‘Professional bono’ or ‘land and broaden’? — problematic ‘zero-value’ or ‘free’ contracts for digital innovation — Methods to Crack a Nut – Cyber Tech

First, it raises questions on whether or not, whilst a ‘non-procurement’ alternative, this was carried out in a correct approach aligned with greatest follow. An 8-day window to precise curiosity appears very brief, particularly as doubtlessly consultants/consultancies got very restricted info 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 may have been difficult, particularly in such brief time scale, as they contained some points that may have been tough or inconceivable 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 have been very acquainted with 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 doubtlessly interested by 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 beneath procurement guidelines.

Cynically, it’s also not clear what would occur if the present view modified and the Ministry later determined to obtain the additional phases of improvement — for in search of exterior enter already at proof-of-concept stage (strongly) means that the in-house groups wouldn’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 may present the companies for some particular technical / understand how purpose and that might search for use as justification for a direct award. It is a non-trivial danger. 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 totally clear to me that the contract would even have ‘zero-value’ for the consultancy and was thus not likely coated by the procurement guidelines.

The discover makes it clear that the Ministry of Justice would search to retain the data arising from the pilot by sharing it ‘inside inside groups who can keep it up constructing on prime of the deliverables, but additionally with the broader groups that which might be interested by utilizing these new instruments.’ Nonetheless, this doesn’t imply that the consultancy is not going to purchase doubtlessly (nearly) unique rights over the data vis-à-vis third events. There isn’t any indication that the Ministry of Justice will publish the result of the undertaking and, consequently, there appears to be no impediment to the contribution of the Ministry being appropriated and included into the consultancy’s understand how (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 accessible ‘A restricted variety of redacted instance circumstances [to] be used for experimentation’ and that the marketing consultant can be given entry to the Ministry’s then present pondering and experience on the undertaking. These may also be precious non-monetary belongings 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 that means of “for pecuniary curiosity” that these phrases designate a contract by which every of the events undertakes to offer a service in change for an additional’ (IBA Molecular Italy, C‑606/17, EU:C:2018:843, para 28). Whether or not this case—by way of the combo 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 brink and would have required promoting as a ‘procurement’ alternative is a minimum of debatable.

Second, this was clearly all the time 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 on the whole 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 circumstances to justify {that a} very low-cost tender will not be really abnormally low, however within the context of a procurement estimated at a price 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 needs to be in search of to acquire ‘free consultancy’—aside from by way of totally open mechanisms, equivalent to eg hackatons (is that also a factor) or different types of non-procurement competitions.

Which ends up in the associated query why would anybody willingly enter into such a contract? A minimum of a partial rationalization is that the ‘professional bono volunteer’ would probably see a doable market benefit—for there are limitless prospects to hold out professional bono work in any other case. If not on this case, typically the place comparable situations come up, there’s a clear ‘advertising’ drive that may be masked as professional bono generosity. This may simply turn out to be an embedded ingredient of methods to ‘land and conquer’, or to construct a portfolio of professional bono initiatives that’s later used eg to show technical functionality for qualitative choice functions in future procurement processes (with different contracting authorities).

Total, I believe that is an instance of worrying tendencies within the (side-stepping of) ‘procurement’ of digital innovation assist companies, and that such tendencies needs to 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.