The Commission's recommendation on professionalisation of public procurement

In the second entry to our ongoing (mercifully short) procurement tennis with Albert Sanchez-Graells on the Commission's initiative to improve public procurement, I will be commenting on its recommendation on the professionalisation of public procurement (C(2017 6654 - Recommendation). This is an area of particular interest to me since I have worked extensively on it while at the Institute for Competition and Procurement Studies at Bangor University (Procurement Week, Winning in Tendering, running a Procurement Summer School in 2014 etc) and also on my work with different Masters' programmes (Bangor's Procurement Law and Strategy; Rome Tor Vergata's Public Procurement Management International Masters' or the King's College Public Procurement Regulation in the EU programme). For a few years I have been of the opinion that improving day to day practice will probably yield more results in terms of improving procurement than tinkering with the rules that are to be followed.

The Commission presented three main recommendations:

• Defining the policy for the professionalisation of public procurement
• Human resources - improving training and career management
• Systems - providing tools and methodologies

Let's look at each in turn, before briefly looking into the SWD(2017) 327 - Staff Working Document accompanying the Recommendation. EDIT: Albert's entry is here.

Defining the policy for the professionalisation of public procurement

The Commission suggests that Member States should develop and implement 'long term professionalisation strategies to public procurement'  as to 'retain skills, focus on performance and strategic outcomes and make the most out of the available tools and techniques.' It is added that the strategies should address all relevant participants, be inclusive, applied in coordination with other public policies and take into account developments from other Member States. By themselves, these ideas are neither earth shattering nor particularly specific (although the provides much more detail and relevant examples).

The second recommendation under this heading is not particularly helpful either. Member States should encourage and support contracting authorities/entities in implementing those strategies, developing professionalisation initiatives and providing a structure for more coordinated, efficient and strategic procurement.

In my view, this recommendation completely misunderstands the problems in reality at least in the Member States I know. The problem is not policies or coordination opportunities between different institutions or contracting authorities. Problems start inside organisations (ie too many people with buying responsibilities, divided into silos) or in the territorial structure/organisation of the State (ie, thousands of contracting authorities, many of them very small and managing tiny budgets). These problems are not specific to public procurement but affect its performance significantly, particularly on the wider public sector.

It also misses the boat once more on the importance of institutions vs rules (or policies). As highlighted in this interview for the Public Procurement Podcast with Ana Calderon Ramirez last year, its the institutions providing the day-to-day support that make a bigger difference. Granted, the research was done in Latin America, but we should get down from our high horses assuming that we know much more about procurement than others or that there are no lessons to be taken from other parts of the world. Developing those institutions requires policies (in first instance) but then a commitment that requires money and political will to implement. A lot harder than suggesting "increased cooperation between relevant services and between contracting authorities."

Setting up a nice, shiny policy is the easy bit.

Human resources - improving training and career management

The second strand proposed by the Commission is more interesting and also further developed. It is suggested Member States should identify/create a competence frameworks for public procurers, develop appropriate training programmes and get contracting authorities to adapt human resources management and career planning.

There is nothing particularly new or innovative in the proposal, but at least it covers human resources via professionalisation/training approaches and career management. As for the prospects of making it work, I have more reservations.

Careers in procurement are (generally) poorly paid and have the wrong incentives in place. But that could be said about the public sector as a whole (with caveats). How will Member States, actually change recognition and career structures for a specific function without opening a can of worms with unions or other workers from the public sector demanding equal treatment?

As for the incentives, I find it hard those can change at short notice. Yes, public procurers are risk averse but for very good reason: no one gets dragged over the coals for just going along, but if you try to change things and fail or affect the reputation of your employer that's a career in a dead end. Again, I suspect the problem is wider (and bigger) than just public procurement and I struggle to see. Motivational schemes (as suggested) not associated with pay and progression will only go so far.

There is a comment to be made as well about the suggestion of developing a competence framework for public procurement at European level (point 3(b)). Surely, that should not be pushed downwards to Member States and should instead be done by the Commission itself - after all it is the only institution with the eagle's eye over what happens in all Member States (even if detached).

I also have concerns about the idea of a competence framework for judges and auditors. Suggesting it for the former shows complete lack of understanding on how judicial careers work in many Member States and dodges the really critical question which is the overdue reform of the remedies system which the Commission has kicked into the long grass. Which is more important, improving the mostly decent level of judges working in procurement (as part of their portfolio) or revising the system so that decisions are taken quickly?

As for the training, once more the Commission is showing up to the party quite late. It is correct in its prescription of initial and lifelong training, but I am puzzled about the need for state intervention in this area (ie, developing 'appropriate training programmes'). It is not for the lack of training opportunities and programmes (long/short) that people don't get that training - there are plenty of those in any Member State I know. It's mostly due to the lack of resources: money and time. Is the Commission putting money on the table for people to be trained?

I'm particularly puzzled by the 'multiplying the training offer via innovative, interactive solutions or eLearning tools, as well as replication schemes.' Do you really think people at the coal face have time to spend training - even if the course is free? Where is the budget to pay for their replacement time while they're doing the training? And what are those training 'replication schemes'?

Systems - Providing tools and methodologies

The final recommendation by the Commission can be classified as a number of different ideas contained within the umbrella of tools and methodologies. These cover IT, integrity, guidance/help and exchange of good practice.

Regarding the IT suggestions, there is not much to comment on other than public procurement has remained stuck in a paper mindset for the last 13 years. E-procurement was officially introduced (at least widely) on the 2004 Public Procurement Directives, but it will only be fully operational in 2018. Effectively both at EU level (and inside each Member State) the speed of adoption has been hindered by the laggards - those that do not want to do procurement online, either because of the cost of setting up new systems (public sector) or losing the competitive advantage that the 'paper barrier' entails. Meanwhile, any of us has been able order online a book from another Member State since well before 2004. Not to speak how easy it is to get stuff from further a far like eBay or Alibaba marketplaces.

Standardization (and API access) remains a critical issue for cross-border procurement and participation. That in this day and age this is still a problem is beyond me. That the Recommendation makes no mention of the use or adoption of the Open Contracting Data Standard is also worrying - indicating that on ICT we are still using mental models from 15 years ago.

Regarding the integrity, there is not much to comment other than it is simply a restatement of one of the key principles of public procurement - fighting corruption. Creating codes of ethics is not going to change practice unless incentives are changed as well. To this end, using data - and making it freely available does change the balance of risk for potentially corrupt officials: knowing that your decisions are available for anyone to see in the future, really makes you think twice about the implications from a potential corrupt deal.

The Commission also recommends the production of guidance to provide 'legal certainty' on the obligations arising from EU law or national law. I honestly cannot see guidance as providing any sort of legal certainty - it usually creates more uncertainty since the body producing it is usually not the one interpreting and applying the law. And as it is only guidance (instead of hard law) then the courts can simply disregard or simply disagree with the view professed in the guidance.

Having said that, there is a case to be made for materials like practical handbooks to be produced so that those can be used by practitioners on the day to day operations. This needs to take into account the risk that public procurers may be induced to take decisions based on guidance/views that may be challenged under judicial review for example.

Realistically, this should be done possibly on a wiki style (or something along the lines of our own commentary to the Public Contracts Regulations 2015) that can be easily kept up to date by the persons with the right access rights. Again, this takes time and money to set up and especially to keep going.

As for the 'standardised templates and tools for various procedures such as green public procurement criteria' I cannot even understand what is meant. A procedure is not a criteria, so either the Commission refers to the procurement procedure where green public criteria can be used or that the green public criteria by themselves could be subject to standardisation. I, for one, welcome standardisation over casuistic approaches but think leadership on this should come from the top instead.

Finally, Member States should promote the exchange of good practice and provide support for practitioners. I have enough experience dealing with procurement that more often than not what passes for 'good practice' means nothing other than 'practice' or 'prior practice.' Without a robust assesment/quality assurance scheme to evaluate what works (which is completely absent from the Commission's proposals) this suggestion is a risk that a practice developed can pass off as a 'good practice' without being anything but.

As two examples, I would like to point out to the illegal use of the negotiated procedure in the UK in the 1990s and after 2004 how competitive dialogue was used in practice, especially the idea that it was 'best practice' to rush to select the preferred bidder and have negotiations only with it.

A further (and more recent) example is the incorrect interpretation on the UK's guidance regarding Article 18(2) and Annex X of Directive 2014/24/EU that any international treaty dealing with social or environmental clauses can be used as a justification to refuse to award the contract.

The Staff Working Document accompanying the Recommendation

In this document, the Commission provides further details on each of the headings included in the Recommendation. For the most part this document is mostly a compilation of very short case studies from multiple Member States (well, summaries of case studies) that lack the necessary level of details to be actionable. They do work, however, as pointers to further resources which are available only in the national language.

As mentioned above, this resource made a lot more sense if it was made available online on a wiki style of sorts. But, once again, it seems we are stuck in paper mental models, of which the PDF is the ultimate digital representation.

One final criticism for the inward approach taken in the preparation of this document: other than an example of the EBRD, virtually all case studies mentioned are from Member States. Again, I think there is plenty to learn from other countries.