Willem Janssen [00:00:00] Welcome to the BESTEK, the Public Procurement Podcast. Today, Marta and I are talking to Steven Schooner about sustainability and public procurement in the US and publishing in American journals.

About Bestek [00:00:17] 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.

Willem Janssen [00:00:41] Morning. Good afternoon everyone.

Marta Andhov [00:00:43] Hello. Hello, how are you?

Steven Schooner [00:00:46] It’s great to be here. And I have to say, I applaud both of you for this enterprise. I’m really impressed with the the fact that you started this and that you’ve stuck with it. And my only disappointment is I’m not in Utrecht doing the recording because I really wanted to be there to experience your bicycle infrastructure. But I expect we’ll get back to bicycle infrastructure, as we talked about where we’re trying to get over time. So we’ll come back to that.

Willem Janssen [00:01:07] But I’m sure we’ll totally get back, get back to that. Uh, I have to say, so we’re broadcasting live from two continents and three countries at the moment. So Marta is located in Copenhagen. Steve, you’re in in Washington, DC at the law school there, and I’m at Utrecht, uh, in my attic whilst the rain is trickling down my window. So, uh, let’s see where that takes us. Um, and, uh, before we get started, it is my pleasure to to introduce, uh, you, Steven Schooner. Professor. Uh, I don’t think you require  much introduction to be honest. 

Steven Schooner [00:01:40] I hope not.

Willem Janssen [00:01:40] But but, uh, I’ll still give it a very brief – with your permission-  go with the Nash & Cibinic  Professor of government procurement law at the George Washington University. And, um, you started talking about cycling already, so I’m not too nervous to actually say that you’re also a passionate cyclist. Is that correct?

Steven Schooner [00:01:59] Absolutely. And on a good day, I bike commute, but we have relatively good infrastructure here. But definitely not up there with the best in the world. But I think we’re moving in the right direction.

Willem Janssen [00:02:09] I was amazed actually, because when I, when I visited your law school in 2014, I actually cycled to work every day and for for, if I may say so, for an American city, uh, it’s very, very much possible to cycle to work there. So I’m fond, very fond memories.

Steven Schooner [00:02:25] Outstanding. Well, come back soon.

Willem Janssen [00:02:28] I will. We might have to do a cycling trip with the three of us. Um, but what are we talking about today? Uh, what Marta and I think fascinates – and what I think fascinates you as well, Steve, is, is sustainability and public procurement. We’re seeing that happening all over the world where sustainability considerations, objectives, climate change objectives, social injustice objectives,  at least touching upon the sphere of public procurement and public procurement law, sometimes to a stronger degree than, than other times. But I think also, particularly in the US, it’s interesting to discuss today, uh, that’s for our main and for our desert. We’re looking at publishing in American journals and perhaps will also be so, um, so naughty to, to also look at the differences between American legal culture and, and European and we’ll see where all of that uh, where all of that takes us um, and to, to kick that off as an entree, um, in the spirit of this podcast. And I think that’s also why Marta and started is this love for food and perhaps also a glass of wine to go with that. But of course, um, that, that we find that the most memorable conversations also content wise, have always happened after the conferences ended. Marta, you rightly posed a very important question in the lead up to this episode for Steve.  What’s your most memorable conference dinner and why?

Steven Schooner [00:03:57] Well, the best thing about talking about this is it’s the opposite of the unbelievably large number of unbearably boring post conference dinners I’ve been to. But I will say, particularly since we’re talking about food far and away the most wild experience or memorable one I’ve ever had. I have to go all the way back to the 1990s, when I was still doing procurement policy at the White House, and China had begun the process of drafting their public procurement law. And the evening after the big formal banquet, which was hours long and a course, after a course – it was quite an extraordinary experience. The last evening we went out for hotpot at an extraordinary facility that on stage they were literally alternating professional acts and karaoke. And so I was there with a number of delegates. It was a massive table, but because it was hotpot, everything on the table was raw and furthest away from the VIP, where things like vegetables and starches. And as the evening progressed, you work down the table towards dessert. And for the duration of the meal between me and John Calling at the time, the head of procurement policy for the United Kingdom sat on the table a plate with an entire raw pig’s brain. And that was dessert. But it was very. I have to say, it was quite distracting over the duration of the evening. But overall, the food was terrific. The company was great. It was obviously being in China. It was obviously, you know, fascinating being in China. And for me, in many ways was the beginning of a unique opportunity over a couple of decades to now work in more than three dozen countries, uh, working on public procurement reform, seeing the trends in the like. But that was a good one.

Willem Janssen [00:05:38] So I have to ask, did you get to dessert in the end?

Steven Schooner [00:05:42] So, yeah, one of the things they had taught me at the White House in our policy briefing is that in terms of being polite, if you touch it with your chopsticks and put the chopsticks in your mouth, you’ve tasted it. And so I at very least tasted that. But, uh, it all kidding aside, that was not the weirdest thing I ate on that trip. But we can talk about that another day.

Willem Janssen [00:06:05] …plenty of room for another episode it sounds already, um, fantastic. So, um, uh, you probably haven’t been at a lot of conference dinners with with Marta and I, because I find that we’ve only had fun conference dinners so far. Uh, that’s been I think we’ve had a great stretch. Uh, um, uh, let’s, um, let’s really look at some, uh, some substance in our sustainability and public procurement in the US. Maybe you could, um, uh, help our listeners a little bit by, um, sketching the landscape. What is what does the US look like in terms of public procurement and, um, uh, sustainability?

Marta Andhov [00:06:43] Just before I would lead, um, obviously, Steve, to to jump in, I think maybe just in a two sentences why we wanted to have this as a topic, having in mind that predominantly our listeners are European – because sustainability kind of seems to be developing in context of public procurement around the globe in a bit different, um, trains of thoughts and practices, right? Um, something that we also discussed in this podcast already, the social element of sustainability is much better developed outside of EU in many ways, uh, that it is in the EU, we seem to be going quite strong on the environmental aspects for some time, but undoubtedly, often when you exist in this academic or even broader, just, uh, international public procurement environment, you always look at some point to the United States. And I still remember, um, some years ago when we Steve talked about it, there was absolutely no interest. And we almost been perceived a little bit as tree huggers uh, with our sustainability approach to public procurement. It seems that waters changed a little bit. So, so it will be really interesting for you. Also, maybe to give us a bit of context, what do you think caused that change? Because the discussion about sustainability, I imagine, have been there for some time. So that just to, you know, kind of establish the link to what we’ve been doing here before and where we are right now.

Steven Schooner [00:08:11] So, so many interesting ways to start. But let me begin where Marta was. And that was in many ways, the United States public procurement system was long ahead of the global curve in terms of taking into account what we often called social and economic factors, or what we often describe in the classroom as collateral policies. In other words, the government used its enormous buying power to create opportunities for small businesses, disadvantaged firms, women owned businesses, areas of high unemployment. Um, we had preferences that basically gave minimum, uh, wages and benefits. But compared to most countries, the United States was quite aggressive in using public procurement as a social and economic tool. But to Marta’s point, particularly for the last 20 years, the United States has been not just surprisingly, but painfully and breathtakingly slow to recognise how important it is for government to take action with regard to climate change. So, interestingly enough, I love some of the stuff that the Sapiens Network is doing, particularly with the PhDs and the breadth and depth of how they define and think about sustainability from a kind of a holistic or almost kind of a circular economy approach. But in the United States today, the primary discussion of sustainability is almost all with regard to climate change. And I think one of the hardest things for many people who are new to that area to appreciate is the difference between thinking about what you do. How you react to climate change in two categories. So one thing that our government’s doing a little bit better at is focusing on how we adapt to climate change. But I think by almost any objective measure in the United States, the public procurement system is failing miserably with regard to efforts to mitigate or slow down the pace of climate change. So you could think of it as kind of a tale of two cities, and I would invert it and say, you know, in terms of the worst of times and the best of times. What I find most frustrating about sustainable procurement with regard to climate change in the United States today is how little the practice, the policies, the concepts, even the vocabulary of sustainable procurement has failed to resonate or become part of the profession’s body of knowledge or core competency. Um, around the world, we have a pretty robust discussion. You know, as you all know, I go to a conference in Europe, and any public procurement conference is dominated by discussion of sustainable procurement. It’s hard to get it on the agenda. And a lot of the conferences in the United States, people just don’t really talk about it.

Willem Janssen [00:11:04] Why do you think that is? Yeah. Great.

Marta Andhov [00:11:06] All of us at the same time. Great timing.

Steven Schooner [00:11:09] So I mean, it’s hard for me to overgeneralise with regard to the general American reaction on climate change, but the reality is, is, you know, big industrialised nation. And for most people, uh, we don’t have the worst case scenario of, for example, sub-Saharan Africa or something like that, and people are cognisant of it. But there are so many issues out there, and the government isn’t sending strong messages on climate change. And I think that, you know, whether it’s whether it’s just. Uh, discomfort or whatever. But look, let’s go back to where we started in the United States. We are a car culture. I mean, the car is the definition of freedom. It’s the definition of success. It’s the definition of style. It’s in movies. It’s in TVs, in culture. The fossil fuel industry and the automobile industry. Are on your television set every day, and any message about the fact that burning fossil fuels is problematic is absolutely drowned out by that. And without going too far down that rabbit hole. Um, there has not been strong government messaging in the last presidential administration. Climate change denier was relatively popular. So we had to start rebuilding again just in the last couple of years. Go ahead Marta.

Marta Andhov [00:12:37] Yeah, I think that would also interest me to pick your brain a little bit about it, because, you know, we can how we can bring this conversation again to be relatable to, to to a lot of, um, our listeners here. It’s a little bit like discussing, you know, European approach, European approach from EU legislator in many ways as a, as a policy setter, as a standard setter. And the tale of, uh, ultimately all these different EU member states that in the developments they’re quite different. So to dig a little bit deeper, Steve, I wonder, um, how you would describe – we very often say places like Scandinavia are extremely green and always historically been very green. Uh, places like Netherlands, they’ve been always really good about the social inclusion element, accessibility, ride the bike lanes. Uh, so strongly, um, part of the culture. Um, would you also see a sort of different tiers of developments across US in an, I don’t know, saying that, um, New York or California or Arizona does better in some aspects than others. Could we, could we sort of have that type of mapping exercise or, um, is it so confound, uh, to ultimately federal procurement that the focus really is that, that you don’t really look much into what states are doing?

Steven Schooner [00:13:59] Oh, I think you make a really good point there. And here maybe this is helpful for the average European listener. But you know so I tend to specialise in our curriculum tends to be focussed primarily on federal or United States central government procurement. Now look, this is a massive market. We’re talking about over $600 billion a year that the federal government spends. But compared to the 50 states compared to the municipalities and the regional instrumentalities, for anyone who’s travelled to New York, for example, we have some massive regional instrumentalities like the New York Port Authority. Um, in Washington DC, we have regional, tri state, DC, Virginia and Maryland. We have uh, airport authority and the Metro. When you write, if that’s a tri state authority. But the bottom line is it’s it’s very, very disaggregated. So to Marta’s point, I do think that the federal government has been a little bit slow, but a lot of people often look to it to lead. So that makes it a little bit more frustrating that they’re not leading. There are a number of states that are doing some terrific things in public procurement. For example, uh, I think most people would probably start with California, Massachusetts, maybe New Hampshire, the states that are doing creative things and have completely different priorities. But I also want to be clear that just because I might be frustrated that as a whole, at a macro level, the federal government isn’t doing as much as they could be doing. They’re doing some incredible things. I’ll give you just two quick success stories real quick. Uh, on the one hand, the United States was in many ways somewhat of a leader with regard to adoption of eco labels with regard to electronics. If you’re in the United States, the Energy Star logo is ubiquitous, and all government information technology basically has that efficiency pre-qualification. But Energy Star as an entity is a great success story in terms of using more efficient electronics. The other thing is, the federal government has been creating powerful tools for people who know where to find them and are interested in using them. And so one that your listeners might be interested in. And while you’re listening, you can fire this up on your laptop or your computer. There’s something called the s f tool or the Sustainable Facilities tool, and it’s a large and complex webpage, and many parts of it are referred to as the G P C, or the Green Procurement Compendium. This is an enormous, sophisticated, data rich tool that helps buyers and sellers in almost every conceivable market. It’s wonderful. There’s only really two problems. Most people who would benefit most from it don’t know it’s there and don’t use it. And many people, when they use it the first time they throw up their hands, they go, oh my gosh, there’s so much information. I’m just totally overloaded. So there’s a lot of work being done to make it more accessible. But I think there are some success stories. But the big theme comes back to, I think, where we started. Climate change is a really, really big issue. If we care about our children and our children’s children, we particularly our governments need to do more and we need to do it faster. And the reality is, is that’s where I think our government is failing worst. And that’s where I think the inability to get the procurement system moving is most problematic.

Willem Janssen [00:17:35] So. I think your call to action is very clear. Steve, you you say climate change is pressing, almost unprecedented in how enormous this challenges. We need to use public procurement in that sense. The government and mostly the federal government, like you said, is moving too slow. There’s good examples, perhaps, to be given here that some frontrunners, uh, perhaps also on the state level. So, um, I’d like to move a little bit towards the, the, the legal discussions that, uh, that are taking place. So when we when we look at sustainability in Europe, I see two main points of discussion. And perhaps Marta can add some. But one I think always is how does sustainability fit within market integration? So how does sustainability fit within the principle of non-discrimination or transparency? How do you make these sustainability considerations more transparent and equal? Right. How does it not lead to discrimination? And on the other hand, we’ve seen this move from possibilities to, to procure, uh, sustainable outcomes in the legal framework towards more mandatory requirements. Right. So there’s I think two main developments that have happened over the last couple of years. And of course, we’ve gained more room to do so since the 2014 Directive. So that’s really what’s been happening, I think in a nutshell in Europe. Right. When we talk about legal integration of sustainability in, um, in public procurement procedures. What does that look like in the US? So what what discussions do you face to say let’s let’s be positive. Let’s be optimistic. Say the government gets their act together. And in a general sense, on the federal and the national level we move towards. Yes, we want to procure in a sustainable manner. What legal discussions will pop up or are already perhaps popping up?

Steven Schooner [00:19:25] Okay, so. So let’s start. I love the fact that you said we shouldn’t dwell on the fact that currently in the United States, the legislature is entirely broken, defective and non-functional. So let’s hope that I was.

Willem Janssen [00:19:37] Trying to be. I was trying to be positive.

Steven Schooner [00:19:39] I appreciate that. Let’s assume that short term and transitory. So let’s do a little bit of good news. So one thing that the current administration has been doing is they’ve literally been publishing almost a tsunami, a wave of executive orders and memoranda projecting policy. And while it’s easy to dismiss that, I think one of the most important things to say about that is it is important to walk the walk, to talk the talk before you try to walk the walk. And the other thing is leadership is really important. So I it’s it’s much, much better than nothing. Did you want to jump in on that, Marta.

Marta Andhov [00:20:15] I just wanted to ask you for a clarification for our potential, um, listener. So the executive orders. What is a legal standing of that? So is there something, um, happening, let’s say if particular authority that this executive order is addressed to is not following it is a very soft law type of instrument, or you can hold anyone responsible to, uh, the fact that they just ignoring it just so we get a sense, you know, in this legal context where that is.

Steven Schooner [00:20:45] Yeah. So the concept of the executive order is something that in our constitutional and administrative law classes in the United States, we can spend the rest of the semester on. Okay, what I’m going I’m going to just summarise.

Marta Andhov [00:20:58] The point.

Steven Schooner [00:20:59] That the president of the United States has a tremendous amount of power over the executive branch. And so executive orders can often drive, particularly in the short term, very significant effects. Okay, obviously the legislature can derail those or change them, as can the next president. So they are often considered short term. They are considered suboptimal. And sometimes they are very, very significant. And sometimes they’re just a Band-Aid. But at least so far, the executive orders have been mostly, I don’t want to say cheerleading or, um, basically projecting policy because they don’t immediately result in regulation, but it’s a move in the right direction in terms of legislation. I think most people would say the most significant thing that happened in the last few years was the massive infrastructure reinvestment. So money became available, a lot of money to start updating our infrastructure. The problem is so much of our infrastructure hasn’t been funded well for so long that a lot of the money is just being spent on continuing to widen highways and fix old bridges, but some of it is being used to invest in, for example, electronic vehicle charging infrastructure. But just going back to what we were joking about at the beginning of the session, I think one of the biggest mistakes that was made in that legislation is very significant. Tax credits were made, were offered to Americans who purchased electronic vehicles. And I’ll be the first to admit, uh, I drove up a hybrid to a couple of hybrids for a couple of decades. I now drive an EV. I almost never drive. So, um, almost exclusively virtue signalling. But the average EV that was purchased in the United States last year cost over $50,000. So the tax credit was given to people like me who frankly, didn’t need it and were going to buy the EV anyway, whereas had that tax credit been broken down into smaller pieces and been offered to people who bought electric bicycles or e-bikes, we might really change the way the nation moves. And so I think that’s a good example of a slightly wrongheaded but well intentioned policy. But but let’s go back just to in terms of where the rules are. So in the United States, um, Congress legislates the legislature makes laws or statutes, and we implement those statutes through regulations. The primary public procurement regulation at the federal level, or the uniform central regulation, is what we call the FAR, the Federal Acquisition Regulation. As a general rule, the Federal Acquisition Regulation is a cradle to grave procurement regulation. It’s a very, very long and complicated. Frankly, it doesn’t have much on sustainability. And what it did have was out of date and very, very confusing. So we now have two proposed rules that would change that. To my mind, they were probably promulgated as proposed rules out of order. But in effect, the second rule is what we think of as the housekeeping rule. In effect, what that rule does is it reorganises modernises and clarifies all of the various policies that are buried deep in the middle of the Federal Acquisition Regulation that apply to sustainability? Most people didn’t know they were there. Most people ignore them and now they’re going to be better organised and better written. I don’t think this is the most important thing we could have done. The other rule, the one that was done first, is what we often refer to as the responsibility rule, or the rule that requires with regard to greenhouse gases or GHG, is that firms that want to do business with the government have to assess their emissions. They have to report or disclose their emissions, and they have to target reductions of emissions. Now, the interesting thing about the way that rule was done is it takes all of the burden and puts it on the private sector so that a government procurement official, what we call a contracting officer, they just have to check a box. So did the firm indicate that they have assessed, disclosed and targeted? So in other words, if I write a report and say I am a despoiling of the universe, I generate more emissions than any firm in the world. I plan to continue to do so, and I file that publicly. I’ve complied. Go ahead.

Marta Andhov [00:25:52] This is interesting. You know, because we have, to a certain extent, a little bit of parallel discussion right now. And one of the legal acts that is probably the most debated, um, right now that comes out of this whole, um, EU Green Deal is our, um, Directive on due diligence. It very much sort of if we want to draw parallel talks about similar aspects, the EU talking about that, it not only moves the burden towards the companies of particular size, but it also binds them to really have a control somehow over their supply chain and so on, so forth. And this is something that we seen and humongous amount of pushback from broadly, you know, corporate world, um, towards this, uh, this element. But I think also what I find a little bit problematic when I hear, you know, of this approach and I wonder, would you think Steve is, um. There is a question of what type of data and what type of information you you get because you have this discrepancy between the competencies. Right? So I fully get and I’m a big supporter of trying to cut the red tape for the contracting authorities, for the buyers. They’re not specialised in that. If they can tick a box, great. But the part about that is how we check because, you know, no company is going to come and say and say we are really bad citizens, we pollute, we do all this terrible things. And in the comically, it doesn’t make sense for us to really targeted extensively. So, you know, how we kind of look, how we operationalise really this type of regulation or this type of provision for it to achieve the goal that we wanted to achieve.

Steven Schooner [00:27:39] So there’s so many important parts about what you ask. But let me try to do let me break it into three baskets or food groups. And it may not be in order, but I think I’m going to try to respond to you first. So obviously any time we’re talking about sustainability or reducing emissions, one of the concerns is greenwashing. So in other words, the fossil fuel generators in the United States, the, the, the extractive industries constantly have advertisements on televisions and in print about all of the creative things that are going to do to distract you from the fact that they’re the emissions generators. Okay. So greenwashing is a concern and validation and quality control in the United States, what we would call far apart 46 for quality assurance. Those are massive issues. So we need to come back to that. But I think going back to the beginning, there’s two other aspects of all of the efforts to have the private sector measure disclose and target their emissions. One is just the fundamental cognisance or understanding of the greenhouse gas protocols. Now look, these are international standards, and I’m guessing Europeans are far more familiar with them than in the United States. But when I go to a United States public procurement official, most of them couldn’t answer multiple choice questions with regard to scope one, two, and three emissions. In other words. A fully qualified public procurement official who’s an expert in the field, is not required to know what the GHG protocol is. There’s no reason for them to know about SBT. The science based Targets initiative. There’s no reason to expect that they would understand the difference between direct emission scope one, indirect emission scope two, or supply chain scope three. All right. So this is really important. But the other one and this is my biggest frustration with the responsibility rule that we’ve promulgated as a draft rule. And that is information about emissions generation and reduction is powerful. But what do you do with it. So it’s one thing to say that I’m checking and I’m reporting. But I think what we really want is for like firms to be evaluated and a competitive advantage being given to the firm that reduces their emissions or produces less in the first place. And that’s the value for money process. And we can talk a lot more about proposal and tender evaluation. But we haven’t even begun that conversation. The last thing I’ll mention on this, and this is really a heartbreaker, but if you were to get in the way back machine with me way back into the mid-nineties, we actually had a mandatory evaluation factor that said that when the government awarded a negotiated procurement, it had to take into account basically environmental considerations. That was removed in the late 1990s. But there is something to making public procurement officials understand that when the government spends money as part of effectuating the aspirations of government, one thing that government should care about is reducing emissions and making the planet more liveable for our children, and enhancing the welfare of all of their citizens today. But I think we really have our work cut out for us on anything related to emissions measurement management and what you do with that kind of stuff.

Willem Janssen [00:31:15] I think your call for, um, I would say more awareness about the topic, but also skills and knowledge, uh, for, for contracting authorities or public officials that are working in this field, I think is also something that is often echoed in, uh, in Europe. So it’d be interesting to see also how these developments, um, I think would compare in the future and what both sides of the Atlantic and learn from each other.

Steven Schooner [00:31:40] And I think a really good example of that is, you know, if we were all in Europe together and we walked into a conference, it would not surprise me if on the wall we saw the United Nations sustainability goals, um, on a poster and a significant number of the government officials had the beautiful coloured wheel pin on their lapel. When we talk about the UN SDGs in the United States, the odds are far greater than zero. In fact, they’re probably pretty likely you’re going to get a blank stare. The United Nations sustainability goals do not resonate in the United States, and there’s a tremendous amount of cynicism about the United Nations. And to the extent that the United Nations is arguably one of the most cohesive voices, and UNEP, the United Nations environmental program, is where so much of the initiative and the good information comes from, and stuff that isn’t always welcome in a lot of American conversations. And frankly, that makes it just that much harder.

Marta Andhov [00:32:43] Can I just, um, ask one sort of question that popped into my head around this conversation? Um, if you are right now this is a bit addressed, probably to some of our, like, young academics, um, that might listen to us. Um, one of the ways that you most presumably came across, uh, name Steven Schooner is due to the article “Desiderata: Objectives for a System of Government Contract Law”. And I see you both shake your hand. I think, William, you read it during your PhD, I read it I think we all at some point come across that. Right. So I’m going to be purposely because we’re all friends here. I’m going to also purposely slightly be, uh, sort of provocative – maybe not necessary – but I wanted to ask you, Steven, in that context, you’ve been always very well known as someone that, you know, really emphasised the need and importance of open competition and competition element in public procurement. Right. And, um. At least in, you know, in our sort of backyard of, of European conversation. Those to usually are um, to broader or shorter extent, but they usually are being somehow pitched against each other saying, you know, that. And that probably speaks a lot to the point that you made about greenwashing and so on. But how do you think those two work in the legal ecosystem? Um, to what extent? We can also talk about can we give some sort of priorities to one of the principles of the objectives? Do we need to balance them, how you think we can go about it? Because I think also in an assumption, particularly in a highly litigious countries in Europe, um, when it comes to public procurement, you know, there’s always this worry, right? the more sustainable we get, like, are we limiting the competition? Can that open us to litigation? Um, and I think that this would be super interesting having in mind that, you know, you you’ve been really the man to discuss, uh, competition long time before it was really kind of, um, at the forefront of discussion in public procurement.

Steven Schooner [00:34:49] Yeah. So I guess there’s so many things that I want to say about this. And it’s always funny because, you know, even to this day that so many students like that. What is perceived as a relatively accessible piece, uh, written, you know, now more than 20 years ago. So obviously, like anything we’ve written or published, if I was going to write it today, I’d write it a little bit differently, but just a couple pieces of background. So in the United States, in many ways, the modern era of procurement begins in 1984 with something known as the CaCA, or the Competition and Contracting Act. So when we reinvented our public procurement system in the United States, in my professional lifetime, we identified competition as the coin of the realm. So when I originally drafted that, does it wrote a piece in any policy conversation. Or if we were doing law transfer, we would always begin with the three legged stool. Most public procurement systems were designed – focussed on competition, right? Integrity and transparency. Right. Transparency is everything because there’s otherwise people can’t really work with the government’s. Integrity and corruption control has long been a dominating feature and competition. The reliance on markets was considered to be the secret sauce or the thing that would animate procurement best. But I guess if I was going to talk about this today and and I don’t know, this is the direction you were going on and I don’t think it answers your legal question at all. But let me begin from the premise that, like so many academics and other professionals, I was trained pretty deeply in economics growing up. Right. That’s what we studied in college. I went to special summer programs in it. We studied it in grad school. We wrote about it. But economics dominated public policy conversations throughout my lifetime. Climate change is the single most dramatic example of market failure in my lifetime. Now, I’ve spent years truly enjoying the growth of the behavioural economics movement. Okay, and I know that Willem wants me to just not go too far on this. But let me just say that climate change reminds us that economics isn’t going to fix this, so we can come back to that. But but I do think that we need to come to grips with the fact that governments need to prioritise. And if there’s any message from the original Desiderata article is that you can’t have everything. Governments have to decide this is more important than that. And yeah, I don’t know if your kids or you know, if kids in Europe grew up with the movie The Incredibles. But the message from the movie The Incredibles is when everybody’s special, nobody’s special. And the same thing is true with procurement policy.

Willem Janssen [00:37:41] Fantastic. Uh, perhaps this was, uh, a slide nudged towards the Desiderata 2.0 at some point, but we don’t want to force you to write anything. But I think it would be really interesting to hear your thoughts on that. And if your thoughts have changed or if they’re the same, you know, in a different and different context, very.

Steven Schooner [00:37:57] Very much changed.

Marta Andhov [00:37:58] But but what what to take away. Climate change is single factor, the largest economic failure. I think I’m going to…

Steven Schooner [00:38:05]  I think it’s a it’s a remarkable example of market failure. But if if you believe that markets will save us. I have some really bad news for you on that.

Willem Janssen [00:38:20] Before we get to into too many dark spaces, uh, in this in this podcast episode, let’s, um, let’s wrap up main, we talked a bit about, um, uh, or actually a lot about sustainability and public procurement in the US. What’s the status list? This clearly, as you noted, Steve, still a lot of work to be done, but there’s some positive developments as well. And I think what will be really interesting is to see how this responsibility rule will work out. Right. And I think your call to action when you said, um, it’s not just about disclosure and making sure that the data is right, but about actually doing something with it, right in a competitive sense and giving that competitive edge. And I think that’s really important. I think that’s where the US and Europe really meet each other in the in trying to make that, uh, work.

Steven Schooner [00:39:02] Yeah. And I guess the other thing I would add is one thing, if you read the International Standard, one of the global best practices that hasn’t really been embraced in public procurement in the United States yet is what we often think of his life cycle thinking or life cycle cost analysis. And I think that if we’re going to have a serious conversation about sustainable procurement in the United States, we need to totally rethink our assessment of what value means. And in order to do that, what it means in economic terms is we have to internalise our externalities. And so the tyranny of low prices, which drives supervisors to say, I cannot afford to pay the price premium for the less harmful or the more sustainable solution. We need to reject that. Governments today cannot afford to not pay the price premium. You have to, because there’s nothing more important to governments than the welfare of their citizens and the future of the planet. So I think that’s a really, really big deal. And I love the fact that you all have, in many ways, been on the forefront of having a more robust conversation about lifecycle analysis, lifecycle thinking, and internalising externalities.

Willem Janssen [00:40:13] Very valuable addition to my brief, uh, brief recap. I think lifecycle cost analysis is definitely the way forward. Also, sitting here with Marta, I dare to say that knowing that she’s the editor of a book on this topic. Um, but I wanted to get I wanted to get to pigs brains. I wanted to get to dessert, if that’s if that’s allowed, uh, in this episode. Um, so, um, what we were thinking about when we prepared this, this episode is obviously every legal scholarship culture has differences, right? All across the globe. Of course, there’s similarities as well. But sometimes when we look at, um, when we look at the United States, uh, we see, um, we see differences with how, uh, publishing culture, um, uh. Comes about and also how legal academics write their pieces. So I was wondering maybe for you to kick off, uh, a Steve. How do you look at that? Uh, do you see great differences here, or are they just. Are we simply the same?

Steven Schooner [00:41:08] Oh, no. I think they’re quite different. And and I don’t want to spend the remaining time we have talking merely about the fact that we as Americans tend to be a bit long winded. Our articles tend to be a little bit longer, and we as Americans tend to really like our footnotes. Or as our journal editors say, we like the below the line stuff. And for anybody who’s read my stuff, I love long footnotes. It basically gives me the opportunity to talk about all of the things that really don’t belong in the article. But I can’t stop thinking about, uh, but so obviously, let’s put aside length and footnote content. But I think one of the most dramatic differences for people who are trying to get pieces placed is understanding the compared to many academic environments in the United States, we almost kind of do things what you might perceive as backwards. It is common to think in a professional field that the best journal, the most elite journal, would be the one that is peer reviewed by the very, very most qualified, highly credentialed academics. But interestingly enough, in the United States, in the legal academy, the very, very best, the most prestigious journals are literally managed and edited by students. Now, let me be clear. They’re very, very good students at very, very good schools. But one of the things you have to appreciate is that for a journal that published a small number of pieces and receive submissions from an extraordinary number of sources, the pressure to gravitate towards the middle or the accessible. You know, we say in the United States, constitutional law is a game that everybody can play. Our Supreme Court publishes less than 100 decisions a year. Everybody knows what the Supreme Court’s doing. Those seem really important. Everyone can talk about that. That’s the mainstream stuff. But what we often see is that student run journals have a number of, shall we say, susceptibilities. And so, uh, I would never suggest that if you were submitting pieces from outside the United States, you really, really need to focus on your introduction and your conclusion and make the hook incredibly accessible to, for example, a 24 year old who’s never practised law and also understand that during the editing process, you can actually rewrite it a little bit later, and you may not have to do all those things that originally caught their eye, but it’s a little bit pathological. And what’s particularly frustrating, going back to the original question is the elite journals are typically less well circulated than the speciality journals. So anybody who knows our staff me, my colleague, Chris UConn’s, Jessica Littman, Joshua Schwartz, we tend to publish primarily in speciality journals. They have much higher circulation rates. And more importantly, the people who we want to speak to are actually reading them. So it’s a little bit of a difficult choice because for things like getting an academic appointment, getting tenure, getting promoted, you need to be in the mainstream journals, but by no means what I suggest that my most important writing is in the generalist journals. Um, that stuff’s done because you have to. But again, very, very different cultures, I think. I think there’s also some big difference with regard to how much journals cost. Uh, I love the openness of many of the European journals now, um, where basically everything’s being put out into the public domain. But, um, frankly, a lot of Americans are stunned by the prices of some of the journals in Europe and other countries. Yeah, very, very different cultures.

Willem Janssen [00:45:01] Yeah, I see also what I think is interesting about it. I think the context is different than maybe the specifics are different, but we do tend to have many of these debates in Europe as well, right, about how important it is to have a certain frame when you submit it to an editorial board in for European Journal. And then often the content might be fantastic. I mean, every piece that you submit, of course, you think is fantastic, or at least maybe I suffer from that disease once I’ve looked at a piece for long enough, I always love it. Um, but I find that that’s definitely in Europe, uh, quite a strong thing. And you’ve got to get past the editor’s desk. And that generally is the introduction in the. And the conclusion that you work, uh, you work with. And I think what’s interesting is it’s interesting you mention that as well, is also the work that you’ve been doing on SSRN, uh, Steve, I think with, with open access publication is still a long way to go in Europe I find with, uh, with fees. And so I, I really like what you said about finding the right audience. Right. Who can I target? Right. And leaving, like, academic positions and steps aside, like, who needs to read this and where can you have the biggest impact? And I find that that’s often, uh, quite, quite important.

Steven Schooner [00:46:12] And I think hard again.

Marta Andhov [00:46:13] And, and, and I think that, you know, it goes without saying also that it depends what type of privilege position you have or you don’t. Right. I think that, you know, when you full, uh, professor and you establish and you kind of tick various boxes, probably there’s a yearly sort of check up on where you publish and, you know, again, culturally that can be quite different. You know, the (….) system in the UK makes everyone go mad, right? Um, and we all have some sort of version of that. But when you climbing, I think that there are the challenges and requirements that, uh, you need to meet that are the sort of, um, box you in certain directions that you may be not that interested in. And I really like what, uh, Steve would you said, which is ultimately. At some point when you have the privilege of deciding what you want is it doesn’t matter how highly it’s ranked, but you want the right people to read it because those are the people that can take it, run with it, and help you implement that, right?

Steven Schooner [00:47:11] Right. And to the point that was made a little bit earlier. One thing that we’ve really been working on for a number of years is trying to exploit SSRN, the Social Science Research Network, to use it as a global platform for bringing together, consolidating and sharing useful public procurement scholarship. And if you haven’t been on SSRN before, uh, try to use the JL, the Journal of Economic Literature Codes. I think most people who are listening to your podcast would be interested in code H57, which is public procurement, and L33, which is outsourcing in public private partnerships. And we also try to consolidate the articles through our, um, government contracts and public procurement outsourcing E-journal, which should be free to most users. But we’ve we’ve collected about 550 articles from all around the world there. But again, I think one of the hardest things is most of us, other than as Marta points, as an academic, you do have to write. You do have to produce, you do have to go through the ranks. But most of us are writing because we want people to read and be influenced and think about what we’re writing. And so as we get better and better at sharing that, whether it’s SS n or through Google Scholar or whatever, I think we really need to work together as a community to make our work more broadly available.

Willem Janssen [00:48:34] And I think perhaps this podcast episode was a small step in that direction, right? Is that we can share some of the thoughts that you’ve had in the past and that you have now, Steve, about sustainability and public procurement in the US. As you can notice, I think we need to we need to wrap up this this episode. Um, it’s been a pleasure speaking with you this morning. Afternoon. Uh, from Copenhagen, from Utrecht, from Washington. Um, and and I thank you so much once more, Steve, uh, for for joining us today.

Steven Schooner [00:49:02] Thanks so much for having me on. I hope to have the opportunity again. Best wishes to all of you.

Willem Janssen [00:49:07] And of course, I think that would the way we started this episode, I think a cycling trip with helmets and in the Netherlands, with the three of us is in order any time soon or in the coming years. But we’ll we’ll post some pictures about that later on. Um, we’ll, we’ll wrap it up from here. Um, this was BESTEK, the public procurement podcast.

About Bestek [00:49:28] 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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