Willem Janssen  0:00 

Welcome to Bestek, the public procurement podcast. Today Marta and I are discussing regular procurement in crisis times and mentoring in academia.

Bestek  0:14 

Welcome to Bestek, the public procurement podcast. In this podcast, Dr. William Janssen and Dr. Marta Andhov have discussed 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 pathetic. Let’s dish up public procurement law.

Willem Janssen  0:38 

So, welcome back, everyone. Today, Marta and I are discussing regular procurement in COVID times; we felt like in the last episode of…we touched upon some issues that needed more discussion. Last time, we looked at some of the possibilities to set aside normal public procurement rules. We looked at some of the approaches in the member states. But of course, there are also some more legal aspects that we think deserve more and more attention. So, in this episode, we’ll be looking more at that. But first off, how are you?

Marta Andhov  1:15 

Good, how about you?

Willem Janssen  1:17 

All good. Actually, we are talking about food. Because I think half the people here still think that we opened up a restaurant. Yeah, I’m still in my living room for one. And I think you’re in your office, right?

Marta Andhov  1:31 

No, no, that’s just how my living room looks like. Looks like an office haha.

Willem Janssen  1:36 

Excellent. I’m so… actually, we’re….. we ordered in some excellent food. And I found that trying to make…. make, like some light discussion, our conversations have changed into; Are we cooking ourselves or are we stimulating the local economy by ordering food? It is actually such a great way for us to order in food every night, but it was awesome, awesome Thai food. So, that’s just I just wanted to share that before we delve into full public procurement…

Marta Andhov  2:06 

….into full on serious stuff. No, no, but you know, this is also a really important part of this conversation, to, at some point have and I will, just sort of signal that right now. And I think that maybe we can take a little bit more time into it. And our last part on the future debates about the sort of covered consequences. But you know, we right now will be for sure, focusing right now as a consumer. And I think the same way, contracting authority will try to push a lot of local procurements and a lot of…sort of trying to help out the local communities to bounce back out of all of this. So, if that is, as a consumer, as you say, sort of trying every day to have something from maybe local suppliers and local restaurants to you know, probably the same thing when it comes later on with municipalities and so on trying to help out those local companies. So yeah, it all always comes back to procurement. The conclusion is that we always come back to procurement.

Willem Janssen  3:13 

I don’t know if everyone would agree with that. But at least we’re that nerdy that we actually think this is relevant. So, for today, let’s talk about regular procurement. And I think one of the reasons for that is also in the discussions that we’ve had in the last couple of weeks is, of course, there’s a lot of discussion now about urgent procurement, right, there’s a lot of materials that need to be purchased now, right? Or due to unforeseen circumstances. But I think our role as academics is also too kind of look forward to the future, right? And to think ahead of what are things that will come or what happens to regular procurement, right? When we mean regular, it means regular now during these COVID times, but also regular after the pandemic has ended. And….

Marta Andhov  4:05  

….you know, when we step away for a second from this, you know, sort of health defying and lifesaving procurements, bottom line, we, I also think very quickly just realised that all what’s happening to very large extent, also impacts a very regular purchases, a very regular services because you know, contract for, you know, building roads or contract for cleaning services at university, it will be affected right now, because you don’t have people to go and deliver in time those contracts. You may have problems of those companies to being able to fulfil all sorts of different obligations. And that is in regard to contracts that are right now being performed, but it’s also in regard to the procurement processes that are right now in the middle of, so to speak, being carried through and the procurements that we are right now thinking about are actually establishing, right? And the question will be: How we exist within this reality of COVID-19, in this regular life of procurers?

WiIlem Janssen  5:16 

Yeah. So that’s ultimately….the question is: When does urgency end? Right? And for certain procurements, urgency never started. Particularly, particularly now. But for other medical devices, urgency is perhaps still ongoing. And then we would have, and we would need to, at least as lawyers also, look at: When does regular start? Even when it was everything regular? Right?

Marta Andhov  5:44 

That and also from perspective, you know, to trying to highlight what the problem is. And I think that the problem is, of course, is that, unfortunately, and that’s what experience shows us that we see the situation in which some of those rules are trying to be circumvent, or some of those rules are trying to be stretched to the extent that they should not. In other words, you’re trying to argue urgency because it will allow you, bottom line, direct award towards the services, contracts, supplies, that this should never be applied, right? And then we talked about before starting to record, and as one of the examples that I think is quite interesting. There has been an argument of saying, okay, right now, our company went to full on working from home mode. As a matter of urgency, we need to purchase laptops, send it to our employees, so they can work from home. And then at which moment, this constitutes an urgent procurement? And let’s say, if that happened in the first week of lockdown in a particular country, I would say that maybe that’s okay. But if that happens month after or two months after, can you still argue the urgency? And I guess the question is about: “When is the sort of border between those things?“ Right?

WiIlem Janssen  7:07 

Well, I think…Yeah, I mean, the Commission seems relatively flexible. Particularly in the guidance document that was published on the 1st of April, the Commission seems to advocate that a lot, or at least a lot, would be possible in these times. And perhaps even Also, these urgency measures would, or these types of procurement would fall under urgency. But, yeah, this is where I struggle a bit with a very lenient approach towards urgency. And where I think this has not really been a very explicit explanation so far, by the Court of Justice. There’s been some cases. I do think that even though…Yeah, okay, short, short is great. And it takes a lot longer to write a short letter, that I’ve been told, than a long one. But it would have been nice if the Commission would have at least, you know, tried to also show perhaps a few examples or other ways of being clearer about, okay, how do we make this distinction? Because, for laptops and employees working from home, I mean, the longer this crisis goes on, the harder it’s going to be to argue that…. would actually be an urgency and urgency, right?

Marta Andhov  8:23 

Well, exactly. And you know…And the question is, if so to speak, to what extent we can say: Okay, yeah, we need to be lenient because the time is really calling for it. And in which point, we actually dealing with a situation that provisions are just being circumvented, and someone is trying to take advantage of the situation. I think that finding this line will be and is, I think, quite difficult. The one thing is that I do you think that we probably in the years to come, we’ll get a bit more of information on how you interpret urgency. I do think that we will see more cases. And, and that’s interesting. It will be interesting, because if I remember from our last episode, the conversation about litigation, you have an opinion of you think that actually, courts will be fairly lenient. We will not see that many of court cases. Do I remember correctly?

Willem Janssen  9:25 

Yeah, I think it’s a bifold argument. One would be you’d need to have a pretty strong PR department as a competitor to be able to start this and such legal proceedings. I don’t think it would look very good in particularly in these COVID times, so I think, even though it might be a legitimate claim, I think companies would be hesitant to file those claims simply because it might make them look bad. So, there’s a bit of difference between practice and legal but also yeah…

Marta Andhov  10:00 

…but I think it’s also cost, to be honest. If we are looking right now, you know, how big of a head economy is getting? Of course, different member states, different costs of launching those proceedings, but it’s for sure some type of costs. And the question is also if… This is a bit duel, right? On the one hand side, I can totally imagine a company sitting well if we would get that contract, it could really help us, it could really save us from, let’s say, bankruptcy, right? On the other hand, I can also imagine there will be companies, their approach to be: “Okay, let’s just not get ourselves in a long, litigious process.” Let’s just try to, you know, get something else. Yes. So, it will be interesting to see what…

WiIlem Janssen  10:45 

….see what happens. And I think the point…. the second aspect of it is the courts might be lenient if they have the option from the Remedies Directive. And that’s what we touched upon in the last episode, is these overriding reasons in the general interest. Like public health is one. So perhaps courts will be lenient when it comes to that, but that I think, only time will tell if how different courts and different member states if they have the option, how are they will go about it? Yeah. So, in terms of urgency, also, like looking at the length of how long they’re predicting for this, this crisis to last right. So, the Dutch Prime Minister Mark Rutte said that we need to work towards a new normal, right, a new normal of one and a half metre distancing. Um, so perhaps do we need to move to a new normal for public procurement as well?

Marta Andhov  11:41 

That’s a tough call. Right? Well, that’s a tough call in that regard because it’s also causing a challenge, particularly to carry out some of those procurements. We will be talking in the second also about the issues of getting documents and different certifications right now, because everything is closed. So, the question is,… I think we can require the new normal in the context of procurement if the infrastructure, so to speak, is there. And I think that that’s, again, quite different between different member states. Some of the member states, I think a large majority of whole procurement proceedings, is very much digitalized, and some of the member states are really good, sort of in that regard. So that can sort of jump through a bit faster, right? But if you have still some of the members is in majority of proceeding is still through paper, I think it will be it would be quite risky to suddenly say; Okay, from now on, we are back into full of normal procurement regimes and routines without the urgency, and you need to get all of that. And just to show the example of the challenges when it comes to the procurements that are currently carried out, right? So, they may be potentially started just at the time when the COVID-19 took over or just before. We are somewhere in the middle, particularly, let’s say selection stage. And the question is right now about obtaining different documentation if that is from national criminal records, or from tax offices, or different types of certifications, from social insurance, institutions, et cetera. Now, we know, it has been reported that in different member states, the challenge exists because those institutions are fully closed, or they are substantially slowed down due to due to the new reality. So, it’s very difficult in time or the time has been substantially expanded, the waiting time to receive some of those documentation. Now, of course, looking at the Commission guidelines, one of the things that you can do is work with deadlines, right? So, in the context of this question, you would say: Well, you could potentially extend the deadline for longer, but what if you still, as a bidder, are unable to receive this type of documentation in time?

Willem Janssen  14:18 

It is a difficult issue, and I think you’ve been…. this you’ve had…this was…. these were questions that you discussed with people in practice in Denmark over the last couple of weeks, right?

Marta Andhov  14:28 

This is, as I mentioned, last time, I sort of took part in a whole lot of different webinars across European law firms majority that were organizing them talking about this practice-based problems, and that’s specifically about this issue of documentation. That’s something that has been discussed quite a lot in Poland. That issue of you know: Do we have some rules that we can just interpret, to help us out somehow? And that’s where the question, particularly of this article 60 (2) of the Directive or the Classic Directive, comes in place. Because if just to bring back article 60 (2) which points out the issues of documentation and in cases the article is structured in cases when we have known issue of documents in by competent authorities, in particular Member states, then you are allowed to submit a solemn declaration, authorise declaration, etc., etc. And now the question in Poland particularly is about: How we interpret that?

Willem Janssen  15:40 

So, we have this Article 60; we have this non-issue of documents problem. And then the question is, what was this actually made for, right? Because it seems to be more of an article that was introduced in terms of internal market concerns, right? You need a document, but it’s not issued by the Member state where you’re from, or there’s differences between judiciaries or legal proceedings. And now we’re faced with a crisis scenario, that’s inherently different. But it’s got the same root problem, you can’t get the document. Yeah. So how do you think we should interpret this?

Marta Andhov  16:15 

Well, I think that the starting point is exactly what you said, the first time that I heard about it, and the first time that I looked at that provision, sort of my impression was, well, the interpretation is, you know, predicted as this permanent non issue of documentation, meaning that this documentation are not provided at all in a given country, you don’t have particular type of registry, so you need to find a different, this sort of term that we use quite often in context of procurement or equivalent to right, so a different source of documentation for that. But right now, in the context of the pandemic, there has been proposed this line of interpretation that is also for this temporary solution. So, we normally issue the documents in a particular member state. Still, temporarily, this has been stopped the issuing of certain documents, so can we interpret right now this provision saying: Well, due to the new circumstances, you are exceptionally, so to speak, allowed to submit a solemn declaration? And I think that having in mind what’s happening right now that would fulfil this same argument? Right?

Willem Janssen  17:29 

Yeah, I would say so. It’s kind of like more of a teleological interpretation of an article. So, it’s if you actually manage to prove the same as what a normal official institution would be able to do. It’s still that would be hard, right? Because if, say, a criminal record check, I don’t know how you would do that. Alternatively, other than just say: I have never committed any of these offences. Right? So, yes, to a certain extent, that would be the solution, I think. But it’s still incredibly difficult for particularly the more official documents to get, the harder it would be to actually be able to still provide it, right?

Marta Andhov  18:11 

Yeah, well, I think that there could be, you know, an option, maybe that could be implied is that you for the selection stage, you’re allowed to do so. Then at some point, if that’s achievable to submit before the award of the contract, the actual documentation. If that’s not possible, I think that something that recently has also been discussed in the context of a lot of challenges with frauds within procurement these days, due to this whole urgency, the question would also be…you should not include quite stringent comments on, you know, prosecution for wrongful provision of information, right?

WiIlem Janssen  18:54 

Yep. Yeah. So, this is all we’re continuously debating leniency, right to think about, how lenient will we be, and what’s justified in these situations? There is, I think, two more things that we need to discuss in at least this episode, or at least that I would like to discuss. And this is also, so we talked about issuing of documents, when do you move from urgency to regular procurement, even for those urgent procurements? Right, because for other procurements, we’re already in the regular phase. And then the question is really, if we get out of this, what’s really the value of like market analysis and market consultations that we’ve relied upon for years, right? My gut feeling would be is that we would need to move straight to if markets really are going to change as a lot of economic institutions are expecting them to do. What do we…. are at least.. I wouldn’t say it’s a warning, but like…. I think contracting authorities would seriously need to think about their current market analysis on which they based the structure and the setup of their procurements? Because they will inevitably change.

Marta Andhov  20:10 

Oh, absolutely. And also, it’s a little bit like no one knows where we are one way or another; I’m maybe over-exaggerating a little bit. It’s so unpredictable. I also think a lot of commentators at this point are saying, you know, something that was true or valid yesterday is not anymore today, because the data sort of flies in so quickly, and you’re starting to realise all these new different things in effect, so yeah, I agree that this is quite, quite challenging, it will be quite challenging and introducing a whole different set of issues.

Willem Janssen  20:50 

I think that we need to discuss. Now you go….

Marta Andhov  20:58 

I actually wanted to ask you about it. And that is a quite nice link, you know, between the COVID conversation that we obviously needed to address but also moving towards more the topics that we also originally really kind of bonded over and are both quite passionate about. And that is the question of sustainability point in the COVID time, which…. I think we both were actually quite surprised and it’s I think it’s worth to elaborate a little bit more about and that is the notion that sustainability has been as important mentioned in this community communication from the Commission, saying that: You know, you should include this sustainability now. It’s probably the worst time possible to try to put additional layer of requirements on contracting authorities, but I just was wondering, you know: How you see that point is? Do I read it too, literally? Is there a point that we can try to, you know, sort of defended through the eyes of Commission? What is your opinion about that?

WiIlem Janssen  22:07 

Yeah, well, I’ve also seen, I’ve seen mixed responses, right? I think I’ve also, like, had both thoughts in my head. But I think the general critique was, well, this is, I mean, I’m saying this blindly. But this is ridiculous in these times, you should just not impose these requirements. On the other hand, I do think this is perhaps a bit more fundamental. I do think the European Union is also like a place of values, right? So coming together a community of values and I know that in itself is probably already very much up for debate. Even in these times, I think it’s important that someone at least reminds us, let’s not throw everything overboard, right? Let’s try to at least keep some of our moral compass intact, and not just go: Okay, we need to get everything’s, particularly for those regular procurements, right? That’s where sustainability is still so, so vital. So, I was like, going in between both sides of the of the debate. And ultimately, I think it’s good that they mentioned it, because particularly for those regular procurements, it should be possible to still include them and if not, then not, right? Then you’ve got somewhat of an excuse.

Marta Andhov  23:24 

I think that, you know, maybe it’s also advisable not to read it so literally, and I mean, that maybe, you know, you shouldn’t think about the sustainability aspects in context of, you know, buying ventilators and masks and so on, like when we are talking about this really urgent and important elements, that’s, that’s just the timing of getting those things is more important than anything else, probably right. But where I kind of see a possibility and potential here. And I think that that’s confirmed by actually, right now, a lot of the member states is when you think about the sustainability in the longer run about this future perspective, when we come out of COVID. And that is about, you know, how we restart our economies? And what should we try to do and I’m sure that you know, a lot of our listeners and people interesting those topics, also on different social media or on different platforms saw this compromise between flat this curve, also and sustainability, a sustainable business. And you hear already I think it’s between 5 to 10 Member States right now sort of signing these memos and this declaration of trying to reboot, but particularly in context of environment, more environmentally friendly policies, when it comes to, you know, restarting their economies. So, I think that, you know, in the longer run, I think that makes sense. So just maybe not that literal interpretation of that provision in those guidelines?

Willem Janssen  25:01 

No, for sure. And I think I fully comply with like the argument never waste a good crisis. Not everything is bad. And perhaps something good can come out of it. Like we discussed in the last episode, perhaps education will, legal education at universities will become more balanced, more blended in terms of online and offline. That’s perhaps a good thing that will come out of it. So, let’s hope that also sustainability might get a push following this crisis. Is it time for dessert?

Marta Andhov  25:30 

I think I think so. I think let’s talk about let’s lighten this up again a little bit.

WiIlem Janssen  25:37 

We try… I always find that when I talk about the COVID crisis, I can’t help but get very serious, but that might also have something to do that we’re being recorded. But that’s a whole different discussion, we can discuss that after we’ve turned it off. We said we were going to just briefly touch upon a mentoring and the importance of that, I think, in academia, for master’s students, for bachelor students, but also young academics, and I think even also older academics, it’s actually, it’s very valuable, and I think, maybe also topical in these times. Because in these new circumstances, it is nice to have people to fall back on, I find.

Marta Andhov  26:17 

For sure, um, you know, something that has also been discussed is just to and forgive me for, you know, tying your back to COVID. But, um, just to contextualise this a little bit is, you know. There is lot of discussion is right now about mental health of, you know, all these people working from home.  I think particularly also, if you have, let’s say, students, and if that’s PhD students, or young academics or exchange students that did not go back home, and they are in a foreign country, and you are suddenly locked up in your dorm room or somewhere else where you are quite isolated, literally, then, you know, the effects of all of it if you really don’t have much interaction with anyone, right? So, I think that is very topical and time wise, very important. But I think also, we talked a little bit about why we want to talk about subjects like that in this podcast. Maybe you Willem, will start out. What do you think, where are we aiming with that? What is the added value that we’re hoping to provide with discussing things like the education or the mentoring or any of those?

WiIlem Janssen  27:32 

Maybe it’s arrogance, because we think we’ve got more to say, than just probably procurement. But I don’t think that’s really it. At least, this is what my wife reflected. She reflected on, or she touched upon that and during breakfast, and she said; Well, who cares? But I think as academics, we do have a responsibility to actually… we’re academics in the world, or we’re academics in society. What our position is, is very similar; whether you’re a legal scholar or a better scientist, it doesn’t really matter, because you’re faced with the same issues. I think what I’ve always … what I found very helpful is when people actually share the struggles or the the milestones that they achieved in their academic career because that’s where I learned the most, because I thought, oh, maybe I’m not that weird. Or maybe this is actually something that went really well, and I didn’t really acknowledge that right. And so, whether that be the first publication of an article, or being rejected by a journal for the first time, or all these types of milestones, I find that mentors have always helped me to, to give that a place and to kind of understand if it is an issue, or if it isn’t, right?

Marta Andhov  28:46 

Yeah, and I think, you know, also in the context of academia, if we jumped for a second, you know, Ph.D. students and young academics over this, there’s also, you know, a huge level of broadly understood competition. There is a competition for funding, there is the competition for jobs, and we always share, you know, the best and the progress and so on. And I think part of all of it is also finding your tribe or finding your mentors, your colleagues, that also will share with you those things of you know, how to go through the difficult, difficult points in your studies or in your research, and how you overcome them, right? Yes, so my question, my question Willem to you would be, if we thinking about students, our master students writing a thesis, or young academics, usually you for sure have one way or another assigned a supervisor, would you say that supervisor is the same as your mentor?

Willem Janssen  29:49 

I mean, it would be great if it was like that, but I have lots of examples where it isn’t. I would say to choose wisely because I know when you look at particular supervisors for theses, I find a lot of students logically go for always the full professor, right? Because it looks best on your resume. That’s the undeniable truth. But if you look at the amount of time that a professor like that logically has, it’s very limited compared to what maybe a postdoc or an assistant professor and associate professor might have, right? So, you can’t generalise but or you shouldn’t, I suppose, but in general, and I love it when I say you shouldn’t generalise and I’m about to generalise. But in general, there is a difference in time devoted and perhaps also interest, right?

Marta Andhov  30:37 

I think that you’re much more eager also, right? When you sit over a little bit at the beginning more, you really want to prove yourself and you want to do a good job. And if that’s your first or second Ph.D. student, or your master thesis students, you really have like this burning, eager in you to help out.

WiIlem Janssen  30:57 

Yeah, so actually, before we close off, how do you go about…How did you go about finding a mentor?

Marta Andhov  31:06 

Um, so I think that some of it is random and happens randomly. But I think the one advice to any of the students or young academics out is to just make yourself a little bit vulnerable and ask for help. I think we all are very scared to do that, particularly in academic context, because you worry that you won’t come across as knowledgeable or somehow less. And, you know, the way how I found my mentors, were just being quite honest, and saying, you know, I have this idea, or I struggle with this and then you find out very quickly, also, some people kind of give you one line around, so to brush you off. Some people really take interest. This mentoring relationships are fantastic, because, you know, that’s to be honest, I also think, what’s your legacy? I do really look right now, when I look at the leading minds, the leading professors, in fields, I think that the true of yours is how people think about you, or people, how you know, how the Ph.D. students who always return back, and they always have you in mind, and so on, so forth. I think the people are your legacy more than books and articles. So I think that that’s for me, also the great ambition, you know, and years of career to come to be that mentor, so whoever is listening, if you guys, by any chance doing a Ph.D. in procurement, or anything that is related…. just you know… But for me, it is; write an email if you need some help! So, you know, get in touch, say hi.

WiIlem Janssen  32:59 

Because that’s actually exactly what I wanted to add to what you’re saying because you put it beautifully. But I think that does require one thing of these young academics or graduating students is that they do take that first step, right? Because it’s not, they’re not served to you on a platter. You do need to be able to be vulnerable, like you say, but make that step, send that email. I’ve never, maybe I was lucky, but I’ve never had a weird response was during my Ph.D., when I said: Hey, I’m working on this. Could we have a chat? Everyone wants to talk to you. It’s not an option, or at least people also love to feel important, I think. But yeah, the world is not as scary as it might look. And also, perhaps work, and then I think we should really close off. Perhaps what can help as well, is that this feeling of feeling vulnerable and scared. I don’t know if you’ll ever lose that in academia, right? Like, there’s always this feeling of: Oh, this slight bit of nerves like, oh, what am I doing? But that’s the whole idea of science, right? Is that you continuously putting yourself out there and aim to be vulnerable….

Marta Andhov  34:14 

….and being also rejected, so many times, right, when we’re talking about you know, submitting publications, doing all these different things that are inherent part of this job is that you just sort of rejected all the time.

WiIlem Janssen  34:26 

It is a bit like Tinder, isn’t it?

Marta Andhov  34:30 

Yeah, unless you are really popular on Tinder. You know, who knows, right? So let’s not dive into that. Let’s keep it let’s keep it… Yeah, just nice and positive in the sense of we are here for sure. So, if you guys struggle at any point, if anyone sort of works within academia and it would be interested, we’ll be more than happy to chat with you.

Willem Janssen  34:55 

For sure. Totally. All right. Should we close off? So, this was Bestek, the public procurement podcast.

Bestek  35:06 

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

p.s. should you be interested, have a look at the video presentation on this topic by Marta or this Dutch Bestek episode on COVID-19 by Willem.

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