We seem to be featuring Dr Pedro Telles and Dr Albert Sánchez-Graells with great frequency at the moment. Last week it was their website, which brings together their monumental and impressive work, commenting on all the new UK Procurement Regulations (based on the 2014 EU Directives). We also regularly cover the Public Procurement Podcast, a regular series of interviews conducted by Telles. Today, we’ve taken a look at an article from Sanchez-Graells on his interestingly-named website, “How to crack a nut” – subtitled “A blog on EU economic law”.
In this article, which he titles, “Musings about the constraints to a reimagination of public procurement regulation”, he kicks off a significant piece of research that he hopes to undertake. He also hopes to gain input into this work from others.
It is not clear if the prospect of Brexit has driven his thinking, as clearly the UK will have an opportunity to look at significant changes to the regulations if and when the country exits the EU. We suspect this was in his mind before that however; he has been pressing for public procurement reform for some years already, so this is not a new theme for him. This is his explanation of the work.
I have been thinking for a while on a research project I would call “Reimagining Public Procurement”. It may well be too ambitious (even as an abstract endeavour), but I would like to start shaping it so that I can dedicate my future research efforts to its completion.
In effect, he is looking at what opportunities the UK might have post-Brexit in terms of re-defining public procurement law. However, any findings or recommendations will, we suspect, be just as relevant as potential changes for the EU as a whole.
He identifies three strands to the work. “First, to identify the main reasons why public procurement rules are criticised and possibly fail to create a practical and administrable system” – so why is it that we perceive public procurement does not achieve the best possible outcomes? But that has to be achieved whilst “ensuring the probity and efficiency of the expenditure of public funds”.
Secondly, he wants to identify the main constraints to change – why is it that despite significant efforts, to identify the issues that hold back public procurement, we don’t seem to have made improvements that are more than “marginally incremental” and the underlying problems with public procurement “remain fundamentally unaddressed”.
Third, to formulate an alternative view for public procurement regulation and practice that has a good chance of overcoming the issues and defects of current rules “so as to achieve a superior system”. In particular, “this alternative view will have to integrate its technological dimension to a much more essential level than previous efforts”.
In this article, he then looks at no less than six of what he sees as the main constraints that limit or prevent a “re-imagination” of public procurement regulation and practice. These are in a sense the issues or prejudices that he believes will have to be overcome if serious change to procurement regulation – and performance – is to be made.
The first is the continued assumption that changing the rules can in itself change underlying practice. The assumption is “that proper outcomes will result from tightly/neatly regulated procedures”, and Graells challenges that assumption. We need to move from a focus on process to a focus on outcomes.
The second is the over-dependence on the legal profession when it comes to leading public procurement reform; “in short, lawyers have been (almost) exclusively leading public procurement reform and the insights from other groups of professionals/experts tend to be marginalised–or, worst, left to ‘public consultations’ that rarely inform reform decisions in a meaningful way”.
The third is the complexity of the rules with little tolerance – the “assumption that regulatory perfection or completeness is achievable–particularly in a context of multi-layered regulation, multi-layered policy and multi-layered enforcement”. That is driven in part by the system in the EU whereby we have an EU-layer or regulation and a country level layer, with the two not always in perfect harmony.
It is a fascinating article from Sanchez Graells, and we will be back in part 2 with the next three of his constraints, and his early high-level thoughts on what the characteristics of a reformed public procurement system might look like – with our comments on the same. But in the meantime, do read his whole article here.