I part: Creative agencies in Estonia about public procurement: is it now time for technocrats to shine?

Ten years ago, there was an eternal valley of trouble with public procurement. Creative agencies were put to work, luring them with “juicy” projects, encouraging them to do attractive creative works, as if to check if they still knew how to do their job. And there was a cry from the workers’ camp: the state wants the idea without money!

From the point of view of the managers of Estonian creative agencies, this was, of course, perceived as injustice

Participation in public tenders requires too much free work, and the process of selecting the winner is often not transparent. However, the state is one of the biggest clients of creative works and a significant breadwinner for the entire industry.

Public tenders in the field of advertising often show the superficiality of the client. Procurement managers take the process as the preparation of comparative quotations. In fact, a detailed campaign must be proposed, starting from the idea to the execution and cost. Such thoroughness requires energy, time, and financial expenditure, which, if lost, turns out to be free work.

Ideas and a specific vision are asked, but without being compensated. But the idea has the greatest value in the world of advertising. Formal solutions of the campaigns are the object of copyright protection, as of now, conceptual solutions do not have this value.

Competitions often lack unambiguous evaluation criteria. Although evaluation as such is always a subjective phenomenon, it is the duty of the competition organizer to reduce the degree of subjectivity. In some tenders, the offers differed by 15-20(!) times both in terms of content and cost.

Bidders often do not receive sufficient feedback on the evaluation results: on the basis of which the winner was selected, why the evaluation was done in one way or another. In other words, the results of procurement should be justified and public.

Alongside the criticism, a series of proposals were put forward to alleviate the dissatisfaction. For example:

Still in order to ensure faster, easier and more competent procurements. Together, it was stated that the procurement of creative work is not a purchase of paper clips.

Where have agencies reached today with the delivery of creative ideas for public procurement?

In the field of design and communication, there are still daily tenders by respected state offices, where the tender maker expects the participants to do a lot of creative work without getting paid within the framework of the competition. It is difficult to evaluate them, because they are from wall-to-wall, let’s give an example:

“The tenderer submits a concept of a creative solution, which includes at least five creative examples and visual sketches”, “the task of the trial work is to create a new design solution for an existing application”, while “the work performed as part of the tender submission is not remunerated”, “the procurer does not have the possibility to pay for the trial work”, “participation in the competition paying a fee for is not justified”, – these are real quotes from the correspondence held in the Register of State Procurement during the last few weeks.

However, idle work is only one side of the story. The other half of the matter is the gnawing of the spirit. The supplier is widely complained about. Competitions are often organized from a subjective point of view, without sufficiently describing the starting situation, without clearly defining the context of the problem – need, and without defining the specific task. Which gives the impression that they don’t want to take responsibility and which in turn leaves the providers in an unequal position.

Law firm Sorainen’s position on the situation of creative agencies and public procurement

At the recent public procurement seminar organized by law firm Sorainen, the entire procurement context was summarized in such a way that the obligation to ensure compliance with the regulations and principles of public procurement rests with the procuring entity. The provider does not have a general duty of care in this process. Shortcomings of the supplier’s activities in any respect cannot be attributed to the supplier. And if the procurer has violated this obligation, the violation of the provider’s duty of care cannot be analyzed.

Lawyer Mario Sõrm from Sorainen says: “If the criteria set by the procurer are completely subjective (by the way, this is not prohibited!), then of course it is difficult for the procurer to objectively evaluate the bids, but it is also difficult for the bidder to dispute objectively”.

In court practice, it has recently been argued that in the case of such evaluation decisions, within which there are many subjective conditions, the procurer must provide a lot of reasons, but the control of the administrative body (dispute commission or court) may be limited to the so-called obvious error test. In other words, whether the procurer has made a decision based on considerations that are relevant, without going into the details of the consideration.

Interim summary

Yes, public procurement is inherently complex and requires all the more dedication to ensure a fair and efficient procurement process and avoid potential legal issues. However, we experience first-hand unprofessionalism and “winning”, constantly hearing complaints from the organizers that someone has been favored in an obviously in a biased way.

To be continued…

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