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05/22/2020 Director of NIIKPU took part in a joint online meeting of the Digital Development of the Russian Federation Section of the Digital Economy Development Council under the Council of the Federation of the Federal Assembly of the Russian Federation and the Committee of the Russian Union of Industrialists and Entrepreneurs on the Digital Economy on removing legislative barriers and risks of structuring and implementing infrastructure projects digital economy by models of public-private partnerships and concessions.

At a web conference, representatives of the Federation Council, the RF Ministry of Communications and other state bodies, as well as experts from the digital industry, discussed options for removing legislative barriers to the implementation of digital economy infrastructure projects based on public-private partnership and concession models.

The meeting was opened by A.Yu. Badalov, head of the working group on the development of mechanisms for public-private partnership agreements and concession agreements in the field of information technology of the RSPP Committee on Digital Economy, Director of the Federal State Budget Scientific Institution Research Institute Voskhod.

“Today, one of the urgent needs of the state is improving the mechanisms for the introduction and development of modern information systems and involving extrabudgetary funding in such projects with the help of public-private partnership and concession instruments that can stimulate the attraction of private investment. Research Institute Voskhod is interested in developing this area, especially since we also see our potential for participation in concession agreements as a concessionaire. Now the institute is considering the possibility of applying such mechanisms to several projects at once, ”Andrei Badalov noted in his speech.

Specific suggestions for discussion were presented by Nadezhda Kostryukova, head of the Center for the Development of Investments and Public-Private Partnerships in the Digital Economy, created and operating on the basis of the Voskhod Research Institute. Based on the analysis of the problems and needs of the business community, as well as taking into account the recommendations of the legislative bodies of the constituent entities of the Russian Federation, the meeting participants voiced the most relevant decisions on improving legislation in this area.

One of these needs is the lifting of the ban on concluding agreements on municipal-private partnerships and eliminating uncertainties regarding the conclusion of concessions at the municipal level in relation to information technology facilities. According to Nadezhda Kostryukova, such restrictions do not allow attracting extrabudgetary funds in the implementation of most projects in the field of digitalization of urban governance.

In addition, the participants of the web-conference discussed the need to eliminate the outdated institution of model agreements, as many market participants give examples of the inappropriateness of this rule and its non-constructive impact on PPP projects in the IT field. Another proposal concerned the consolidation in the legislation on the contract system of an additional basis for procurement from a single supplier. Such changes will have a positive effect on concessionaires and private partners, as the services they provide for state and municipal authorities are often one of a kind, operating in non-competitive markets. In addition, a number of other, no less relevant issues were discussed at the web conference.

The voiced proposals were positively received by both representatives of state bodies and the expert community. In the future, they will be discussed at a more detailed level - already in the form of specific formulations for amendments to the legislation.

Also at the online meeting, the participants touched upon the draft law “On Amending Article 14 of the Federal Law“ On Information, Information Technologies and the Protection of Information ”, which establishes the features of the creation, operation and modernization of the state information system on the basis of a concession agreement or PPP, providing for the determination of the holder information contained in the GIS.

In general, supporting this legislative initiative, the participants considered it necessary to clarify and adjust certain conditions and provisions for the second reading of the bill. For example, according to Nadezhda Kostryukova, the current version of the document does not specify the procedure for the concessionaire or private partner to provide non-discriminatory access to data in the GIS. Also, according to her, the condition on when the concessionaire or private partner will be the owner of the information requires clarification, while the concessor or public partner will always be the owners of GIS data if the information is created or used to exercise the powers of state bodies.

The draft law in the current version solves only a part of the issues - it establishes the procedure for determining the copyright holder of information, which is not decisive in PPP and concession projects and, in essence, is a title that is significantly limited in its capabilities by legislation and the terms of the agreement.

“The determination of cases when the concessionaire or private partner is vested with the rights of the data owner is not enough to clarify the legal regime of data circulation during the implementation of the concession agreement or PPP. The draft law should require that a state body authorized to speak on behalf of the information holder be identified. Likewise, the scope of authority of the concessionaire or private partner to carry out actions with the information necessary for him to execute the agreement should be determined, ”said Nadezhda Kostryukova.

In addition, she proposes to establish a dispositive condition that the concessionaire or private partner has the right to use information from the GIS for the purposes of fulfilling the agreement and within the limits established by the agreement, including providing it to third parties, as well as for commercial purposes or for the implementation of its rights to the results of intellectual activity, unless otherwise provided by regulatory legal acts.

Also, when finalizing the bill, it is important to take into account the need to maintain the requirements for the storage of information contained in information systems of state bodies exclusively on the territory of the Russian Federation. This applies when the data owner is a concessionaire or private partner.

According to the participants of the online meeting, the clarifications and amendments announced at the meeting reflect the needs of the market and meet the task formulated as part of the instructions of the President of the Russian Federation. Proposals can be taken into account both in the bill under consideration when finalizing it for the second reading, and become the subject of an independent bill.

Source: https://www.voskhod.ru