Willem Janssen  0:00  

Welcome to Bestek, the Public Procurement Podcast. Today, Marta and I are talking about the reform of the public procurement directives and alternative means of testing.

Bestek Voice  0:17  

Welcome to Bestek, the Public Procurement Podcast. In this podcast, Dr. Willem Jansen 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

Willem Janssen  0:42  

Hola! Marta, good to see you again. 

Marta Andhov  0:44  

Likewise. 

Willem Janssen  0:45  

This is promising to be the most exciting episode I think we have ever made. I think we’re up to… What number are we up to? 

Marta Andhov  0:54  

40? 41? 

Willem Janssen  0:54  

Forty-ish? Maybe we’re a bit high or low, but something around that, and because it is happening. It’s happening. 

Marta Andhov  1:04  

You are doing drum roll now…

Willem Janssen  1:06  

I feel like we should have made this podcast episode a couple of months ago already because it’s been in the woodwork, right? We’ve seen it coming for a while, but the reform is underway. We are reforming the public procurement directives, directives, public contracts, concession contracts, and the liberalized sectors, right? The utilities. So what a time to be alive. I’m trying to pump this up as you can…

Marta Andhov  1:34  

I kind of feel like, you know, us, the academics and so on. We get very excited. It’s like, ooh. Now I feel like practitioners are like: Oh, my God, what are they coming up with again?

Willem Janssen  1:44  

Oh God, not again. Yeah, contracting authorities are kind of like, oh, we just got used to those from 2014 

Marta Andhov  1:50  

Yeah. 

Willem Janssen  1:51  

We’re just happy we can reflect and be analytical again and think about, mostly about new rules and how we could make the world a little bit of a better place through legislation, right? That’s kind of where we get our kick.

Marta Andhov  2:03  

I think so. And also, we always sort of analyze and try to improve and so on. But I think the important part is also to understand what this process looks like. And I think, you know, one of the things that we do on this podcast is the dissemination of, really some of the things that maybe, actually, some of the contracting authorities, practitioners don’t pay that much attention to, in this sort of how the process of getting the directives through the line looks like. And I think it might be quite helpful to understand why we end up with what some people, sometimes, you know, described as some sort of hot potato, how did we manage to get this on, and that is because it is a compromise. Those directives are ultimately approved and go through all these different stages, and we end up with a compromise that very different country representatives need to, through various bodies, agree on. And as we know, through the 40 episodes that we’ve been discussing public procurement in Europe and broader, we also had some episodes on the US, Australia, and so on. Those are some very different systems, practices, and cultures. So it’s also quite a difficult task, I think.

Willem Janssen  3:24  

Yeah, for sure, and I think it also, like, I don’t know. Now, when I ride my bike to work, I kind of get all these thoughts in my head, and I’m like, Ooh, now we have the opportunity to implement, now we can fix all of these problems, right? I’m also mindful that the law doesn’t fix everything, but it’s just an exciting time to be alive. And you’re right. It is an absolute compromise. And also, if we look at where we’re at in the timeline now, right? We’re still, I would say, in the very first steps of the reform. Last year, some reports came out that we can discuss a bit more later on, the Letta and the Draghi report. But it was already seemingly confirmed that they were going to be revised when the political guidelines of the second von der Leyen Commission came out before the summer. And of course, that commission still had to be appointed and then confirmed, I should say. But once they were, things were set in motion. And yeah, now we really know that whilst we’re also in the consultation phase, until the seventh of March, everyone can give their say, about the directive by filling out a form of a maximum of 4000 words, so we have to be brief.

Marta Andhov  4:40  

Have you done that already? We should just put all the links to the podcast.

Willem Janssen  4:48  

Yes. Please, listen to…

Marta Andhov  4:50  

Please listen to the 12 hours of us thinking about it here.

Willem Janssen  4:54  

And when you say this compromise. It’s also very institutionalized, this compromise, right? Because everyone in the member states, all these different actors, whether they be regional, local authorities, market parties, different committees of the region, the internal market committee, Parliament, and all of that starts for those that that in which for which European law first-year courses, or perhaps you never had them, you know, they seem a bit of a distant past. It starts with a new proposal, right? From the European Commission, which has the right of initiative, and they’re looking to finalize all of that, or at least to get things really going by the end of 2026, so there’s still a bit of time. But it also feels like a speedy process so far. So it’s, there’s definitely something happening in the next couple of months, and definitely also in the next two years.

Marta Andhov  5:54  

I have also heard, in some great sort of gossip, that they might want to even get it done faster than the end of the year. I don’t know how, obviously, in practical terms, that’s possible, but it’s also, you know, understanding the socio-economic and geopolitical setup. We are right now, a little bit in this time when European law is being done very fast. A lot of criticism in the last month, right now, with this Omnibus, right? With the regulation and simplification, things are going very fast. 

Willem Janssen  6:28  

Just to add for our listeners, the Omnibus refers mostly to the corporate sustainability due diligence directives, the reporting directives, and sometimes also the taxonomy. And there is a critique, that it’s too difficult, right? It doesn’t work. 

Marta Andhov  6:43  

Yes. So right now, apparently, the commentators sort of say that there is, also in connection, I think, with US elections and a quite big push against Europe, I think, for some time. And this colloquialism used that, you know, America innovates and Europe regulates, which I think is a bit unfair, but to each of their own opinion, of course. But I do think that there is a push for us to simplify our rules, which I don’t think anyone is against. I think everyone is pro-simplification. But it’s just not that simple to simplify, I guess, and second of all, also to the general kind of push against all these sustainability-related issues, because of what happens in the world currently. And there will always be a counter element, but we’re going fast, which is not always a good thing, as we know…

Willem Janssen  7:41  

Particularly when, like, sorry, just to respond to what you noted about simplification is, I really struggle with this term, like it’s the same as in the last time when we revised the public procurement directives in the lead-up from, say, 2011 to when the proposal came out and the acceptance in 2014, it was flexibilization. It was the instrumental use of public procurement, but to make the rules more flexible. I mean, nobody is against flexible rules, right? But what does that mean? Nobody is against simplification. So I find that, yeah, it doesn’t mean much. So I think that’s why it’s also so interesting to look at the past year and what, and you rightly note the global context, because I think that’s really what’s driving this, what’s driving this revision. But a lot of the discussions are also about, I think it’s a bad idea to open up all of those sustainability legislations, by the way, you noted this Omnibus initiative because it’s going to water all of them down, but…

Marta Andhov  8:45  

I think we’ll go back.

Willem Janssen  8:47  

For sure.

Marta Andhov  8:47  

I am really hoping that I’m wrong, but I think we will go back, because it’s also, as you’re saying, and let’s dive into it, what are some of those focal points of the reform based on what has been happening? I think that just maybe the last point before we would do that when it comes to process and process timeline is also understanding that each of those different organizations, and I mean the Commission, the Parliament, and so on, there are also certain predictabilities around what they’re going to propose and also what type of comments we’re going to get. So we know that commission tends to be very always focused, predominantly on open competition, internal market-type of things. They usually always drive this type of agenda. On the other hand, we know that when the proposal ends up in the Parliament. Parliament usually is very strong on the protection of labor, right? That’s usually when the pushback from various unions is showcased. And so each of those also has quite a predictable element to it. But as Willem mentioned, some reports have been issued, and different studies, we have already heard a little bit about things that can inform which direction the proposal goes. 

Marta Andhov  10:16  

So, Willem, will you sort of map out for us a little bit what has already been produced, and what are some main takeaways on this? And then we can maybe discuss what is, if there is anything, well, we know there are some things missing from it, but tell us what we already know.

Willem Janssen  10:34  

Yeah, and I feel like this is the perfect time to talk about this. Today I finished writing a blog post for the European Law Blog. So I feel like I am totally the biggest report nerd at the moment, when it comes to Public Procurement Reports.

Marta Andhov  10:46  

You just went through them. 

Willem Janssen  10:47  

I went through them, and I think many of us have, and what I think emerges is a really interesting picture. So we had the report by Enrico Letta last year, in April, already, it was called much more than a market. And then we had the Draghi report from Mario Draghi in September, the future of European competitiveness. Both these reports are meant to inspire the future of European cooperation in general, but also the functioning of the internal market, and voila, public procurement. And all of them, and both of them, I should say, have proposed a number of things, right? And in a way, it’s really hard to pinpoint these reports, because, to a certain extent, they go all over the place. Some proposals are a bit more political, some are a bit more policy-oriented, and some have legal implications, right? And on top of that, before we talk a bit about those reports, we of course, have had the political guidelines that were published that we noted already, but we have the competitiveness compass that came out fairly recently, in the last couple of weeks, which will determine, I think, the focus of the European Commission for the next couple of years, in which also the public procurement directives are mentioned again. But what I think we’re noticing is a clear shift, right, that we’re looking at a new European cooperation. That’s what echoes from all of these reports. Something needs to change. That’s kind of, I think, one of the main takeaways, I think that I take from them and that you also noticed in many discussions that you had, that we’re having in Europe at the moment, and if I would just take Letta, for example, because I think letter is far more explicit when it comes to public procurement than Draghi, Letta wants to is very concrete, when it notes, without, like I would say, very substantive arguments, that it wants to turn it into a regulation instead of, instead of directives, a regulation to avoid differences between the member states. So that’s a very clear example, but mostly, and that’s where I take the most interest in that report, is that Letta also notes that we need to talk about the objectives, like, why do we have these rules? What are actually, the objectives of public procurement legislation in Europe, beyond just the internal market?

Marta Andhov  13:17  

It resonates with you because it’s close to your professorial public lecture, doesn’t it? 

Willem Janssen  13:26  

Yeah, perhaps.

Marta Andhov  13:28  

Do you have someone that, well, not that that’s the only person we are all, I think, in many ways, very much on the same topic, but I think that that needs to be also reassuring, right to seem like you’re not the only one that sees a big issue here.

Willem Janssen  13:41  

Yes, okay, you’re right. It touches upon the lecture that I gave last year at the start of my professorship at Groningen University, but they don’t agree with me, and that’s, in a way, nice.

Marta Andhov  13:53  

They don’t?

Willem Janssen  13:54  

Well, on the essence that we need to reimagine all of it, but not on the focus points. And I think, like you already gave a hint. Some of that has to do with the lack of focus on sustainability. But if you look at Letta and that has also echoed, I think, in the Draghi report, a lot of the old school focus points come through, access for SMEs, bigger push for social enterprises, the potential of joint procurement, partially because of COVID, collective purchasing of materials. Sorry?

Marta Andhov  14:27  

A lot of the same things ultimately that have been, I think, you know, when we reflect back on what were some of the proposals before the 2004 directives, those are all the same things, right? 

Willem Janssen  14:39  

Same, same. 

Marta Andhov  14:40  

And I think that is also interesting because there is also the European Code of Auditors, right? Exactly the report that also came out, which I think is also important. It talks about less competition for contracts awarded in the last 10 years. And I think that this will be, for sure, also a big tool that people will be referring back to, saying why do we need to focus on the competition. 

Willem Janssen  15:07  

For sure.

Marta Andhov  15:07  

But I think the part about this is also, you know, I kind of feel a little bit like we’ve been on this journey since the 70s, right? Of opening public contracts and banging on all these things that we’re discussing right now. And I think the thing that we can all agree on all sides of this vision for public procurement is that we have way too little competition. The question is whether, if we are also considering the under-threshold procurements, the ones to which European directives are not applicable… In other words, what I’m trying to say is, was there always an issue with competition and procurement, and it’s not specific to the fact that we have the European rules on procurement, and that is what makes it difficult? So, in other words, do we try to solve a problem that is inherent, a problem within the business that we’re doing? And another thing to that is also we need to do something different. I kind of feel, I feel like we need to do something different. Because obviously, from all these decades, if we continuously have very, very low competition, just again, going back and saying, oh, let’s simplify, more flexibility, more access, to the same. We tried that. We tried that for a very, very long time, right? So I kind of think that if something else is really to happen, we need to do something else. Because what I ultimately really worry about, to be very honest, is that we’re going to end up with a version of the 2004 directive, but just strip to the core, back to open competition, which I’m sure that some people will welcome, but I think that it will become non-reflective of where we are in the world right now. With the challenges, really, you know, the current challenges. And who will welcome this is the very well developed I find contracting authorities or jurisdictions that have very well functioning systems, and they will welcome the fact that, you know, you can, so to speak, take the shackles off their hands of this bureaucratic state. But I think that it will be quite problematic for those countries that are on the journey of professionalization, to a large extent, of really revamping the procurements and making them, you know, work in the best possible way. Sorry, I went on a bit of a rant.

Willem Janssen  17:42  

No, I think we’re looking a bit in a glass bowl, right? So rants are fine, and it didn’t feel like a rant. Anyway, I think we’re looking at it kind of like we’re trying to gauge the past a bit and look at the future and foresee what could be happening, right? And I think one of the points where I absolutely agree with you is the Court of Auditors Report. You can critique it from a lot of angles, but it sparked a discussion, and it seems to dominate those old-school things like access for SMEs into what I find problematic, and what my colleague and former promoter for my PhD, Professor Elisabetta Manunza, said rightly, I think, is we seem to be looking for more and more competition, whereas we should be looking for better competition, right? 

Marta Andhov  18:30  

100%

Willem Janssen  18:30  

And the question is, perhaps a single bid is okay, right? It’s also what the court in the Concordia bus, the milestone case from 2002, is faced with, right? There was one entity that could supply those more sustainable buses, right? Is that an issue?

Marta Andhov  18:43  

If you’re looking at it, and this is… If you look also at all these things that make, you know good procurement project. I’m not saying the procedure in itself, but what are the good procurement projects, and so much talk about innovation and collaboration, relational contracts, all this relational procurement, and all this, this is ultimately done with one supplier. So I think as long as you can, you know, that’s sort of my opinion, that we should always want to and we need to be transparent, and we still need to have all these rules, so if there isn’t a competition, the right competition, that they can access the procurement process. But the fact that you just got one is not necessarily a problem, as you said, if it’s a good one, if you still can benchmark prices to the market, and you say, Okay, well, your price is X, Y and Z on the market, can you give me, can you benchmark to the prices on the market and give me, I don’t know, 5% or 3% discount or whatever, as long as you kind of really, in a creative way, use those tools available, it’s not necessarily that you’re going to end up with a really bad deal, right? 

Willem Janssen  19:55  

No, I fully agree, but it is, and that’s what’s interesting also when you look at the discussion that Letta in his report tries to raise, I think it is very much inspired by, I think, on the one hand, that we’ve had 50 years of public procurement legislation. A couple more, 53 years, about 71 was the first directive. And of course, that field of law that we all love has taken flight since then, but if you look at the percentage of interstate awards in public procurement, it’s very low, right? We don’t have an internal market for public contracts,

Marta Andhov  20:29  

We don’t.

Willem Janssen  20:30  

And that doesn’t mean that the internal legislation of Member States hasn’t improved. I think that’s a major benefit of it. But if you look at the underlying objective, if you haven’t achieved that in 50 years. Something needs to change, or you need to look at changing the objectives, right? I think that’s a relatively fair point.

Marta Andhov  20:47  

But out of those things, though, Willem, because I would want us to focus on 2 points. One is, what is missing? And that’s, you know, we can run with it, the two of us, I’m sure. But I think if we both pick up, what do you think out of those things that come up time and time again in different reports that you map, what is one of the things that you think? Oh, yeah, I would kind of stand by that. I think that’s a good topic or area or focal point to focus on, because there are several. And as we said, a lot of them are repetitive from every other revamp of the directive before, but I wonder whether any of them, you think, particularly kind of actually, we do need to get it right.

Willem Janssen  21:28  

So in a way, what’s weird is I’m still a bit confused, and that’s because I agree with the reports, or at least the tone that they set, and I find it’s a limited focus, so it’s too limited. So if I look at say, what Letta says, and let me, because if you read the whole procurement section of Draghi and Letta, you can kind of see what objectives, because Letta doesn’t say it should be this objective. Letta just says, well, we need to look at enhancing productivity, resilience, and sustainability of the EU economy, I think that’s more future-proof than with the environment in mind. And we need to ensure the security of supply. Finally, we need to strengthen your European demand for domestically produced equipment, then mostly related to defence. And I think all of those things make sense. Draghi echoes some of them, maybe not as explicitly, but Draghi mostly refers to the procurement of defence products, not relying on, say, the US or external producers so much. He also focuses on joint procurement, but ultimately, those things make sense in the global context of Europe needing to be a united front, particularly if what we’ve seen in the last couple of weeks, and the most political development, needing to be a united front against China, against Russia. But also, unfortunately, it seems to the US that we’re faced with a raw material crisis, we need to ensure the security of the supply of raw materials, but also of goods and services. So all of these things, add on the Russian invasion and the ongoing war in Ukraine, all those things, I think, make sense for procurement to kind of think about it and also this, I think, European preference for certain strategic sectors, right?

Marta Andhov  23:32  

I always feel like we always, you know, ultimately, at the core, we do really agree, and it’s sometimes, yeah, it’s so reassuring because it’s…

Willem Janssen  23:40  

And annoying, right?

Marta Andhov  23:41  

Is it? Probably it would be a little bit more entertaining if we would substantially disagree a bit. But it’s funny that you picked those because I would literally focus on that. I would say the Euro-focus is also a little bit different. We all the time previously, have been very strongly talking about liberalization, and we’ve seen that in the system, and that’s something also when it came to third-country suppliers’ access to procurement. I had a chance to look at that in the international procurement instrument and look into that a little bit, and we might link it to some of those articles in the podcast description. But what I sort of feel like, for some time, I’ve been feeling like I’m a bit alone in this, but I’ve I quite strongly feel that we should have a European preference, and we should lock out a little bit of our market. Because guess what? Everyone else is doing that, and the people and the countries that yell the loudest for the liberalization of trade, they have preferential treatments of SMEs, of, you know, women-owned businesses, all these sorts of different things. Everyone has a local procurement preference system. The US, Brazil, Canada, Australia, and New Zealand, all these countries outside the regions have that. Why do we not have that? I think there’s another part. Very often, when you look at the largest economies in the world, we’re saying, oh, the US and China. But that’s because Europe always is divided across all the member states. If you look at us as Europe, as all the countries together, we are an extremely big economy. We’re a top economy within the top three. So from that perspective, building that resilience within the region, being secure within that region. But also, I think that that would feed directly into what you’re saying. SMEs, yes, give preference to European SMEs, give preference to European production, because that, ultimately, I think, also largely speaks to some of these other objectives. We want climate change mitigation. We want more environmental and social aspects. Let’s focus on that with public money and the Euro. So I think that actually, I’ll be a big fan, I think of seeing, at least trying to give it a go, because I also feel like this would be a little bit of a different focus.

Willem Janssen  26:12  

Yeah. And I think what’s interesting about what you mentioned is, like broadening this European preference, right? When you look at what’s tabled now, it seems to be rather specific still, or at least what’s on the table. 

Marta Andhov  26:27  

It is just the technology, also, right?

Willem Janssen  26:30  

Yeah, mostly technology and certain strategic sectors, which haven’t been defined yet, but it seems to have a lot to do with, yeah, the big stuff. So big technological advancements, whether that be in the energy sector or any type of those type of, those type of areas. And I think what’s, what’s interesting about a legislative process like this, right? You see these focus points develop a bit, but this European preference seems to have at least stuck in this process of changing the directive; you also see it, or directives, I should say, you see it coming back in the competitive compass, which was published fairly recently. And then there you see, and I’ll quote, “the planned review of the public procurement directives aims at reinforcing technological security and domestic supply chains, as well as simplifying and modernizing rules, in particular for startups in innovative companies,” and particularly that last one of innovation, that is something that is in Letta; innovation and innovation procurement, but it’s also really strongly in general, right? In the Draghi report, it’s all about competitiveness and innovation and trying to use procurement to spur that further on the EU market, right? Because that’s where I liked what you said before. It’s very much inward-looking, right? We’re not, the discussions now aren’t, let’s open free trade, keep the borders open, but it’s very much inward looking at what do we need now for the internal market, for, say, the next 10-20 years, instead of a more global context.

Marta Andhov  28:10  

I think that’s also the only way, with the focus also on innovation, you know. This is how you build the national champion, right? This is when you also see a big difference with various countries in Europe because you will have Western Northern Europe that obviously, due to historical context, not having communism and being on the right side of the Iron Wall. The notion is that those national champions, those companies, developed,

Marta Andhov  28:38  

And then you really have this, I feel a bigger challenge than the other economies, they are still in that process. And we need to develop European and also national and countries’ champions so we can be competitive. But if we continuously let everyone unrestrictively come in and win the contracts. You know, I think that this is an investment also in ourselves. I know that this is maybe a bit controversial. There will be people who disagree with that, but that’s fine. That’s how we’re getting the debate going, right? 

Willem Janssen  29:11 

Yeah, for sure. 

Marta Andhov  29:12  

So what is missing then? 

Willem Janssen  29:15  

Well, I feel like we gave away the punch a little bit already, but we can broaden it a bit. I think also, if you look at the globe, the general trend is that we’d used to talk about an EU Green Deal. Now we’re talking about a clean industrial act to lead the way, a competitive compass, and not so much the green focus anymore. And I think what’s interesting now is when you look at all of these reports, but also at the documents that are coming out of the commission. The difference with the previous review of the public procurement directives couldn’t be bigger. I think that integrating social and sustainable or environmental concerns in public procurement was one of the two focus points of the previous review. And one could say, well, perhaps we fixed all of that. But I think given the number of episodes that we devoted to it, whether that’s an indication or all of the literature that’s out there, and how limiting the rules can sometimes still be in practice when it comes to sustainability, I think it’s something that is now falling in between the cracks because of this more global, outward-looking focus on public procurement. 

Marta Andhov  30:33  

So I think that is also interesting because we can look at it, maybe two comments to that, right? On the one hand, you can say that indirectly, we might be able to achieve some of those things if we started to really look more local and in and sort of inwards, right? That might be almost a byproduct of some of those sustainability aspects. But I do think that there is another aspect that will be very interesting to observe. So a new expert board for public procurement was established not so long ago. And what can be noted about the members that have been appointed to the board this time around is that there are a lot of what we would consider sustainability procurement interest groups or people that have been quite active in that, and so I think that that expert group will be bringing those issues up front. Of course, the question is that the expert group does not have the mandate to really, in any formal way, impact the process, they advise. So the question, in this sense, will be whether this will be just the ticking box of saying, yeah, yeah, we discuss interesting things, but we still want to do our own which we hope, obviously, that that’s not the case, but that those voices will be carried through here. 

Marta Andhov  31:50  

So that there will be some impact on it. But also it’s a massive shift from, as you said, the Green Deal and such a strong emphasis on mandatory green procurement to right now nothing, and just to supplement what you said, where I continuously really see a big lack, is specifically focused on the social aspect of procurement, workers’ rights, wages, health and safety, the sort of competitiveness of companies based on workforce and the European trade unions, organizations and associations have been very vocal over the last year, many different reports have been produced on what type of scandals are happening and how terrible the situation in the context of labour is. But working on that for a little bit in the last two months, specifically, I need to say that is also one of the aspects that I find the most difficult because your opinion very much changes on what we should do and how we should do depending which countries hat, so to speak, you put on. So if you look at it from the perspectives of, let’s say, Nordic countries, where labour is very expensive, the current situation is very dissatisfactory. Because you’re looking at it, you have the other companies which provide less for their workers from abroad coming to our country, competing for the contract, and because then they are cheaper, they’re cheaper on the labour, they win the contract. This is, you know, diminishing the business, the local business, right? On the other hand, if you say, no, no, we need to lift it. We need to sort of equalize it. We need to be able to give the preference. Then you have localism full-time, and then you also cut out fully different companies from different countries, right? You’re taking that aspect from them, and then they don’t have access to the market. If you sort of level it up, say, only full collective agreements need to be applied across countries, that’s not the tradition you cut out many companies straight away. So I find that this is also something that really is missing. I think that it’s also missing because it’s extremely complicated, but I do hope that we tackle some of it, and we get some sort of clarification on it.

Willem Janssen  34:21  

For sure. So we’ve started our wishlist, I think, right? Which I’m sure will happen in more episodes, is we see this happening, and I think we agree that there are really relevant points happening in the review, but that, I think our main point of today, if I can summarize it a bit before we go to dessert, is to make sure that we really use this review as an opportunity to really tackle all of the important things that need tackling when it comes to public procurement legislation in the European Union, and that includes sustainability in the broad sense of the word, in the environment and social aspects as well. And I think that’s something that should be tabled in what way, what form or shape, whether it be through people responding before the seventh of March, but also in the discussions that follow in that complex process that will lead to some type of, as you called it, some type of compromise, of course, but I think that’s, that’s the process we’re starting. And I think what I think we can use the podcast for in the next couple of months, or, you know, depending on when it all pops out, is to really get the debate going. And I hope, and I know I speak on behalf of you, that many of our listeners will join in this debate to talk about what good, effective legislation looks like, what rules we need, and which ones we do not need. Because now is the time to think about it, because otherwise we might have to wait another 10 years, right?

Marta Andhov  35:49  

100% 

Willem Janssen  35:50  

And God knows what we’ll be doing in 10 years. Will we be podcasting in 10 years, Marta?

Marta Andhov  35:54  

I think we will. The question is whether it will be on the things that we do right now. Who knows? Hopefully. Or we just talk about food, who knows?

Willem Janssen  36:04  

Exactly, we don’t talk enough about food, but that’s for a whole different discussion. Um, shall we move to the dessert for today? Because I think our call to action is clear, right? We need to broaden the scope of the discussions

Marta Andhov  36:16  

Get Involved!

Willem Janssen  36:17  

And mostly get involved. 

Marta Andhov  36:18  

Yeah.

Willem Janssen  36:19  

So for dessert today, we wanted to just briefly talk… This is going to be a very, I would say, academic dessert. A lot of them are, but this dessert is really also about us being teachers, scholars, and lecturers for students at bachelor’s, master’s, postgraduate level, in-house training, but mostly for those students that, in whatever age group they fall, we’re always faced with exams. And if you look at law schools, traditionally, exams are done in two ways. It’s a written exam where you get questions in what type of form or shape, or there’s an oral exam in which you get those questions just delivered to you differently, rather than words you get you get them not written, but spoken. But what I think is interesting to see, in the last I would say, 10 years, you’ve seen a gradual shift of alternative ways of teaching, of testing, I should say, teaching as well, but of testing, of exams. And I thought it would be nice to chat with you about that because I know you have some experience with that. You’ve seen a lot of things happening at different universities, and one, just to give a bit of an array of what we’ve seen, is that universities use blog posts, and types of vlogs, so podcasts, can be used to test the acquired knowledge and skills of students. So my first question would be, what do you think about this, this development from more traditional exams to more what we coined as alternative, still? 

Marta Andhov  37:56 

So I think that there are two aspects. Those are good developments, but they also need to be balanced. And what I mean by that is that it is also contextual, the context matters. So I think that they’re good developments because we have in today, day and age, much more identified various neuro-divergences. So in that sense, you give students, particularly if that is within one training or in one course, and you give students a different form of assessments, you, so to speak, level the playing field a little bit. So if someone you know is a much better speaker, or performer, in that sense, and we all know that we are a bit better at different things, that it’s then as a writer, let’s say you somehow give everyone a chance to shine and also differently we gain the knowledge right. We learn in a different way. On the balance side, I think on the balance and context side, I do think that it’s important to have in mind who the audience is. So I do think that you might have a little bit more flexibility. Or I would be of the opinion that there is a little bit more flexibility if you’re teaching law to non-lawyers. Let’s call them broadly, and that can be, you know if you teach business students, if you teach business and administration, if you’re talking to, let’s say, procurement contracting authorities, there are some sort of different spaces, but I do think that still a very core part of the job of lawyers is writing. So I do, and that’s when it comes to the balance. Now, this is not to say that we shouldn’t have an alternative form of exams we should, but I do not think that we should go all the way to doing only, you know, the videos and the podcasts and so on, because I do think that we currently in the period of development, that our students get worse and worse in the way, how they communicate in a lawyer-ish way, in text and part of our education is, or our teaching is to educate how you reason, how you analyze as a lawyer. 

Willem Janssen  40:13 

Yeah. 

Marta Andhov  40:13 

So those would be my three points. I don’t know whether that resonates, or you might have different perspectives. It would be great to hear them. 

Willem Janssen  40:20  

Yeah, no, so I think it, to me, it kind of starts, and I think that taps into what you were noting about the audience, right? It starts with something, for those not familiar with what they call constructive alignment, right? What are the learning objectives that you have in a course? What are the content and the interactions that you have with your students? And then, based on that learning objective, how do you test it, right so? And how do you make sure they’ve achieved that learning objective? And I think so when I reflect on I would say the last five years that I’ve been using podcasts as a test in one of my courses. It’s really about two things for me. It’s training those analytical skills, which actually train when you start thinking about the content of a podcast. When you start thinking about the content of a podcast, you need to think about structure, you need to think about that line of reasoning. You need to make sure that all of those arguments fit in. And what I like about the podcast format is that you need to do it in a very condensed, short way. We’re terrible at having short episodes, but my students make one of 20 minutes, and that’s really not a long time to make a solid point, right that they would need to convey. And secondly, it’s not just the analytical skills, but what I like about the podcast format, and that takes it a bit beyond the writing, even though I agree with you, right? The writing is, is often the core, where you train your verbal skills of public speaking, and in a different format than just, you know, standing up in a group in class, right? You’re being recorded, and you can listen to yourself afterwards as well. So you can it’s not just the one that I grade, but they would record multiple ones. And they can be critical of their own. They can listen to their own voice, their own intonation, how they come across, and feedback…

Marta Andhov  42:10  

They can almost feedback themselves, and they can reflect on themselves. 

Willem Janssen  42:11

Exactly. And it’s terrible to hear yourself the first time podcast, as you know, and I don’t mind it anymore, because I don’t listen to our podcast. And I find that so with the podcast that I’ve been using, I published something with Dave Van Toor on it in a Dutch language article, but our experience is, and we also asked students what they thought about it, right? So one of the findings that still strikes me the most is that they’re all concerned at the start. When we did the first questionnaire, they were concerned about the technical aspects, which ultimately is not an issue, because they all figured out it’s really easy to record a podcast nowadays to make it of decent sound quality, and where they find they have the most learning is in those two aspects. So it’s the verbal and the analytical, because they feel, for the first time, that they’re really on the spot to make sure that something makes sense and that they can convey it in an accessible way. And that’s interesting, because also the discussions that we’re having in academia about accessible writing, even courts need to be more accessible when they pass down their judgments. This is a fantastic exercise, so in a way, there are downsides to it as well. It takes more time as a lecturer, to correct them, because you need to listen to all of it instead of, you know, being able to read an essay diagonally, as one of my former professors would say, not word by word, but you can kind of read through it a bit smarter. 

Marta Andhov  43:47 

Yeah

Willem Janssen  43:48  

And I find that there’s one thing that I wish I could do, and that’s the downside. What I like about blogs, for instance, is that you can also use them to give students and their thoughts a say already, right? They can be published if they’re really good, whereas the downside to a recording is if you make one tiny mistake, that’s maybe not just really not the right interpretation of a certain ruling, you lose the entire recording. And me as a lecturer, I feel like I need to safeguard these students from, you know, sending stuff out into the world. So then I say, Okay, we’re not publishing that, but it’s still an eight and a half out of 10. Except for that one minor point slip of the tongue, it’s fine, but in all honesty, I find it’s a really inspiring setting. I use blogs as well for my classes, as well as normal essays and normal exams, of course, but I find there’s always a more interactive, new way to let students work with the materials that we’ve got.

Marta Andhov  44:53  

And there is also something, you know… So we have, currently here in Auckland, a professor from the US, training a selected group of people who expressed interest in really case-based classes. And it’s sort of based on a structure that has been developed at Harvard. And I’ve been in a couple of those trainings right now. And she yesterday, used a really cool analogy. She ultimately said, someone asked all about how you, you know, activate your student, what you do if someone is just passive? She gave a couple of examples, but she said in the end, which I think is really applicable here, also with the reasoning behind trying to apply all these different forms of alternative exams. And she said, you ultimately want to make the class like the party that everyone wants to be part of. You really want everyone to get excited about it and say, this is cool. I want to, I need to read more, because there is such an interesting discussion, and all these cool things are happening, and I kind of cannot be part of it. So I think it’s also a little bit part of that. I think in context also, you know, I have, for example, right now, hold your chair, but I have 700 students on contract law right now this semester. So I think there’s also sometimes a question of how many students you have, how big those classrooms are, how many teaching assistants you have for grading stuff. Because you also need to be mindful of that when you’re designing those exam forms, right? So something that here has been mainly at the business school right now not at the law school, but what has been experimented with when we teach law to business students is various, like case analyses, but the case analysis is spread across a couple of different assignments, and one of them is three minutes presentation. So you know, the idea is almost that you come in and you pitch a specific aspect to the partner in a law firm, or to the client, where you kind of put the head of legal counsel. So I think that this is a different form of also how you, in a very concise way, try to communicate something in three minutes. So I think you know, at different different forms, it takes a lot of time also on us. I think that is worth underlining because the development of this assessment, particularly when you’re doing the first two or three times, it’s a lot, but those are also the coolest projects. No? I think you agree with that, that there is a certain joy coming out of them.

Willem Janssen  47:32  

Also, if you’re in an obscure field of law, like criminal law, or private law, it could make your courses even we don’t need that, right, because we’re in public procurement law, so that could make your courses more fun and accessible. No, that’s definitely… I’ve had students in my class say, No, I’m here for the podcast, not for procurement law. In the end, they like procurement law as well. Don’t worry. But like that does create a sense…

Marta Andhov  47:54  

That’s how we sell procurement law.

Willem Janssen  47:57  

Through the podcast. No, and I think this is also really a conversation starter because I think there’s a lot more to unpack, of course, but similar to our main I think, as you can hear, I’m very enthused about using podcasts for students, and I think you’ve also had some really nice experiences so far with alternative forms of testing. It cannot be the main form, but it’s definitely part of the arsenal that we have as lecturers to be able to examine our students, which is, I think, becoming even more relevant in the time when we’re really trying to make sure that AI and those type of writing things become part of the curriculum. But also means something for an alternative way of testing, ultimately.

Marta Andhov  48:42  

And the one closing sentence for me is, this is also just not a University thing. I think that you know more and more you will see, I’m sure, on your LinkedIn and different things when you’re being a practitioner, you actually are starting to be invited more and more on podcasts, and you also communicate, and you promote your businesses, and you contribute to various debates through things like interviews on the radio or podcasts or, you know, having a short snippet of blog posts or short videos. It just became a different form of marketing yourself, marketing your business, and contributing to a professional life. So it’s also not something that is isolated to your university experience, but it’s testing also in practicing a certain set of skills that for sure, the current students and future graduates will be one way or another, required, or at least those will be assets; to have those skills when they will enter the workforce.

Willem Janssen  49:41  

For sure. I mean, that’s a great closing, so let’s keep the big going about one, the public procurement directives, but also about alternative ways of examining our students. Thanks so much for listening, and we look forward to all your comments and responses. This was Bestek, the Public Procurement Podcast.

Bestek Voice  50:05  

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

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