The Innovative Purchasing

Today’s topic: public procurement!

Since the articles on this blog are rather cybersecurity oriented, this subject is quite different from what we usually publish. But before you close your browser thinking, “Yuk, public law!”, be patient! We didn’t change our professional activity, so cybersecurity will still be at the heart of this article. For those of you with a (public) law phobia, just hang in there, you might take an interest in this article.

Before you go any further in this article, I’m telling you beforehand: this subject is about a French law that came into force a few months ago. So, unless you’re interested in French law (or if you didn’t click on the French flag at the top of this page), this article might not apply to you.

As usual, some context…

If you happen to read the legal articles on this blog, you know the drill: a fascinating subject sugar-coated with some context.

You may not know it, but the French Public Procurement Law has undergone a real revolution, which went totally unnoticed to the rest of the world. Well, the word “revolution” may be exaggerated, but I need to make this topic appealing.

Anyway, on April 1^st, 2019, the French Public Procurement code was fully abrogated and traded off for a new code: the Public Order code.

Even though the new name isn’t a game-changer, some lawyers specializing in public law were tingly to witness another public procurement spring cleaning… just like in 2015, 2016 and 2017. Surprisingly, 2018 was almost spared by these reforms. The government probably realized that, so they made up for that just before Christmas, by publishing the current reform on the French Official Journal.

This umpteenth reform was intended to “do up” the Public Procurement Law to keep up with the times, and yadi-yadi-ya… Always the same tune every time they change something in the Public Procurement Law.

One of the most interesting novelties was that the government were willing to gather all the public procurement regulations into one single code! Before that, the legislations used to be scattered, so if you were looking for a specific regulation, it turned out to be a real headache. Therefore, the reform was the chance to put an end to this legislative mess.

It was almost a praiseworthy intention… until the government fell right back into their old ways. Indeed, just before being on their way to buy a Christmas turkey, the government published a new decree about the innovative purchasing experiment.

The innovative purchasing experiment, an unnoticed decree

For some reason, the innovative purchasing experiment was not codified within the new Public Order code. The decree was probably published after a Christmas Yule log, then the implementation order came out after the holidays… right when people got other priorities than reading the Official Journal.

So put down your Public Order code because this text is not codified in it. It was just discreetly published on Légifrance (a French website on which you can read the Official Journal).

Despite this non-codification within the new Public Order code, the law remains enforceable for any procurement! You’ll just need to be more curious and read other legal sources.

“So, spill the beans, what’s the text all about?”

If you don’t know anything about public procurement law, here’s the axiomatic principle: for any public procurement under €25,000 excluding tax, no advertising or open competition is required. Of course, there are some exceptions to this rule, but generally, that’s how public procurement works. Beyond this amount, the buyers must follow strict rules, particularly about the open competition between each candidate and the advertising that they must publish on the French BOAMP or the OJEU (Official Journal of the European Union).

As you may have understood, these strict rules take a lot of time for the public sector and slow down the procurement proceedings. If your company is in urgent need of something, the competition and advertising may be a real liability.

To save some time at every level, whether regarding public procurement or regarding your internal organization, the innovative purchasing experiment can make it all easier for you!

According to the decree, an innovative solution is considered as “any work, provision or any service which is new or perceptibly improved”. More precisely, this innovation must consist in “implementing new processes for producing or constructing, a new commercialization method or a new organizational method in the way of working, the workplace organization or the external relationships outside the company.”

More specifically, the innovation must bring something new to the organization in order to work more efficiently. The definition is broad enough to not restrict the buyers in their choice of an innovative solution.

“That’s great! So that means that I have an unlimited budget?”

Hang on! Even though this experiment seems wonderful at first, there are some restrictions.

Indeed, the innovative purchasing must be between €25,000 and €100,000 excluding tax. Beyond this amount, the “regular” public procurement rules apply.

Even if a prior open competition and advertising are not required for the public body, there are still two mandatory rules:

• The first rule is to make the purchase as a “responsible manager.” It means that you have to choose a relevant offer and ensure the appropriate use of public funds. Well, to this point, no need to belly dance, this obligation applies to every public procurement.
• The second rule is more “groundbreaking” (again, I use big words to make the subject interesting): an obligation of declaration to the OECP. This authority aims to verify the public procurement regularity and that all the procedural rules have been applied for the procurement. For the duration of the experiment, the public body must send any necessary data to the Minister of the economy in order to draw up a report to the Prime Minister.

In short, if the experiment turns out to be “groundbreaking” enough for the public body, the solution could be permanent.

And what about cybersecurity?

If you read this article up to this point, congratulations, the worst part’s over. Now, we can go back to the main subject of this blog: cybersecurity.

So, I know what you’re eagerly wondering: “What’s the relationship between cybersecurity and public procurement?”. With public procurement, there’s actually no relationship. But with innovative purchasing, it makes sense! Indeed, what’s more innovative than digital technology?

Since cyberattacks happen more and more frequently, data security is becoming a real issue, especially for public bodies! Moreover, the latter must comply with the GDPR and the NIS directive, all the while avoiding the traps of the CLOUD Act. Therefore, whether on an organizational or on a legislative level, public bodies cannot shrug off cybersecurity anymore.

Thanks to the innovative purchasing experiment, it’s now easier for public bodies to get cybersecurity protections. No more competition or advertising!

The innovative purchasing experiment would get you to comply with different regulations or European directives requiring strong security measures. As a reminder, the non-compliance with the NIS directive can cost you a £17,000,000 fine. As for the GDPR, the fine is even heavier: €20 million or 4% of your annual turnover (the highest amount will be applied to you). Therefore, you have to get innovative solutions to comply with all these legal obligations, and continue working in complete safety.

Don’t worry, we can help you!

If you’re interested in our innovative solutions, try the HTTPCS by Ziwit cybersecurity solutions. Thanks to our offers, you’ll have solutions to secure your data and identify any security breach. Our plans perfectly fall into the category of innovative purchasing because we provide a technology that can improve your working and organizational techniques.

Therefore, before getting into a lasting and difficult procurement, try out our offers as an experiment for your organization!