Monthly Archives: May 2015

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The “IP” challenge……..

Earlier this week, I was speaking with one of our legal advisers – it was there year end and we were discussing invoicing.  Nothing unusual about that.  What followed however was almost like one of those genuine lightbulb moments where you actually start to question just exactly what on earth we are all trying to achieve.  Particularly those of us who have spent many years developing professionally to ensure that the advice we provide is sound and of course provides surety around the outcome.

Anyway, to cut a long story short, our discussion turned from a practical business based discussion to a discussion about how the implementation of the new public procurement regulations was going. It is always interesting to hear the difference in opinion between a legal and technical procurement perspective – not least as both should actually work seamlessly together.  Their challenges are slightly different to ours in the implementation of the new regulations.  Theres is generally one of clients seeking reassurance that their ‘legal’ aspects are present and correct and ours one of ‘how do I implement this practically’……this is why it can be very important to appoint technical & legal procurement teams who work well together – we know from experience the cost savings can be rather phenomenal as both are working to the best interest of the client.

A little altruism aside, our discussion turned very quickly to the hottest topic around……..availability of procurement documentation at the start of a procurement process.  What does this really mean?  There are a variety of interpretations (sorry, read opinion!):-

  1. You should have all documentation, for every procurement stage available immediately
  2. You should have the documentation appropriate to the stage being conducted immediately available
  3. You should just do nothing…….carry on as previous and hope nobody notices

I don’t genuinely think (3) is an option!  However, the discussion got a little heated at this point.  I made 3 points, all of which were countered (devils advocate style of course):-

Q: Why is it relevant to have other stage information available at procurement commencement?  

A: It may assist someone with their decision making around whether to participate or not in a tender process

Q: Why bother with 2 stages if you are going to have everything ready simultaneously?

A:  Good point and possibly something Crown Commercial Service are trying to encourage, an overall reduction in Pre-Qualification stage to encourage smaller suppliers to participate

Q: What about my intellectual property?

A: Ehm………

Now, my learned friend is not often stuck for words but I seemed to have prompted a thought process that was not necessarily a simple one to overcome.  I’m not particularly happy with the thought that all tender documentation could be available openly in the marketplace.  Let’s put this into perspective.  Your client purchases a service from their professional advisors which includes production of:-

  • Specifications
  • Service Descriptions & Requirements
  • Contract Suite(s)
  • Compliant procurement procedural documentation
  • etc etc

It is then duly placed on an appropriate e-procurement solution and is then available for the world to see…….

Where does this leave Intellectual Property?  How can you prevent copying of these highly prized documents?  Are we going to see a rash of people who ‘suddenly’ have the technical expertise to “write compliant specifications”?  Will we see an upsurge in consultants checking frantically document properties?  Is there going to be a requirement to protect documentation to prevent forwarding/copying etc. ?

And so…….a challenge was set as follows:-

I wonder what you can locate if you spend an hour trawling OJEU……and so, in the last week of May, I’m going to do exactly that! 60 minutes starts now…….update early next month!