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Legal issues to bear in mind when introducing technology into the provision of a public service
It is clear that the impact of technology on the design, roll-out and control of the provision of public services related to the environment is highly significant and is becoming increasingly more so. Indeed, it is currently impossible to conceive of providing a public service without technology playing a key role in how it is actually provided. Whether the service involves collecting household waste, supplying water or treating waste water, to name a few, technology forms an inseparable part of the relationship established between the government, the service provider – if the government does not provide the service itself – and the citizen receiving the service.
For these purposes, technology is an essential resource in the different phases of roll-out of the service and also in the structuring of the relationships between the government, the service provider and the citizen. It will therefore be integrated into the organizational and contractual arrangements that define the specific way in which the service is provided, and it will also determine the degree to which each party is fulfilling its obligations and will help to guarantee control over and transparency in the execution of the service.
This ubiquitous nature of technology means that, from a legal standpoint, it is key for the different legal relationships that arise from the establishment and execution of the public service to be based on clear and well defined principles that avoid subsequent disputes and, in any event, help to resolve any specific issues that may arise.
In this respect, we define below some points that, in our view, should be particularly borne mind so that the introduction of technology into the provision of a public service becomes the cornerstone of its optimal roll-out and never an element that hinders the relationship between the government and the service provider or that worsens the citizen’s perception of the service:
- The tender specifications – assuming, as noted above, that the provision of the service in question is awarded to a third party – should define the scope and characteristics of this part of the future contract in sufficient detail. Consideration can be given to variations or improvements to be proposed by the bidders, but the contents that the bids should take into account in all cases should be developed in a clear and detailed manner. As a general rule, the technical specifications of the tender should contain the requirements and functionalities required of the potential successful bidder. If compatibility with a pre-existing system is required, it is very important to provide the bidders with complete information in order to avoid malfunctions during the effective roll-out of service.
- In this context it is highly advisable for the tender specifications to include clauses on technical progress and potential modifications that provide the relationship between the government and the contractor with enough flexibility to adapt the service to new needs without changing the principles of public procurement.
- The use of technology should guarantee effective monitoring and control of the provision of the service, thereby enabling both the government and the contractor to perform their functions more efficiently and ensuring that the obligations undertaken by the contractor are fulfilled at all times. The information gathered through technological tools may be used to specify such relevant aspects of the contract as the contractor’s compensation or the application of penalties due to breaches of quality standards.
- Technology should also be a resource used to ensure transparency. Information accessibility and transparency commitments relating to the performance by the government and the contractor in providing a public service are increasingly demanding. In addition, technology can help channel the specific data collected on the service to citizens. The aim in each case is to achieve a balance between transparency requirements and other values such as the protection of data and industrial secrets, based at all times on the pertinent regulations.
The above points are merely a sample of the myriad issues that the application of technology raises in this context. It is up to the law and its interpreters, from both the private and public standpoints, to articulate the appropriate legal responses to create an optimal legal environment that benefits all citizens.