of Article 31 of Directive 2014/24/EU. Both read as follows:
"The contracting authority may decide to set up the innovation partnership with one partner or with several partners conducting separate research and development activities."
The way I interpreted this paragraph was that "to set up the innovation partnership" meant "setting up the innovation partnership procedure" although this last word is not present there. My reasoning was compounded by last bit of the paragraph "conducting [...] research and development activities" which I interpreted (and still do) as referring to the procedure and not the outcome. The outcome of the innovation partnership is the procurement of the goods/services developed during the innovation partnership procedure.
Furthering my conviction that the innovation partnership procedure could be done with a single provider from the start, on Directive 2014/24/EU the sentence cited above is part of paragraph 1. In addition to that bit, paragraph 1 covers a number of different elements relevant at the start of the innovation partnership procedure:
- How economic operators can take part in the procedure;
- Information that needs to go into the procurement documents;
- Minimum time limits for request to participate;
None of these is relevant for the outcome of the procedure. It is true however, that the final sub-paragraph of paragraph 1 states that "Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 65"
Regulation 65 (and Article 65, albeit with a slightly different drafting) establishes:
(1) In [...] innovation partnerships, contracting authorities may limit the number of candidates meeting the selection criteria that they will invite to tender or to conduct a dialogue [...].
(4) In the [...] innovation partnership procedure, the minimum number of candidates shall be 3.
Regulation/Article 65 is clear about the need to have at least 3 candidates in innovation partnerships.
How can we render compatible both provisions then? From the top of my head the only solution coming to mind is to consider that Regulation/Article 31 does not refer to the innovation partnership procedure but only to its outcome. But if that is the case, the drafting is slightly odd and looking into the French version did not leave me any more convinced. Furthermore, if the purpose of that sentence was to refer to the innovation partnership outcome, why on earth would it come in the middle of various other sentences all of them referring to the start of the innovation partnership procedure?
Neither my original solution or this proposal feel right to me. Any thoughts?