Procuring Innovative Technology: Key considerations for contracting authorities and suppliers

Published 19 February 2020

To many people, “public sector” is not synonymous with “innovative”; a descriptor often reserved for private businesses which are expected to be pioneers in the adoption of state-of-the-art tech. Nevertheless, at DAC Beachcroft, we have seen a considerable upturn in the interest of our public sector clients in neoteric technologies that can be used effectively in the public interest across a multitude of sectors.

As we move into an increasingly digital world, the need for public sector entities to embrace the use of novel and innovative technologies in order to help maximise productivity, reduce costs, and engage with the public in new and more effective ways, is inevitable. However, as is to be expected, the successful procurement of technology has its own collection of potential complications. We have outlined some of the more common issues and questions we see below, with some key tips for contracting authorities (“Authorities”) and suppliers to apply when considering running, or bidding for, a tech contract opportunity.

1. What problem is the Authority trying to solve?

As the adage says, there is more than one way to crack an egg; yet it is not unusual for a Authority to focus on the solution it thinks it needs when planning its procurement, rather than the challenges that it faces. This approach inherently brings risk to the procurement and increases the possibility of unconscious bias affecting the compliance and effectiveness of the process, which can result in the Authority:

• defining specifications and requirements too narrowly, which risks artificially narrowing competition and limiting innovation;
• ignoring potentially excellent novel solutions in favour of more widely used or well established solutions that work “as expected”;
• not adequately providing for development during the term of the contract, favouring increased certainty of an off-the-shelf solution instead.

All of these factors serve to limit the potential pool of suppliers and the spread of innovative solutions available. They could also put the procurement at risk of a successful legal challenge.

To mitigate this, Authorities can focus the procurement on the challenge itself, rather than an anticipated solution. By presenting a problem and asking suppliers for their proposals, an Authority can open the field to truly innovative solutions that may not otherwise have been considered as options. In turn, if a supplier’s aim is to introduce novel technology to the market, they should look to bid for opportunities which allow them to showcase their ability to innovate and work with the Authority to solve a specific problem, rather than simply provide a one-size-fits-all solution.

2. Frameworks, and Technology Lifespan

Often, Authorities procuring technology will make use of the many public sector framework agreements (“Frameworks”) available, which are established by a single Authority (the “Framework Authority”) but give multiple Authorities access to a pool of pre-procured suppliers. Frameworks provide excellent market exposure for technology providers, and are an effective way for Authorities to appoint a suitably qualified supplier quickly and efficiently.

A Framework may run for up to four years, so it is not unusual to see state-of-the-art technology become out-dated, or even obsolete, within its term. To mitigate the risk of being locked into contracts for antiquated technology, Authorities and suppliers should consider:

• Frameworks which include an appropriate “refresh” programme, which allows the Framework Authority to periodically re-procure the appointed suppliers for specific lots of the Framework, and as a result, allows the refresh of obsolete technology in favour of more modern solutions during the term; and
• in the absence of Frameworks that permit a refresh, Frameworks which have been more recently established, giving comfort that the offerings are up-to-date and have the potential to be longer lasting.

Framework Authorities should also consider the use of lots when setting up a Framework, which can effectively open competition directly to SMEs and scale ups, allowing them to provide progressive solutions directly to Authorities individually or in conjunction with larger suppliers of market-standard technology, where they may otherwise have been restricted due to limited financial standing or lack of market experience.

3. Key practical concerns

As in any contract, there are numerous factors to consider in a technology agreement, particularly in the public sector space which is subject to additional legislation in the public interest. Therefore, the Authority must satisfy itself that the supplier is not only able to supply novel and fresh technology, but is also able to adequately support the Authority in its compliance with such public sector responsibilities. These obligations should be clear at the outset of the procurement and give tenderers the opportunity to showcase their strategies in relation to, for example:

• data protection, security, and compliance with information law (such as the Freedom of Information Act 2000 and the Environmental Information Regulations 2004);
• implementation and exit assistance;
• development of the offering during the term, including technology refresh as applicable;
• training and knowledge transfer for the benefit of non-technical staff;
• business continuity and disaster recovery;
• understanding the need for public benefit;
• limitations of existing hardware and/or software in the Authority; and
• applying appropriate ethical frameworks and policies (particularly where the procurement considers the application of AI).

To help inform this process, Authorities should make use of market engagement prior to going to tender to ensure it designs a Framework or contract which is fit for purpose. In addition, suppliers should make the most of the allotted timeframe for raising clarification questions to ensure they fully understand the Authority’s needs in order to better prepare their tender.

If you have any queries on this article, technology contracts, or procurement more generally, please feel free to contact us.