Grith Skovgaard Ølykke takes a critical look at the reform of the EU public procurement rules.
The EU public procurement regime is created by procurement specialised technocrats and adopted by politicians. The rules are the result of negotiations and political compromise. In the book Reformation or Deformation of the EU Public Procurement Rules we take an interdisciplinary law and political science approach to analyse the adoption of the new EU Public Procurement Directives from 2014. The purpose is to investigate whether political science as an academic discipline which complements the legal perspective can provide new insights on, and explanations for, some of the outcomes of the legislative process. Metaphorically, the specific legislative process that led to the adoption of the new EU Public Procurement Directives may be described as the creation of the regulatory helmet fencing the practical work of procurement officials in all the EU Member States. This blog piece aims to verbalize the potential benefits from increasing the efforts dedicated to exploring, understanding and improving the activities which take place inside the fence of the public procurement law helmet.
Under the EU public procurement rules from 2014, which have recently entered into force in the Member States, procurement officials are expected to deliver outstanding procurement results. These results may, among other indicators, be measured against criteria such as, but not limited to: 1. whether the procured goods, works and services fulfill an identified need of the public procurer in a relevant manner; 2. whether the best procurement in terms of price and quality has been made, i.e. has there been actual competition for the contract – devoid of any corruption, protectionism and favouritism; and, 3. how well the performance of the contract has been conducted, in terms of e.g. price, quantity, quality, timeliness, but also working environment, user satisfaction and, if relevant, impact on environmental, social and aesthetics factors. Creating such beneficial results for society cannot be done by merely being familiar with (or even being a specialist in) EU public procurement law; as mentioned, these rules only create a fencing helmet for the conduct of procurement procedures, that is, they are exogenous restraints on procurement officials when they aim to deliver the expected outstanding results.
Turning to the work procurement officials carry out, it may be discovered in awe that the expectations regarding knowledge, skills and capacity which quite implicitly are raised by (EU) legislators, presume procurement officials to be extraordinary multidisciplinary creatures. They must be generalists yet specialised in various ways, depending on the procurement function, administrative resources and on the sector they are active in. In addition to steering the process to stay within the fencing procurement law helmet, they are expected to e.g. define (end-users’) needs, conduct market analyses, design procedures to fit any market they procure from, create markets, be technical experts in whichever field(s) they procure, master accounting, budgeting, long term planning and financing and be knowledgeable in numerous fields of law – to mention just a few (in no particular order): public administrative law, the rules on free movement, contract law, construction law, labour law, intellectual property rights law, State aid law, competition law, environmental law, (international) human rights law – as well as ensure administrative control and practical/physical monitoring of contract performance including dealing with occurring disagreements on interpretation of the contract etc. This list consciously left out the handling of procurement disputes which is often left to private law firms specialised in the technical procurement rules (i.e. in the dimensions of the fencing helmet itself).
The possession of the exemplified multiplicity of expected skills is a lot to ask and would rarely be immaculately excelled by one person. Carrying out all of the tasks in a procurement process and in the contract management, acting in the room for manoeuvre that is fenced by the procurement law helmet, should not be underestimated as a discipline; especially considering political visions and election promises which set the procurement agenda locally and nationally. Thus, the results provided by procurement officials based on their impressive multidisciplinarity, broad knowledge, experience and communication with relevant stakeholders must be celebrated. As these results are driving and developing society, it seems important to enhance, support and facilitate the work of procurement officials. A lot of uni-disciplinarily scholarly efforts are vested in the important work of helping procurement lawyers shape the fencing procurement law helmet. However, numerous challenges present themselves in the spacious area inside the fencing procurement law helmet, where the possibilities and limitations presented by other legislation and practically important issues of economic and organisational dimensions rummage.
“We cannot solve our problems with the same thinking we used when we created them.”
– Albert Einstein
To solve the “problems” created by the fencing procurement law helmet and thereby facilitate the delivery of outstanding procurement results to the benefit of the society, research outside the box is needed; there are plenty of problems to indulge in for brave, creative and multidisciplinary teams of researchers!
Grith Skovgaard Ølykke, is Associate Professor in the Department of Economics at Copenhagen Business School, Denmark
Reformation or Deformation of the EU Public Procurement Rules edited by Grith Skovgaard Ølykke and Albert Sanchez-Graells is available now.