There are two objectives that the public administration can be called upon to reconcile and/or integrate in the field of innovation: on the one hand, the interest in developing the innovation ecosystem, territorial or otherwise (the enabling state)[1], also and above all with a view to sustainability (the innovative state)[2] and, on the other hand, the more “narrow” need to provide citizens with services, also and above innovative in themselves, through the market (the state as provider, promoter, or regulator)[3].
With regard to the goal of developing the innovation ecosystem, including the territorial ecosystem, through public administration, it can be said that the legal forms tested, particularly in the context of multi-stakeholder partnerships, are at the “meso” level, i.e. they relate to organic policy objectives. They take the form of “institutionalised” solutions (e.g., foundations) or, more simply, project-based solutions, such as lighter forms of cooperation. At the moment, experiments are and will be carried out across Italy, through specific projects, thanks to the upcoming opportunities for the start of the new 2021-2027 cycle of the European Structural and Investment Funds (ESIF) and the recent adoption of the Green Deal Industrial Plan for the Net-Zero Age, to those in progress, for the implementation of the NRRP, or past ones, such as the Industry 4.0 Plan or the Investment Plan for the deployment of ultra-broadband (Development and Cohesion Fund 2014-2020). One example is the Emerging Technology Houses (Case delle tecnologie emergenti, CTE), funded by the Ministry of Economic Development (now the Ministry of the Economy and Made in Italy) through the Emerging Technologies Support Programme in the context of 5G (Decree of the Ministry of Economic Development No. 110/2019), which is spread throughout the country and is currently in its second call for proposals. They are mainly based on atypical forms of multi-stakeholder public-private partnerships. The experiment of the City of Rome with the CTE Roma Open Lab project is one of these examples, particularly in terms of supporting the diffusion of technological innovation and in an “emergent” key in favour of the needs of the city and the population (SMEs, start-ups or new generations of potential entrepreneurs), involving institutional partners, technicians, big companies and universities. Another innovative experiment is that of the municipality of Reggio Emilia. Thanks in part to the project path initiated with the support of a European grant, EUARENAS.EU, in 2022 the city adopted a Municipal Regulation on Democracy and Urban and Climate Justice, which establishes the Partnership for Sustainable Development and Innovation as an example of an innovative public-private partnership, with a strong and active role for the community, inspired by the principles of sustainable development and fair and equitable transition[4].
These examples thus open the scenario to the more specific objective made explicit in the title: innovation inspired by public demand. In fact, it is the public procurement sector that should be most affected by the processes of adaptation and experimentation, with the aim of providing flexible solutions to innovation processes. In this sense, we can mention the actions carried out by the Agency for Digital Italy (AGID) through the “appaltinnovativi” platform and the SmartXItaly project. The processes mentioned here are at the “micro” level. In fact, individual administrations (even if their aggregation is desirable) use the interface provided to find innovative solutions to specific challenges, with the aim of subsequently initiating administrative processes to conclude contracts with companies. This is not to say that the tools of so-called innovation procurement cannot find a place in the framework of activities to support innovative entrepreneurship (think of the possibility for a start-up that is admitted to a public incubation and acceleration programme in one of the emerging technology houses to be able to win a public contract). In fact, it is through fair and sustainable innovation driven by public demand, and thus using the public procurement market, that the development of the business sector and the goals of sustainable development can be achieved.
However, the narrower the territorial scope of interest, the thinner the line with state aid rules. These elements of flexibility in the solutions tested at the “meso” level, which usually take the form of partnerships (assuming a public-private relationship), must therefore be duly taken into account in order to envisage their integration into the chain of public contracts for innovation within specific projects (the “micro” or “contractual” level), with its risks and opportunities.
There is an urgent need to consider the possibility of composing administrative procedures aimed at meeting complex objectives, such as the two purposes mentioned at the beginning, with the overall aim of promoting innovation through actions for and by public administration. The combination of “public procurement” and “innovation” is, not surprisingly, the subject of special attention by the European Commission in the Europe 2020 Strategy and in the Green Paper “Modernising EU Public Procurement Policy. Towards a more effective European procurement market”[5]. At the same time, it is the partnership dimension that needs to be particularly strengthened, as the European Commission has long since envisaged in the Green Paper “on public-private partnerships and Community law on public procurement and concessions”, which, not surprisingly, distinguishes between “institutionalised” and, more appropriately, “contractual” forms[6].
As is well known, the discipline of public procurement has been in the meantime profoundly revised by Directives 2014/24/EU (in the so-called “ordinary sectors”) and 2014/25/EU (in the so-called “special sectors”), which repealed the previous Directives 2004/18/EC and 2004/17/EC, respectively. One of the objectives of the Directive for the ordinary sectors is to use public procurement strategically to stimulate innovation. Under a new and more comprehensive definition, “innovation” would consist of the implementation of a new or significantly improved product, service, or process, including, but not limited to, production, building or construction processes, a new marketing or organizational method in business practices, workplace organization, or external relations, among other purposes in order to help address societal challenges or support the Europe 2020 strategy for smart, sustainable, and inclusive growth[7]. More recently, the European Commission has adopted new guidelines on Innovation Procurement[8].
As can be understood from the documents referred to above, there is no unambiguous definition of Innovation Procurement. For the European Commission it is possible to count two species, namely, pre-commercial procurement and innovation public procurement, remaining almost a tertius genus the Italian figure of the innovation partnership (partenariato per l’innovazione)[9].
A way forward for a more in-depth study of the subject, therefore, would consist, first of all, in reconstructing the legal framework around public contracts in the field of research and innovation in Italy, in order to delve into individual institutions (first and foremost, pre-commercial procurement and the innovation partnership), including through the analysis of some successful examples (the Municipality of Venice and its experimentation with the innovation partnership[10] or the Apulia Region and its experience with pre-commercial procurement[11]). Moreover, the analysis cannot disregard institutions that are nevertheless classic, such as the competitive procedure with negotiation, competitive dialogue or project financing, but employed in “innovative” ways for the purpose of equally “innovative” needs. The new Code of Public Procurement in Italy has also been approved, an element that is crucial to take into account for such a reconstruction of the regulatory framework. Second, they must be placed within a process (from market consultation to awarding and beyond), differentiating it according to the administration’s level of awareness of its need for innovation, including through “meso” projects already in place. At this level, in fact, the goal of innovative service delivery through the public procurement market is intertwined with the goal of supporting innovative entrepreneurship, precisely through projects (and their potential) such as those related to Emerging Technology Houses.
The challenge for future research in the field is therefore to understand whether and how it is possible for a territorial (or sectoral, such as a health care institution) public administration to include the use of innovation procurement tools, in compliance with the relevant regulatory framework updated to the latest developments, as part of multi-actor actions (and thus complex partnerships) aimed at supporting entrepreneurship, itself, “innovative”. The challenge is also to understand how these projects, both at the meso- and micro-level, can be financially sustainable, as well as legally viable.
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References
[1] On the notion of the enabling state, E. Chiti, La rigenerazione di spazi e beni pubblici: una nuova funzione amministrativa?, in F. Di Lascio, F. Giglioni (eds.), La rigenerazione di beni e spazi urbani. Contributo al diritto delle città, il Mulino, 15 ff.
[2] M. Mazzucato, Lo Stato innovatore, Laterza, 2018; cfr. C. Iaione, Urban sustainable development and innovation partnerships, in Italian Journal of Public Law, n. 2, 2022.
[3] Per una ricostruzione, in chiave evolutiva, F. Bassanini, G. Napolitano, L. Torchia (eds), Lo Stato promotore. Come cambia l’intervento pubblico nell’economia, il Mulino, 2021.
[4] Information available here: https://www.euarenas.eu/ (last access July 2023) and here: https://www.comune.re.it/documenti-e-dati/atti-normativi/regolamenti/regolamento-sulla-democrazia-e-la-giustizia-urbana-e-climatica-a-reggio-emilia (last access July 2023).
[5] COM(2011)15, par. 4.
[6] COM(2004) 327.
[7] Art. 2, Directive 2014/24/UE.
[8] COM(2021)4320.
[9] D. Del Prete, Gli appalti pubblici al servizio delle nuove esigenze. Il partenariato per l’innovazione, in Federalismi.it, n. 18, 2021.
[10] D. Del Prete, Gli appalti pubblici al servizio delle nuove esigenze. Il partenariato per l’innovazione, cit., p. 58.
[11] Regione Puglia, Appalti pubblici per l’innovazione. Capitolato tecnico, si veda qui.