Willem Janssen [00:00:00]

Welcome to Bestek, the public procurement podcast. Today, Marta and I are discussing framework agreements and doing a PhD in public procurement law.

About Bestek [00:00:14]

Welcome to Bestek, the public procurement podcast. In this podcast, Dr. Willem Janseen and Dr. Marta Andhov discuss public procurement law issues, the love of food, and academic life. In each episode, Willem, Martha, and their guests search for answers to intriguing public procurement questions. This is Bestek. Let’s dish up public procurement law.

Willem Janssen [00:00:39]

Hi, Marta.

Marta Andhov [00:00:40]

Hi.

Willem Janssen [00:00:41]

I realize we started doing cold starts, as they call it, in podcasting world, like we’re not doing long intros anymore. We just start talking as if people are sitting next to us at the dinner table.

Marta Andhov [00:00:53]

Yeah, well, that’s the idea, I guess, right?

Willem Janssen [00:00:57]

Yes. Thank you. That is indeed the idea. So just a….

Marta Andhov [00:01:02]

…. shut down from the beginning.

Willem Janssen [00:01:04]

So much looking forward to this…. hahaha

Marta Andhov [00:01:05]

Very supportive!

Willem Janssen [00:01:07]

…podcast episode. Thank you for letting me open so nicely. So we’re talking about two things, or at least we thought it would be fun to talk about two things. Our main dish for today is Framework Agreements, which has been a topic of your research for a couple of years now. And we thought it would be fun to kind of look at a couple of outstanding issues or some of the difficulties that arise when it comes to framework agreements, but perhaps also give some basic info about what they are. And as a dessert, doing a PhD in public procurement law. Now, both of us have done one, and we thought it would be ….or at least interesting to kind of look back at that PhD process and other things that we wish we knew before we started the PhD. So, if you’re OK with that main dish and dessert, then let’s jump right into framework agreements.

Marta Andhov [00:02:01]

 Sure.

Willem Janssen [00:02:04]

I feel like you’re the most sarcastic you’ve been so far. Is this framework agreement is due to you, though?

Marta Andhov [00:02:10]

I think that right now…It’s a little bit like the pressure is on. So, my natural reaction to when I’m stressed is that I’m getting super sarcastic.

Willem Janssen [00:02:20]

 Being a Dutch native, I actually appreciate sarcasm, so I hope I can deal with that. But also, happy to see that you bought yourself a new microphone.

Marta Andhov [00:02:32]

I did. I’ve been informed on several occasions that that’s what I should do. I’m listening. That’s just my point here that I would like to thank you.

Willem Janssen [00:02:44]

OK, so you do listen every now and then. It’s not bad. You just don’t agree all the time. That’s not the difference. You listen and you don’t agree.

Marta Andhov [00:02:52]

I guess this is the point of this friendship and collaboration, right? What makes it fun? We’re not always agreeing.

Willem Janssen [00:02:58]

Even though I do find that so far in a lot of episodes we have agreed, but I’m sure we’ll get to a stage where we’ll start disagreeing a bit more. But when we talk about framework agreements, maybe you could just ease us into the topic, say if you’re not familiar with it, what are they and how are they regulated?

Marta Andhov [00:03:16]

Sure. So, framework agreements are quite an interesting technique because it is a procurement technique that some of the member states are using quite extensively. In some other ones they are pretty much absent. So, the Scandinavian countries, Sweden, Finland, Norway, Denmark, they actually use it very often. The same with Iceland that’s throwing it a little bit more north. So, framework agreements are regulated, of course, in the directive in Article 33. And if we would want to look at the definition and specifically guides us towards the fact that they are in agreement between one or more contracting authorities and one on more economic operators. So you can have more than one on both sides. And the purpose of framework agreement is to establish the terms governing contracts to be awarded during a given period. What is interesting here is that we can think about framework agreements a little bit as an umbrella agreement. So, your laying ground of your collaboration for years to come is establishing a certain basic terms and conditions of that collaboration. And what is particularly interesting, and I just want to highlight it right now, because we will come back to this a little bit later in our conversation, when we will talk about some of the new case law, the definition of framework agreements that is in the directive points out that in particular with regards to price and where appropriate, the quantity investigated should also be established, right? So, this wording of in particular and where appropriate, suggested there are circumstances in which you don’t have to do that, which where we right now know from the newest case is a little bit standing on the question mark, so to speak.

Willem Janssen [00:05:15]

You’re really front-loading this episode, right? You keep referring to a case, but you don’t mention which is that.

Marta Andhov [00:05:22]

Please stay tuned! Haha.

Willem Janssen [00:05:24]

Yes, exactly. What I was wondering: Is there a way that you could explain the differences in use in the member states? Does it have anything to do with how centralized states are? Or is it just pure coincidence that, say, the Nordics use them so much?

Marta Andhov [00:05:41]

I think for sure it has something to do with if you have a centralized or decentralized procurement system. But I think it’s also a little bit connected with traditions. I think historical traditions of doing procurement. One of the member states that does not use them is Poland. At some point when I was talking with Polish contracting authorities and Polish lawyers, they were just saying that they see way too many uncertainties around framework agreements. And from this general standpoint, public procurement is quite risk averse. They’re quite worried about that. But I at the same time came across several contracts, public contracts that are conditional contracts, which actually in some ways fulfill.

Willem Janssen [00:06:33]

That sounds very similar.

Marta Andhov [00:06:35]

Yes, fulfill the sort of terms and conditions or how characteristics of framework agreement, I would say, because also when we talk about framework agreements, it’s quite a wide spectrum of different type of agreements from a super voluntarily in which pretty much you as a contracting officer, you are not obliged to anything and your suppliers are not really obliged to provide you with anything through the spectrum of other end in which you are obliged to, as a contracting authority, to buy at least some minimum quantities and the same way your suppliers are obliged to provide them whenever asked and in the most extreme versions, the way how some of those framework agreements can be written, they can actually fulfill the definition at the same time of public contract with which can be at that moment really confusing because then what is the difference if the framework agreements is a public contract, do you still then apply the directive for awarding of the subcontracts, et cetera, et cetera. But just to point out that it’s not really a one-size-fits-all, it has a very different variation of them.

Willem Janssen [00:07:48]

Yeah, I think also if I look at the Dutch context, I think it’s really up to the contracting authority to themselves to decide do they want to set up a framework agreement. Sometimes it makes a lot of sense for bulk goods or something, but we don’t really have that obligatory system that you might have in other member states. So, when I first heard about it, I was fascinated that like this link with centralizing procurement and basically having framework agreements for pretty much I’m exaggerating a bit, but pretty much everything. And you just tag along on the big bulk buying, which in terms of scaling, purchasing makes a lot of sense. So, just to go a bit further into this: “What do you think about the balance between, like scaling it within framework agreements and access for small and medium sized entities?”

Marta Andhov [00:08:34]

Oh, yeah. You know, this is this is this huge point of contingency here, right? Because on the one hand side, I think so. So just to sort of contextualize it a little bit and link it to what you just mentioned earlier, I think that there is for sure a huge amount of discretion on contracting authorities to decide how they conduct the procurement that they do, frameworks or not, but I think also with popularization, with centralized procurement or even joint procurement and cross-border joint procurement, et cetera, et cetera, when you’re kind of going more into this bigger better. In Denmark, when we have some of the central purchasing bodies, predominantly conduct framework agreements, right? So it’s also to showcase the different institution, some of the joint purchasing consortia in the U.K. they also predominantly do framework agreements. So, there is a spectrum again. Now to come back to your question, on the one hand side, there is a lot of positive elements to support, aggregation of procurement, centralization of procurement, bigger discounts, access to wider sort of market, et cetera, et cetera. But at the same time, there is this huge issue of competition law. First of all, because this becomes a bit if you have a market and you’ve got very few, then competition, a dominant position issues, and anti-competitive agreements, bid-rigging and all these things come to place very quickly. And then, of course, something that we are particularly or should be particularly careful ensuring that you are supporting small and medium enterprises, because that is predominantly our market within EU. you can of course, there is this opportunity of dividing contracts into lots on performing or promoting small and medium enterprises to bid in the form of consortia, of course, getting the small and medium enterprises as subcontractors. So there are several options, but you need to be very careful because even if you divide your frameworks into many lots. But the way that you allow… You won’t point any restriction on how many lots you can bid, but then ultimately you can find yourself in the same spot that the biggest bidder, that the biggest supplier just won all lots. And then it’s sort of like, you know, ticking… Is like going back to these greenwashing conversations that we had in the last episode…is sort of taking your books saying: “Yeah, yeah, I try to, but it’s a bit pointless.”

Willem Janssen [00:11:17]

Still, the biggest contractor wins, and actually all of the small entities like standing on the sideline with tears in their eyes. So, let’s have a look at some of the more legal aspects of framework agreements. We thought it would be good to talk about who can use them and then particularly delve into the issue of nonsignatories. So, people that actually haven’t signed up literally to the tender but perhaps mentioned in it or tag on later. Volumes is a big and the value is a big topic. And this is what you spoke about. I’m too scared to mention the case now because you did not do that. Exactly. Finally, what are the options to change your party to the framework agreement? Let’s start off with the first one. What are your thoughts on or at least and I think we’ll hear what case you’ve been talking about? Who can use such a framework agreement and what’s the issue? Actually, what are we talking about when there is an issue of nonsignatory?

Marta Andhov [00:12:25]

Sure. So, to start us off, when we talk about who can use… Why it is even important to discuss who can use a framework agreement. It strikes from the fact that framework agreements are closed set up, meaning that you are establishing framework agreements for X number of years. You’re allowed to do that up until four years unless there are justified reasons for you to extend that time. And then during that time, you are not allowed to introduce new members of framework agreements to it and sort of freeze. And the reason why it’s kind of freezing and also why it is limited, because it limits the access of new companies rights, the issue of competition again. But the question for some time has been: “How about the contracting authority side?” So, you know, up here, you are bringing it… Can you bring more contracting authorities to use it? And that conversation about all these elements actually several, several years old now, because the question was, can you just establish a framework agreement and say, oh, all municipalities in my region are going to use it or actually all contracting authorities going to use it, right? And we had guidelines and not from the Commission on this. And we had also some clarification within the directive and recital 60 actually points out the contracting authority may be individual individually name or they may be name identified by recognizable class of contracting authorities, such as, let’s say, central government or departments, local authorities in region….

Willem Janssen [00:14:09]

That seems to provide some flexibility, right? The way that these practices of mentioning all municipalities. So, in the Netherlands, that would be over 350 and you just list them all. And is it then a happy, happy party or would you say there’s still limitations to that?

Marta Andhov [00:14:24]

Well, I think that you need to have a principle of transparency here, so to speak, in mind, so you can clarify, or you can establish the group of contracting authorities by class, but it needs to be done in the way that they are immediately identifiable, needs to be, let’s say, list somewhere. You very clearly can have an understanding of what is the geographical coverage of that framework agreement. And that is when it comes to the parties and then the issue of the nonsignatories. And right now, we should have something like a drum roll, something that when we finally….

Willem Janssen [00:15:06]

When we get a little bit better together at broadcasting, we can do all these gimmicks in between. We’ll just keep adding these soundboards that people will be annoyed by what we think is really funny.

Marta Andhov [00:15:14]

But drums should just you just should have next to, you know, some sort of instrument and just do like CLINGGGG… talking about having fun, doing podcasts. But the case that we are talking about is a case about Autorita. The number is two hundred sixteen by seventeen (C-216/17). And that case is… I would say it’s a first this type of big case on framework agreements. It brought some elements to discussion and it stirred that stirred the pot a little bit. In the context of nonsignatories, what the issue up here was that the…. We have a framework agreement in which included was this extension clause and the extension clause was predicting the possibility of extending the agreement to several other regional health authorities that they were identified in that clause, including one specific. And then later on that one specific wanted to actually use the framework agreement. The question ultimately that went, among others, to the European Court of Justice was whether that was possible. And up here, the Court of Justice said pretty much that, yes, it is OK, as long as they are identified, as long as the transparency is here and short. So, that has been, I think, this type of clarification when it comes to issues of nonsignatories.

Willem Janssen [00:16:48]

So, that leaves… So, where does that leave us in the end? Because so these practices of listing, … Because it’s…OK, in the end, I think if you look at it from a transparency point of view, right in the end, the tests that we as public procurement lawyers need to fulfill is what framework agreement are you putting in the market? Would it have been different? Would it have attracted a different group of contractors if, say, the listing on that was different? But particularly when we and this is I think I’m tapping into the next topic when we talk about the value and the volume, how does that relate? Because if you list if I would reflect on that practice if I would list over three hundred and fifty municipalities, that raises a certain expectation in terms of volume. But if you don’t know who’s actually going to use the agreement, I feel like there’s a certain amount of uncertainty created there.

Marta Andhov [00:17:44]

For sure, but, you know, even without touching the issue of volume or quantity, there’s also this issue, I think, of geographical coverage. So, I worked on issues of transparency within the framework agreement for several years. And one of the issues up here is that what the directive does not explicitly cover is actually the indication of whether the contracting authorities that are identified in the framework agreements actually intend to use them. And that also then ultimately impacts some elements, particularly if you don’t have any minimum requirements of any minimum purchase. So in other words, you have a quite broad spectrum geographically covering a country, and then you have some small and medium enterprise bidding and they are only interested in very southpark because that’s where they are established. That’s where they can provide, let’s say, services. They will not bid on frameworks that in geographical scope are in other parts of the country because by price, by costs, it just wouldn’t be beneficial for them. So all this part about also…really being clear within frameworks. The problem very much lies about …it’s a big guessing game…and that’s when it becomes a little bit problematic and I think that from that element, it also comes to this conversation about the values and the quantities elements that Autorita also sort of brings upfront for us to right now discuss.

Willem Janssen [00:19:26]

Yeah, because perhaps if we’re very clear about values and volumes, it doesn’t matter who’s listed or is that too simply said? Because if you’re very clear about an absolute maximum and you’re saying this is what it’s going to be worth, who cares then who signs up?

Marta Andhov [00:19:46]

Well, I would say that you still, to a certain extent, care, from a perspective of a supplier, but I think that also, you know, to supplement your question even more, why the need framework agreements? Why wouldn’t you just do them public contracts? Yeah, you know, and I think that this is as a consequence of Autorita, when I spoke with many of practitioners here in Denmark and also following the Danish Competition Authority note on this which pretty much said and….OK, I’m not going to say, I’m just going to say that in a second because I would jump…. I love jumping topics. I’m very sorry to our listeners for that.

Willem Janssen [00:20:28]

I’ll keep you in check.

Marta Andhov [00:20:29]

Keep me in check on the topic. Yeah, but the question has been or the sort of criticism, I think broadly in Scandinavia has been, well, you really tying the strings really tight on any type of flexibility that we need and framework agreements. The whole idea of framework agreement is to have some level of flexibility because right now the element is quite narrow down because the idea right now is, OK, you need to point out the absolute maximum and where an absolute bomb explodes in Denmark was the specific provision within the case that pointed out that when the limits and then once the limit has been reached, the agreement will no longer have any effect.

Willem Janssen [00:21:19]

Which is a big one, yeah, right, yeah, there should be a bomb…

Marta Andhov [00:21:22]

Explosion. Because the question up here very quickly was and that also is a part of this preliminary note from the competition authority in Denmark was or when the maximum is reached, it is impossible to further use the framework agreement, right? So, of course, the question was because the practice and I think that it’s Denmark in that sense is not alone, but the practice has been will you provide estimation in the contract notice? But there is no really consequences as such on how exactly precise that estimation was. If there was a little bit above, a little bit below, you know, when right now the question is:”Well, is that meaning that all the contract that suddenly already right now have been awarded, are they ineffective? What’s happening? Are they direct awards?”  So, from the lawyers is quite a cake now.

Willem Janssen [00:22:21]

Yeah, I can understand it. It went off like a massive bombshell in the Nordics, on the other hand….

Willem Janssen [00:22:34]

….it makes sense to me, and this is where I’ve struggled a bit, because if you don’t provide an absolute maximum right, and you just look at that as an estimate. Right. And you just say, well, this is what we’re probably going to do, how can you guarantee that the interested parties that sign up for the tender? So, I mean, from what I’ve heard from practice in the Nordics, but it’s not like they’re going over these framework agreements don’t go over by ten thousand euros, right? It’s a massive amount that sometimes is it supersedes because they used for years on end. And I’m sure that works. But like, how do you then guarantee that those initial parties that didn’t sign up for the framework agreement still get to benefit from that in a way that they should be allowed to do under the principles of transparency and equality?

Marta Andhov [00:23:25]

Oh, absolutely, I agree with you, but I think that at the same time there is a little bit….so, there are two lines of arguments here or two points that I think are worth considering. One of it is, well, sometimes you just abuse the system, and you shouldn’t be allowed to do that, and I don’t think that there is any doubt on either of our side on this. But at the same time, a very practical element and one of my colleagues pointed out to me is if you imagine that you have a huge framework agreement. So, the call of the public contracts are being done at the same time and several contracting authorities, and it almost happens simultaneously sometimes because you’re ordering things online and so on and so forth. It’s just very practical element that you can jump over. And then the question of that is: “Which you then allow still to stay?” or you suddenly say: “Oh, no, those are not any more in place.” Of course, you could systematically somehow you would need to, I guess, particularly if it’s orders online and so on and so forth, kind of do the system one, when you reach that, you cannot order any more. But that’s something, of course, that needs to be much more carefully look at. The question that also, I think still there is, is right now: “Do you always need to point out both quantity and value?” Or pointing out just value is enough, and if I’m not mistaken, this is actually one of the preliminary questions right now that has been sent by Denmark to the court to try to get an answer on that one and then a second. And also, do we only look at the general value of the whole framework or do you also need to get from your users so your contracting authorities, do they all need to provide you with an absolute max that they going to buy of you and that also can impact the applicability of those frameworks, strike how precise you need to be that you need to oblige yourself to a minimum. Do you need to oblige yourself to maximum? And just not to go on absolute around, one more thing that came to my mind and ties to one of your comments, a very another practical issue. And as a practical, I think, issue that has a lot to do with transparency but also impacts these questions of volumes is that what happened in the U.K.? So, several years ago when I was doing a comparative study between Denmark and the U.K. and how they apply framework agreements, how they use it? One of the big challenges then have been that you would have established framework agreements that on the one hand side the overlap in the scope and at the same time you will have contracting authorities that will be signed on to more than one framework agreements for the same thing, and they won’t even know about it. So, they would not be consulted ahead of time. So that in itself provides you a bit blurred lines of all this situation. Right, because it’s obviously the magic they want. They won’t be buying the volumes from all these framework agreements. They will just buy from one of them. So, yeah.

Willem Janssen [00:26:56]  

It’s an interesting point that you raised, and I think it links up nicely with one element that I think could be… we’re talking a lot about bombs today, but let’s not get too carried away. But this is a little bit of a bomb that could underlie framework agreements even more and this came up in a research that I did recently with Erik Olsson about the Irgita case (C-285/18). So, I think there’s plenty of space to discuss how insanely interesting that case is from a public cooperation perspective. I’m a sucker for that topic. I never thought I would say that after finishing my Ph.D. on the topic,

Marta Andhov [00:27:39]

We will definitely do episode on that!

Willem Janssen [00:27:41]

And then you’re going to hear me get all fired up and have a very serious tone of voice and be super sarcastic as someone else is at the moment. But there was one thing that actually we were thinking of is when we read this case and the Irgita case came out on 3rd of October, 2019t and it’s C-285/18 and it’s a bit of a complicated case, but to boil it down in very short terms, there are two awards of contracts. One goes to a normal economic operator, Irgita, and the other one is awarded by the same principality for the same substance maintenance of parks to an in-house entity that fulfills the requirements of Article 12 of the directive. So, there’s overlap between the two. Now, this is where the answer to the question that Irgita raises in relation to framework agreements. Good lie. But basically, what happens is, is the court then says: “OK, because it’s asked to assess the validity of that second award to that in-house entity because it overlapped in time and substance.” So, there were two contracts at the same time that were awarded and basically, Irgita, who got the first contract, was like, well, what’s happening to my volume, right? You close that agreement with me. So, and now it seems to all be going to this in-house entity, even though my contract hasn’t finished yet. So, then what the court sets and this is where we end up with maybe a minimum requirement instead of what the the antitrust case, the court service case that you mentioned already did about the maximum is do we have a minimum requirement is because basically the court then goes in paragraph 63 is. Whether it had to be established that the contracting authority failed to define its requirements sufficiently clear and it’s basically telling the referring court to assess this, so was the contracting authority clear enough in its requirements? in particular by not guaranteeing the provision of a minimum volume of services to the party to whom that contract was awarded? And so, the court basically says to the Lithuanian referring court: “You should probably check if there was if the contracting authority should have not posed a minimum volume.” Right? So, now what’s difficult then is when we talked about flexibility and this makes a framework agreement completely inflexible because you would need to guarantee the documents.

Marta Andhov [00:30:19]

Yeah, I think practitioners here, you know, just pulling the hair out of the hat in this case.

Willem Janssen [00:30:25]

It’s good that they start doing that as well, because it’s up sometimes I feel like we’re the only ones that do that as academics and I actually I’m losing quite a bit already. Luckily, you compensate, but I think that happens in old age.

Marta Andhov [00:30:40]

Yeah, yeah. No, I absolutely agree with you because we didn’t have minimum and maximum. And like I’m saying, I think that we need to consider the whole idea why we want to have framework agreements in the first place, and that’s where we come into this notion of, you know, how close…. All these requirements and to what extent does requirements make those framework agreements like conditional…. Right now, looking in the private contract as a conditional contract, meaning if A happens, then this will happen, right? You have an obligation that will occur mine to buy and yours to provide when specific situation occurs. And I think that the ideal framework agreement has been more for it to be more flexible. Now, that flexibility, I think, needs to be protected somehow and ensure. At the same time, I think that, where I may not make many friends listening practitioners to this, I do think that there is a certain requirement for those framework agreements to be more well researched or communicated to the to the suppliers and to the users. I don’t think, for example, that you should be establishing a framework agreement as a central purchasing body or any other in the name of other contracting authorities without really consulting with them, without informing them that they will be on it and without really clarifying what the volumes, interest of the volumes from your user is, because it shouldn’t be too abstract, because it doesn’t have then the connection to reality. So, there is about striking certain balance. And so, I understand where the court was coming from in this regard.

Willem Janssen [00:32:40]

So, we’re balancing between flexibility and a consistent interpretation of all these legal certainties.

Marta Andhov [00:32:46]

Right. In a certain way, it’s a legal certainty. You’re buying this amount and then if something is else, you need to procure it again. In principle, it’s fairly straightforward.

Willem Janssen [00:32:57]

Yeah, totally. No, I think we’re on the same page. And I think it would be interesting to see what happens perhaps with these implications of Irgita, but definitely also with the Danish reference and what the court will do. We still have one final thing that I promised everyone. And perhaps you can give a brief, slightly quick good answer or insights into that is the change of party. So, what happens if, during the course of a framework agreement which can be forward to if you’re in the utilities, it’s eight but like to say four years, unless all of these exceptional circumstances apply, like you mentioned. But what happens there?

Marta Andhov [00:33:35]

Well, it is fairly straightforward. I think just to round it up, a couple elements. Up here, Article 72 of the directive applies. So, the article on contract modification in its wording also refers to framework agreements. So, there are reasons that are provided the basis, the requirements for you to be allowed to change the supplier. The contract will be equally applicable here. So, you can change the member of framework agreement if that at the same time is not followed by other material modification. And there are also list of reasons that can be due to which one of them will be bankruptcy or restructuration, merger, etc. the interesting point that I won’t dive into due to the time limitations that we have. But I just would want to point out is that in regard to this Autorita case and this discussion that we have in: “What if your framework actually exceeds the limit and you already awarded a contract, or can you do something about it? “An interesting question up here is, can you use other elements of article 72? So, for example, for the additional modification, for the additional supply, would that be allowed for you to use, particularly in context of, I would say, IT procurements, what you could maybe potentially argue that it is impossible to change the supplier, some sort of technical difficulties, et cetera? Would that be a possibility here or unforeseeable circumstances, etc.? So, can you use other forms to to to help you out here?

Willem Janssen [00:35:21]

Shall we leave it at this for framework agreements?

Marta Andhov [00:35:24]

I think so. We’ve done with a little hope for the next time, right?

Willem Janssen [00:35:29]

I mean, there’s always space to talk, to talk more. That’s what’s great. We’ve delved into what framework agreements are, issue of nonsignatories. We’ve had a bit of a longer chat about values and volumes. What are the implications of the antitrust Coop case (C-216/17) and basically what does Irgita mean? And it was great to just quickly grab your final thoughts on the change of party. But if you’ll agree, then let’s move on to the] dessert for today.

Marta Andhov [00:35:59]

Yeah, let’s have some fun time, though.

Willem Janssen [00:36:02]

This is where we’ll actually we’ll try, but probably won’t happen in this episode you suggested to do a bit of (imitating sound), right? Or to do and we should have some sort of gimmick, but we’ll see if we can work on that later on.

Marta Andhov [00:36:14]

A champagne bottle opening or something.

Willem Janssen [00:36:19]

What is that going to do to our comments? We could actually open a bottle of champagne every time we go in here. That’s totally fine by me.

Marta Andhov [00:36:26]

We would have a great time!

Willem Janssen [00:36:26]

I don’t think we should tell anyone what time we’re recording these podcast episodes. So, we’re…

Marta Andhov [00:36:32]

…always recording. It’s Saturday evening.

Willem Janssen [00:36:37]

It’s a bit sad to only record podcasts on Saturday evening. This is a lot about the amount of friends and the relationships that we have.

Marta Andhov [00:36:44]

(Chuckles)

Willem Janssen [00:36:44]

But let’s move on from this. We’d say something about and procurement. Now, you did your PhD like abroad from your perspective, right? So, it was in a different country. I did it at Utrecht and did a little stint in Washington during it, but what would be, say, two or three lessons? Because I think we talked about it last time. We talked about the importance of mentors. Right. So that’s at least one is go look for those. But what would be three things perhaps that would be useful for people considering a PhD or that they’re not already doing it all would be three things that you wish you knew before you started a PhD in procurement law.

Marta Andhov

[00:37:30] Yeah, I think that this is kind of interesting because hopefully if we have any people that are considering doing it and listen to this, they can get perspective. And it’ll be interesting if our advice is or lessons learned or anyhow, similar because as you mentioned, we have quite different profiles from a perspective that I left home and I went to another country to do my PhD. And then part of that also was split with me doing a work in Australia doing comparative research, so I’ve been quite strongly international throughout I would say my academic career and specifically PhD. Why you can give us a little bit more context of doing that in your home jurisdiction when it comes to those lessons learned. And I would try to quite reflect this international element. I would say some lessons learned and that is a little bit controversial. But on my own personal experience, I know that we are being always put in our head very strongly that your research is the most important element, and that is also what will potentially get your job later on. I mean, if that as a postdoc assistant cetera. But what I found being absolutely pivotal, fundamental, crucial in my career is actually network, building network, getting your name out there, getting your face out there, making new connections, because I think that way you also learn. But that way also you actually get a lot of opportunities. My first publication, we’re all connected with the fact that I went to the right conference at the right time. I met someone that was working on something interesting, and they invited me to join to write a chapter for a book. That’s how I get my first publication. So, I would say that, yes, network, network, network.

Willem Janssen [00:39:27]

And I think also it’s just to add to that, because also the public procurement law community, particularly the one that we’re in, heavily involved in, is, I would say, predominantly European. Right. Of course, there are links to the US and then can we call UK European still? Probably.

Marta Andhov [00:39:46]

We also have some South African colleagues that are very present. But yeah, it is predominantly European.

Willem Janssen [00:39:53]

But it’s what I’d like to add is it’s a small community, but it’s a community of like generally very well willing people.

Marta Andhov [00:40:03]

They are really nice people. I mean, shout out to all our network!

Willem Janssen [00:40:07]

Most of them not getting there. Actually, that surprised me because it can feel like a big step. But I feel like your first network, network, community, community, totally a good one.

Marta Andhov [00:40:17]

What will be yours? Let’s just bounce back and forth.

Willem Janssen [00:40:22]

I actually… What I thought, because you thought of this idea, right? Well, I thought it was other specific things that are like super public procurement, like related, or is it just doing a PhD? And the things that came to my mind was mostly, more general, I suppose. What I’ve found is, and this is lessons generally come from your own mistakes, right? That’s right.

Marta Andhov [00:40:48]

That’s that’s what you learn the most, right.

Willem Janssen [00:40:51]

So what I found is I think I was stuck too long in the thinking and reading phase of my book, particularly in the first year or first one and a half years. I just found myself feeling like I needed to think a lot, right? And I think what I’ve learned from that is that it’s not very helpful. I mean, it’s helpful to a certain extent to do that every now and then. But you just also need to get stuff written down. And basically, sometimes it’s easy to forget that as legal scholars, we don’t have a lab coat. Right. Our writing is our experiment. And then and then you start flipping back and forth and then your conclusions follow. So, my main lesson would be, is just stop writing, writing, writing. If I can follow on all like network, network, network writing, writing. Now, back to you.

Marta Andhov [00:41:40]

I would actually add to  the points that you made. I think you see this is why I like it, because we kind of bounce from each other. When it comes to things specifically procurement related, doing procurement PhD. I think what could be kind of particular, and it’s a little bit connected with this network, there might be a possibility that you are alone or only yourself and your PhD supervisor. Procurement stood in many places. It’s not really a big thing. It’s not like you. You’re in the center. So, this is a very privileged, right? We’ve got a center in Nottingham and then we’ve got a couple of other centers right now. My center and so the whole Copenhagen procurement base sort of grew. So there are several of us. But in general, probably you’re quite lonely and getting your tribe, getting that network going to get some thoughts and shares and people getting excited by the same things that you get excited.

Willem Janssen [00:42:43]

It is kind of feel like, oh, my God, there’s other people that like what I what I’m doing. And they don’t just look at it as like, is that competition law or is it construction law or private law or administrate law. Yeah. So that’s definitely the case. What else did you have?

Marta Andhov [00:43:02]

And then I was thinking you said in writing, writing. So, that is also supportive to that I think and that’s something still that I’m right now investing a lot of time and I hope I did it at the very beginning of my career, is focusing more on process. So we’re very much at the PhD level focused on the outcome, the outcome of this monograph, everything about that. But invest in establishing a process of how you working and. Sure. Are you practicing? Maybe for you it will work every day, working five hundred words or just working and writing three and a half thousand per week if that person wants it or whatever, how you make sure that you read often and how you get it, how you get your process going. So you’re not feeling a falling later on when you have more task into these pockets, you know that you panicking because you don’t have time to research. You’ve got tons of teaching, sort of developing good habits, I would say from quite early on, because you have, I think, also a little bit more time doing a PhD to figure that out and it will really benefit you in years to come.

Willem Janssen [00:44:13]

If I can tag on to that, because if we do a lot of tagging on to each other’s things, if we’re talking about habits, one thing that I wrote down and this will be my last one, and then maybe you can do one last one or round up the whole episode is: To get into the habit, to celebrate milestones, and this is something that I was terribly terrible at. So basically what I did is I looked at a PhD that’s a four year thing and there’s only a celebration at the end. And that’s basically, but that’s very unmotivating, right, because you continue to feel like you’re in this massive void and thinking, OK, I’ve got to contribute to something that I don’t really know where it’s going. So, I’m just going to sometimes feel miserable in the process. Right. I’m generally quite a happy camper, but at times I felt like it was pretty shitty. But so what I’ve learned now is to really take time.

Willem Janssen [00:45:07]

Exactly. I’ve learned to just take your time and I’ve started calling them champagne moments where I’ve just got a bottle of champagne ready for the for every publication that comes out or every time, I feel like I maybe I actually positively impacted a student or maybe that project that I did was great, or perhaps we could pop a bottle of champagne when we launched the podcast or this type of stuff. So, it’s something that I consciously do now. And it’s because we don’t really work in massive, we don’t agile in academia. We don’t do three-week sprints where you feel like, oh, this client’s happy now. Project closure next one, right? So, celebrate those milestones, I think.

Marta Andhov [00:45:52]

That’s the one thing in the second thing in that sort of theme is also, you know, we usually don’t get much carrots in our professional life in PhD and over those three years or five years, whatever the timeline is, it’s not like often you get a tap on your shoulder and saying: “Good job!” So, you need to figure out, I think also as a part of your process, how to ensure that. So, you know, if you may get the beginning. Break it down. Break the whole process to, you know, a weekly task to do. And if you fulfill it, if you write your three pages or whatever that is, if you read that case, et cetera, et cetera, just make sure that that gives you the satisfaction that you’re going somewhere. And at the same time, I would say that:” if I were to leave all prospective PhD or students doing their PhDs with one message, is – We all one way or another felt really lonely, felt really defeated and felt like we wrote something that absolutely does not have any value.” At least I really strongly believe that maybe in different words, but majority people will word it that way. It’s a it’s a it’s a lonely and it is a difficult task and also one of the conclusions that my thesis supervisor gave me, which I really appreciate and I always share with new PhD fellow colleagues that I have the faculties your PhD should not be your best work because your PhD is the entry point work for academics. You are, of course, to reach a good quality level, but you should be progressing in further developing. So don’t approach it as the best thing on earth that it needs to be in absolute.

Willem Janssen [00:47:33]  

Sad as it is, you’re probably not going to win the Nobel Prize. I don’t know. Probably not shattering someone’s dreams, but probably not. I’m going to round up a network, network, network. Right, right, right. Look for champagne and carrots. And it’s perhaps normal, even though it’s sad to sometimes feel lonely, but don’t put too much pressure on yourself because it’s not going to be your best work and perhaps it is, but if it isn’t, that’s not the issue. You’re just entering academia! Is that a good sum up of our brief discussions on this topic?

Marta Andhov [00:48:05]

So, stay positive!

Willem Janssen [00:48:08]

Exactly, and find your hobbies, right? That’s find your friends. I think we’ve discussed quite a bit. We’ve looked at framework agreements. We’ve looked at doing a PhD in public procurement law, and we tried to at least share some of our thoughts, and I think we should leave it at that. I don’t know when we’ll speak again, but hopefully soon. And this was Bestek, the public procurement podcast.

About Bestek [00:48:37]

This was Bestek, the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com

You might also be interested in some of Marta’s published work on this subject:

If you are interested in a study of legal loopholes and uncertainties that occur during public procurement of framework agreements as a result of EU rules and national practices in Denmark and the United Kingdom see this article.

If you are interested in an analysis of transparency issues in framework agreements, check out this article.

If you are interested in understanding more on framework agreements, their characteristics, and practices, see this article.

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