Willem Janssen  0:00  

Welcome to Bestek, the public procurement podcast. Today, Marta and I are talking about when contracts collide in the context of public procurement and contract law, and for dessert, we’re talking about pop culture.

Bestek Voice  0:18  

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  0:42  

Hello, Marta. A pleasure to speak again, to talk about procurement. I always feel like it’s such a pleasure that at least somebody wants to listen to me when I baffle on about procurement and procurement law. At home, I don’t get that pleasure, even though I love my wife very much. She always looks at me in confusion when I start talking about it, so it’s very nice to have to have found someone, a mate, that actually wants to talk about it. 

Marta Andhov  1:08  

Likewise, likewise. And I also really appreciate the fact that you do really need to love procurement, having in mind that you’re taking time out of your evening. Because as we indicated in our previous episodes. Now we’re really dealing with a time difference, because we’re recording at 8 am my time, 8 pm your time.

Willem Janssen  1:30  

Yeah.

Marta Andhov  1:30  

So I appreciate you finding time for that in your in your evening. 

Willem Janssen  1:35  

Well, same for you. I think you had to get up a lot earlier than I did this morning. So I think we’re quite equal in the effort that we’re making.

Willem Janssen  1:42  

And we’re looking at, a bit today, at the, I would say, the intersection, or the influence of, maybe you can scope it a bit better than I can, because you’re working on it, on in a big project, the relationship between public procurement and public procurement law, perhaps, and contract law. And what I would love for you to do, because what we’re doing today is two things; we’re trying to scope this topic a bit and see where it is relevant to discuss that intersection between public procurement and contract law. And on top of that, we’re looking at pop culture. And we’re talking a bit about the many comments. Then we got on LinkedIn this time to talk about public procurement, about procurement law, perhaps a bit when it comes to pop culture. 

Willem Janssen  2:33  

But first off that intersection, and I was wondering if you if I could give you the floor, a little bit about why you’re personally in as a researcher quite invested in that topic at the moment.

Marta Andhov  2:45  

Thanks. Thanks for that intro. Indeed, I think that this topic came around, really over many conversations with colleagues, and predominantly colleagues from traditionally understood commercial law backgrounds. So if that’s contract lawyers, if that means construction law specialists, and so on and so forth. And then, of course, one of the things that we very often will talk about, I think both of us, we really go out there and we talk to the procurers, and we talk to the suppliers, and this relationship between them and how all this happens, really started over a certain period of time, highlighting that there is a practical issue that then extends to actually quite interesting research, the theoretical background of this tension. And the example that I like to use is, you know, it’s a bit cheeky, and that is connected with my office at the University of Copenhagen, neighbours to my dear colleague, Professor Ole Hansen, who is a professor in construction law and contract law.

Willem Janssen  4:03  

Part of an episode recently, a couple of episodes back as well, where we talked a bit about that.

Marta Andhov  4:08  

Exactly. So, you know, he often would organize these really interesting seminars and little kind of workshops about construction projects and different kinds of cool things happening within construction projects as really long-term contracts, right? So very complicated, a little bit dream for lawyers, right? So many things happen over a 20-year contract that you for sure, somehow stay engaged. And he would say… and when I would say, oh, you know, there are very interesting procurement questions, and he kind of always would laugh, and he would say, Marta, we don’t want you guys here, because you would tell us about all the things that we do illegally or cannot be done, and things like that, right? And that kind of comes, you know, from obviously legal specialists, and that then grew really to the conversation about, in those most complex contracts. Infrastructure ones, very often, certain things in practice, many people over the years would say, they are not aligned with what, how the law is written, and the law really is not, the procurement law really has this tensions with, ultimately, the notion that it ends with the contract, and the contract is between the parties, and what are the rights of the parties and legitimate interest of you know us, broadly as a public and the procurement law that is also public, and where are there the tensions? 

Marta Andhov  5:35  

So that’s sort of a background of the project and we started to look into that, and then it kind of grows in complexity, because depending on who you talk to in which of the countries, if I talk to you, right for you, the notion that there is a contractual underpinning and there are contractual principles connected with public contracts and public procurement is quite straightforward. You wouldn’t… 

Willem Janssen  5:58  

Of course, why are we even recording this episode Marta?

Marta Andhov  6:01  

Exactly. 

Willem Janssen  6:02  

This is like bread and butter for any Dutch, procurement lawyer or scholar. It’s contract law. I mean, why would we even talk about it in a different way? 

Marta Andhov  6:11  

Absolutely, right? So it’s quite given. And then a similar sentiment, I think, occurs in several other countries, Germany, Scandinavian countries with a little bit different twist there. But then we have, obviously all the south and France here, leading. That when they hear contract law and procurement, it’s almost like, you know, a lot of people get a bit of a rush. 

Willem Janssen  6:40  

It’s blasphemous, yeah

Marta Andhov  6:41  

Yes, absolutely. What does that mean? No, this is administrative law. And you know, working on this project, and you’ve been involved in it, of course, with Matanja, who’s our third co-host, you can see that there are those tensions in understanding what that means and where it comes from, where this really comes from. So what the exercise really here on the research side has been? Well, there are a couple of elements to it, but if we conclude that we have a contract at the end of the day, not an administrative decision because even in those southern countries, it is a contract. It’s a special type of contract, but it is the contract. There are some questions regarding, obviously, the matters that are not regulated by procurement law, and what type of law then really comes into play? And depending on where you are in Europe, different things come in. And what I’m particularly also fascinated that you also have a situation in which you apply civil law, but the administrative court, for example, right? So that’s one of the elements. So we really look, we don’t challenge within this project, and that’s what I also want to communicate to our listeners, why I think this is interesting. This is not a matter of challenging and saying to Dutch people, no, you cannot. You shouldn’t be applying contract law, it is administrative law, or, you know, to Italians or French.

Willem Janssen  7:05  

Otherwise, I think the connection would break up a little bit.

Marta Andhov  8:07  

Would break, right? Absolutely. 

Willem Janssen  8:10  

I’m struggling to hear you at the moment with this long distance.

Marta Andhov  8:15  

Yeah, definitely. So no, it’s more about identifying. Okay, where are those kinds of gaps that are left for these other sources of law, and when there are some sort of boundaries, we can see and identify them within the pre-contractual sense. So what happens within the procurement process? If something happens that is not regulated by procurement law, so there are some sort of gaps, or something needs to happen, what law is applicable? Is it administrative law? Is it contract law? And similarly, we can look at what happens after the contract when, obviously we know that the positioning of European procurement law is much narrower, mainly modifications, ultimately, and up there, there is much more space left for member states to really decide how those things are regulated. But ultimately, in both of those stages, there are some spaces that in different countries, slightly differently, well, not slightly actually, quite a lot differently addressed. 

Willem Janssen  9:23  

Yeah, and I think I always find the best discussions happen when people get a little bit surprised or perhaps frustrated. And I think this topic is perfect for that. Because even for us, where contract law feels like, or private law, whatever you would refer to, it feels like a logical thing. We go to civil courts in the Netherlands too and it’s seen as a legal act on the private law when you’ve concluded the contract, even though you could say that perhaps the public procurement procedure is still something that’s regulated by a public act. So perhaps that could be seen as public law. But ultimately, what I think is still here in that context, we talk about the influence of public procurement law on the EU level. So you have this EU-national debate that takes place,

Marta Andhov  10:11  

And who interprets that law? Right? 

Willem Janssen  10:13  

Yes, for sure. 

Marta Andhov  10:14  

Yeah, because I think that there’s that level, exactly. So okay, Netherlands, super kind of clear, right? Commercial, let’s call it commercial, so we’re talking towards a civil contract, right? But if you have the European code of justice, well, judges are a whole one thing, but you also then have opinions of advocates general, and those opinions are written by advocates general. They come from very this public administrative culture. And of course, they are not interpreting day law, but I think that you know, we all are, somehow, I see procurement, whatever, go to any seminars or workshops, and they talking about something totally different, right? So, like you always have in the back a little bit how you trained, what is your legal culture? And even if you interpret EU law, and you think about what the EU law is about, I think that there is a little bit of that. I don’t know whether you would agree. Maybe I worry a bit too much, but I think that it is present. 

Willem Janssen  10:14  

No, I mean, I think we worry a lot, both of us, about different things. But I think here it’s very relevant to talk about, what is the connection between EU public procurement law and contract law, and what happens, what is besides the particular role of contract law also, versus the approach that perhaps exists in more administrative law-focused countries. Like, where does procurement law step in, and where does contract law step in? What is limited by one? So there are all these cool connection pieces that I think are relevant. So shall we? Shall we see if we can scope some of the posts or, sorry, pre-contractual applications and post-contractual applications, and maybe you can explain a bit about that division, but first before we so what do you mean by that, when you, when you make that distinction, I suppose?

Marta Andhov  12:08  

Of course. So, as you so eloquently already pointed out, we have the, obviously, the European procurement law that applies to the process of, or, if I would want to apply a bit of contract law, way of thinking about it, to the formation of the contract, we have procurement law applicable right? And the procurement law is harmonized on the EU level, and then we implement it. Sorry, I just looking at my computer. I’m hoping that everything sounds fine. Yes, so…

Willem Janssen  12:49  

I think so far so good. I can hear you all fine. So we’re all good.

Marta Andhov  12:53  

I got a little bit of weird noise in my headphones. Sorry. Yes, so, and then, of course, the moment that contract is awarded. Historically, this was really the moment in which European procurement law ended and is left to national jurisdictions to decide everything that happens after the contract is awarded. Of course, over the years, with press attacks, Finn Frogne and several other wall cases, and so on. And quite active research outputs from many colleagues, it has been highlighted and proven and right now implemented in the news directive that a) there is a reason to really have procurement extending to the performance phase, mainly due to the fact that if you allow suddenly everything to be renegotiated as it is allowed under contract law, if both of the parties agree, technically, you can change a lot of things. It would put at risk a whole notion of having a procurement in the first place, right? So we entered that contractual phase with European procurement law to some extent, but it’s still quite limited. So that’s where the division between the two, right? So largely what what happens is we have EU procurement law and then we have national law that decides how they classify the public contracts. So public contract is a European definition for the purpose of procurement law. 

Marta Andhov  14:30  

But besides that, each jurisdiction decides what’s the character of the public contract, and we have these two divisions. So if we want to kind of complicate it, nothing is purely public and nothing is purely private. We always have some sort of version of hybrid solutions. But for the sake of, you know, conversation and simplifying, we can group them in the two camps, so to speak, or two. Models, one which we would say is more pro-public administrative, legal culture, and perceives that public contract as something specific. There’s a more elaborate regulation of the performance phase of procurement and the public contract. And those are countries that you know the top ones that usually are mentioned, France, Greece, Spain, Portugal and so on. And those countries have quite elaborate, almost like public contract codes, and they regulate much more detail, and they recognize this special institution of public contract. And then you have the others, which are more rather, perceiving, ultimately, the public contract, the moment that is concluded and awarded and signed, it becomes a commercial contract.

Willem Janssen  15:53  

They’re the ones that got it right, right? Is that what you are saying? No, sorry. 

Marta Andhov  15:58  

Yes, yes Willem. 

Willem Janssen  15:59  

Let’s hope no one’s listening from those member states.

Marta Andhov  16:02  

No, they’re saying they don’t know what they’re talking about. 

Willem Janssen  16:04  

Sorry, keep going.

Marta Andhov  16:06  

Yes, and that’s as is obvious from this conversation Netherlands, but also Germany, Scandinavian countries, and a lot of the post-Soviet countries also have a similar approach. So Poland is another country, Slovakia, Czech Republic, that really perceives that as a private commercial contract. And then the question, of course, is to the matters that are not regulated in the procurement process, what applies and in the matters not regulated by procurement law, largely what applies after the contract is concluded. Does that make sense?

Willem Janssen  16:49  

Absolutely, I think for the general listener, it might still be a little bit of an abstract distinction, which is perfect for this point of the episode. So what I suggest is, we’ve got pre-contractual, we’ve got post-contractual. They’re interpreted differently in various countries, but I think there is some type of red thread that exists, particularly when it comes to contract law-focused countries. So let’s see if we can get a bit more, would you say, a bit more concrete on where potential friction could exist. And I think that’s what’s really nice about the project of what you’re endeavoring is you’re really trying to move like towards like. Where do actual, you know, discussions take place when you talk about this context of procurement and contract law. So shall we, logically, from like a timeline perspective, start with pre-contractual?

Marta Andhov  17:35  

Yeah, of course.

Willem Janssen  17:37  

Alright, let us start with that.

Marta Andhov  17:38  

And here the purpose, as you mentioned, today, is just to highlight those, because we’re working on the project, and we’re hoping to dive into all these themes that we are just scoping today and really individually in more depth. So today is just sort of getting everyone thinking about whether that’s relevant, and hopefully everyone sees the relevance of it today, do they work also? 

Marta Andhov  18:02  

So in the pre-contractual phase, one of the main things that happens is that we often say, Well, there’s almost like a full harmonization done by EU procurement law. So there is a very limited space for anything else to come into, place, right? But what we started to think, and when we were talking again with practitioners, is about scenarios where procurement law is not filling out all the space, what can go wrong, and potentially, where there might be an issue. And the example that we used here is, you know if you imagine a long procurement process with negotiations quite extensive, and it goes several months, or even several years, like the, again, a big infrastructure project, and let’s say something goes wrong throughout the negotiation process. And here you can, you know, use different examples. We purposely try to be a bit cheeky in pointing fingers that contracting authority acts in bad faith. So we imagine a scenario in which, ultimately, what happens is that contracting authority does not want, really to outsource the project that they have, but they go through this elaborative process of negotiations to ultimately get to know the know-how, and ultimately their decision is to cancel the procurement process, which, as we know, under procurement rules, there is usually quite a large discretion In canceling procurement processes, and ultimately retaining that know-how and continuing with delivery of the project with its own in house capacity. 

Willem Janssen  19:48  

Yeah. 

Marta Andhov  19:49  

So if you look at the purely again, commercial private law perspective, the question that comes up is like, well, can we, as a let’s say, representative of the potential supplier, of the bidder? Can we claim any damages? Particularly if this has been a long time happening, and we took on, you know, technical assistance. We took on lawyers’ assistance, and everyone in the process has been involved in money and other resources. Can we claim damages? And then, of course, we have damages that are awarded on the base of breaches of procurement law. But in this scenario that we’re describing, the question is whether you can link it right to one of the procurement provisions. We assume that here you cannot, because it’s not necessary unless you would argue that the cancelation was unjustified, but I think I’m not sure how it is in the Netherlands, maybe you can share with us, but I think that usually there’s quite a broad discretion of, really for cancelation.

Willem Janssen  20:52  

Yeah. And I think that’s also where in the project, where Matanja Pinto, you referred to him already, and I am trying to scope a bit of what, like, what the discretion is, and what it should be, perhaps because it seems like a contracting authority can just walk away at any time. And there’s much debate about the extent to which a motivation should be given, or if it’s just freedom of contract, and that you can just walk away as a contracting authority because of the capacity that you’re in because it does impose significant risks like you mentioned, the more extreme version of, like bad faith, where know-how is lost, but also just the time and effort invested, and the easiness of sometimes, where you see how contracting authorities can and sometimes even do walk away from a procedure that perhaps wasn’t well thought out from the start, where the effort has been put in. I mean, it does also create, like, a rather big risk in terms of the time and money invested.

Marta Andhov  21:46  

Absolutely, and I think that there are, you know, two comments just to add to this, one, I think in a majority of European member states, we have this experience that there have been situations, where unfortunately, public institutions contributed to the bankruptcy of some of the companies, right if that is a long time of payments, and ultimately, you know, not really helping out the companies with their liquidity, and that ultimately causing a lot of troubles, or the notions of what you’re describing right now. So if you continuously invest a larger amount of money, particularly for smaller companies, that’s a big risk, right? So that’s also then connected with your right of withdrawal and discretion here that you, that you described, and what you guys will work on and we will talk about it more. The other aspect that I’m also hoping at some point we will dive more into is the paper that within the project, we’ve been working with some of the colleagues, and we are in the final stages of it. And that is also the question here, exactly on the example that I’ve given of Culpa in Contrahendo, right? So in this sense, if we don’t have procurement law remedies available, is there any other way to try to bring in the civil law, the liability of the contracting authority on that basis, particularly in those countries, like the Netherlands, you know, like Germany, in Germany, this is well established in Poland and Denmark. We are investigating them within the article. So those are two of the elements that I think that we can already for the scoping exercise highlight, where throughout the procurement process, actually a question of contractual, civil law sources can come into play. 

Willem Janssen  23:38  

Yeah. Yeah. Two, I think relevant examples. And I would say to our audience, of course, let us know if you, if you also notice this in your practice, right? I think also for the project, we’re always looking for that connection, like when courts in procurement cases refer to particular contractual principles, like the freedom of contract. So do let us know. 

Willem Janssen  24:02  

But let’s move to the contract that has been signed. There is a contract and then we’ve got this contractual context, in what way does… What examples have you found so far of this scoping exercise?

Marta Andhov  24:18  

So the obvious one has been, over the years, really, what are the boundaries of modifications? Right? And to some extent, it’s still an open question, whether 72 is closed, meaning exhaustive. Those are only the circumstances in which you can modify a contract, or they’re exemplary, and you have two different viewpoints on this right. One is originally stated by Professor, late professor Steen Treumer and prof. Ole Hansen who have been mentioned already in this podcast, and myself, we all wrote the with Steen, the article and Sue published it in her own things. Steen also obviously published about this before, but we see it more as an exemplary list, having in mind that the way, how this list has been created has been through, ultimately, it has been a codification of the Court of Justice judgments. So the question is, really, couldn’t we imagine, particularly right now, post COVID, and, you know, the Ukrainian war, or the war in Ukraine, I should say, that there could not be different circumstances the court might encounter and establish a new one. We think that there is a chance for that. And then Piotr Bogdanowicz, in his habilitation, in his monography, is of the opinion that this is a closed set of examples, right? So depending on which one of those two views you go to, potentially again, a new contractual aspect can come into play. So one of the things that Michal Kanja is looking into within the project is, for example, a hardship clause, which is again a civil contract law notion, whether this anyhow, can be implemented within the public contract. So within the modification, the question is, again, how do you interpret those modifications, is there a scope for enlargement? And also the question generally that we’ve been discussing is, because sometimes it seems from a procurement perspective, and again, one of the contract law colleagues said to me, sometimes it sounds like you guys think in procurement that your article 72 wipes out a whole national contract law, which you know…

Willem Janssen  27:03  

Which it does. Because, you know, what’s the, what’s the hierarchy of law, EU law, trump’s National Law, so sorry, that’s, I think, whether you’re sort of the, I’m saying this with a smile on my face, but like, I think it’s, I can see where that perspective comes from right? Because you kind of think, particularly if you’re coming from a perspective of all contracts change, and you’re coming from a perspective that we need to get public services and public works off the ground, that’s the public interest, not equality or of perhaps a potential bidder that we didn’t include because, because of a modification of contract that would have then been interested at the start. So it all sometimes feels a bit hypothetical. So I can also empathize with those who sit on that side of the spectrum. 

Marta Andhov  27:49  

Because, you know, also, something that I’ve been really thinking a lot about is fully understanding, obviously, that we need to secure the effectiveness of procurement law throughout the process of its implementation in the contractual phase. But I do feel that we still didn’t instruct the right balance in a legal sense, between protecting and saving that area of law versus the law being enough agile to really reflect the business transaction that happens and the realities of doing business and allowing a certain dynamic interaction within the contract. So in other words, you know, of course, we need to ensure that bland breaches of law and fraud and all these, bad things don’t happen. But I do think that it becomes too restrictive, because in the context of, for example, I think, you know, Finn Frogne is, for me, one of those cases. When you look through the case, it doesn’t seem that someone actually wanted to circumvent the rules. 

Willem Janssen  29:07  

No. 

Marta Andhov  29:08  

They were just trying to make the best out of kind of the deal that they got themselves into. And I think that assuming that, you know, also in this longer-term contracts, everything over 10 years stays the same, and you are able to predict everything, and you cap all those different things, and you need to, in context of performance also really fulfill all the performance conditions. And what I mean here is, you know, let’s say you said, when there is a delay, we have penalties for delay, but suddenly, you know, the delay is not really caused by the contractor. And then, well, if you write it rightly in a contract, you maybe have some sort of wiggle room, because then it’s about application and interpretation of a contract, and you save because that’s contract law. But if you don’t have it in the contract, then all those things you’re not executing the penalty or the fines really go to modifying the contract right? And I think that this is where the tricky part lies.

Willem Janssen  30:09  

I feel like you, are you moving to the dark side? Is this project moving you more toward the commercial law and contract law market? This is the fundamental thing. Let’s… Don’t answer that question. We’ll talk about it a bit later in a future episode. 

Willem Janssen  30:25

I also want to leave sufficient time for, say, one or two more examples that you’ve identified for the post-contractual phase because I also love to keep some space for pop culture because everyone was so excited to talk about it on LinkedIn.

Marta Andhov  30:36  

Very briefly on those those two, I have two that I just would want to highlight. One is interpretation. Yeah, interpretation, as we said already earlier on. Well, if we get the code of justice who interprets EU law. We fully understand that. And also, when we have opinions of the Advocate General, again, they interpret EU law. Yes, I’m not saying that they interpret national law. I just want to clarify that, but I think that interpretation matters similarly, because there are a lot of this interesting hybrid solutions. So in Finland, it’s a market court that looks into the public contract and the procurement stuff. So it’s… To my understanding, and now I’m treading lightly, because I was asking our Finnish colleagues to explain that to me, but to my understanding, it’s an administrative type of court, but it applies procurement law, and it applies, you know, more civil interpretation. Similarly in Italy, when we’re looking at the contracts, not pre-contracts, but you know, contracts themselves. It goes to, depending on what is a matter of individual rights, or whether it’s a matter of general interest, it goes all to administrative court or civil court. But you have a couple of times the situation that you have ultimately administrative courts or this quasi court. So also the tribunals and different different institutions that are to apply also civil law at times, which I find this is interesting. And of course, we also here differentiate between, particularly those boards different, if that is in Denmark and Norway also have one. Poland has one. Who are these quasi-public administrative institutions? And obviously, the scope of Rome is specifically procurement law, nothing else. But then we also have the options for going to court, right, and the question is whether a contract going to civil court and being judged by civil judges ultimately comes with a more pro-commercial outcome versus going to administrative court. That is to somehow apply commercial logic. That’s what, for me, is still quite complex. So I’m hoping that that comes on the on the audio, relatively straightforward. So interpretation is one of the questions. And then, of course, termination, under which circumstances, termination, liabilities, all these different aspects about that is another one, the duty to collaborate and cooperate, good faith, loyalty, all those principles that are present within contract law and important for business transactions, but they stay in stark conflict or tension with the objectives of procurement law, are any of those also the type of questions that roam around halls of practitioners and procurement nerds, as we refer to them on our podcast, lovingly, are those also some of those questions and themes that you come across in the Netherlands as a poster child for contract law and procurement. 

Willem Janssen  34:08  

Well, I think to also take back, as we’re like, sort of rounding up the main course for today, going back to what you said is, because of my involvement in this, in your project, I’ve also started to see it a lot more. Is like that all of a sudden, when Matanja and I started looking for, you know, do Dutch courts, what? So we go to civil courts, right? And do they so like in a summary proceeding or a more extensive, fully fleshed procedure? Do they actually refer to civil law principles? And it turns out they sometimes do. Sometimes they say, refer to the freedom of contract, where, in other cases, they do it a bit more implicitly, and it’s almost like their way of thinking, and it’s so obvious that you know, this is a contract. So these are the basics, right? But if you look at the work of practitioners, right for them, it’s the Dutch Public Procurement Act and the Dutch Civil Code, right? So that already says a lot about their frame of mind. But if you look at all of these questions, I think you’ve switched a button in my head, to be honest, in seeing it a bit more about how that actually comes into play, and that’s why it’s also been such a pleasure to work in this project because it’s kind of changed also how I sometimes look at Dutch rulings, and I think, Ah, see this is where the contract law inspired, type of whether it be interpretation or termination, or any of the points that you mentioned, where that comes to the fore, right? And that dictates a lot of how we think about this relationship.

Marta Andhov  35:35  

Yeah, I think that to round out this part, what’s the purpose really, ultimately, because I think a lot of our work, if this is this podcast or another, you know, more research-based sort of publication, I think the two of us and many of our colleagues, what we have in common is we actually try to think about things that really can help the people that are on the ground, as we say and actually need to do those things. And I think that the notion here that I would say, you know, the first half of my career, I always been, until now, thinking about public interest, right? And, you know, public being public, and having these public obligations and so on. And it’s not that I’m backing out of that in any way, but I think that this is one perspective, perspective that for me has been really missing, and this would, this project, I hope, is going to fill out, is actually looking at the other perspective. And the other perspective is you have a company that won the contract, and they are trying to do the best that they can, or they participating in the tender. And it seems that we constantly think about this potential, theoretical competitor that you know, and if we want to over exaggerate that in certain markets or sectors, there’s not none, or there’s one other, let’s say, right? And I think that that also plays or, of course, we want bigger competition and so on. But I think that the perspective this project also takes, is okay, so you are on a public contract, or you’re part of procurement proceeding as a private company, and how your interests are somehow also protected throughout it because we want as many of them as possible for our open competition, but if they ultimately feel like this is really limiting them, or it’s Not giving them possibilities to really do their job well. They just won’t go for public contracts. They will just stay in business-to-business contracts, and we want them in right? So I think this is just a rounding up. It’s just looking at the other perspective and hopefully helping out within the discussion and legislation and also legislative reform that we are right now heading to, right?

Willem Janssen  37:52  

Yeah, for sure. So stay tuned, I would say, one for future episodes on this topic, and also for, of course, the book that we’re working on under your kind leadership, Marta, so I’m hoping to see that come to light soon. 

Willem Janssen  38:08  

Um, let’s, um, let’s move to the dessert for today, for which we were, I think, overwhelmed, right? We always, like you say, look at ourselves as a niche group of procurement or public procurement law nerds, and then all of a sudden they crawled from under their rocks, or they opened their doors and windows, and all of a sudden they were there on LinkedIn. So it was nice. 

Marta Andhov  38:32  

The enthusiasm, right? I loved the enthusiasm of it.

Willem Janssen  38:34  

The enthusiasm for sure.

Willem Janssen  38:35  

So just to give a bit of context, it was your idea, Marta, to ask them, okay, you know, can you share some examples about where public procurement themes appear in pop culture? What’s your favorite pop culture moment that perfectly depicts some of the public procurement challenges, and what creative references perhaps, do you make to audiences? And then all of a sudden, the comments started to flow in. So I think what we decided to do for this episode today is just to make a bit of a cliffhanger as well. So go onto LinkedIn, add your pop culture references, but also have a look at how other people perceive that. But we did decide to fill that cliffhanger a little bit with content. So what were your favorite ones? Or which ones did you take it to take away from this? Because to be honest, I only knew one, so I’m happy we actually asked this my classes will be so much more fun from now on. 

Marta Andhov  39:28  

Yeah, and I think this is, as we indicated in the LinkedIn post, what was the purpose of that? Of course, one is a little bit just fun. And sometimes you kind of think, Am I just having a wacky idea or, and then when people kind of get on board, you get very, very happy. And the second thing is also, you know, in our roles of educators, predominantly because maybe this is not particularly kind of applicable if you’re doing a training of a public sector or other procurement specialist, but if you teach in a classroom at the uni, there, I think we talked about it several times on this podcast, sometimes, uh, well, not, not sometimes I will take it back. Procurement usually has quite a bad PR or bad branding. Where not, you know, the shiny, great, new AI, technology, law, whatever.

Willem Janssen  40:24  

I didn’t know this. I was wondering why I sat by myself at a birthday party. But now I know why.

Marta Andhov  40:32  

So we always think about creative ways of how showing that this is actually something, that it’s not only very important, but it’s actually really cool, strategic, and all these kinds of great things. And one of the ways that is also, you know what young people are into, pop culture always, for all of us, comes time and time again. So what is some sort of way of maybe educational fun? And pop culture could be one of them. And we got, yeah, a long list of them. I particularly, of course, like the ones that are connected, really with law. And two stand up for me. Here is the one that Michael Bowsher mentioned, a dear colleague, and that is Good Wife. So Good Wife is a series about a lawyer, and up there, there are a series of episodes connected with the corruptive behavior of a particular gangster applying and winning public contracts through social preferences. I believe it’s a black-owned business that he’s trying to abuse. And there is a line of several episodes around that. And it really is about, you know, how you kind of fight that, and how you solve that. And the other one is also a series, West Wing. And West Wing…

Willem Janssen  41:56  

Yeah, beautiful series, yeah.

Marta Andhov  41:57  

Such a good such a good show. There are so many great episodes. I really, really come back to that show time and time again, beautiful writing. And then up there, there is a question of, again, kind of whether the government and the president of the United States should agree to this particular free trade agreement that will open the market for competition, I believe it’s one of the Asian countries that is discussed there, and sort of the discussion that the government has with the representatives of the union in the US, saying, no, that will kill the sector. You’ll kill the jobs. People will be unemployed. And this whole kind of discussion that we very often have about open competition, that will bring new innovation, and so all this really good one. So those are, those were the two ones that I knew about, and what was really great to see them coming up. But there are so many other new ones that I didn’t think about that I definitely have a long list of what to see. What did you think when you scrolled through it, anyone that you were kind of surprised?

Willem Janssen  43:07  

Well, look, I think it was, I think the ones that that stood out for me is I liked a colleague of mine, Fredo Schotanus, who said something about, I think, what he described as the boring image of procurement, right? And he said that in friends, and initially, Chandler Bing, he’s, he is the head of procurement, or has this really boring job where he just sits at an office all day, gets decent pay, but it’s really the most boring thing on the planet. And I think the same the he extends that example to Orange is the New Black, Linda from purchasing. And he says that, you know, it kind of like, doesn’t really help the image, or perhaps it showcases what the image is of procurement in the world. So I like, quite like those examples, the one that I knew already was War Dogs, which I think is the most like high profile movie about procurement, where these two boys really win this huge contract to provide arms to the US government. So that’s definitely worth the watch. A lot of people highlighted that one actually in the comments, and one that I didn’t know was also procurement-related, and I think it was also noted by Marko was Minority Report with Tom Cruise. I think in the main role is a public, private partnership where they create, this project called pre-crime. This is where they start identifying people, you know, as criminals, before the before the act. So, you know, I liked all of them, and there’s much more. So if you if you want to see more, if you need it for your classes, or if you just need to have a laugh and find a place where you can probably find some good memes and gifts, I would say this is your go-to source from now on. 

Marta Andhov  44:48  

For sure, what we’re going to do is we’re going to collect all of them and put them in the description of this episode. So if you’re going to visit our website for this podcast episode, we will have a list all there, so you have one point of reference, and we will be adding more if you’re going to get back to us. So there’s a long list waiting for you. Thank you so so so very much to all our listeners who chipped in. There are also some examples from sort of national productions of series and movies. There are a couple that have been mentioned in Dutch, and I think one or two that have been mentioned in Danish because obviously, that’s where we also have a lot of colleagues that chipped in. And we will add more. I think there’s also a Brazilian one, I think added so we will collect them. And again, thanks so much. It just, you know, it makes our hearts, really swell with happiness that we have that engagement, and you kind of jump in, or whatever kind of crazy ideas we might have.

Willem Janssen  45:56  

We’re not alone, exactly, we’re not alone. I think we’ll leave that for this episode today. Thank you so much, Marta for talking and sharing so much about your project and scoping the relationship between public procurement and its collision or its interaction or influence with contract law, and also thank you to all again for sharing so much about pop culture and procurement. Please do have a look. This was Bestek, the public procurement podcast.

Willem Janssen  46:02  

This was 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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