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#5 Non-institutionalised Cooperation after Stadt Köln & Cooperation in Academia

Sep 24, 2020

In today’s episode, we discuss the tricky concept of non-institutionalised cooperation and its relationship with EU public procurement law. For this purpose, we consider the recent ruling of the CJEU in the case of Stadt Köln. In this case, the CJEU made significant headway in clarifying some aspects of article 12(4) Directive 2014/24/EU for the first time. For dessert, we stick to the theme of cooperation and discuss it in light of its role in academia.

Host(s)

The English episodes of Bestek – the Public Procurement Podcast are hosted by Marta Andhov, who is an Associate Professor in public procurement law at the Faculty of Law, the University of Copenhagen and a founding member of the Horizon 2020 Sustainability and Procurement in International, European, and National Systems (SAPIENS) project; and Willem Janssen, an Associate Professor in European and Dutch Public Procurement Law at the law department of Utrecht University, and a researcher at the Centre for Public Procurement and RENFORCE.

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BESTEK - The Public Procurement Podcast
BESTEK - The Public Procurement Podcast
dr. Willem A. Janssen and dr. Marta Andhov

Podcast about public procurement & law. Hosts: dr. Willem Janssen & dr. Marta Anhov

About This Episode

In today’s episode, we discuss the tricky concept of non-institutionalised cooperation and its relationship with EU public procurement law. For this purpose, we consider the recent ruling of the CJEU in the case of Stadt Köln. In this case, the CJEU made significant headway in clarifying some aspects of article 12(4) Directive 2014/24/EU for the first time. For dessert, we stick to the theme of cooperation and discuss it in light of its role in academia.

TABLE OF CONTENTS
0:00 Entrée
0:00 Introduction
3:02 Non-institutionalized exemption in EU procurement law
8:04 The main
8:04 Stadt Köln case introduction
11:57 Boiling down to four points (definition of public contract, content of cooperation, type of cooperation, and favoring third parties)
32:28 Dessert
32:28 Importance of cooperation in academia
38:04 Joint vs. single authored articles

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Episode Transcript

Marta Andhov  0:00 

Welcome to Bestek, the public procurement podcast. Today we’re talking about non-institutionalised cooperation after Stadt Koln case and  cooperation in academia.

 

About Bestek  0:17 

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

 

Marta Andhov  0:42 

Hi, Willem.

 

Willem Janssen  0:44 

Good afternoon, evening or whenever you’re listening. It’s good to be back.

 

Marta Andhov  0:48 

It is… it has been a second we were actually just discussing before we hit record that it feels like we’re starting from very scratch, isn’t it?

 

Willem Janssen  0:56 

It feels like… a long time ago. You’re right. And I think maybe it has been a long time we had at least a summer break in between. I don’t know if we really announced this to everyone, but anyways, we took a break and we’re back.

 

Marta Andhov  1:10 

Yeah, and in the midst of all of that, actually, in both of our lives, tonnes of stuff happened. So, it does feel in many ways like it’s been a long time ago.

 

Willem Janssen  1:19 

Yeah, for sure. Let’s just say a lot has happened. My family has expanded and I am thinking a lot less, but…

 

Marta Andhov 1:26 

Official congratulation on this new edition, for sure. Okay, so today we tried to actually…. or what we are doing is we flipping the coin a little bit. So our last episode when we discuss frameworks, Willem was pretty much interviewing me and give me a platform to actually rant a little bit about the area of research that I have been working on. Today we’re doing the opposite thing. So today, we’re talking about the public cooperation and the non-institutionalised cooperation specifically. Willem, you spend some time on digging into all this sort of aspects of procurement is not that true?

 

Willem Janssen  2:07 

For sure. So, this is actually part of my my PhD, that I finished in 2018. It was one of the types of service performance that I researched for that research project and this is by far the most complicated one. I think, if you can find me a person that truly understands what’s going on in this type of cooperation, and particularly what’s happened with the law over the last couple of years. I think one, you’d be very hard to find someone that and I actually don’t think you’ll find someone. But let’s see if we can, if the court particularly in the Stadt Köln[1] case, you were talking about. Maybe some new, or at least, yeah, if the court is reaching out his hand or her hand to us, in terms of interpretation. Let’s maybe start with Article 12.

 

Marta Andhov  3:03 

Let’s do that. I think we should try to shed some light on this and point out into some of these aspects of new developments. So, I would ask you, Willem kindly if you could just sort of describe or, you know, sort of draw a backdrop of this conversation or this debate for us where we are what’s been going on nd what was the sort of background before the Stadt Koln case landed at the courts lap so to speak?

 

Willem Janssen  3:28 

Well, let’s do that. So I think it all starts with the general understanding that EU public procurement law does not force contracting authorities to externalise service performance. So, there’s no obligation to privatised services. It’s always a choice right. Now, what where difficulties arise when it comes to public to public cooperation is that some of these arrangements and some of these agreements that underlie these corporations actually can be identified as public contracts, because they fulfil that criteria. So, that means that even though two municipalities want to work together, the  cooperation between them for say waste collection, the classic example, I think, in this sphere, might be under an obligation to tender. Now to solve this, I think this problem that arises, some exemptions have been introduced into these directives. We always had the exclusive right exemption since the 90s. But later on, and particularly in 2014, we’ve now got legislation that actually deals with a couple more exemptions. So, we have the institutionalised exemption where a separate legal entity is established and this type of cooperation by which the cooperation is purely contractual between governments. Now, what’s difficult is that this was an exemption that was introduced in by the court or interpreted by the court as some purists would say, in the case Commision v. Germany…

 

Marta Andhov  5:01 

…and that’s where sort of all the problems arise, didn’t it so to speak? That’s where the confusion comes in, because I think, I don’t know if you agree, but I think we talking very much about this administrative side of procurement, the self organisation that as you you mentioned, you know quite a lot about, but when we come into Commission v. Germany and this non-institutionalised exemption, it becomes something that seems to be standing really far away from this original if we can talk about original concept of what in house was supposed to be.

 

Willem Janssen  5:34 

So yeah, I think I’d have to agree with you like it really touches upon how national law allows governments to organise themselves. So, it’s a very much it can be a private law matter, whether it be limited or public companies that governments use to organise themselves and provide services to their citizens have for their own back office services. But the same for public law, administrative law. Those all provide legal entities and legal forms, but they’re very national based, which also meant that like, the general perception is not very positive when it comes to these type of exemptions, that they’re always perceived as to being too limiting, and that actually, this is something where public procurement law shouldn’t have a say. Now, I’ve always been of the understanding that it makes sense that we need to have these exemptions because how do we otherwise differentiate between these types of arrangements, right? Because one of the classic issues was also when we talk about bodies governed by public law is a national Member States might see that this is government, but in fact, they’re not governments. So then they might…. or the other way around, actually, and they might miss the the scope of public procurement law and why they might be able to exempt themselves, right. So that’s why I think theoretically, it makes a lot of sense to say, well, these are public contracts, they fall under the scope of public procurement law. And if they do, then we have a couple of specific exemptions. Now, where difficulty arises is and it’s I think, also where these discussions come from where we say it’s too limiting is the specific criteria that are adopted, first by the Court of Justice to say: Well, this is an exempted type of non institutionalised criteria.” and now by Article 12 in Directive 2014/24. So it’s really a discussion about how should we interpret these criteria that first the court introduced in limited amount of case law, which was always difficult, right, we had a handful of cases out of which commission Germany and as LD Letcher is probably we’re probably the most prominent ones. Now we have Article 12 and these are actually the first cases and when we talk about Stadt Koln, these are the first cases actually interpreting Article 12 section 4 in which the non-institutionalized exemption was codified.

 

Marta Andhov  8:00 

So tell us a little bit more about the case.

 

Willem Janssen  8:04 

Um, it’s terribly complicated. It’s one of these cases where I feel very humbled by the different jurisdictions that different member states have. As far as I understand, and I’m you might have to allow me to do some terrible translations from Dutch to English, because, as far as I’m aware, it’s not translated into English, which it suprises me to certain extent or at least I wasn’t able to find it on curia.eu. Hopefully, that will be published very soon. Stadt Koln is a case that was filed before the court of justice through preliminary ruling and our three preliminary questions, I should say. It’s a it concerns a cooperation between the city of Koln of Cologne, and a Berlin, the city state or the sectional state, and what occurred in this case is there was an agreement, an existing agreement already in place between Berlin and an IT company, supra as the case file said, for the provision of software for the management of a fire department. Now, what was interesting, and this is where it gets very German, if I may say, so. This contract, this contract included a clause that this software could be passed on without additional cost to other public authorities with security tasks, and based on that clause, then the city of Cologne occurrence said: “Well, actually, we’d like to get into an agreement with you Berlin, and we’d like to also use this software. So then, in that agreement, that was closed. Cologne also accepted that it would be a reciprocal relationship. So, if they would further develop the software that would be also given to Berlin, right? So it’s like a basic software. And you can add on parts. I mean, I’m not an IT guy. I mean, we barely managed to record this podcast together. But there’s obviously further development and customization that’s required, right. And even the court in the case process that’s actually always necessary with this type of software. Now, surprisingly, competitor…

 

Marta Andhov  10:24 

Got angry, competitor got angry.

 

Willem Janssen  10:26 

It is just usually how these cases start. And they say: ” Well, actually, all funding games that you decide to close this agreement, but hold on this, this is not in compliant compliance with the EU public procurement law, this award of public contract should have ibeen tendered?” and then the interesting part starts is the question arises: “So is article 12.4. is that applicable in this case? And can we do something? Or can they rely on this, on this exemption?” I have to make sure that everyone’s still on board and still on track. Article 12, for I can dream it nearly. But perhaps I think it’s useful to at least read, reread, repeat what that article actually says.

 

Marta Andhov  10:39 

What is that? Yeah, for sure.

 

Willem Janssen  10:51 

So basically, it’s it has to be a contract that’s concluded exclusively between two or more contracting authorities and they fall outside of the scope of EU public procurement law, as I mentioned, if three criteria are fulfilled, so the first one, the contract must establish or implement a cooperation between the partaking contracting authorities and then, and this is where it gets important with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common. Please note, public services they have to perform and achieving objectives that they have in common. So, that’s an important part, also completely unclear, but we will get to that.

 

Marta Andhov  11:57 

I was about to sort of jump in and say already, the first element that I guess will provide an area of confusion; how broadly we understand that how specifically, we understand that right, what that actually mean?

 

Willem Janssen  12:11 

What does it mean? For sure. The second aspect is that it must concern an implementation of a cooperation that is governed solely by considerations really relating to the public interest. And when words like public interest pop up, I think a lot of member states read into it whatever they want.

 

Marta Andhov  12:30 

It’s like the Hunger Games open.

 

Willem Janssen  12:32 

Exactly, exactly. Let’s unleash the war dogs, open the gates of hell. The participating contracting authorities finally (lost connection) their activities by the cooperation. Now Stadt Koln doesn’t go in delve into all of these aspects, Stadt Koln concerns itself mostly with the first one. So, the one where we had this reference to public services they will have to perform and viewing objectives and in viewing of achieving objectives they have in common, right? There’s a lot that comes from this case, but as you know, in our pre talk, you already said that I was going to go on to a rant of words. I’ll be very short with how I will approach this topic.

 

Marta Andhov  13:21 

We will try to boil it down to four points. Is that correct o say? We will look at the definition of public contract, content of cooperation, type of cooperation, favouring a third parties. Did I miss something?

 

Willem Janssen  13:36 

No, No, you didn’t. But maybe in the meantime, I’ll add like, Can I add subcategories or?

 

Marta Andhov  13:41 

Oh, boy, now we go.

 

Willem Janssen  13:43 

I’ll see. No, of course, I’m just messing with, you know, to stay on track with the time right, for sure. So, the first one I think we can discuss relatively quickly caught I think doesn’t say a lot of new stuff. When it comes to the type of public contract other than for teaching purposes, it’s quite a nice case, because the court really outlines the different aspects of what constitutes a public contract. But what is important is the courts says: well, a contract is a public contract. So even though there’s a reference to contract, we’re actually talking about public contract. And we need to look at the entirety of all of the agreements that are signed. So, it’s not just we don’t look at one, but we look at the multiple agreements between the Berlin and the city of Cologne. And then the reciprocity occurs because actually, even though it’s it’s free, there is something that Berlin gets in return, right? They get the redevelopment of the software. So there’s a clear financial interest as well and then the court concludes, well, this is a public contract, right. So more interestingly, I think Is the the content of the cooperation, which I think is the most difficult aspect of this case. Because the court and this is where it gets, I think very technical, or at least it will maybe not technical, it’s not the right word. The court really heavily relies on the the recital number 33 of the of the directive, and where which it says that this type of cooperation, and allow, quote, such cooperation might cover all types of activities related to the performance of services and responsibilities assigned to or assumed by the participating authorities, such as mandatory or voluntary tasks of local or regional authorities and then it goes on. Furthermore, this says the services provided by the various participating authorities  need not necessarily be identical, they may also be complimentary. This is the second point that I’ll get to. But the first point is, court says may cover all types of activities related to the performance of services assigned or assumed mandatory voluntary. Right. Question is, and this relates back to the case law of the Court of Justice, in which the Court of Justice always said, particularly in the Electoral Commission, Germany must concern public tasks, they all have to perform.

 

Marta Andhov  16:24 

So in other words, would we say that this is broader, right now, it broadens the scope. Is that fair to say?

 

Willem Janssen  16:30 

This is the conclusion of the court draws in this case, the court actually says, because based on this, this recital, you could still question well, does this actually change anything, perhaps it should still be a public task? Now, perhaps it still needs to be a public task, but based on what the court says it seems that public service is actually a lot broader than public task. Because what the court says in this case is, and this is where I have to rely on my Dutch English translation capacities is because it refers to all all activities. It can also concern and, and ancillary activity,  nevenactiviteit in Dutch, which contributes to the actual performance of the public interest task, which is the basis of the content of a cooperation right. So I think the most important word here and I think it’s fair to say a look at the French and the German edition, I think in ancillary activity is a is a fairly accurate translation. So,…

 

Marta Andhov  17:28 

Another question is how you how you differentiate that, right? What that actually means, again? It’s like the big sort of…

 

Willem Janssen  17:35 

…you can see my face… This is doing my head and it’s also making me feel like I should write about this, because there’s obviously a lot of thought on what is ancillary then? Because in this case, in this Stadt Koln case, we’ve got the the task that the fire department has, right? This security task, and then we’ve got an IT management tool that allows them to operate that manages their their activities. So, the question is, and this is what the court says is: “Well, if that’s an ancillary ancillary activity, that is actually necessary for the operation of that public task, so it falls under it.” and then it refers to the preamble and which are just what the recital that I just referred to, is a voluntary or mandatory assigned or assumed. The court kind of says: Well, these aspects also fall underneath this is this exemption. Now, contracting authorities might be very content with this, because there has been a strong call from these contracting authorities to say, well, we don’t just want to be able to use the institutionalised exemption for back office services, we also want to use the non-institutionalised one, and because the court had always said public tasks that they all have to perform, there needed to be some type of legal basis in the law, perhaps or national law saying you have to pick up garbage as a government or, like a directive, like it was the case in waste directive that obliged these contracting authorities in Commission v. Germany to do this….

 

Marta Andhov  19:17 

….to provide some type of legitimacy to those activities, right?

 

Willem Janssen  19:26 

Exactly. Now, there’s so there’s an inconsistency in Article 12 one you can use for back offices, the other one you couldn’t now the question here is is can we use article 12? For now for back office services can cleaning services Are they an ancillary activity for the performance of a city hall? Are IT service always the case?

 

Marta Andhov  19:47 

And you know now just to very, very briefly, just showcase one thing that straightaway comes to my mind is also a question of mixed contracts because within the mixed contracts development over the years, you also had this development about elements of a contract that you can and cannot actually separate. And then if you really cannot separate them, you decide them on the basis of the main purpose of the contract. But if one of the arguments that I used over the years in my research publications that technically, you probably if you really want to can separate all sorts of different elements, if you really want to. So then the question is: Well, under this circumstances, can it be that some part falls under this non institutional cooperation and can work as an exemption?, but some of this sort of, you know, back office, or some of those ancillary services, actually would not fulfil the premises, the requirements and actually would need to be somehow procured, right?

 

Willem Janssen  20:52 

I think you’re totally on the money when it comes to like these comparisons is that because obviously, this distinction occurs in multiple places within EU law, but also within public procurement law. So, perhaps we can learn from that to be able to fulfil this somewhat vague, and I think, very difficult test to apply with certain amount of legal certainty in practice. I think what makes it really difficult, particularly because we still have this rule of thumb, right, that that exemptions are supposed to be interpreted restrictively.

 

Marta Andhov  21:24 

Absolutely.

 

Willem Janssen  21:25 

So, that makes it difficult in a way to say: Well, now all IT services can be provided under this exemption. ,but particularly with this case, that is so heavily linked to a security task, where I could see that that type of management tool is absolutely vital for it and it gets more and more confusing, actually. To top it off…. to make you….. I don’t I don’t want to make you feel miserable, or at least make anyone feel miserable about this case.

 

Marta Andhov  21:52 

I think it’s a really difficult topic and I think that’s why I am also quite quite excited and happy to be tackling it because I think that majority of people still with a lot of years of experience within procurement law. Whenever they come around this topics, it’s as you said, it becomes at some point a little bit like a black box. There are some rulings, but you’re not entirely able to grip it what how to sort of draw this red thread through them, right?

 

Willem Janssen  22:21 

Absolutely. Right. I think just to add to that confusing, then the court said in that, I mean, in paragraph 61 of this rulling, the court says: Actually, it’s uncertain, we’re unsure, we’ll leave it up to the to the referring court, we are unsure if this software is not actually a problem service. So if the software itself is not ancillary, but actually the activity to up to which other things can be ancillary. Because and I’m going to translate again, because the the activities from from the fire department in firefighting, technical help emergencies and disaster relief to coordinate that, perhaps they’re like, inheritantly linked to fulfilling these security tasks. So, maybe this software is so much linked to the security task of the fire department that itself can be, not just a as a quote says – not just an ancillary task, or activity. –  So, that makes it even more difficult, right, we thought we had a different differentiation between at least some type of tasks that were definitely in the public interest, a collection of waste, is cleaning services were identified as not being that. Then we had all this stuff in between, but now maybe ICT or IT services could also be this,….

 

Marta Andhov  23:46 

…there for sure somehow will be some of those scenarios such as you cannot really sort of separate and they need to be considered as one whole. But I think at the same time, is what you’re saying that those are exemptions. So, we need to be quite restrictive. I wanted to ask you about one more sort of aspect of this case that really brought another aspect to question and that is the paragraph 57. So, when we started to discuss this issue of type of cooperation, right? So are we just specifically are to focus on the joint objective or actually, right now this case, introduce some questions or clarifications or requirements of actually existing a real type, practical actually type of cooperations? How you read that case?

 

Willem Janssen  24:33 

Again, so the debate was always based on ASL di Lecce[2], and also the Advocate General in that case, is what type of cooperation should it be, should it be genuine cooperation? This is also what I think the line of the commission was when they proposed, this article, in Article 11, at the time of the proposal for new Directive 896, but the code basically saysin this case that: You can do this individually, your contribution can be individual or jointly.,  which seems to infer that you could actually that one part of the cooperation or one cooperating authority could provide all the services, and the rest could just tag along, and maybe only pay, right? I’m just reading between the lines, because the court is, obviously in its reasoning trying to establish that this type of cooperation falls under this exemption, and it’s also somewhat unclear why the court needs to refer to this to get to that point. Just to make things more more interesting, perhaps, there was another case that was ruled upon and basically the court in Remondis[3] case is that just payment to the other contracting authority wasn’t sufficient. So, when I look at the preamble then to add one more source that we can use to interpret this, it still says a cooperative concept to which the individual contributions is is one of these are my words have to be complimentary. That’s what the preamble says. So, what type of cooperation we need to have? The court seems to be kind of indifferent to what the preamble says, and it needs to be complimentary. Now, perhaps complimentary then means one pays and the other performance, but that’s not in line with the case of Remondis? Or the second version of that…

 

 

 

Marta Andhov  26:28 

Can you then define that as a collaboration or cooperation? It’s, you know, it’s not anything beyond the fact that one pays and other performs?

 

Willem Janssen  26:45 

I mean, you’re on the money with your comment. It’s hard, the court says in this ruling, it’s not absolutely necessary, again, my translation, so don’t pin me down on that, but it’s not absolutely necessary that this public task is performed by all of the public entities that participate in the cooperation. So, perhaps only three out of five do it and the rest pays, but that doesn’t, or they do it for free, but the as we say, in Dutch, the sun does not rise for free, perhaps. I don’t want to go into Dutch tanginess, because it always bugged me through this. I do pick up the tab every now and then, right?

 

Marta Andhov  27:28 

No, you do! You absolutely do. Okay, let’s let’s try to talk about one last thing when it comes to merits of today’s episode. And that is the issues of favouring of the parties in regards to this sort of subject or heading.

 

Willem Janssen  27:43 

I loved your Australian accent there.

 

Marta Andhov  27:45 

Now you are pulling my leg are not you?

 

Willem Janssen  27:49 

Favouring third parties, one of the aspects that does provide clarity, I think in this case. It wasn’t included in in Article 12 section 4. In Commission v. Germany, the court did make a reference like okay, if you cooperate, fine, we’ll exempt it, and of course, I’m not I’m not quoting the court here, but we’ll exempt it as long as you don’t put any private undertakings or economic operators in a favourable position when compared to other entities. What the court does it’s quite interesting. Also, again, great for teaching. The court basically justifies why it’s still going to adhere to its own rulings. So the court basically says, well, the directive refers to to legal uncertainty when it came to public public cooperation. We had already provided clarity, and there doesn’t seem to be a change in approach because this is still all riddled throughout the directive, think of Article 18 of the directive in which we still can’t discriminate parties against each other. So this, you still can’t favour third parties when it comes to this exemption. And in this case, this was obviously a benefit for this, this software providers so proud that provided the software that would now get another customer or potentially a lot of customers if all of these German scholars have told me that over 33,000 public authorities in in in Germany would tag along on this agreement, because: Can you imagine that the side benefit to it, right, the benefit of and then one final point, this was clarity, is how did they actually calculate the value of this control?

 

Marta Andhov  27:55 

Yeah, now we’re going back to our previous episode, right?

 

Willem Janssen  28:50 

 How did we do this?

Marta Andhov  28:59 

That was exactly what I was thinking and also allowing this right. Just pretty much it’s a little bit contra this notion of actually you having an established max value of a contract or framework, if we’re talking about frameworks, right? Because up here, suddenly this can just grow and because of the value of this type of services, it can just  grow exponentially quite quickly, right?

 

Willem Janssen  30:11 

For sure. I mean, if all these  authorities tagalong. I’m not sure if all 33,000 will do that. I don’t know if there’s so many fire departments as well. I mean, even if 10 do it, right? Well, at least by tenfold, perhaps make it more valuable contract. So yeah, that was just a question that I had, but now I’ve realised I’ve gone back to your first point. So that doesn’t that means that I haven’t added a fifth one. I’ve stuck to the four. But this was a side comment that I referred to about the first public contract. That’s still within what we’re doing.

 

Marta Andhov  30:49 

So, the good positive aspect about the last bit, about favouring third parties that actually, we received some sort of clarity, before we jumped into the desert. So, the sort of light hearted conversation with them, if you would, to leave our listeners with sort of couple bullet points of what are the main outtakes of where we are these days, in regards to the non-institutionalised cooperation, if you could sort of boil it down to some sort of bullet points.

 

Willem Janssen  31:19 

Super fascinating topic. Definitely worth a read on a Sunday night, before you’re going to bed.

 

Marta Andhov  31:26 

Particualry, Willem’s PhD. haha

 

Willem Janssen  31:30 

That’s the whole weekend, if you want. No, I’ll try to stay humble. But I think a bit more clarity, like you say has been created by this case, but also a lot more confusion. What is the type of cooperation that we need to have? So what should be the individual contributions of the different parties when it comes to this exemption? What is the content, what can we put into this exemption? Can it be back office services or not at all? And how do we define the question of ancillary activity, which I think is going to be the most difficult one to answer in the years to come? And I think that leaves us with a lot of confusion, a bit of certainty. But I suppose that means more fun work, research and all this type of stuff, fun discussions with practitioners and students in the future.

 

Marta Andhov  32:19 

And then we will probably have in future another episode on in-house.

 

Willem Janssen  32:25 

Maybe we should just make this an in-house podcast.

 

 

 

Marta Andhov  32:29 

Please not. haha

 

Okay, well, let’s wrap it up. I need to say that this main that it refers back to the concept of this podcast today, it’s quite heavy. It’s quite heavy. I think as you as you yourself pointed out, it gets very technical when we starting to look into into an in-house. So thanks so much for providing us with a little bit of clarity and structure into this conversation. Let’s move to the desert. Let’s sort of talk a little bit more of more about our academic life, university life what what it is that are we discussing today, though,

 

Willem Janssen  33:14 

So we’re sticking to the topic of cooperation. But then… I don’t know what we call this institutionalised cooperation on non institutional. I have no idea but expression active in academia. I think this is something that every academic bumped into. So perhaps it’s broader than just public procurement, law academics. It’s, I think the first question. 1) How do we see this? What’s the added value? What are the downsides, perhaps, and 2) more specifically, how single authored articles so prominently important, particularly with grant applications and stuff, which seems to deter us from cooperating? So maybe I can pass the baton. Do you say that? I don’t know. I’ll pass you the mic, even though you have your own to maybe discuss some of the I don’t know, some some thoughts on cooperation in academia. How did you experience that so far?

 

Marta Andhov  34:13 

You mean, specifically, would you want us to specifically focus on sort of research outputs? Let’s start with that so that we can somehow frame it. I think that the first thoughts that come to my mind when you propose this topic were couple fold. I think that it’s absolutely brilliant to have an opportunity to collaborate or let’s say article or book chapter, particularly if you younger researcher and have opportunity to work with a colleague or maybe your supervisor, someone who is more experienced, because at least on my own example, I know that I learned awfully a lot. It was nerve racking. I still remember one of the first ones that I did, and that was with professor Martin  Trybus, and I was extremely honoured that he agreed to write an article with me at the same time, I was extremely, extremely stressed, that I will come across as someone ill equipped, or not knowing enough or that it will be just, you know, lame, or whatever. It was, it was quite stressful but by going through, you know, drafts and the comments that he would pose to some of my sections and what he would pay attention to. It was extremely rewarding educationally, and I think that I’ve been better researcher since, and it definitely taught me a lot. So I think from that perspective, I see great, great value that. On other hand side,…

 

Willem Janssen  35:42 

….maybe just to interupt you. I found a new topic that we can also discuss it. Yeah, I’d love to talk to you about imposter syndrome and like feeling shitty in academia.

 

Marta Andhov  35:51 

Then we need a whole podcast on that.

 

 

Willem Janssen  35:55 

On average is quite a lot of fun. But there’s stuff to be improved, but sorry, I interrupted you. Can I just note this publicly that we’ll do this one day?

 

Marta Andhov  36:02 

Sure. Sure. And then a second thing that I would want to sort of, you know, throw the ball back to you is this discussion about well, how much value you put or institutionally wise, because I think this is the important part also, if this is a sort of institution that provides grants, give grants or if it’s your own university, or even system of universities, how, how much value is put towards collaborative publication versus singular ones? I know that I heard from several colleagues from different jurisdictions that actually when it comes to all this point scoring in the systems, if I remember correctly, that is the case, for example, in Great Britain, but actually, they don’t really get many points in the reference system for collaborative publication. So from that point, you know, they really need the single authored publication to kind of hit the quotas. So, I think that this is also really important, what motivates us in context of these requirements that we need to fulfil, right?

 

Willem Janssen  37:08 

Yeah, for sure. I think some of the Dutch context also relates to what you were describing about the UK. Just to reflect on what you said, on your first comment, I think, by far, joint publications are the most frustrating thing to do in terms of writing. But in the end, I think the final product is generally better than it would have been, or at least that’s what you hope for, right? Sometimes it can also be like: Oh, well, we’ve watered down some arguments or whatever, that’s also possible, but because someone else is so critical of your own work, even more than they would be if they’re reading your work, I think that does provide value. So, I am always very enthusiastic about working with someone, then whilst when we start writing, I get a bit frustrated, because I’m like: Well, that’s not the way it’s supposed to be or well, that’s not how I would have written it.

 

Marta Andhov  38:05 

I think it’s also style of it, right, you need to combine two styles with us, you need to kind of ensure also that the text sort of flows and you can have two people writing in a very different way, and it sort of becomes blocked and chopped. So the process in itself of writing, for sure can be quite….

 

Willem Janssen  38:21 

….quite difficult. Yeah, for sure and then try….There’s some economists or I should say, public purchasing academics working at our research centre as well we we’ll try working with them. They don’t realise that they don’t even use the right type of referencing the end notes. No, I’m just,…

 

Marta Andhov  38:40 

…..yeah, I think when you throw on top of all of it definitely also like this multi disciplinary publications….

 

Willem Janssen  38:46 

…it comes very difficult for sure. But to stick to what you bounce back to me. That’s something that’s definitely present in the in the Dutch system as well. The cooperation in general is, I think, valued when it comes to grant proposals, because you need to build consortia when it comes to interdisciplinary work when it comes to overcoming boundaries between departments, between faculties and all this type of stuff. But in the end, when you publish, or at least when I start writing grant proposals, the first thing I get back from reviewers is, well, we’ve got a nice nice work blah, blah, blah, but these are perhaps ranked a bit lower because they’re with someone else. I get their issue, because if we look at science at science or academia is a very individually individualistic….tripping over my own words….concept, we need to establish who did the thinking, the work.

 

Marta Andhov  39:48 

I mean, I really don’t know if I should be saying that. But maybe we’ll cut it out. But I think a whole different thing that is a very delicate subject around any type of collaboration that I think people are not particularly good with is from the very beginning, for example, deciding on award what is the order of office. You know, is it the workload? Isn’t the alphabetical order? Is it the seniority? And are you writing, which I really love, for example, on that article that I mentioned that I wrote with Martin, is that actually in a footnote, there was very specifically pointed out who wrote which section? Yeah, and I think, that was a great way of solving it. And I think, particularly, again, for the younger researchers, that that also is quite important, right? Because maybe for someone is a first or a second publication, it really matters. But if they are fourth, fifth author, let’s say and they wrote a larger part of it, and the first ones are people who are well established, you know, I think it’s very sensitive, it’s very delicate, I don’t really have a right answer to that. I’m just sort of, to add a layer of complexity to this question about cooperation, right?

 

Willem Janssen  41:05

For sure and I think what’s even more difficult, I think, in the legal academia is we don’t have really strict rules that you need to be able to read the order of academics when you see them. In medical journals the second one, the fifth one is the one that provided the lab the seven doesn’t have. We do not have anything like that. So, for us I think…. I mean as general with this is…. the way I look at it is that the first author that perhaps matters a little bit but then again that comes with a lot of backlog of hierarchy seniority all this type of stuff. Also, what’s interesting… I find that people that have a last name that starts with an A or B generally go for alphabetical order. Saying anyone that would probably implement this. I don’t know if your last name would be Andhov perhaps you would go to that. I’m just pulling your leg a bit, but I do see that sometimes. The way I look at it – it’s an open concept, we work together and if we work together, we look at where some of the ideas come from, who’s putting the most effort, and let’s have the dialogue and I don’t really care if you’re super senior or not. Obviously, this leads to conflict, going up the ladder but I think that’s perhaps a way to go forward. Even though I also liked your approach to what you just mentioned to really clearly outline who did what, but I think we need to least as a first step have an open debate about it.

 

Marta Andhov 42:40

This whole system, you know, if out of this like little side conversation in today’s episode something were to come out I think that I probably would advocate is that as a bullet point from this part of conversation is to actually have a conversation about some of those elements, because the interest may be different between different authors and their views may be different and sometimes you hear about those stories that some of these issues come out in the very end when the publications are to be published and suddenly someone who was all the time, you know of their impression that they go kind of first because that’s like their postdoctoral article or whatever come third or fourth and because of some of this clear article discussions and challenges it becomes really messy addressed that from the very beginning and be open. I think…to conclude that for sure in a way need to collaborate these days if that is for funding if that is for all these different paths to develop your research and in your career but it is it is a difficult process. So, spending some time ahead of time to actually agree on some of those procedure or technical or administrative elements can actually ease it and help out.

 

Willem Janssen  44:03

Yeah, I think one bit of a cooperation that is probably the most difficult is to do a podcast together. I think that’s the cooperation that we struggle with so far, the most.

 

Marta Andhov 44:15

I want to agree with you actually I think it’s very easy to work with actually.

 

Willem Janssen  44:20

I am not looking for compliments I was trying to be sarcastic but yeah…

 

Marta Andhov 44:27

I think I think that the most challenging was actually the project that we also worked on together. I think there was around 12 of us and we were sort of writing the report all together with whole different people from different disciplines and also practitioners and everyone having a totally such a different background. Getting all of this instead of text to somehow makes sense was quite difficult, but as you said before at the same time, I think one of the most rewarding moment was in the end when the when the product came out.

 

Willem Janssen  44:58

For sure let me clarify to anyone that didn’t pick up my sarcasm before. I love doing this podcast with you and I look forward to every episode. I don’t mind joking now it’s a pleasure to come back and do another podcast. I’m getting into the zone again let’s start recording another one very soon.

 

Marta Andhov 45:16

Yes, absolutely! Hope our listeners will forgive us if a sound was a little bit rusty. We had a little bit of a break, but we will be back. We are ready and we are excited to get on schedule and provide you with some new episodes pretty soon so thanks so much!

 

About Bestek 45:37

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 Willem’s published work on this subject:

 

[1] Case C-796/18 Informatikgesellschaft für Software-Entwicklung (ISE) mbH v Stadt Köln (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0796)

[2] Case C-159/11 Azienda Sanitaria Locale di Lecce og Università del Salento mod Ordine degli Ingegneri della Provincia di Lecce m.fl.

[3] Case C-51/15 Remondis GmbH & Co. KG Region Nord v Region Hannover

 

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