Regulaton & Policy
Early Career Procurement Researchers – More Highlights from Recent London Event

This is our last article relating to the recent early career procurement researcher event in London, organised by Dr Pedro Telles (see our overall report of the event here). So it is worth saying that we found it both interesting and worthwhile – a very good opportunity for researchers to get some feedback on their work and some experience of presenting, and for some other interested parties (like Spend Matters) to find out more about some current hot research topics.

Here we will just briefly round-up the final few sessions we have not covered so far. As we said yesterday, that does not mean these presentations or research topics were less interesting than the ones we have featured more fully. In some cases, the research is at an early stage so there is less to write about at the moment; in other cases, I may just have found my notes were not good enough to write 600 words – if I am not doing justice to anyone’s work, I do apologise. And perhaps we will have the chance to cover the research again at a later date.

Evelina Rusu: Applications of Nudging in public procurement

This definitely felt like one to come back to later – it is a fascinating topic. Rusu is doing a doctorate at the Universitatea Babes Bolyai, Cluj (România) and has trained in both Law and Psychology, so was looking for a research topic that could combine the two! She settled on “behaviourally informed approaches to law” – or using the principles of “nudge” to improve public procurement. Nudging has been shown to be efficient in various areas, allowing behaviour to be altered in a predictable way but not by forbidding any options, and without significant change in economic incentives.

Contracting authorities in Romania typically chose “lowest price” as the selection factor because the tender documents were often rejected by a central procurement authority if the authority chose the “MEAT” (most economically advantageous) route. But using “MEAT” might nudge suppliers to look harder at lifecycle costing or to provide different types of products. (But surely the buyer pretty well dictates what the supplier needs to provide – I wasn’t sure about this, is it really nudging?)

She talked about other uses of nudging – giving better feedback on performance to contracting authorities for instance, which seems like a very good idea. Lots more potential here, we suspect, for some interesting and useful thinking.

 

Kirski Maria Halonen: Termination of a public contract – lifting the veil on Article 73 of Directive 2014/24/EU

Halonen is Senior Lecturer in Law at the University of Lapland, which just sounds brilliant. (I want to go the University of Lapland. In December). She talked about contract infectiveness and termination – as she pointed out, termination of a contract is part of a bigger picture concerning contract law in public procurement. But there is a lot of uncertainty still in public procurement and responsibility left to member states in terms of how contracts can be terminated. Different countries have different interpretations. What is the notice period? How should the contract be terminated? What are the liabilities?

Halonen said that after ten years, in terms of ineffectiveness “we still don’t know anything!! But is that because the topic is more interesting to academics than it is in the reality of public procurement? A good question…

 

Roxana Vormicu: The rules on performance of the concession contract under the 2014 Concessions Directive

Vormicu works for a major law firm in Romania and is a Researcher at the Center for Good Governance Studies. She explained that for the first time, the 2014 Directives include a legislative instrument dedicated to concessions. Concessions have a number of interesting characteristics; for instance, they are often the largest lasting public contracts. There is also generally considerable risk transferred to the concessioners. Potential issues arise if the directives do not take into consideration those particular characteristics of concessions i.e. their complexity, transfer of risk, and the provider “performing a service of general interest”. The new legislation appears to get more into the scope of performance of the contract rather than some of these issues.

Vormicu also discussed some ideas around monitoring contractor performance in longer-term contracts. For example, one idea is to give the losing bidders the tools to monitor the winning bidder – the “watchdog” theory, which has been proposed by some academics. But would losing bidders risk “biting the hand that feeds them”? They may be afraid of upsetting either the contracting authorities or other firms in their industries.

 

Marta Andrecka: Integrating Human Rights into public procurement

Andrecka is a post-doctoral Fellow at the Department of Law at the University of Aarhus, and we have featured here as one of the interviewees in the Dr Telles series of Public Procurement Podcasts.

In this session, she laid out some ideas for further research really rather than giving us any solutions! But it is a fascinating area as we see a greater push for sustainability and social criteria in the new directives. In practice more and more CSR standards are developed with the aim to be used in government procurement. And “the scale of public procurement can undoubtedly create and shape a market, and impact human rights at large”.

Some sectors have a high risk of human rights violation, and have a considerable public procurement involvement e.g. manufacturing, construction, electronics, health. Danwatch has found that products used in the health sector contained rubber from plantations using forced labour. Andrecka also mentioned IT supply chains and the Electronics Watch investigation we mentioned here in the context of the Greenwich conference last year.

There may even be more direct human rights issues such as treatment of prisoners or refugees by government contractors. So whilst governments want to take the lead, there are many questions. Should governments try to secure human rights via procurement? Should we consider the issues in procurement – or regulate outside procurement? Then we can ask how to fit these issues into the procurement process, what is allowed by directives, and the relationship with social considerations? Can we hold governments or contracting authorities accountable if there are breaches?

Many questions, and we suspect that this may be a fruitful and interesting area for research for some time to come. More at the next early career researcher event, perhaps?