Willem Janssen  00:00

Welcome to Bestek, the public procurement Podcast. Today, Marta and I are talking about resurgence of buying local policies and making public procurement law interesting.

Bestek Voice  00:16

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 off public procurement law. 

Willem Janssen  00:41

Hello.

Marta Andhov  00:41

Hello.

Willem Janssen  00:42

Sorry. I mean just, I’m very excited to talk to you today again, so maybe I was being too enthusiastic for that. How are you Marta?

Marta Andhov  00:50

There is nothing like too enthusiastic. I’m quite good. Thank you. It’s, I enjoy that we have a chance right now to come back a bit to our podcasting, we need to say…

Willem Janssen  01:02

You’re still located in the US?

Marta Andhov  01:04

 I’m still currently in US, the last three, four days. So that also probably contributed slightly to our delay in publishing some podcasts, recording some podcasts. So apologies to our listeners, we will try to do better, but academic life, I think, took over for both of us in a different way.

Willem Janssen  01:28

Academic life, a new baby on my side, this all and massive missed deadlines and stuff, so podcasting got a bit lost.

Marta Andhov  01:38

I’m still waiting for chapter for you. On that note, yeah.

Willem Janssen  01:41

Did you have to do this publicly? I have been working on the chapter. It’s looking really nice, 

Marta Andhov  01:48

Okay, okay Willem, we’re not washing our dirty laundry publicly. I just thought that was my segway. Okay, what we’re talking about today, tell us.

Willem Janssen  01:56

 I can’t believe you did this online. Okay, live on air. Anyways, we’re here looking forward to, well, we can record a podcast episode about a chapter. You know, that would be really nice. We’re not going to talk about the book your editing, but only about the chapter that I wrote, because you publicly shamed me. 

Marta Andhov  02:15

We will and I’ll be praising it to the gods when I will receive it. I’m quite sure.

Willem Janssen  02:23

Okay, fantastic. What will we be talking about today? We’re looking at buying local policies and a resurgence of it. Perhaps that’s also a question mark, right? Is there really a resurgence, or has it always been something that’s been prominent across the globe, but also in the EU, but also, because you’ve published a really cool study on SSRN about food procurement, for which I’ll, of course, give you the floor in a bit. So we’ll be looking at that. Right? How does that those out of those buying local policies relate to certain criteria within public procurement law, right? And internal market law is a friction there? Well, the answer is yes, but let’s see how that plays out and what is possible, perhaps. And then for dessert, today, we’ll be talking a bit about a question to which we always feel like we’re on the back foot. How to make public procurement law interesting for students, right? Some people can’t comprehend that it might be interesting. We think it is interesting. So perhaps we could share a bit about how we think we make it interesting for students. And perhaps so…

Marta Andhov  03:29

Well, you know, to be fair, we both joke for them, right? That we cannot sell to our spouses, that public procurement is the most thrilling thing that there is. So I think it’s fair that we need to kind of work a bit extra hard to convince our students that it is.

Willem Janssen  03:48

My wife Brielle. The only thing she’s found interesting so far is to record the the intro of this podcast. So I think that’s the only, the only thing so far that she’s like, very proud of the work that I do. So let’s see how, if we can, can convince our students, but going back to the study, tell us more, a bit, a bit more about it, and how did they come about in what context? Because you worked on an interdisciplinary project for a while, 

Marta Andhov  04:12

That’s true, and it’s a little bit connected. So some months, years ago now, we also recorded one episode on sustainable food procurement. So yes, by any chance, anyone is interested in that topic. We’ll make sure to refer to that older episodes and the description of the episodes that we’re recording right now. But it has been a longer project, I think, two, three years in the making, really on indisciplinarity of sustainable food procurement with particular attention to reshaping, repositioning, the position of a farmer in supply chain of food. So a lot of focus on that, and ultimately, we produced an open access study that is 100. 20 pages long. So I think that, you know, it’s really a bit of everything there. And today, what I would want us to discuss a little bit more is obviously not the 120 pages. So don’t worry, we won’t be going for two hours. But specific element that came out out of it, which I think is a very interesting and that is the notion of resurgence of buying local policies and the reintroduction in certain regions, in certain countries, in the EU but rather than stay away with, you know, the traditional understanding that buying local is a preferential treatment, and is a big no no in context of EU procurement law, is using that really as something that is necessary to really achieve sustainability, so kind of entering the conversation with using The sustainability, and you know, this is obviously open to discussion and evaluation, whether this is a bit of a smoke screen, so we’re using sustainability to do what we really want to do, and it’s not something that should happen. Or rather, really it is necessary to revisit this type of policies and revisit how we think about particularly food procurement and reemphasizing the need of locality as an element to the specificity of the food, right? So this is really what I hope that we can share some ideas and opinions today. 

Willem Janssen  06:35

All right, fantastic. So one, of course, read the study. It’s available on SSRN, as I noted, and perhaps as an introduction right? So buying local policies have been around forever outside of the EU, but also before the start of the internal market, and perhaps also during the internal market. But we’ll get back to that. And generally, they’ve really been a way of stimulating national, local, regional economies, right? A prime example is buy American type of legislation. But also buying local sometimes is used as a means of of really stimulate, stimulating a certain group of locals, right? So in the EU we’ve long focused on, you know, access for SMEs. But, you know, think of one of our favorite countries in the world, Australia, right, stimulating businesses owned by native Australians. Similarly, in South Africa, right? So there’s this preferential aspect has been around for specific groups, but also for in terms of locality. And I think where it all started in the in the European Union, is because we started to abolish these borders and tried to say, well, you know, even though you might have your national champions that you might want to give public contracts, that is directly going against the the objective of creating an internal market. So…

Marta Andhov  08:08

Yeah, and maybe just to add to that, if we for a second, really take, yes, this, you know, more bird view. So really go outside of EU and really look globally what’s happening. So as you said, those were always very existing. They are still very much present and very strongly used in all those jurisdictions. And what I find particularly interesting is, you know, those jurisdictions that we could very loosely again, kind of compare a bit to EU because of the federal nature and scale. So if that is US or if that is Australia, because they both have states and territories, right? And there is this sort of federal state level. Of course, it’s quite different than it is with the EU and internal market. But what is interesting is, in both of those countries, similarly, in Canada, you have a version of internal market rules because you have a version. In US, there is a doorman clause, I believe that’s how is it called. In Australia, there is also specific provisions even in the Constitution, that reemphasize what we consider free movement rules. And they have their own version of that, saying that, you know, you cannot discriminate in between the providers from different states and so on. But it seems that there are so many exemptions there. And you know me being right now in the US last year in Australia, I can really confirm that buying local is a massive thing, very strong in all this sort of local level. So I think that EU also as a region, comes across quite interestingly, that we so strongly opposed until now, this buying local on any level, and also that we didn’t really develop. Because I think for us, it’s not necessary in certain levels. Maybe when we talk about food, it’s more prominent that you want your own local Dutch provider. But I think largely because how our market looks like a lot of times is rather just giving a priority to EU companies, rather than foreign from outside of EU. And this is something that we absolutely could do. But of course, this is just a matter of political will, and then some of this reliance of EU market. Post covid has been brought out, and you have some voices saying that we should introduce a certain preferential treatments for European companies in European procurements. But we’re not there. I don’t know whether we will ever get there, but this is quite unique specificity of EU public procurement law.

Willem Janssen  10:47

Yeah. And I think to add to what you were saying, of course, the intensity in Europe is much stronger than the examples that you mentioned from abroad, right in terms of the strictness of trying to create an internal market and taking away barriers to trade, that’s, I think, one aspect that, I think is relevant here. And also, when you look at the Public Procurement directives, for instance, we do make distinctions for certain type of operators, right? So social enterprises, sheltered workshops, which are generally very local, right? But it’s all very indirect, yeah. And perhaps thirdly, I think also this, this whole discussion about the strategic autonomy of Europe, right? Where? So, if you read the letter report Enrico Letta, the report that came out recently, which I think is really a milestone in all in the whole discussion that we’re having about the internal market in Europe. The argument is there is that it’s more than a market, right? That’s the title. But I think it’s also this discussion is being very much framed in terms of, you know, we’ve been competing too much against each other, rather than competing and being strong against the rest of the world, right? That’s very much the rhetoric that it comes up there, but in a way that still doesn’t take away the fact that sometimes it just makes sense to work locally, right? Yeah, so we’re now very much looking externally, and we’re trying to build Fort Europe, and perhaps the walls will go up, the levees will rise. And in a way that I’m not trying to make that conversation less important, but I feel like the whole local discussion within Europe is kind of being shoved under the rug because out of fear, perhaps, that when we talk about local it seems like that we want to put the internal market in the bin Right and then all of a sudden, the European Union can’t act anymore. So yeah, there’s a certain tension there. 

Marta Andhov  12:45

For sure, and I think there’s also maybe, as an intro to this topic specific that we’re discussing, it’s good to distinguish between maybe two, also classification of topics within this conversation. And I think one is also depending in which sector you look. The local make more sense or less, right? So the food, I think, is something that you can very much identify also depending where you are, right? I think that local, maybe for EA area like Iceland or Norway, or, you know, north of Sweden, the idea that a lot of food from outside of country comes, particularly in winter season is quite important, right? I think, for example, for Italy, not at all, right, or other of the southern countries that are very rich in food production all year around. But I think the sectoral distinguishing here is quite…, plays a role, because we see that a bit differently, right? If we’re talking looking looking at buying planes, defense or something of that sort, this globalization and access to best technologies and so on, is prioritized versus the you know, carrots from backyard are sort of more important in context of food and the second level of conversation. I forgot where I was going with that, so we would just park it here, and maybe I will remember later on. Sorry, it’s just sort of one of the stuff that just… went away.

Willem Janssen  14:10

We will back. No so to because we’re helicoptering in business, that’s okay, or at least this is what I always say to my students, is like, you want a good grade, you’ve got to take a helicopter and really look at the content a bit more abstractly, but then, if they don’t zoom in, I always get grumpy as well. So even though I hope I’m not, I’m not a grumpy supervisor. But to put it, perhaps in a summary, like we said, buying local has been of all times it’s prohibited right within the internal market. It quickly relates to discrimination, whether that be direct or indirect, and in that sense, there’s been a long standing EU case law with numerous examples on where buying local is identified as. A local preference, right? In that sense, and then we run into issues, but also, particularly, like you say, when it comes to food procurement, where just talking about relevance, I can imagine that in terms of food, it sometimes makes a lot of sense to procure locally.

Marta Andhov  15:16

Absolutely, and I think that would complicate also the situation, because often, when you enter this sphere, you know, right now with Farm to Fork, that has been really a lot of discussion around food procurement in Europe, if Thus, for elderly houses, school meals, particularly, have been gathering a lot of attention. So food has been discussed quite extensively, and somehow also, I think, in this non legal conversation, or this legal argument that is missed, people very often also talk, oh, above threshold, below threshold. But I feel like people forget or don’t know also, because this is, you know, very legal concept that the treaty provisions being the non discrimination, and then also by an extension, the prohibition of buying local they extend also to the below threshold contract. So it’s not automatic that if you below threshold, you suddenly can, you know, kind of do whatever you want, because we’re looking at such a fundamental principle, or fundamental prohibition within the EU law, which is this buying local. And I’m also first to say that I do think that in context of food, it doesn’t make much sense, to be very honest. But this is, this is kind of the problem. 

Willem Janssen  16:40

What doesn’t make a lot of sense?

Marta Andhov  16:42

The fact that, you know, that you have so wild range prohibition, if you look at by buying food from European law perspective, that pretty much you always need to consider the principles of non discrimination, unless you feel very strongly that you don’t have cross border interest, right? And then the argument here you would sort of build, but we know that it’s potential cross border interest, right, that the cross border interest also interpretation of the code of justice over the years. It’s very like the threshold of triggering the cross border interest is relatively low, right?

Willem Janssen  17:22

Yeah, and it’s also hard to still pinpoint when that is the case, yes, right? Because, because the criteria is so broad, right, the nature of the work, the location, the value, and I find the value is still manageable, right? If you close to the procurement thresholds, yeah, okay, perhaps that’s a good indication, right? Perhaps a good indication of circumvention that they tried to just, you know, stay really below that threshold, and that adds to it. But still, it’s such a case by case approach that there’s the scenarios that are fully in the grain where you think, yeah, really far away from another member state, small contract, not interesting, difficult to execute locally or to so it’s not it or something that can be done online, where you need the trucks or something, but other than that, that makes it very, very difficult to apply that test. I fully, fully agree on that. 

Marta Andhov  18:17

And you know, and of course, there are different kind of exemptions. And those exemptions also have been right now, discussed in policy, in practice, in literature. And those are, you know, the cultural heritage, the cultural nature, like identity of member states, cultural purposes, and all these different elements. And we also write about them and bring them into the conversation in the study. But I do think that you know, the challenge where I see is that those are more exemplary. I don’t think that you can, on a large scale in food procurement, continuously claim you know that you need to buy certain products because of a cultural value of cultural identity, right? Like those are…

Willem Janssen  19:04

And you are talking about the just, just for you’re talking about exemptions to the internal market rules right now, when it comes to say, either what’s in Article 36 the public order, public health, but also the overriding reasons and the general interest created by the Court of Justice, right?

Marta Andhov  19:20

Yes. And you know that so, so something that has been often mentioned is that, you know, this example is often given. There’s a fantastic paper, by the way, by our colleague, and it’s Sarah, is it? Oh, what’s Sarah’s surname?

Willem Janssen  19:37

Schoenmaekers.

Marta Andhov  19:38

Yes. Thank you. I was very I was…

Willem Janssen  19:42

Shoemakers.

Marta Andhov  19:43

Yeah, I was about to say that, and it was like, I’m very shy. And I was like, I have a Dutch person with me. He can do that. But Sarah wrote a brilliant paper that I really, really enjoy. I think case of mozzarella or something like that, it’s something with mozzarella in the title. When she really looks on, you know, the cultural rights and identity of member states, and she sort of assessed this, this, and it’s really great. I it helped me a lot in the process where we were writing hours our study. But yeah, so the idea is that you could leverage, you know, the need of buying local, particular type of local products because of the cultural heritage, right? And up here, this is, you know, mentioned, the example that often are given is like, oh, you know, you have some sort of, like a public fair, or some type of like event in Embassy when you’re inviting other people and you need to display, you know, a local cuisine and things like that, and that kind of gives you a way out. And I’m hungry,

Willem Janssen  20:43

I remember, I remember me studying in Denmark and being invited to the ambassador’s house. All Dutch people were not just me, and they indeed had raw herring, Dutch style, not Danish style, yeah, with onions and pickles, and they had bitter balls, the Dutch Treat of deep fried deliciousness, so that I forgot fully relate, yeah, highlight of my stay, my Erasmus state.

Marta Andhov  21:10

When you went to Dutch embassy in Denmark. Okay.

Willem Janssen  21:14

Was rubbing the rock here.

Marta Andhov  21:16

Yeah, but to the point I we fully, I think can agree on all this, but like how you can scale it up right then, if you buy food and it contain, if you buy food for public institutions, yep, can we use that as an argument continuously? I’m a bit skeptical. So we’re going back to the same point, which is a bit okay. We a bit of a in a bit of a pickle, and definitely some member states over recent years following the Green Deal, particularly, or around the time when Green Deal really has been introduced, that is to leverage reintroduction of this buying local, particularly in area of food, to the objective of cutting emissions, achieving sustainability and so on so forth. So this is really something that has been happening, and I think that this is quite interesting to discuss, because, of course, it’s complicated, complicated question and we definitely want to try to assess a little bit some of those criteria that are being used in procurement, whether you know, from perspective of ours, whether they are high risk in regards to compliance, or whether we don’t see that much of an issue with them, really.

Willem Janssen  22:38

Yeah.

Marta Andhov  22:39

Have those been implemented in Netherlands? They have sort of, did you? Did you observe, over last sort of years, this increase on buying local in any aspects, if that’s food on others, or from the perspective of sustainability?

Willem Janssen  22:55

So I would say that in the Netherlands, there’s definitely always been a call for more room to procure locally. And then local can mean really local, or in the municipality, or more regionally in a province, or even sometimes local means national right. It really depends. We haven’t had specific legislation that would force it right, like some member states, where they still have legislation in place that like has these type of elements to it, and but I do concur, and also, to summarize a little bit, before we go into those specific criteria, is that it seems like if you can continuously try to fit it in a certain exemption category. But if we really want to move, if we say that sustainability of climate change is a super important value, the question is, of course, shouldn’t we have more structure when it comes to assessing those aspects, right? But let’s just to give it. I feel like we’re making it more concrete as we go along. We started in this helicopter. I’m not sure if we’ve landed yet, but…

Marta Andhov  24:06

Hopefully by the end of the podcast, we land somewhere.

Willem Janssen  24:12

So where in the report, also you you talk a bit about the different types of think. You call it geographic proximity and they, like you said, they differ in terms of risk perhaps. I’ll let you choose with which one you want to start.

Marta Andhov  24:32

Okay, so maybe, just as a preface to this, we at some point, yeah, we look at, you know, different things. But I thought for our podcast today is to look on a couple of these criteria that are being used with the purpose of arguing. You know, the objective is not to give a preferential treatment to any specific suppliers, but the purpose is really to fight climate change and be pro sustainable, just to also. Finish this more helicopter like perspective. I think what you said in the end, it was very, very poignant, because I think that it all ultimately goes back to this continuous question, or the need of some sort of prioritization of procurement principles or objective today, day and age. Because it ultimately is a question of this local poor sustainability is a question, okay, to what extent when there is, when we want to achieve sustainability versus we want to really ensure an open competition, broadly in the EU, this competition versus the sustainability kind of buckle heads, right? I think this is really one of those moments, and it would be wonderful at some point to get some sort of clarification, if that is from the legislator or from the court of justice, because until now, years before the whole Green Deal, when we had some cases, you know, usually in waste collection, the arguments for environmental protection has been disregarded as an argument that could justify breaches of procurement law, right? So, for example, direct award was not justifiable on the basis that you know that was the closest plant for commissions versus Germany the closest plant to treat the waste right from environmental reasons. So that was court said, This is not your, you know, carte blanche to get out and not apply procurement rules. So I think this is a little bit on again, a little bit slowly going to landing to more specific things. This is the, I think, underlying question that we really have continuously, how this, how those judgments would look today, having in mind this climate emergency, right? So…

Willem Janssen  26:50

Yeah, but sorry, but like, I find this, this is a really important aspect, right? And maybe we can devote another episode to it, and then we can go to the specific criteria. But I think it also seems like we’re not willing to have that discussion at the moment, though, we’re at a, I think, a pivotal moment in European integration. When I read the letter report, it’s still full blast on internal market, right? And of course, there is, but I’m getting, of course, there’s also a sense of reality when it comes to climate change. And I, I’m not trying to dismiss that, but I almost feel like the only reason why we can talk about this topic today is because of this discussion about strategic autonomy, because at least we’re looking a bit more inwards. But yeah, anyways, maybe another episode on the letter report.

Marta Andhov  27:38

I think that that that should come next, undoubtedly, because those are some really, really fascinating things. Because, you know, I could just follow up on so many things, saying, Well, is it a, you know, question of capacity? Are we talking about, you know, who has a right to really drive this and so on? Is it, you know, member states trying to stay sovereign and really protecting the interest like, you know? But as you said, let’s dedicate a whole episode to that, because it’s really fascinating, but that hopefully we also managed our listeners to show how this relates and links, you know, to broader points of conversation, right?

Willem Janssen  28:16

Yep. All right. 

Marta Andhov  28:17

All right. 

Willem Janssen  28:18

I said, I said you could choose a criterion, and then you could…

Marta Andhov  28:20

I will, we’ll do it differently. I will just sort of give you a couple, and then you tell me which particularly, you know, tickles your fancy for us to start with, right? 

Willem Janssen  28:29

All right, cool. 

Marta Andhov  28:30

So when some of the ones that are most interesting, I think, to discuss that we’ve seen in various national legislations across EU consider application, if those are in technical specification, award criteria or performance criteria, some sort of variation to pay attention to or requiring, so called zero miles, or maximum of miles. So, for example, you know, products that are to be delivered need to be produced. You know, maximum 20 kilometers from the place of delivery, or something of that type. Another are those EU geographical indicators. And the EU geographical indicators is obviously something that has been established by the EU. Those are the mozzarellas, the fetas and Goda. I would say Goda. You would say it differently, right? 

Willem Janssen 29:29

Goda.

Marta Andhov  29:30

There you go. 

Willem Janssen  29:32

Now you’ve got to have more gurgles, but anyways, 

Marta Andhov  29:34

We will practice. Short supply chains. And this is where you look a little bit more into, you know, like your suppliers. So short supply chains and what that really means food miles more generally. So you don’t say maximum minimum, but you say, tell me what is your full mileage, and then who has the best full food mileage? You know, wins and time of delivery. So those I find that are all related specifically to, you know, geographical proximity, or have an aspect of geographical proximity that pays certain role in those criteria. And I think that those are the interesting and quite often right now, mentioned in various laws. I think this is also important for me to emphasize those are not practices of contracting authorities. There are different legal acts. You know, in France, Italy, Spain, Portugal, in different countries, specifically refer to this. So, yeah, which one you would want to go for and share your assumption? 

Willem Janssen  30:38

Well, I’ll give you the four first you wrote the report. That’s that’s the privilege of you know what you say. The pen is patient. I don’t know if that is an English saying that. That’s what you’re saying, that zero miles. Let’s start with that one. That was the first one. So let’s go for the boring option in terms of…

Marta Andhov  30:56

Well, I think that you also chose the one that I have the biggest problem with, and I think that is the clearest, in my mind, the clearest indication that this is something that is absolutely not in line with EU procurement rules. Why is that? Because the fact that someone, something has been produced with extra, you know, specific defined mileage radius is not telling you anything. So using that as an argument, stating that this is pro sustainable, for me, it’s incorrect, because, simply put, the fact that something is produced locally, it’s not equivalent to the notion that that has been produced sustainably, right? I think let’s just imagine, you know, purposely, obviously, fictitious example, but I think that that that can give us a good picture. We somewhere in a locality close to border. Let’s use that example. And okay, you have one local farm that is, let’s say, within 10 kilometers of the municipality. That is to deliver some of the veggies that they produce. But they produce it in a very like the whole operation is quite unsustainable. There’s not much paying attention to, you know, water retention or energy efficiency, is delivering some sort of old truck. Let’s say, you know, not much, but fulfills that requirement, so technically eligible for the contract. On other hand side, you can have someone else, let’s say even from another country, because it’s close to the border. But let’s say it’s 50 kilometers. The operation is very sustainable, and the delivery is, let’s say, with electric green trucks or something of that type.

Willem Janssen  32:46

 Yeah.

Marta Andhov  32:47

On the example of those two scenario, the one that is less sustainable fulfills the criteria those is eligible if we put that and that’s put in tech spec or gets additional points, if that is in the award criteria, then the other one nothing, ultimately to do with sustainability.

Willem Janssen  33:06

Yeah. So maybe, first off, I think it’s a really good, good example, I think also a good one to start with, not giving myself too much for. Is on which one I picked, but is this one so, so problematic? I think I would agree with that. But when I hear you talk, there’s one thing that I think deserves clarification, because the the test applied is discrimination, yes, and it’s it seems like when you talk about it in this sense is that you’re trying to justify, or at least you’re trying to assess if it’s effective to to pursue sustainability objectives. So yeah, does that mean that you’re trying to fit it into a more general sustainability exemption, or in what way, where do I put it in the law when you assess it like

Marta Andhov  33:56

Sure. So I think that this is, I would see it a bit as a two step approach, because you it’s, you know, that’s why I like working with you. I think that you just pointed out a really, a really cool kind of combination. Because I look at it first to see, to assess that the criteria that contracting authority is using, whether it really is using it for the purpose that it claims. So up here it will be, it’s a version of buying local, right? But the argument saying, Oh, but this is something that will allow us to achieve sustainability. And I guess my first point is that this is very quickly that you can point out that this is nothing to do with sustainability.

Willem Janssen  34:36

Yeah.

Marta Andhov  34:36

And then the second point is exactly that you’re saying then, and so it’s not exemplary, anyhow, for sustainability, and then it’s an issue of discrimination, so illegal, bye, bye. So I think so, I think that there is this two step connection between those. Because I think that if you could then, because this is more clear right now, if we imagine, reimagine that example in a way that, yes, whatever you chose is very pro sustainable, but has this discriminatory potentially effect, then we go into the helicopter view. And what we discussed earlier, you have this clash between, you know, open competition, this general principles and sustainability, and we don’t have any prioritization from court’s judgments. We have very clear indications that the traditional procurement principles and provisions take a precedent. So where that leads us? And this, I think it’s much more unknown until we have something from the court. But I do think that the example that we get, that we discussed, and the zero miles, it really classifies something that is particularly complicated. I think at least in my books, this is quite straightforward,

Willem Janssen  35:50

Yeah, yeah, in the sense that it’s, it’s just basically, it’s a, perhaps a fancier way of saying you just need to procure locally.

Marta Andhov  35:58

Yes, exactly, yeah, exactly.

Willem Janssen  36:00

And then the locals defined in terms of miles, absolutely,

Marta Andhov  36:03

And then at the same time. So I see the reasons for introducing something like that. Can be two folded one that there is a very strong push nationally, regionally, you know, for buying local and incentivizing really, you know, your local enterprises, and from that reason, you’re trying to clothe it into something else. But I think another reason, because I usually, you know, I don’t presuppose that people really have bad intentions of trying to circumvent law. There are some, but generally that’s not the case. I think the other reason for that might be is that this is simple for contracting authority. When you go back to resources and capacities, this is simple, right? Like, it’s much more simple than when you use, for example, the food miles, which would be a, you know, version of what we’re discussing, and we can move on to that one next. Yeah, but then this one you asking for you to calculate, and you know, provide us with the full capacity of like your emissions and where they coming from, and so on so forth. A) you’re asking your suppliers to do that they need to be capable to that there is a certain level of kind of pressure put on them. And you know, expectations put them. And that’s as we know, calculating emissions is quite complicated. But also for your for you contracting authorities, for your employees, for the public servants, this is a difficult task. It’s much easier to see, yes, they have a, you know, farm, let’s say here, yes, Google Maps, or whatever else it is within the kilometer radius is simple. It’s straightforward, right. On other hand side, when you study to calculate the food miles, emissions and stuff like that, you also need to have a certain proficiency in doing that.

Willem Janssen  37:49

So that’s again, like, so if we move to those food miles, right, then it’s, it’s more open, right? Then you would be so you’re really, then moving more towards indirect discrimination, potentially, when you, when you talk about food miles, right? Is that correct? 

Marta Andhov  38:06

Well, yes. So this is this, this, this is a space that becomes, I would say, for us, interesting, because this is not so clear to state, yeah. Whether this is illegal or at high level risk. One way of looking at it, as you say, it might be wicked. So it’s not directly discriminatory, but there is potential indirect discrimination. But then, if we look at it from sustainability perspective, that we really need to look at the mission that giving some points to your emission, like it seems to be a valid thing, because you’re saying, I don’t care where it comes from. I care what is your general output. And you can also have a general output if you’re really good, and if you’re further away. And I think that this, there is much more scope here of potentially saying this is okay. 

Willem Janssen  38:52

Yeah. 

Marta Andhov  38:54

Because then you’re not saying, you know, I don’t care how and from where you’re bringing stuff. I care what is the environmental, external impact of of your of your supply chain, right? But this is up to you to figure out how you do that. And I think that this is, for me, much more interesting as a more intricate, you know, legal question. 

Willem Janssen  39:16

And I think also in terms of, in terms of what you say mitigating circumstances, if I assume that food miles wouldn’t be the only say award criteria would be used, right? 

Marta Andhov  39:26

For sure.

Willem Janssen  39:27

So that doesn’t, it’s not, like, doesn’t have a knockout effect. 

Marta Andhov  39:30

Yes.

Willem Janssen  39:31

Like, say zero miles would have where, yeah, okay, not within that radius.  So, tough luck.

Marta Andhov  39:35

Yeah. And of course, here, it’s also very much dependable. Obviously, whichever we take of these, where you apply them right, the technical specification will be the most restrictive. And probably you’ll see all these things in technical specification the least, because they would be the most severe in locking the market right. If you say that in tech specs, it needs to be within zero miles, or five miles, or kilometers, or whatever we would say, then that’s problematic. If you move that to award criteria, and you say you get extra points if you within zero miles, then, then, then you know it’s not that problematic, because you can still potentially win it, if you better in other criteria than this one. But when the zero miles, I would if I would be, you know, legal counsel to supplier, that is not the best in this. I would say this is a basis to challenge when it’s something on zero miles, when it’s food miles, I would say, Well, I’m not sure. I think that that actually can be, can be quite okay. But then the question is, of course, of the evaluation, the capacity of value, because that’s where we’re going back to Evie and Vincent, right? Like, are you asking for something that you’re actually going to consider calculate? Are you able to calculate that? Are you able to follow up on the requirements that you’re asking? 

Willem Janssen  40:56

Yeah, and if not, yeah, don’t do it exactly. So one that I think relates to food miles is, and that’s perhaps more problematic because it’s but it’s also a question to you, of course, is that the fact that is the focus on short supply chains, right? I think also becoming increasingly important as, I think that’s a positive aspect of it, as people are also becoming more aware of the impact of transport costs, and, like you know, also the dealing with subcontractors and sub suppliers and suppliers in the value chain, right?

Marta Andhov  41:34

This one, I’ll, I’ll be honest with you. This one bugs me the most. I don’t know I personally, I cannot come up with an answer again, if I imagine being a legal counsel to someone and sort of going one way or another, I guess then I would take a stand, depending what’s the best interest of my client. But I can guide you a little bit through the thought process that we had when we were writing this, this part, and why I think it’s so problematic or so complicated. Rather, I should say I think it’s because the short supply chains. And within the definition, we have a definition of of, you know, short supply chains right now within the EU and it emphasized two elements of it. The first element is mainly relational, so the short supply chain specifically kind of relates predominantly not to where you place, but it relates whether there is only one supplier or there are, you know, three levels, four levels, five levels, and so on. So it’s more connected with wanting to get back, at least, you know, in a food sector, to the most direct buying from the producers. Because this, again, goes back to the farm to fork, rebalancing the position of the farmer, right? So the farmers actually get decent money for the products that they producing. And I think when it comes to this relational part, I think this is perfectly fine. This is perfectly fine. I was wondering. One of the things that I was thinking is whether you could attack it from this crematory perspective, a little bit drawing a parallel between, you know, large companies and SMEs. So it seems to be standing in argument that, like you cannot limit your tender in saying only SMEs are to partake in this tender, or saying we will give you additional points in the competitive part if you are SME, we cannot do that, right?  So I was wondering at some point, well, could a big international conglomerate attack, you know, the requirement over additional points for short supply chain, saying, Well, why are you discriminating me for my long supply chain? So that’s sort of one of the thought that I had. And then another aspect of what short supply chains are, and I’ll be very keen to hear you know your opinions on this is that there is a geographic element to that, because in the way how the short supply chains are kind of defined and characterized, is about building collaborations. Is about building long standing relationship. And things like that, which undoubt, like, you know, to revitalize a certain rural areas, and things like that, which ultimately will have that geographical local element. And this is where, again, the proximity, the geographic locality, kind of plays a role. And it’s a little bit, you know, you kind of, I’m not sure about that, so those are a little bit, you know, the things that that were out there when we were thinking, we ultimately in this study, um, highlight and focus and point out that, from our perspective, the local, geographic element should be paying much less attention, if at all, that only focus should be on this relational aspect, if you want to be, you know, on the lower risk level. But I’m still not entirely sure whether I’m buying into it. I’m particularly would be keen to hear whether you see or I’m on my own in this sense of, you know, seeing this parallel with, like, large companies and SMEs versus, you know, your short supply chain, load supply chain, whether there is any basis to consider this on discriminatory level, or I’m kind of comparing apples and oranges. 

Willem Janssen  45:31

Well, I’m not sure. I think you’re, you’re just shooting at a lot of moving target, but something that’s also not certain, right?  

Marta Andhov  45:38

Yeah.

Willem Janssen  45:38

And I think, I think one of the, I think, very important aspects here is, is, what is the rule intending to protect, right? Is it? Is it the interests of those big, big entities? Is that distinction there? Right? So I think I have the same hesitation as what you have in that, in that sense, but I find with, with all these things when I even though they come in a different jacket, right? Zero miles, short supply chains, food miles, I think there’s at least a bell going off, maybe not an alarm bell. But I think that’s why it’s so interesting that you also studied this. This a bit longer, I’m going to create a cliffhanger title of delivery, we won’t do but we’ll let people read it in the study. And I think also the the study itself should, of course, be read quite extensively in that in that sense, it’s, did I say already that it’s on SSRN, I think I said that twice already.

Marta Andhov  46:36

Yeah. You did.

Willem Janssen  46:37

Okay, I said that twice already.

Marta Andhov  46:38

Sources are necessary, and we, you know, we will be doing something with that going forward. So I will put on my Willam Janssen head and I’ll do a call for action. So if you have any opinions on that, experiences with any of those, maybe some cases in your jurisdiction, please feel free to share. We, you know, if we will get to re-edit that piece, we would be very keen of including new information in that for sure. So…

Willem Janssen  47:06

Yeah, a very nice call to action. So well we looked, we looked a bit at buying a local policy, a resurgence of it, and why that’s relevant. What the framework is based on which we assess it? Is that sustainability, or is it still discrimination? More often than not, I think it’s still discrimination. But there’s value, I think, in looking at it more fundamentally, particularly also when you look at how problematic this geographic proximity and these different variants and how they come about can look like. So let’s move to dessert. I’m afraid we don’t have much time left, and we don’t want to lose all of our audience by now. 

Marta Andhov  47:40

No.

Willem Janssen  47:41

We said, let’s have a look at making public procurement law interesting. We introduced that already briefly, right? And I think maybe we’ll do it like this, one approach, one way of how you make public procurement for interesting for your students at university, assuming that that’s necessary. How do you do that?

Marta Andhov  48:03

Okay? Well, I think that we need to say it always is necessary. It’s very rarely. It’s very rarely. Did you get students that you know have to like work in practice as a student assistant somewhere, and they already? Um, that you already fascinated with it. Usually they come into classroom, at least, we bonded over that with Willem, that they come a bit skeptical. And I for sure, and I find that, you know, having, my spouse works a lot within private law, commercial law, you know, the sort of techie stuff. So this is something that I know, that students just eat it out of their hands, right? That’s all the jazz. So I see the difference, and I think that what I tend to do, and is very successful, I think, is that I’m trying to connect it really, to commercial law. I’m trying to really show, okay, how procurement law is about commercial dealings. You know, it’s a purchase contract. It’s those are companies, and they’re working with governments and I think that showcasing this has been quite successful. So for me personally, I think that stepping away from very administrative approach and looking at a very administrative law kind of take to procurement. I think that I get students much quicker on board why this is kind of cool and is worth of looking into. What about yourself?

Willem Janssen  49:29

Commercialization? I think it’s really interesting. I think for me, I just changed the title of my course. 

Marta Andhov  49:35

Okay, I heard that Martin tributes of years ago to be like Marta. Everything lies in the title. It’s all depending how you title that, course.

Willem Janssen  49:45 

So first it was procurement, but EU public procurement law. Now it’s sustainable development goals and public procurement, or it’s purchasing power for climate change, whatever option…

Marta Andhov  49:59

So you just link it to the hot stuff. 

Willem Janssen  50:01

Yeah. So I think my approach has always been and I find that that’s always interested me. So that’s why I, perhaps selfishly, did it is in my teaching, I’ve always tried to add in the societal perspective, what are the big challenges in society, whether that be globalization, security of supply, but also, of course, social injustice or climate change. And I find that particularly students that are studying now, or the their predecessors or the ones that are coming up, they’re super engaged with whatever’s going on in the world. And it links very nicely, I think, with discussing the procurement law from A to Z, there’s, there’s always an angle to those type of perspectives. So that’s just generally how I’ve taken that approach in the last couple of years. So a more commercial contracting perspective, a more societal, perhaps challenges perspective that will get their juices flowing in terms of interest in procurement law, that’s our conclusion. Let me thank you again. So much for for today’s discussion. A lot of this was bestek the public procurement podcast.

Bestek Voice  51:13

This was the Bestek the public procurement podcast. Do you want to contribute to today’s discussion and 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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