Marta Andhov  0:00 

Welcome to Bestek, the public procurement podcast. Today, with Willem, we are discussing courts and sustainable mandatory requirements, as well as recognition in academia.

About Bestek 00:12

Welcome to Bestek, the public procurement podcast. In this podcast Dr. Willem Janssen and Dr. Marta Andhov discuss public procurement law issues, their love of food, and academic life. In each episode, Willem, Marta and their guests search for answers to intriguing public procurement questions. This is Bestek. Let’s dish up public procurement law.

Marta Andhov  00:44

Welcome, everyone. Thank you for listening, liking, commenting, subscribing. We really appreciate you helping us out putting Bestek public procurement podcast on the forefront of discussing procurement issues. I’m joined by my lovely co-host Willem, with me today like always, and we are up for a treat today. As our main we will be discussing mandatory requirements specifically in context of sustainable public procurement. So, are we moving towards mandatory sustainable public procurement? What is the role of courts in that regard? So, let us kick it off with the subject matter of our main. Let’s start with some food, also talking about main.

Willem Janssen 1:31 

Good idea.

Marta Andhov  1:32 

Yes, yes. How are you feeling today? In context of missing. In context of food. I mean, like missing all this travels. Now it’s been quite a while that we’ve been anywhere. I think since we actually started this podcast, we did not have a chance to see each other in person.

Willem Janssen  1:50 

Now even though I feel like we talk to each other nearly every day.  That wasn’t a point of critique, by the way. You know, it’s been it’s been a whole year. It’s crazy how… also when I think about conferences and milestones in the academic work that we do, or when I….even in my private life, 2020 kind of fades away, like you think, oh, that was last year, but then it’s actually two years ago. So it’s also crazy to think that with nearly hitting our one year anniversary of podcasting together, so that’s really cool. Let’s not get ahead of ourselves, because I think that’s in May. Right? That’s our one year anniversary,

Marta Andhov  2:29 

Probably, when we actually recorded the first episode. That’s true, but that brings me to thinking about when we will have a chance actually to see each other to participate in some of those conferences. We all have been working with the digital ones quite extensively. We are just joining our two colleagues next week, from the moment that we are recording this, on another event online, and definitely this aspect that really inspire us to start this podcast, the type of conversations that we have, we didn’t have those in a long time. We didn’t have that wining and dining experience. So, if you could choose out of you know, any possibilities, which of the conferences that you particularly look forward to actually be able to join in person? Is something sticking out in your head out of those that are fairly regular every couple of years?

Willem Janssen  3:30 

That’s a good, good question actually. I haven’t really thought about that, because conferences are now me sitting in my attic between my washing machine and the spare bed. Yeah, but I mean, the global revolution conference in Nottingham is always fun, because that’s like quite a big conference, because you get to see a lot of people. Now there’s downsides to that as well, clearly. But that’s one…

Marta Andhov  3:52 

It is good networking opportunity, right? It’s sort of, you know, in this context, I also was really thinking that one of the events that I would want to participate, I wonder if you ever considered or heard about, is this IPSERA conference? Yeah, it’s not really a legal conference as such, but I was thinking that it will be really cool to get involved with them, Because I think that that would really open our world, also to totally different people looking at procurement from very different angles.

Willem Janssen  4:21 

So, it’s always good. It’s always nice to get excited about meeting new people. That’s that’s definitely one thing I look forward to, even though I find everyone’s really getting into the zone of like catching up via coffee online. So, that’s also quite a normal thing to just say: – Hey, I saw an article that you published, and I wanted to reach out let’s have a coffee, but you have to make your own coffee and I’ll bring mine. – That’s very nice.

Marta Andhov  4:43 

It for sure became a bit less awkward, right? To do it.

Willem Janssen  4:48 

Yeah.

Marta Andhov  4:49 

All right.

Willem Janssen  4:49 

Cool.

Marta Andhov  4:50 

Let’s move to mandatory requirements. Absolutely. To the main of today. So, Willem, I would want to ping pong that topic towards you. You published fairly recently-ish interesting work on that. So, we have been working on some aspects of it and discussions on that for some time right now, but before we dive into details: – What is your general viewpoint on this? -, you know, from normative standpoint? So, should we really move towards more monetary requirements of sustainability within public procurement processes? Or you actually are not a fan?

Willem Janssen  5:33 

Oh, is this a yes or no question?

Marta Andhov  5:36 

I think that it’s a yes or no, but also….

Willem Janssen  5:39 

is there room for differentiation? I think we’re for a number of reasons, it would be very interesting to look at mandatory requirements. Let’s put let’s put it this way. I think we’re not there yet into developing or at least, in terms of research to backing what is the right course of action? I think we’re not there yet and perhaps we can also make a link with the episode, one of the early episodes, that we did about the EU Green Deal where we really discussed this move from the EU public procurement law being mostly accommodating for sustainable public procurement as in that it provides legal possibilities to procure sustainable outcomes, labels, award criteria, etc, etc. Now, we’re reaching a discussion point where we’re looking at, okay, maybe the member states or the uptake of green public procurement isn’t where we want it to be, and we should actually be looking at a more forceful mandatory role of EU public procurement law, which in which the law actually obliges contracting authority to authorities to procure green outcomes. And I mean, what’s what’s difficult about the question, when you say should should we I also find it’s difficult for us as lawyers, right? This is not just a legal question, but it could be potentially very effective to make it obligatory, right? Because if it is obligatory, perhaps we can really fast track the development towards a green society, instead of the law always being criticised for, you know, following technological and societal developments, perhaps now the law should be at the forefront of the debate.

Marta Andhov  7:23 

This is also an interesting take, right? Because I wonder, actually, whether we are not somehow from a legal standpoint and European procurement standpoint not standing in the way in certain aspects, with the rules, and provisions that we have. I think that it’s also really difficult to discuss this in an abstract, extremely broad context of all procurement. I do think that this is something so specific to different sectors. So, just to follow up on what you said, I would make this maybe two or three comments, I think that one issue is for sure: – We are ultimately scientists, right? I know, the legal field is a little bit lesser science than others. – , allegedly. We are here as academics as scientists, and we believe in science, and I think there is enough science, particularly in context of environmental issues and climate change that we are in a climate crisis. So, from that perspective of really addressing this, I strongly believe personally and also with my work, I believe normatively that part of public interest is protecting environment to and through that it needs to find its way also to procurements and its type of a little bit all hands on deck, right? In all legal areas, we see really outcomes of great projects in recent years, even on green, environmental competition, law, green economics, all these different aspects. So it’s not specific to procurement. Then the second comment that I wanted to make is also sectorally. It’s so specific, and it’s also connected so much to whether we are at the forefront, whether we are actually limiting something or are we standing in the way and I think food sector is particularly interesting, because you know, if you really want genuinely organic sustainable food, very often, very often, it will mean local. Now, those are not synonymous, right? Not every supplier and all the local foods will be more sustainable. A good idea, like if you want to have something, let’s say Nordics that required you know, you having different veggies continuously under a lot of electrical lamps and all this heating etc, etc. versus let’s say, shipping through railway tomatoes from Italy or Spain that actually probably will be more sustainable, but there’s this presumption that a lot of times organic, sustainable food ultimately means protectionism and localism and those are not synonymous. At the same time, the fact that you cannot just as hospitals core just buy directly from, you know, local agriculture, from local farms. I heard many times, and I feel for that, that we sometimes stand in the way….

Willem Janssen  10:26 

….as public procurement lawyers.

Marta Andhov  10:28 

Yes. Right? So, for sure, it’s very interesting what you’re saying, in which point we are at the forefront, and we can enforce something that we really need to get going on and in which point, actually, we are somehow almost artificially closing the doors on certain transactions or in certain sectors that makes from true sustainability perspective, actually, a lot of sense.

Willem Janssen  10:55 

Yeah, for sure. And I think also this debate about the question, should we debate the debate that we have very broadly between public procurement scientists, supply chain managers, economists, lawyers, etc, etc., but then the next question, just hypothetically, also, because we only have, you know, we only have 30 minutes for a podcast episode, even though we never stick to it. See, see, it’s a good idea. Right? Then it’s up to us to identify, I think, as legal scholars, what are the roots, and what are the possible advantages and downsides, from a broad perspective of each of those roots? Right?  I would say the starting point of that is to see what’s already been happening.

Marta Andhov  11:45 

Like, where we are?

Willem Janssen  11:46 

Yeah, where are we at? Right? In previous episodes, we also looked at, like, this is the EU Green Deal episode, like, what are the obligations that are currently there, say the obligation to reject abnormally low tenders that are achieved through say, forced child labour, but there’s also a lot of stuff that’s going on at the member state level. So, there’s developments in Denmark, Italy has had quite a tradition of having mandatory minimum criteria in public procurement procedures for different sectors for textiles for ICT. But also, in the Netherlands, we’ve had an obligation to create as much societal value, and I stress that point through the spending of public money by our public procurement procedures, right. So what is societal value in that regard? But it is a means to make it mandatory for contracting authorities to to procure sustainable outcomes, right? So, when we’re looking, I think, at this, EU development, right, let’s my first point would be let’s not forget what we already have on the member states and what the experiences are, that we’ve gained from that. Right?

Marta Andhov  13:09 

Let’s learn, right? Yeah, lets learn what has been there? Because for sure, I think that conclusion of our two episodes that somehow haven’t been touched on sustainability issues, that is the one on Green Deal or the one that we did on article 18 point to the sort of sustainability principle in quotation, then then we know that there is a lot of opportunities right now, there’s lots of possibilities, there are quite questionable obligations that are then even more limited by other general principles, let’s say such as proportionality, and the question is, then, also when we go to this more national or local level, well, that also a whole different setup really kicks in because this public interest broadly understood the aspect of the societal value that you mentioned, but I think in different member states, the language may be different. But ultimately, we’re focusing on the fact that you are spending taxpayers money, it’s public money, you are somehow obliged to create something good, in efficient manner of spending within your member state. What are the consequences of that really, right? That kind of brings us to this second layer of this conversation. What is the role of courts? How courts interact with all these mandatory, obligatory, potential minimum requirements or other provisions set up on the more local national levels?

Willem Janssen  14:39 

Yeah, for sure. Because I think what it would do and this is where I think our role would be vital as an academic community is: if we’re changing…. I believe this is really a paradigm change, right?  So, going from possibility to mandatory requirements in terms of sustainability, will reshuffle what the individual actors on the playing board of public procurement, what their role is? What I mean by that is: – Say the legislator decides to really move from how you purchase to what you purchase. – The question then is, what is the ideal, most effective legal room for manoeuvre for contracting authorities, right? To make decisions that are in society’s best interest, right? Tailor made decisions, perhaps? What is then the role of economic operators, as actors that are asked to to provide those sustainable outcomes, but also perhaps, to enforce them? Right? So say that contracting authority has not followed the rules? What does that contracting authority then do with a claim of an economic operator that states this tender, the way it’s set up is not sustainable enough? And finally, is the closing piece and this is where it all whether all of these actors come together in like in the courts? What do courts do? Are they the ones that then should decide this is not sustainable enough? Or should they just say this rule has been violated? And that in the end means that it’s not sustainable or compliant with these mandatory criteria? Right? So, I think it’s quite a fundamental and every time I say fundamental, I realise that we lose some of our some of our listeners, but I think it is quite important to think about this, because in a way, it’s different than just merely saying, procedurally, you have missed a certain deadline, or this criterion is not in compliance with the principle of equality. This touches upon other aspects that are….

Marta Andhov  16:47 

….thing, you know, also, ……..that is just it’s…. not that it’s controversial, but it’s so complex, because so many different things come into play, right? Some of the things when you mentioned, the more obligation, you start to include, if that’s on national level or on EU level, the more hesitance there will be towards towards introducing things like that, because one of the things that will be scream, and rightfully so is among other things, subsidiarity principle, right? So, why like: -Leave us the space of discretion. – , because it’s not one size fits all, we have such a different member state, even if you look at it on national level, different regions, right, have different interests, different focuses. But I think, in context of introducing truly mandatory provisions, there are two arguments that are somehow conflicting. But I think both are very important to consider. On the one hand side, argument could be: – Well, the market will react. -, because, you know, being a part of procurements for many companies is a viable source of income. If you push the market the right direction, yes, there will be as with any change, there will be a moment in which there are some challenges along the way, but you can make the shift.

Willem Janssen  18:07 

…the trendsetter role of governments. Right? Yeah.

Marta Andhov  18:10 

Absolutely. Somehow creating, impacting the government, right? The bad side of it is also if that is done in the not competitive matter if the government’s or the legislator does it really, unsuccessfully, or, you know, not particularly, rightfully, then that can also cause a lot of problems along the way, right? There was there’s for sure an argument to say that governments shouldn’t get involved in a market too much. But then, like, other argument to all of that, that is very easily shown, because I often think lately, you know, about labels, I think that, for example, requiring mandatory labels and different procurements could be a really good from perspective of contracting authorities, because then you say, We want all this, but we don’t need to do the due diligence, we don’t need to sort of gain so much capacity in a particular area, we kind of outsource it, and someone is doing that, and that’s great. So, I think that could really simplify the life for contracting authorities, but the issue of that is and also a consequence of introducing really mandatory provisions will be the most harmful for small and medium enterprises, right? Because some of those labels again, to put it in this specific example are very expensive.

Willem Janssen  19:30 

Onerous, to get. Yeah.

Marta Andhov  19:32 

Yeah, so you know, it’s the same and how big our market, our European market is. So, when it comes to small and medium enterprises, so how we can do it in a smart way, without actually limiting access for those companies really, to procurement markets, right.

Willem Janssen  19:49 

Sure, that is definitely also an attention point, because this is kind of the route that Denmark’s on. Right? To really focus on making labels obligatory, and that’s interesting in a way because there’s benefits to that option, just like there would be benefits to saying. And downsides clearly just saying, look, it’s like, oh, you have to award a contract based on lifecycle costing, unless right? So, I think we, but both tend to agree that life cycle costing is a very interesting avenue to explore in terms of sustainability. For, like a brighter future, right? But the downside, it’s very difficult to implement that in practice, if you’re a small procuring entity to really go about assessing all the data, setting up the frameworks, etc. Right?

Marta Andhov  20:39 

I think that there is a huge amount of need of, you know, professionalisation, collecting really good practices instead of training, right?  To be honest, I think law. Yeah, I know, that we are moving in….. we are discussing really does move towards more mandatory provision, but I think that the law is pretty good. I don’t think that we have bad law, I think that mainly what we’re talking about, it’s also behavioural change, right? And the lack of this, and you know, lifecycle costing, I know that we discussing it, and I’m a huge fan, but I also just think that this economically makes sense, right? Because you really then truly know how much you pay for something, and let’s not even go as broad as last lifecycle costing, let’s just look at total cost of ownership. Or let’s even look at, you know, costs and quality. Because, again, if you look at statistics, the lowest price still is the king, right?

Willem Janssen  21:32 

It is very dominant.

Marta Andhov  21:35 

But what do you think then, because I think, going back to our discussion on cords. What I’m quite…. interesting….what I tend to see, analysing some things also here in Denmark and another member state, often questions that I ask is, when I hear that something is obligatory, so a true lawyer’s angle to that is like: – So what are the consequences of not obliging? -, Very often, actually, there is not really any, ultimately. So, if it’s sort of a type of debt provision that is not applicable, that is not executed.  It’s the same thing with you know, greenwashing, right?  If you put something in contracts, and there are breaches, but you don’t do anything really about that, or you actually don’t check it, then that’s not truly mandatory for me if there’s no consequences. So, I think that then we going to this point did you did you make, which is the courts really also have a role here to play, and we particularly also can see that in context of this Tim case[1] that we discussed in one of our previous episodes, which is court says some big things cardinal value, right? Sustainability being cardinal value, but this is not really laid on the grounds of what are the consequences? What we do with that? What happens? We definitely lack a sort of helping hand to understand what the due process is required from us? Because of course, we can go over the board and it can be totally, unproportionate to what we may ask from the suppliers let’s say. So, where do you see the role of courts really in context of this considerations?

Willem Janssen  23:14 

I think, also reflecting on the Tim case, but also on what’s been going on in the Netherlands with this Article 1.4 of the Dutch public procurement act, in which that obligation to procure as much societal value as possible for public expenditure? I would tend to say, the courts aren’t at fault. The courts are just dealt a bad hand from the legislator, and that’s often I find, yeah…. what’s tricky, and just to use that Dutch example. So, the law says contracting authorities need to create as much societal value as possible for that public money. What’s difficult is no one really knows what societal value is, right? You just mentioned the word public interest, makes a lot of sense. We have that too, volksbelang. You know that’s very broad, and there’s miles of books that have been written about what the public interest is, right?

Marta Andhov  24:19 

You can chug almost everything under it.

Willem Janssen  24:22 

Exactly, and that’s, I think, the difficulty of it then. So where I think the Dutch legislature did not help the courts is because it first defined it as economic savings when it was tabled during the discussions in Parliament, and later on, it was referred to as a best price quality ratio, tailor made, so that left room for everything. Right? Then what happened is clearly I understand that some economic operators looked at this provision and thought, well, based on this article, I think they violated this article, because the setup of a tender doesn’t create as much societal value as possible, right? So really, we’re putting the economic operator in a role that enforces the public interest as they define it, right? So, then the courts are faced with the question like, one, I think they should be limited by the question of: – Are we really stepping into this stone of the executive branch, right, or the area of the executive branch, are we moving on to their seat? -, like, we don’t want to make the decisions that a contracting authority should be making. So just to give you a clear example, or one of the cases because there’s about three, four handfuls of cases about this, about this provision is, so it was a tender the court of North Holland, and they included a criterion of waste separation after it was collected. So, say the plastics that you put into your bin, they get separated afterwards, instead of you having to put them in a separate bin, and it’s separately collected. Now, apparently, there’s a benefit to that, because as humans are terrible at identifying what plastic is, and what plastic can actually be recycled, right? So apparently, most of the soft plastics, you can’t actually use that much. So, if in that specific tender, you would get plus points for offering that type of post separation in the execution of the contract. If you wouldn’t, you would get the deduction. Right? So, you would get a deduction from your point. However, what this tender said: – Well, we can offer it, and then we won’t get that deduction. -, but the problem is that it costs so much more that we’ll lose out on a lot of points in terms of the price. So, in the end, if you offer it, it actually drops your total points, instead of not offering it and then having the benefits of the price. Right? So, then the court kind of….

Marta Andhov  26:57 

….so, in the end of the day, it’s better for you to not offer it.

Willem Janssen  27:00 

Exactly.

Marta Andhov  27:01 

Even what you lose is still putting you on the price point further.

Willem Janssen  27:06 

That’s the issue. So basically, then the court was faced with the question. Okay, can 1.4 provide sufficient legal basis to challenge this? And it referred to the legislative discussions right in Parliament and said, well, it’s tailor made, it’s, you know, it’s supposed to be best value ratio. And the conclusion was that the court said: – Well, this article corresponds to Article 2, 114 of the Dutch public procurement Act, which in fact, merely contains the award criteria, which is an implementation of Article 67 of the of the directive. What the court kind of says, If you tender, you are achieving as much societal value as possible. So if you use the award criteria….

Marta Andhov  27:59 

…..tendering.

Willem Janssen  28:00 

Exactly.

Marta Andhov  28:01 

Yeah.

Willem Janssen  28:02 

By just merely using award criteria, you’re in fact. So, what does this do? It means and this is what we concluded or when I say we, I mean G. Bouwman, PhD candidate at our institute, co-author of this Public Procurement Law Review article (‘Legislating societal value into Dutch public procurement law: symbolism or substance?’), that means that these articles are mere symbolism. Right? It means that it does not have value.

Marta Andhov  28:29 

That’s what I really worry, you know, to large extent about this 18(2) that we have that we already discussed, like in the directive. To what extent they are really true provisions? But you know, on that topic that you indicated, it also brings me to one more issue that somehow needs to be really addressed, and that is from perspective of contract law. Because, as you mentioned, what happens to the role of economic operator and whether they are actually acting in a way that is requiring from the supplier from the private actor to enforce public interest, and that ultimately also really sits at the core of the centre that I’m affiliated to centre for private governance. When we look also from contract perspective on this notion. Well, from contract law perspective, this is a little bit problematic, right? Because the public interest is the supply as a private company even equipped, obliged, whether there should be additional price on this, how this should look like really that company that ultimately is, in many cases fully focused on profit, unless we’re talking about social enterprises, suddenly right now is also responsible for ensuring that public interest and what that means on contractual basis? So, for example, are you really in that grave…. I’m missing a word right now… Are you really, you know, sort of in a breach of your contract? Whether you are delivering services or supplies, everything is fine, but this aspect that could be considered of a public interest, somehow something is tipped somewhere around there, right? Is that a really, let’s say, a type of breach of a contract, governmental contract that can lead to termination, for example. That is very interesting, maybe a little bit abstract, because on other hand side, as we both know, there is no interest on contracting authority site to terminate contract, almost never because no one wants to go through all the process. Right? But it’s this role of the suppliers how that changes. And I think that having conversation of several of my contract law colleagues, they look at this very sceptically, from contract law perspective of, you know, sort of morphing this role of private supplier.

Willem Janssen  30:57 

So that’s interesting, also, because if I look at the Dutch context again, so basically, most of the jurisprudence about this provision is very limited in terms of what it actually means – symbolic legislation. What is interesting is that the Dutch committee of public procurement experts once said: – Well, it actually contains a bifold duty. – So, it means that the, or a bifold onus of proof, right is a duty of care with a bifold onus of proof, that means that: – Okay, you can claim that you’ve had that this print article has been violated one, but you actually then need to prove it, that links will link up with what you were saying, right? That economic operator needs to prove that this is not in the public interest, and then the contracting authority would need to respond to that also proving again, that they did. – I think that’s a very difficult discussion, because you’re actually asking courts to value proof, right? What is more sustainable than others? One, do they have the expertise as courts, and two it also depends on national procedural law, if they can also use expert witnesses, right. This is very uncommon in the public procurement context, in the Netherlands, at least, to rely on expert guidance when it comes to this. Also to kind of like, secondly, to kind of refer to the comment that you made about sceptical colleagues, etc. is on the other hand, I do think that us as public procurement lawyers should continuously look at this trend of social enterprises that’s been going on in many of the member states because what you’re seeing there and also, recently, an internet consultation was publicly published in The Netherlands about introducing a legal form or a particular so a limited entity, as a legal personality, specifically for they call it (Dutch speaking), so a societal limited, which is tailor made for social enterprises, right? And those are I think, THE entities that really embody this this aspect of we have a public mission, the public interest is first, we reinvest profits, we do make profits, but we reinvest them for that purpose. So, in a way when we look at also in the directive, right, the contracts that can be directly awarded to those specific entities. It’s I think, of interest for the future. When we look at these mandatory requirements, right? One, we should I think, give sufficient tools to the courts to be able to assess it. And in that regard, when we look at all the options, I’m more in favour of concrete norms, so minimum standards on the EU level, but I think that we can discuss that again in another episode. What benefit of that is?

Marta Andhov  33:55 

Well, I guess, the very short answer that obviously could be elaborate on but it’s like, did you aim for certain standardisation? Right? So ultimately, that that will help. But you know, just to piggyback on the comment on social enterprises, I was just wanted to point out that our role is also again as, academics just to showcase world in a broader sense and again, procurement does not exist in a vacuum, right? And if you look particularly right now, in this broadly understood green transition, if you look at the, let’s say, different banks and different funds that are coming from you, but also broader. The more and more tie the possibility of getting the funding or getting the loans to the need for green transition, and similarly also we can see the same thing broadly on private market right when we starting to discuss finance law when we started to discuss corporate governance and the role of companies and whether the companies are truly to be solely for profit, this traditional argument that have been existing for a long time. At the same time opposition to the viewpoint already for more than a decade, are saying that companies also are part of a ecosystem of broader society, right? So, I think that those are types of arguments that are to be used to saying, Yes, we move towards more monetary provisions, because this is not something and you know, to kind of finish our topic on maybe, again, a bit more broader high note of thing, we have climate crisis. Those are, those are existential challenges, right? Those are not our own transactional, specific transaction or legal, interesting topics to dive into, but this is a part of very big broader problems. So, those are reasons why we need to challenge the status quo and go broader, the question is exactly: – How to do it? -, and the most beneficial and the most clear way so the contracting authorities, the suppliers, but also the courts, as you mentioned, have enough tools to actually apply.

Willem Janssen  36:03 

Yeah, room for more episodes I think

Marta Andhov  36:05 

Absolutely, but that’s been super interesting, super interesting. Thanks, Willem, for sharing with us also the Dutch example, and for the more detailed analysis of this cases and the consequences, we warmly invite you to check out the reference to Willem’s work in the description of our podcast on our website, let’s move on to our dessert for today. So the tiramisu of today, is something a little bit more connected with broad academic life rather than procurement itself, where we dive into the chat a little bit about some things that we find relevant as an academics, if that is a type of advice to our younger selves, or our younger colleagues up there, or if that is just to start a conversation on some of those topics that hopefully, are as relevant to broad academic society, as we think. For today, we have the question of: -Well, what are the basis for our recognition and academia? How we are somehow valued, how we somehow are being assessed as academics? – So I will let Willem introduce us broader, what he means by this theme, having in mind that Willem proposed it? So, for them, do we have problems somewhere?

Willem Janssen  37:44 

When you were saying…. look, there’s definitely some problems, but I’m not necessarily experiencing those greatly. But I do think on a broader level, there is some improvement to be made. The reason why I propose this is also because there’s quite a lot of discussions going on at Utrecht University, which I think is the same at many Dutch universities. And I think it’s also starting and happening all over the world. And the idea is, so we have this discussion, or at least we have a saying in the Netherlands, where you say you need to be a sheep with five, six or seven legs in academia. Right?Now, clearly, a sheep only has four, right? But we’re asked to be everything. To be academic superstars, right? We need to be amazing research grant writers, we need to do fundamental, excellent empirical research, as lawyers, as legal scholars, we need to be excellent at teaching, we need to be amazing at leadership at being role models for future researchers or teachers, we need to have impact, right, all these types of aspects of our work, which tend to not fit in one FDI a week. Right?

Marta Andhov  38:58 

To say the least,…

Willem Janssen  39:00 

….to say the least right. Now, in a way, I think what’s also true, and this discussion is very broad, right? And the couple of minutes that we have here doesn’t attribute to it, I think, or at least doesn’t give enough time to discuss it properly. But there’s also a difference in what people are good at. Right? So some people are just excellent teachers, or some people are amazing at supporting other colleagues. Right? So, there’s also a mismatch between being that sheep with too many legs, and what we then recognise and reward in academia. Right? So, this is broader, right? Not just how you promote it, but also like what do we value as an academic community. The reason why I wanted to table this more concretely is because recently at Utrecht, they’ve tabled a new model, and they call it the triple model, and I just wanted to highlight that because I think it’s a great initiative to at least get the discussion going and what this model…. this default approach to working in academia is saying there is so many aspects to our work, but in the end, we need to recognise and reward six elements of it. One, and it’s the acronym of TRIPLE model, team, research, impact, professional performance, leadership, and education. I think it’s not in a particular order, I think they just tried to make a nice acronym, dribble. So, team research, impact, professional performance, leadership and education. Those should be all aspects that we value. And if I reflect on that, or at least my experiences so far, is I would say that very often also in grant application, but also for promotions, it’s very much research that dominates, right? I don’t know if that’s the same experience that you’ve had.

Marta Andhov  40:56

Well that is also, you know, in context of any promotion and whenever you talk to anyone, everyone always tells you: – Research research research is the thing that gets you places! – , the other things are somehow subordinate to it, right? It’s really interesting the element that that you highlighted I think that you know there is something to be said on that. Inside I really like what you have mentioned that people have different strengths, and they are good at different things. It’s rarely that we all really excelling in all these different fields. Let’s say, but I think there is also part about what really makes your heart sing, not that it makes sense to make it sounds a bit abstract but like what makes you happy, right?

Willem Janssen  41:52

When I was talking about sheep with seven legs, I think this is very abstract.

Marta Andhov  41:57

You know some people really love teaching, training, collaborating broadly right like one of the reasons why for me this podcast works so well is because I’m the type of person that I get so much energy from discussing procurement with you or with other colleagues and during this conversation that we have on the this is a good idea let me write that down, let me like dig into it, right? But some other people just want to be left alone, so they can you know read, they can write, and they need space for align, no interruption right, and I really like this notion that you value those things, and you introduce more than that. You let’s say can become a professor on the basis just being excellent teacher, right? Just really excelling in that way, because we undervalue teaching, training also for professionals’ executive programs and so on. For this to be done really well it actually takes a lot of work, right? So, for sure there is something to be to be said. On the other hand, I do think that everyone should be ,at least a little bit, at some point in their career notch to try at least in you know very small scale all of those things, because I think a it makes you realize what you prefer and maybe what you are not that good, but at the same time I feel like it really also gives you an additional layer of respect to people that are doing some other of those things. I think management particularly, right? A lot of us run away from management but I think the moment you are in a position that you lead if that is research project research group or anything of that type you realize actually how much energy that takes and then you gain a certain level of appreciation, but those things don’t have anything to do ultimately with your career progression, right?

Willem Janssen  43:55

Ultimately, often those leadership positions that are seen as being stuck. Putting it really roughly. I’m not being sidetracked, like if I do this now I won’t publish much and then it’s going to be difficult to really get to where I want to be…

Marta Andhov  44:12

It is very true point… sorry to interrupt you… just wanted to make point to what you said because I personally heard that on many occasions saying: – Don’t do that yet because that will take the way too much of your time and that’s not going to help you out to get ultimately professorship wait until you are a professor and then think about this type of things. –  You are very much right but we see that as a distraction…

Willem Janssen  44:35

….and often it also leads to really interesting scenarios where people that are amazing researchers apart in positions that where they actually don’t flourish but they have to do it, right? So, it’s because it’s assumed that if you are a professor that you are a great leader but that’s not true, right?  You can be a professor, great researcher or great at being a team player or leading a team so in a way I think and then will have to come to a close for this episode but what I wanted to at least address and maybe get the discussion going because this is very broad and the discussion in the Netherlands even though it started isn’t there yet is this TRIPLE model is what’s the issue with dealing with? Is it that sheep and does that sheep exist in other parts of the world, right? Yeah and in the end what legs are we looking at and how do we value those legs right and should we value everything? So, yeah I think that is an interesting discussion for future times to come.

Marta Andhov  45:35

I think you know to finished our episode and surprisingly tie it back to procurement. I think that we should introduce a more tailor made processes, you know;- Tell me what you really good out of this tool box of options. How you’re going to excel. – Are we going to measure your necessity on that basis? On other hand side from management perspective I see a challenge because it’s as variance in procurements, right? How are you making sure that you comparing the same? How you compare apples and oranges? How you can do that? So, it’s a challenge but I think yeah to conclude we are all unique and we have strengths and preferences in different aspects of academic life. Let us excel in where we are really good and happy and let the others do the other parts. Don’t force us to do the parts that we really not keen on, I guess, right?

Willem Janssen 46:35

I have nothing more to add to that.

Marta Andhov  46:38

Thanks to our listeners! This was Bestek, the public procurement podcast.

About Bestek 46:45

This was Bestek, the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com

You might also be interested in Willem’s publication on this subject:

• W.A. Janssen, G. Bouwman, ‘Legislating societal value into Dutch public procurement law: symbolism or substance?’, Public Procurement Law Review, Issue 2, 2020, pp. 91-102.

[1] Case C-395/18 Tim SpA – Direzione e coordinamento Vivendi SA v Consip SpA and Ministero dell’Economia e delle Finanze

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