Willem Janssen [00:00:00]

Welcome to Bestek: The Public Procurement Podcast. Today Marta and I are discussing reserve procedures and the ASADE Judgement.

About Bestek [00:00:13]

Welcome to the Bestek, the public procurement podcast. In this podcast, Dr. Willem Janssen and Dr. Marta Andhov discuss public procurement law issues, the 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 public procurement law.

Willem Janssen [00:00:38]

Marta.

Marta Andhov [00:00:39]

Yes.

Willem Janssen [00:00:41]

Good to see you again. How have you been?

Marta Andhov [00:00:43]

Likewise. Pretty good. Pretty good. Looking forward to our chat today. A bit about social perspectives and public procurement. Is that fair to describe it in such a way, I guess, right?

Willem Janssen [00:00:55]

Yeah. I think we’re really going for very much of a socially responsible public procurement context today where we’re focussing on two of the explicitly legislated reserve procedures. So for those of you that have pieces of paper ready whilst you’re listening, you know, on a bike, you know, in a car, grabbed the directive and go for article 20 and 77 in the directive 2014/24, because we’re looking at the reserve procedures for sheltered workshops and the reserve procedure for social enterprises.

Marta Andhov [00:01:29]

So that’s our main for today. And then we will jump to our dessert, which will be…

Willem Janssen [00:01:36]

Societal positions as an academic and questions of independence. So, that’s what we’re looking at in terms of food. Let’s see. Last time you made very interesting comments about which part was more fun. Let’s see if we can make this one more fun in the beginning.

Marta Andhov [00:01:55]

Undoubtedly.

Willem Janssen [00:01:56]

Let’s talk a bit about context.

Marta Andhov [00:02:02]

Socially responsible public procurement. I think that’s a good place to start. And I think the reason why I would want is to start there, because it’s also contextual to where you are in the world. And what I mean by that is that we are quite bad, or we’ve been quite bad in regulating social dimensions of public procurement in Europe. And the environmental part has been dominant for some time right now. And also, because the social part, very often in the European context, gets this label of ultimately aiming for preferential treatment. Right. Because local work force, local companies. But if you look a little bit outside and if you look particularly in South Africa has been doing some fantastic things. If you look on Australia, America, Canada, all those countries did due to historical and cultural context, as have disadvantaged members of the society, particularly in Australia or Canada, connected with the Indigenous communities. The notion of providing a type of reverse discrimination, somehow providing this preferential treatment to various companies that would be Indigenous community owned and so on, that’s has been quite elaborated for many years and lots has been going on there. But in Europe, we sort of dipped into it a little bit, but there is a lot of fear, risk associated with that. But particularly, the legislators still are unsure how to tackle that, to not ruin the internal market in a sense, not to, you know, open the Pandora’s box. Is that fair assumption?

Willem Janssen [00:03:48]

Yeah, I think I think that makes a lot of sense because often when you look at this like preferential legislation that we see a lot abroad that would favour a certain group over the other in society. Right. And for good reason, like you say, because of history or current socioeconomic positioning of these groups in society. But in Europe, because we have an integration driven agenda, particularly under this directive, often it’s then seen as a risk to favour your own entities and that yeah, okay, you might be saying that it’s for a social purpose, but yeah. And you really just trying to keep the doors close to entities wanting to bid from abroad. So, because of that integration. So that’s why in a way it’s already interesting that, you know, for social entities, those sheltered workshops and social enterprises, we do have a reserve procedure because it kind of directly goes against the position of the directives, which focuses predominantly on evaluating the bid. Right, and not the bidder itself. And and that’s often very nationality driven because if we start focussing on the bidder, you know, we might get those national preferences back. And that’s what we don’t want. Or at least this is the European legislature speaking undoubtedly.

Marta Andhov [00:05:10]

And I think this is also the relevance of those provisions. And this approach is, as you mentioned, is reserved procedures. It’s also seen really as the predominant tool to include a social dimension in public procurement in the EU. And what I mean by that is if you look at the buying social initiatives and the guidelines that have been issued and you look on there is one that sort of looks on the practises across Member States and identifies which type of solutions have been applied and the reserved procedures just being one of them. There was also like did you consider somehow the social dimension in the award procedure or what you were describing in your textbooks or in the contract performance? So, they kind of created a catalogue and then surveyed across all the member states which type of procedures have been used or sorry, which type of tools to push the social agenda have been used most. Undoubtedly the reserve procedures are being the predominant one. It somehow seems to be extremely difficult to wave in this type of social consideration in any other way in the in the competitive procedure. Then the next after those would be the contract performance conditions that somehow have these requirements that we Remember Nord de Palais and Beentjes case, when you have this sort of requirement of employing at least a certain amount from long term unemployed, and that would be the contract performance condition. Right. This is what we had from Court of Justice. And on these reserved procedures is the newer development that that we have some cases. Right. So, that’s what we will do a little bit more today.

Willem Janssen [00:07:08]

Yeah, for sure. And also, just to link in what we what you were saying, if you reflect on the Dutch context, that’s very much reserved procedures through sheltered workshops. For mostly the municipalities. And then we have these classic examples of bike repair shops that are run by as what we what we say is people with a distance to the labour market, including all types of reasons.

Marta Andhov [00:07:31]

That’s’ a nice way of wording it.

Willem Janssen [00:07:35]

Because I think I, I quite like it because it doesn’t stigmatise those people for what they what they, what might limit them, but actually just describes that there is a distance. So, and there’s contractual conditions that’s this golden 5% rule that we apply in the Netherlands nearly stock standard to all contracts that has its issues as well, because we often that 5% is not well thought out, but 5% of the value then would need to go towards hiring long term unemployed. And all these metrics set up of like you get more points for this type of, you know, long term unemployed rather than, you know, people with a shorter distance to the to the labour market. So, you see a variety of it. And but then what I find interesting before we start looking at these specific criteria in the Netherlands, we don’t actually use this reserve procedure for social enterprises at all. So, the Article 77 is not used, or at least to my knowledge it isn’t. So, what I would be interested also to hear from our listeners is if you have really good examples of this being used or if this shocks you perhaps and you think, well, we use it all the time, I would leave it in the comments because I’d love to hear more about that because and we’ll come to the criteria in a bit, but I find those so that one is so strict that it’s almost impossible to apply.

Marta Andhov [00:08:57]

Yeah. And I think that the very last comment that in regard to scoping that I would want to make is a bit related also to this sort of gender balance procurement that is also right now one of one of the agendas and discussion on one of the events this year and giving a huge shout out to Professor AnnaMaria La Chimia. She made a very interesting statement that somehow stayed with me when we were discussing, you know, this various promotion, that there is various groups of type of enterprises and so on, because it’s equally applicable. Also, if you really think SMEs Don’t need to think, you know, women-owned businesses or you don’t need to think about social enterprises and so on, but any of the other somehow and what AnnaMaria mentioned, which I thought it was really, really brilliant sort of nugget of thought, is this thing that, well, we assume that currently the system is objective and, you know, currently the system is right. So, by giving any type of  preferential treatment, you kind of give someone something for nothing. But this is wrong in the assumption because the system currently is not equally accessible to everyone. The system is very much a design in a way that it works for big large companies. So, this is, I think also this notion between broadly outside of procurement, the language that is very often used, the difference between equality and equity and equity here being really, I think, crucial. So just to sort of, you know, sideline for this discussion that I think brings us very much to, well, what markets are we creating, what societies are we creating? And again, the sort of social dimension of public procurement that I guess in our Podcast where we talk often about sustainable public procurement, maybe we did not so specifically tackled the social dimension before. And as Willem mentioned we would want to focus on shelter workshops and social enterprises. So let’s start with the shelter workshop. If we look at Article 20 within the directive,  2014/24, the reserved contracts ultimately allow us to do what Willem?

Willem Janssen [00:11:21]

Well. So, particularly when it comes to Article 20. What’s interesting is the member states have the option to include this reserve procedure. So, it’s optional implementation. And what it means is that you can set up a procedure. It’s still a procedure in both cases in which you can limit the right to participate. And the article here then gives a room for sheltered workshops, but has also broadened it in the most recent revamp of this provision to economic operators, whose main aim is the social and professional integration of disabled or disadvantaged persons. And basically its main criterion states, that’s right, so, that needs to be that type of entity. But also it says something about the workforce it needs to consist of 30% of employees of those workshops, economic operators of programmes, etc.. So 30% used to be 50. So, it’s been it’s been lowered a little bit to make it more accessible.

Marta Andhov [00:12:24]

And that’s been welcomed, right. I think that if I look at the commentators and sort of analysis and interpretation of that provision, that decrease has been welcomed.

Willem Janssen [00:12:34]

Yes. Because 50% is a lot. Yeah. Right. Because it’s a general FTE count and that makes it difficult. And 30% is far more viable in that in that sense. So, this is where you see the municipalities using them as sheltered workshops to the kind of because these entities and these reserve contracts or I should say, reserve procedures, why do we have them? Because the assumption is, is that they struggled to compete. They’re at a competitive disadvantage when it comes to them to when it comes to just your stock standard, small or medium sized enterprises, because they have this social agenda, because they have a different outline of a workforce. The assumption is, is that they struggle to compete and would then not be able to bid for a full contract. And that’s I think in a more broadly speaking, you see that with all types of semi atypical entities on the market, whether they be social enterprises or citizens initiatives or, you know, any type of entity that is a bit different. I would say this reasoning could apply as well.

Marta Andhov [00:13:37]

Yeah. And I think that the interesting part is that it’s not that you kind of giving awarding directly that contract to a company like this, which is interesting. If we for second take us sort of shoot through and maybe that’s because I had the experience or maybe, it’s because I’m very much looking forward to going to. But in Australia in their approach, you really have the exemption, right? You’re saying if you have a company with particular amount of Indigenous community ownership, it is excluded from the general processes and is excluded you can directly be awarded to them as long as you kind of tick that box. So, the European approach and disregards is that you still have the competition is just that you limit who can participate. And Willem now I wonder because I don’t have knowledge about that do you may have some sort of indication on the Dutch market this type of reserved procedures? Is a competition ultimately present there? Do you have competition between those entities or ultimately you do end up with just one?

Willem Janssen [00:14:48]

I think that’s the standard rule. So, if I look at what happened as far as I am aware of the practises in other member states. Often just to use the example again of immense ability, it’s one sheltered workshop, per municipality or one or a couple, and they have specific focuses.

Willem Janssen [00:15:07]

So, whether that would be simply said, a candle workshop or arts and crafts, it’s a totally different than the one that I mentioned already where bikes are repaired. Yeah. So, there is a there. But when you get to more I would say in more sizeable chunks. So, social management of neighbourhoods. There was a big case where there was allegedly what they stated themselves. Quite a successful one in Utrecht. It was put open for tender and the Rotterdam one took the contract.  Where I can see the frustration there is not just because, you know, you did according to your own knowledge, you did a good job before and now you’re not getting the reserved contract. It’s also because these social entities or social workshops are so linked to the local population, to social communities. So the question then is, okay, should that really go to a Rotterdam sheltered workshop when the Utrecht one was doing a fine job? Right. But that’s, I suppose, questioning the whole competitive side of things.

Marta Andhov [00:16:13]

Yeah. And I think this is exactly also what you’re saying if you look at it from that perspective, which I think is a very valid, you know, point, because development of communities, the social angle and so on, so forth, even over development of areas, right, that you sort of create for if you have particularly some neighbourhood and it sort of creates engagement for young people, that maybe either way would get into some troubles. It really has this social dimension and locals do it, but because it has that localism to it, I guess we can really see why there is so much risk aversion in a broader European context to this also sort of social dimension, right? Because it really has that that local sort of ingrained geographic notion. You mentioned Rotterdam and Utrecht still within the same member state. Right. Now imagine if that somehow would be a French sort of organisation or a social enterprise coming in. So that kind of changes things quite a lot. Let’s jump for a second and compare the shelter workshop in 20, to the social enterprises in Article 77. So, as you mentioned, we have these two procedures, reserved procedures, and they both somehow create a type of unique situation. What is the difference between when we apply 20 and when we would apply 77?

Willem Janssen [00:17:46]

So, 77 is in a different section. So, it’s in the, the chapter on social and other services with a higher threshold in terms of the monetary value of the contract.

Marta Andhov [00:17:56]

So, the so-called light touch regime. Right?

Willem Janssen [00:17:59]

Exactly. And it’s also specifically limited to specific CPV codes and it’s stricter. So, I believe I mentioned that already. It’s got more criteria that says something about the type of entity that can participate in the procedure. And it’s very much linked to what even though there’s no standard definition of a social enterprise. But it does smell of social enterprise, if I can say it like that. So, it needs to have an objective that is in pursuit of social, of a public service mission, and profits are reinvested to aid that mission. So, that’s, I think, a common thread through most definitions also on the EU level or on the national level. So, when I talk to social enterprises and now the the Dutch body that aims to represent the needs of social enterprises in the Netherlands, they tell me that that’s a general focus of social enterprises. I think what’s in a way interesting about this article is it also says something about the profits that need to be redistributed or distributed based on participatory considerations. Nobody knows what those participatory considerations are. So, you can make profit because you’re an entity, right? Those profits primarily need to be invested towards that public service mission. But, you know, if you have some money left over, there needs to be some type of social way. Or at least this is how I see it, that the directive is unclear then. So, you just say the director taking all that’s somewhat excluded, but what it means to have participatory considerations, perhaps that the third criteria can give a bit of meaning there is that the structure of management or ownership of the organisation must also be based on employee ownership or participatory principles, or require active participation of employees, users or stakeholders. Now again, this is very vague, but it seems to infer some type of more of a flat organisation where employees have a ownership or at least have a stronger say than a very top down type of management style. And perhaps that can also be linked to the you know, if you distribute profits, it needs to go to all employees. And there’s a question mark there because that’s a bit unclear. And then finally, you can only award a contract for a maximum of three years, and you cannot have been given a contract in the past three years. So that being said, knowing that it’s still in a competitive environment like we just discussed, these criteria are very strict. And I think particularly the criteria that relate to the structures of management because the objectives and that the criteria about profit, I think a lot of entities can kind of fulfil those requirements. But because this article requires employee ownership or participatory principles in which the management is constructed and because you can only get one every three years, it’s not really, I think for many entities, an interesting option, knowing that many of them already tell me it’s so hard to work with the government anyway. So, if you know you can only get one contract for three years, it’s probably not a very viable option, but and also a means of like getting the social in procurement.

Marta Andhov [00:21:36]

I think that the interesting part here is also that is one of those provisions and we have couple of them in the directive that really kind of shoots so far away from what procurement is. Another example you can be really if you analysed the labels, then it kind of really tells you about how the labels and standards, environmental standards, how they are to be developed, what type of stakeholders ought to play, what is the procedure established in certification, etc., etc., which is well, that is for if that is area of law of something else to kind of have more to say about how this is to be done, why you can apply it here. But I’m not sure whether within procurement rules we are the best to design how this is to be done. Similarly, when we talk about social enterprises, you really go into detail on how this to be organised, how the money is to be distributed, etc. etc. is it’s going quite far. Another provision that is similar to that is actually also innovation partners. Right. Which is in a section on procedures. But actually, when you read through it, it’s not a procedure is actually a sort of public, private enterprise because it talks about, you know, intermediate targets, organisations and all the sort of different things that happens after you award contract. And we have couple of them, and I find it quite interesting, but at the same time, you know, kind of easy point of criticism to the state. Yeah, I understand that there is a point of open competition and that’s what we protect above and beyond. But if we assume that there is a social need and on that basis, we also have the T and we kind of indicated the numbers why 77 so, so extensively restrictive. And in that regard, it might make it a type of dead letter of law, you know, that we kind of have a provision, but that provision will never be used and then the provision is never used. It really raises a question of its quality and the sense of having it with the next round of provision comes in.

Willem Janssen [00:23:56]

Yeah. So, in a way I do also I understand where they’re coming from. Right. When they because this was seen Article 77 as one of the victories of like the instrumental use or the extent instrumental public procurement law that we had and that was introduced in 2014. I keep wanting to say new directive.

Marta Andhov [00:24:15]

It’s not that new anymore.

Willem Janssen [00:24:16]

I don’t think we can really say that. I know, particularly when I say that to my students, they look at me and they kind of go 2014. I mean, I was born, but…

Willem Janssen [00:24:26]

That’s definitely not the case here. But I do find it because then if you take the next step, right, if you say you would want to make a carve out, particularly for these types of entities. Right. Because I also understand that there’s a bit of frustration there in lots of EU policy documents. You know, social enterprises are heralded as the way forward. When you look at the some of the proposals in terms of due diligence that are coming out, it’s very much focussed on producers, on entities that, you know, are active on the market and the obligations that are going to rest on their shoulders to meet, to meet all these important goals, whether they’re social or sustainably related. But then when we talk about public contracts, we say, you know, your problem, participate in a procedure. And unless you meet these two reserved contracts, it’s your problem.

Marta Andhov [00:25:17]

Yeah.

Willem Janssen [00:25:19]

The rebuttal there is perhaps not so much integration focussed, even though I think that’s a relevant point of course, because what we started with that.

Marta Andhov [00:25:30]

We continue with that.

Willem Janssen [00:25:34]

Otherwise we would be going against what we just said. But I also think that when you start thinking about, so I did a bit of work for the citizens initiatives in the Netherlands and I tried to come up with a guide to help them, you know, work with public procurement law and for them and to spur there the access to procedures. Is it ultimately, as a lawyer, you are confronted with the question, what’s the difference between a Start-Up, a small, medium sized enterprise, a citizen’s initiative, a social enterprise, a sheltered workshop? And what entities do we specifically want to stimulate? It’s more of a political question, but the next step is then how we ensure that the system is legally sound. And I think here what the legislator did in Article 77, it went very strict to make sure that, you know, we need integration, but we also see the importance of social enterprises and they can get contracts. But we’re going to make sure that only those entities that are really, you know, social enterprises can get the contract. So, but if you talk about definitions legally, I do think that it can get quite difficult. So, perhaps also a bit of empathy for the legislator when it comes to this.

Marta Andhov [00:26:57]

Undoubtedly. But, you know, I think ultimately what I envision might happen is the next time that we will be revising it, the articles on social enterprise, the article on social enterprise will kind of go through the same process as the shelter workshop that, as you mentioned early on, started with 50%. And were reduced to 30. So, it also might be a situation in which those quite stringent requirements will be loosened up a little bit. Due to the fact of just not being applicable at all. But that also brings us to the more sort of case-based part of today, because we wanted to give a couple words on ASADE Case that is directly related ultimately to the discussion on social enterprise. Willem, could I kindly ask you, could you briefly outline the case for us what that case is about?

Willem Janssen [00:28:00]

So, I think what we’re seeing and I’m going to generally when I say so well, I start a bit broader than your question, but I will answer your question.

Marta Andhov [00:28:10]

You’ll get there at some point.

Willem Janssen [00:28:11]

I’ll get back to where we said I think the call to action is to our listeners is read this ASADE Case and also perhaps and that’s why I wanted to broaden it a bit, also read the Conocee case of 6th October 2021, which related to Article 20 so the other reserve procedure. Whereas this one specifically says something about Article 77, the ASADE case. And what’s I think interesting here and I’ll get down to, you know, discussing this in a bit more detail is that we’re seeing, I think, a loosening of, you know, where we can put the social. So, the Court of Justice appears to be open to more social procurement. Is that a would that be a fair conclusion?

Marta Andhov [00:28:57]

Yeah, I think so. I think so. And also, the increase of their relevance, because I think the fact that in a fairly recent time we have two cases right now means that there is a trickling effect from this increases of policies and mobilisation. I think if that is the society initiatives or the social enterprises and so on, so they gain more and more relevance, importance. And that’s the reason that they also are starting to pop up in our realm of our work when it comes to law and case law.

Willem Janssen [00:29:32]

Yeah. And I think it’s also so for those of you wanting to look it up, I always hate it when people say the name of a case and then I’m like, Yeah, but that’s I had no idea how to find it.

Marta Andhov [00:29:41]

We have it all on our website, please visit and it read through the description.

Willem Janssen [00:29:47]

Okay. Do you want me to make it a cliff-hanger? I’m not going to mention the case that you get angry at you. But it’s 598/19. And we’re talking also about 436/20. Right. And I think what’s interesting here is if we look at the ASADE Case and something relatively similar happens in the Conocee case is that they’re both Spanish. And what’s interesting is the Spanish courts had asked before, but then in a public context, public cooperation context, you know, can we include private capital if it’s social capital in this in the exemption under Article 12? And the court said no, private capital cannot be included in this exemption. And these two cases really take a different turn here.

Marta Andhov [00:30:36]

The sort of related a bit to [00:30:38][…]. [0.0s] Right. Also in the context of public [00:30:40][…] [0.0s] Case.

Willem Janssen [00:30:42]

Yeah. So, basically, the court instead, said private capital cannot be included in this exemption in a public, public corporation. And the Spanish courts tried to push that boundary in central [00:30:53][…] [0.0s] and basically say, you know, if it’s super social, this private, if these entities that own it can’t they also and the court’s very strict and says, you know, no, even though they’re social, you can’t. What I think is interesting, though, is that obviously it’s sparked by legislation. And it seems that from an outsider perspective, if I look at these two or three cases, it seems that lots of legislation is very much geared to leaving room for social services to be performed by private entities. And that’s where the court also starts off, because what happens here in these ASADE case, the and I’m going to skim through it a bit is basically it’s a reference for preliminary questions about this specific question that is addressed where, you know, there’s a claim posed by ASADE. And so basically saying and I have to translate from Dutch because it’s not available in English yet. You could have done the Polish, I could have done the Dutch relates a bit to publication languages that we did before, but the basically entities with a for profit focus are excluded and there’s a focus on external social service providers, non-profits that can gain a contract directly awarded and get a bit of money for that. Right. So, you would think, okay, there’s there would be a duty to tender, but, you know, there’s an exemption there. And then the question is or the court then I think makes two important conclusions. And I’m sure there’s more. And it says something about Article 77, and I think we should start there because that was the link that we had is the court says, well, these are criteria strict. So, it kind of links up with what we were talking about before. But these criteria, they’re not exhaustive. So, this article is not exhaustive. This is not the only reserve procedure that we can have. In fact, we need to read this in combination with Article 76 of the directive. And for those of you that don’t know the directive by heart, the only one that I can, you know, that I know about is Article 12, because I did my PhD on it. I’m sure that says something about frameworks on your end. But 76 basically gives this very general obligation to the member states to put in place a procedure for these for the for these social and other services for the light regime. And basically, it states that Member States are free to determine these procedural rules. And, you know, it needs to be based on the on principles. But there’s a lot of room there. Right. And then what the court says is, well, actually, because of the broad margin of appreciation that is given there in 76 and because, you know, we have a protocol 26 on services of general economic interest, it’s mentioned in the preamble as well how important these services are, it means that there’s room for such direct awards because of the social nature of these entities and I think that’s super interesting.

Marta Andhov [00:34:11]

So, a leverage of or leeway of discretion is provided here.

Willem Janssen [00:34:21]

Yes exactly. On the one hand to put it in legislation and on the other hand to interpret the rules themselves. Right. Because also a lot of member states, when they implemented Article 76, this procedure, they were very broad. So, the Dutch wording is also criticised in the Dutch Public Procurement Act because it’s deemed to be too broad and not giving enough guidance as to how we actually do that. The debate here is mostly would a competitive procedure with negotiation be sufficient for these services? If we just use that procedure, would that work?

Marta Andhov [00:34:53]

Yes. So, in other words, what is the level of transparency and equal treatment that you really need to sort of provide? Okay. So if to wrap this part in, what do you think is the main learning that we taking out from ASADE.

Willem Janssen [00:35:12]

I think it’s a very difficult question, mostly because I think what’s clear is that it’s not just 77 that can have a reserve. You can go beyond that, right? You can reserve contracts in these specific social settings for other services with other criteria. That’s clear. But to how far that reaches, it’s unclear because what the court does, the court analyses this Spanish context and then these accords that are closed with these private entities, they need to be compliant with principles of solidarity and cost efficiency. They need to be offered to all in principles with no cost. You can ask for an extra payment, but only if depending if only based on like the economic situation of the recipients of a service, it needs to be based on suitability. I could go on. It’s a very specific Spanish context.

Marta Andhov [00:36:13]

Okay. Yeah, I understand. So, it might be actually just one of those why we discuss it. It’s interesting to look into it for some sort of perspective in it, but it’s not like press attacks that it kind of create something that will be interpreting the law going forward through that case.

Willem Janssen [00:36:29]

No. And the question then is, okay, so when we go to this other case, this Conocee case, basically they’re the Spanish system had a 70% threshold instead of 30 for those specific type of employees that the sheltered workshop needs to have. There were more different criteria and then the court says, yeah, you can also have those type of criteria in the context of 20. So, I think the general takeaway is there’s more space and I think time will tell how much space there actually is. So, if anyone needs to do research, maybe you and I may be someone else, maybe one of our students. I think it would be on the question. Okay. What can we actually then concretely take away from this case?

Marta Andhov [00:37:08]

So, it seems that in regard to both, which is quite interesting because generally we see a step away from giving any discretions and context of procurement. Right. Its almost discretion has always been seen as something that is a bit problematic and risky. But it seems in both of those cases that a fair bit of discretion is being given, but also to member states to decide in context of social agenda how specific they want to be, how rigid they want to be, how progressive they want to be, and set that in place. Let’s then wrap up this delicious main that we had and move on briefly. Willem, because I’m mindful of time. Briefly, let’s talk about dessert. So, the societal positions as an academic, can you tell us a little bit more what is your idea behind it?

Willem Janssen [00:38:04]

Well, I always like using this section to also just like reflect on things that are being discussed within our little academic world and that I find that a bit well, this topic is particularly topical in the Netherlands as well. And what I mean by that is. We academics, even our students, often don’t know, we do more than just teaching. We also research a bit. But on top of that, we also, you know, we step outside of the doors of the university. We descend from our ivory tower that doesn’t exist anymore. But just to use that metaphor, and we take on positions in society, and that’s, I think, important for, say, the public debate, but also, we take that is often also more institutionalised. So not just commenting in the media, but also often depending on like what’s common in a national context, we’re also practitioners or we’re judges at the same time, or we are appointed by parties, by private enterprises. You know, special chairs are created by private enterprises in the university. And I think all of that, even though it depends on the structure of a member state, you know, also questions how we remain independent as academics. Because if you open the door undesirable things might walk in as well.

Marta Andhov [00:39:30]

Yeah. It’s for sure the part about whether you can really connect. Orr maybe I should sort of swing in the other way around. Very probable that it’s not that easy to do. Just, you know, kind of come to university and you put one head on and then you get out of university. And still in many member states, while you’re in academic, you also or have your own law firm or work for a law firm, and then you take out, you know, the academic hat and put the practitioner’s hat. And in plenty of situations you won’t have any type of conflict of interest. But there might be situations that start to raise certain questions. Right. The same when it comes to, as you mentioned, positions being sponsored by private enterprises or particular projects even being sponsored by private companies. You know, it’s a little bit like if Shell would be suddenly sponsoring a project about, you know, climate change or clean energy or something like that, right. Is that good? Because they kind of tried to do something good and you go with that idea or are you saying, well, this is sort of like they want to sort of polish the image through the work that I’m being asked to do and then so on. So, I think that there is a lot of interesting questions here.

Willem Janssen [00:40:49]

Yeah. And I think also that and so your example sparked also an example that we’ve discussed a lot is also the role of, say, Philip Morris in sponsoring tobacco research and a lot of research in the past dismissing because it was funded by these entities dismissing, you know, the health effects of smoking. And to build on your example, like the question, I think that we continuously need to ask ourselves, are we greenwashing, you know, unsustainable practises if we involve ourselves, so should we fundamentally not work with those entities? I’m conflicted as an academic because I also feel the need to do it. So, to put it in a French way, noblesse oblige, right, nobility forces you to kind of do it. And not saying that we’re noble, but do you get my point? Right. I feel like we have such a privileged position in which we get to research and devote time to making the world better. If we say it in a bit more of an idealistic way, that I also feel that we need to take on these positions to further transition society as well. And it sounds really abstract, but that’s one of the reasons why I also don’t want to stay just within the doors of the university, but because of that, you need to harness yourself.

Marta Andhov [00:42:07]

I think it’s also the moment that you go outside and then sort of changing gears right now slightly of our conversation, you also realise that the law, whenever we talk about the law, the law is not really a goal in itself. Right? The law in itself and our research is to serve certain purpose is is to ensure certain things. And of course, it’s possible to conduct research just being at the university, but I think is much more rewarding when you have a chance to talk to our buyers. If those are tenders, if there are, you know, really market players and it becomes much more multidimensional. And the question, of course, here is to what extent this is a valid information that informs your research and contributes in a positive way to you really kind of seeing the real world for the lack of better words, and at which point this is just, you know, various stakeholders potentially also just nudging de agenda on your research, right. Let’s say someone saying, oh, this law is not working. This transparency, this is really problematic because, you know when you then need to step away and see what the purpose is of having transparency is a principle where are the limits and so on. But I think that it is quite interesting and tricky at times to, you know, when you are in your sort of sweet spot in which points the impact becomes slightly problematic.

Willem Janssen [00:43:56]

And I think to me, key in everything that I do is transparency. Because then at least others can, you know, check it. And I think that’s what’s where the debate is often shifted, like we need to secure our own independence. And as a check, we need to make sure that we’re transparent when it comes to that. So, what does that concretely mean is that we need to state on our university profile what side positions we have. We need to show that, say, I was recently appointed by the Dutch Minister of Economic Affairs into an advisory body. I put that on my profile not because I’m proud of it or I’m happy to do it, but also because I want to make sure that everyone can see that there’s no conflict of interest there, or if they think there is, at least they know that I have that position as well and they can check me on it. But and this is what sparking a lot of discussions also in the Netherlands is the Dutch tax office funding a tax law professor, but not being open about it because they use a subsidiary to fund the research. Right. So, on paper, it didn’t look like they were involved. I don’t know enough about the case to say there was mal intent or whatever, but I think we should avoid those type of construction at all costs. It should just be very clear who’s funding this chair. And then I think also the next line is these entities can show what they think is important, but ultimately, it’s up to the researcher to decide what research they do and what their research outcomes are. A very tricky situation.

Marta Andhov [00:45:35]

I think that’s of course, what is the difference between really like. Maybe there’s a different term that we use, but you know, the type of consulting work and when you look at consulting work, what that means is, I mean, did you conduct a certain analysis and you deliver the output? That’s a one way. And then in that way, that’s much more closer to, let’s say, to the analysis and work that we do also as an academic, but is a different way if sort of you are to conduct a type of analysis that is to be kind of approved or needs to be nudged, and somehow someone through such a task can tell you, Oh, no, no, we won’t be. You need to change your line of argument here because does not align with what we want to say, etc., etc. I, I think that this is when this becomes very, very problematic because you couldn’t really write in thing that, you know, I don’t know just to overexaggerate is you don’t believe in climate change. And then at the same time as an academic, let’s say, or your line of work for the last 20 years have been about, you know, climate change and issues connected with that. So, there needs to be some sort of relationship there. But I think that why are we discussing a lot right now about this independence of it, I think that there is also points to be made in that it shouldn’t be taken in a way that we want to discourage anyone from doing this. It’s rather about setting a clear and boundaries being transparent, as Willem is saying. Because I think that there’s a huge amount of value in that, is the societal value very often as an academic discourse, societal value, how are you making sure that whatever you write is not just for you and your three closest colleagues, but actually it’s helpful to someone and actually informs the debate, the decisions-maker consider that and it’s not always in the form of research articles. Sometimes it’s that you need to learn how to communicate that differently. And sometimes it’s about your engagement with various stakeholders that you communicate that research through.

Willem Janssen [00:47:51]

Yeah. And I think there’s also a difference and I think you’re right on that is there’s a difference between informing and dictating, right? If you dictate the outcome, it’s a totally different discussion than, you know, us talking to economic operators on the market and their struggles with public procurement law or with public bodies struggling or them telling us to say that the rules need to be changed in a certain way to better their position. Right. I think that’s a very difficult to debate. But maybe we can also you know; I’d love to hear more about this also from our listeners. If you’ve got things to say about it, then maybe we can get, you know, the debate going based on this question is and I think there’s two that I have maybe that I would like to pose is there certain positions that you definitely can’t have? So, in the Netherlands is often debated. Can you be an academic and a judge? Is that allowed? Because you put you have a certain opinion that you put down on paper, and then you have to objectively rule on a certain case yourself later on. So, that’s I think one question is that is that possible? I mean, it happens. And I don’t have it necessarily a strong opinion about it. And two is what’s required from us academics to, you know, ensure that we keep our independence should we be very strict about it and not move outside our doors? Or is there more to say than just that? And do we need to be transparent when we when we do it? So we leave it at that with those two questions?

Marta Andhov [00:49:17]

Undoubtedly, I think that they are very good. And like always, we hope to engage further with anyone who had a chance to listen to this episode through the comments section of our LinkedIn profile when we’ll be launching this podcast. But, in general we want to kind of call upon, and engage with us. So, it’s not a one-way street in which you just listen to us. We would very much want to hear in any way possible your suggestions and please have in mind that we always read all of them and we’re very grateful for that expression of your attention to the work that we’re doing. So, thank you for that also.

Willem Janssen [00:50:04]

I have nothing more to add to that. This was Bestek. The public procurement podcast.

About Bestek [00:50:11]

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.

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