What is actually pro bono?
The term is derived from the Latin “pro bono publico”, which can be translated as “for the benefit of the public”. Pro bono projects are therefore services that are offered and carried out by consulting companies free of charge and for a charitable purpose. These can be, for example, consulting activities for non-profit organizations, but also – often non-profit – institutions of the public sector.
However, not every project that is labeled “pro bono” actually is one. In consulting, other consulting services that are not remunerated must be differentiated from pro bono. In particular, unpaid preliminary services that are performed with a view to a hoped-for or expected later paid assignment are not pro bono, they are simply a sales investment. And should be referred to as such.
Special constellations in the public sector: Do not undermine public procurement law
In the public sector, however, free services are not fundamentally unobjectionable. It is not prohibited under public procurement law for a consulting firm to offer and perform services free of charge for a client. Criminal law provisions such as the acceptance of benefits are also ruled out, since as a rule no public official is a personal beneficiary. And under competition law, it would only be inadmissible if, for example, costs were actually incurred, the incentive to accept a pro bono offer was irrationally high or there was even an intention to squeeze out other market participants. However, internal guidelines, for example from the federal and state governments, should be observed. For example, there are special guidelines on sponsoring, advertising, donations and patronage gifts in the public sector. The suspicion of influence must be avoided in any case.
Therefore: If there is no pro bono, consulting assignments, especially in the public sector, should fall under the normal competition for paid mandates. And there, procurement law applies at the latest when the specified EU threshold values are exceeded. Jörg Sarnes, Chairman of the BDU Public Sector Association, therefore also finds it questionable when consulting activities that are usually remunerated by clients are accepted by them as pro bono services. If procurement law is circumvented with sophisticated acquisition techniques, this endangers free competition. In his view, it is also critical if a fee-based contract for a consulting project in the same subject area is then actually awarded in the short or medium term.
The knowledge advantage from a pro bono project can also be relevant in terms of public procurement law if the support is initially pro bono but later leads to a paid follow-up contract that must be awarded. This is where procurement law has put a stop. “In such award procedures, the client must bring the competitors to the same level of information as the previous pro bono consultant,” notes procurement law expert Karsten Lisch (ESCH BAHNER LISCH Rechtsanwälte). This is also known in public procurement law as the “project engineer problem”.
It should also be mentioned here: The BDU considers the regulations under public procurement law with the aim of appropriate competition to be an extremely important element of the economic order. Direct commissioning of individual management consultancies without consideration of competing offers is thus largely excluded and functioning competition is guaranteed. In Germany in particular, there are a large number of management consultancies specializing in the public sector. For the Fachverband Öffentlicher Sektor, it is therefore clear that for any task, no matter how complex, several consulting firms can always be considered. In view of the special public interest and the peculiarities of the political sector, it is advisable for consulting firms to design and communicate assignments in the public sector in a very transparent and comprehensible manner. It must be clearly defined who delivers what to whom and with what objective, and to whom they report.
Source in German: Quelle: https://www.bdu.de/media/296471/pro-bono-beratung.pdf