Willem Janssen [00:00:00]

Welcome to Bestek, the public procurement podcast today, and I are discussing access of third country bidders to the EU market and research stays in academia.

About Bestek [00:00:16]

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

Willem Janssen [00:00:41]

All right, here we go again. Nice to talk to you again, Marta.

Marta Andhov [00:00:46]

So good to see you. At some point, we need to start to use the video too.

Willem Janssen [00:00:51]

But then I might need to get out of my sweatpants.

Willem Janssen [00:00:57]

You’re at work at the moment, I’m still working from home. How is it at the Copenhagen University?

Marta Andhov [00:01:01]

Oh, it’s good. It’s quite quiet. We have what is referred to potato holidays, so it is a mid-semester break and it’s very quiet. So, I actually can focus a little bit on other aspects of my work than teaching, which is which is also nice.

Willem Janssen [00:01:17]

Do I dare to ask what potato holidays means?

Marta Andhov [00:01:21]

Yes. This actually comes from, you know, sort of a historical thing that during this period, that was the time in agriculture, right? When you collect the potatoes. Yeah. So, that’s sort of where the origin of potato holidays, cause… We don’t do… Our students… I don’t think that many of our students do that these days, but they enjoy having a bit of a break on semester.

Willem Janssen [00:01:42]

I just actually thought that you your meals were getting a lot more boring in this week, but it seems like you can eat something else. It’s just that you kind of need to have. Is that just tagging along with the general theme of this podcast or talking about food? I think we’ve ticked the first box.

Marta Andhov [00:01:56]

Yeah, we would talk about potatoes today.

Willem Janssen [00:02:02]

All right. I should have put that in the introduction. Actually, this is Bestek. We’re talking about potatoes today.

Marta Andhov [00:02:09]

The potato angle today, very versatile food.

Willem Janssen [00:02:13]

Talking about potatoes. Yeah. And perhaps also third country bidders. We’ll be looking at this topic, which I think is very topical. There’s a lot going on. And I personally, I find it fascinating. It instantly gets my excitement going, basically, because you still think about politics, you think about the world, about trade, about countries, their interests. So, I’m sure we’ll be getting a bit more into that just to give our listeners a little bit of an idea on what we’ll be talking about. I think we’ll delve into that question first. Is this really political or is this a legal question that we’re delving into based on some of the research that you’ve done? We’ll be looking at the EU legal framework for it. What is the position of Third-country bidders? What are legal instruments out there to perhaps get rid of them? To say it, to say it not so nicely or to at least bar them from accessing our markets. And for that, I think a continuous discussion is the international procurement instrument. And perhaps more new is the white paper of the Commission on Foreign Subsidies. So that’s something that just as a starter before we get to the actual desert on research stays in academia, let me just kick off with this question. Is this whole topic about third country access or sorry, I should say, access of third country bidders from outside of the European Union is that actually a legal question or is it very heavily political?

Marta Andhov [00:03:46]

Well, I think that it’s fascinating and the fascination comes that it’s somewhere it’s a combination of those two, or at least we’re trying to look into it from that perspective because it’s highly controversial from political perspective. There’s there’s been over the last couple of years quite a lot of focus on this from EU with some initiatives already from 2012 with this new US white paper also. And it pretty much where the root of the conversation around it really is, is that why are we thinking about EU public procurement market? More or less, according to some data. 85% of that market is actually open for the third country suppliers. And then if you compare it with some other international trading super houses, that looks quite different. US offers only around thirty two percent of its market to foreign bidders. Similarly, some smaller markets like Japan, only 28% of the market. And when we look into China, another powerhouse will they did not really sign any international trading agreement covering public procurement, right? So this notion of that is that I think it’s automatically falling from our market, predominantly small and medium enterprises saying:” Guys, we have already huge amount of competition internally at home. We cannot really compete outside of EU because we don’t really have access to those markets. It’s not really a level playing field.” And we have increase situation in which EU also comes into play and stop certain mergers. We saw the…

Willem Janssen [00:05:32]

Alstrom – Siemens Merger.

Marta Andhov [00:05:35]

Yeah, absolutely right. Kind of saying we cannot allow monopoly on this. At the same time, the main competitors are already two, three times as big as that merger would be. So, so it’s the issue of how we how we somehow give it a go to our small companies versus the liberalization of trade, broadly speaking, which have been a focus for many, many years. I think that particularly this discussion in context, all of these political events have been heated up by the current pandemic, because pretty much what happened was that we suddenly understood or noted that the inability of our supply chain, right. Our very long international supply chain and this need to recognize that at least in certain core needs, that has to be the self-sufficiency of any of the markets. So super, super politically charged, very controversial. You for sure, on the one hand side will have a team, trade agreements and liberalization of trade. On the other hand, you will have a sort of small suppliers on the market saying we all need to play by the same game. You know, I need to…. Your politicians have been chosen by us to somehow protect us. And how that all sprinkles to law or in context of law is for sure the question of international trade agreements. Are we in accordance with them? Can we actually consider some of those limitation or not? What is actually already allowed? Do we have a sufficient framework, or do we need something else? So, I think it’s a combination of a little bit both. But the loudest voice, at least in my opinion here, is very much driven by the political approach

Willem Janssen [00:07:26]

I would concur with that. Because even when you saw in relation to the Alstrom-Siemens merger and you saw how the French minister, in the end, they are opposing sides on the German side, I mean, grave political error to refuse this this merger, this type of policy benefits China and I’m quoting:” Benefits China more than it does our competition. “, right. So, we saw it recently here in the Netherlands as well, when a tender for electric busses was awarded to a Chinese construction company or a Chinese manufacturer in the east of the Netherlands. You should see the political upheaval that came from that, right? Why we are not stimulating a local supplier.

Marta Andhov [00:08:12]

Absolutely. And, you know, and you see that in every country when you have one of this huge because usually those are the huge procurements, right? In Stockholm, it was Metro or train or railways, one or one of those also a huge, huge project. The question is also to what extent EU public procurement rules are to ensure internal market and open competition within the internal market and EU and to what extent we are actually really actively to seek out, you know, this broad global liberalization and access. And there is, you know, something to be said. Are we being taken for a ride? If, you know, we have other international trade parties still signed to those multilateral agreements, but with some reservations that ultimately in area of procurement allow them to open substantially less the procurement markets that we do and to what extent we want to counteract that or to what extent we want to actually lead by example in this conversation, right.

Willem Janssen [00:09:15]

So that you would, as an EU, as an international actor, have reciprocity or at least perhaps not want or desire reciprocity. So, to a certain extent, by just actually because there’s also like this is what I find difficult. There’s a certain inconsistency to it. Right. We want competition, but only competition among the member states. We value it as a means to get the best value for money, et cetera, all these type of national EU goals. But there is friction, obviously, when these third country bidders don’t have to follow the same rules. And this is where I’m getting to in terms of the second aspect, what is their position under the EU legal framework currently?

Marta Andhov [00:10:01]

Sure. So, specifically when we addressed this, elements where we can find some type of legal reference is article 85 of the Utilities Directives. So, Utilities Directive specifically allows public buyers to reject tenders for the supply contracts if more than 50 percent of the products come from third countries. And that, of course, applies solely to products that originate in third countries that are not covered by the multilateral or bilateral agreement and that ensure a comparable effective access of EU suppliers to the foreign markets, in other words, right, and what is then allowed under this article is that public buyer can reject such a tender and if they decide not to do so, they can provide a preference for European tender if the offer is equivalent. OK, so that’s one of the elements. And this is…

Willem Janssen [00:11:06]

Also, kind of like relates to. Sorry, sorry to interrupt, started talking over the top of you. But I think it’s interesting that, like the utilities, that it would happen there, because I think that’s also where the discussion gets so heated when you talk about or perhaps this is more of a competition law term, but essentially facilities really these network industries where national interests, national security come into play. So, it’s not surprising to me that we would find something like that in the Utilities Directive, definitely where those, I think, concerns have been present for a lot longer than they are in, say, in the scope of the classic procurement directive.

Marta Andhov [00:11:47]

For sure. Absolutely. And it’s quite interesting because the second provisions sort of ties to this, questions of security of that you just referred and that is the reference to the recital 18 of the Defence Directive, which pretty much confirms for us that because the often-sensitive nature of the defence and security requirements, it’s up to member states to define the old national rules for whatever the contracting authority will accept bids from the third country or not. And one of the interesting within those two references is that this has not been really used often, at least to my knowledge, doing and doing the research that we don’t really have much case law. But it seems that the topic really…probably due to the political relevance of it, gain some traction. And we actually have recently a court judgment from the higher regional court of Brandenberg, in Germany, and that actually is an example of a case. It was an invitation to tender issued by the city of Frankfurt for manufacturing and delivery of 45 streetcar vehicles in a competitive procedure with negotiation. And up there we have the Chinese company CRRC, and the Czech manufacturers are competing. Ultimately, Škoda has been awarded the contract. The Chinese CRRC company challenged. The case went through a couple rounds of appeal and ultimately it has been accepted by the review chamber that it was allowed to ultimately exclude the Chinese company on the basis of this provision that we just right now discussed underlying the large discretion of contracting authorities to do that. Because there is a reference in law pointing out, of course, a principle of transparency that you just need to ensure within your documentation that you reserve your right to actually exclude on that basis. But in general, we don’t see much usage of this specific provision. So actually, where we tend to see a conversation and legal conversation around this topic very often circulated around, it’s actually pointing out we have existing tools within the procurement directives broadly right now understood. Mainly you can use provisions on abnormally low tender to assess those bids and you can utilize the broad approach to sustainable public procurement, and provisions of this in the directives to make sure that the level playing field between all the different buyers, more EU internal or external, are ensured. So, at least that’s how it seems on existing current framework where we are.

Willem Janssen [00:14:57]

So basically, it would mean that we can use this say this provision 69 for abnormally low bids, right? We can use those in general. And if you have an abnormally low bid because, say, a company ends up participating in your tender, you could use, that means just like you could always use it to end up excluding this party so that we don’t need new or at least the argument could then be we don’t need anything else. We can already make do with the with the current rules.

Marta Andhov [00:15:33]

I think, and you see that many commentators, many of our colleagues, also some of our colleagues, that that touch upon this subject within some of the commentaries in recent months, similarly, as myself point out to that, there is actually a workable framework. The issue, again, is how that frame, how often that framework is used and what challenges that framework in itself pose, because it’s also not without the challenge. Right now, we don’t have a very clear definitions of what abnormally low tender is, what’s the process and what are sort of the elements that you actually should use to to define that whole issue of sustainable public procurement that we on this broadcast still several times discuss wide discretion still. So, in other words, it’s very much left to contracting authorities to decide whether they will be using those or not. And it is quite complex due diligence process, right? Wouldn’t you agree to still?

Willem Janssen [00:16:31]

Yes. Because I mean, just off the top of my hat, but also looking at towards this white paper, which will get to. I mean, you would need to establish that the abnormally low tender would then be need to have come about in a situation perhaps where this foreign bid or this third country bidder is heavily subsidized, for instance. I mean, that’s not an easy task. It’s an onerous task for a contracting authority, to one prove this within the current framework. Right. So, I totally understand that there are ways of using the current rules, but even in normal procurements where you only have bidders that are from from the EU, we already run into issues with what is an abnormally low tender and what is just a strategic tender? Add to the source or add to forget what’s the spaghetti, what’s the sauce? I don’t know. This is a terrible metaphor. But you get what I’m saying. Add like a different extra ingredient to get to that sauce and you wonder if it’s still tasty. I should have not gone down the track of that.

Marta Andhov [00:17:39]

I understand what you mean.

Willem Janssen [00:17:44]

Particularly also when you look at, you know, the exclusion for abnormally low tenders that have been established because of violations of environmental law or I mean…,.

Marta Andhov [00:17:56]

The challenge…Exactly. Exactly. Because, you know, the problem of all of that is that at least on EU level, I mean, like within EU internal market, I think to some extent it has been many years of trying to establish a type of collaborations between the institutions and standardize certain things. We still not there, but at least in some aspects, you can say that within some of the environmental or social laws, broadly speaking, that are somehow coordinated on EU level, we all playing the same the same game, so to speak. But how that works when you’re starting to have a foreign business from outside of you, because then it becomes he said she said, really, right? We do, we do obey by this and that and this is our document that proves that. But ultimately, a contracting authority in the EU may not just be able to verify that or it will be extremely tasking to actually verify some of those documentation. So, I do understand it on a certain level. This approach was introducing our proposal for this introduced section of this. Additional solutions, such as international procurement instruments, which we in the second will go, or the question about the white paper and how we are dealing with the subsidies, that this is an element also of considering: ”Can we somehow have a more standardized approach?”, maybe simplify it actually for the contracting authorities, but I think that it is misplaced because it actually provides a certain next level of task on contracting authorities or if it’s standardized and we’re talking about involving commission of delays within procurement. That is not very practical. So, I think to to systematize our conversation, there is an argument and there is, I think, a very valid argument that we have a very good framework or at least a workable framework to ensure a level playing field for EU and third country bidders procurement? The challenge is that if we want to focus on that also from a perspective of trying to play a level the playing field, we also need to support interpretation of the provisions and practices within how we interpret the provisions on abnormally low tenders and a whole broad spectrum of sustainable procurement provisions, right. So, that’s where we are. Would you agree to that, that I sort of feel like we need a bit more harmonized approach to those provisions and a little bit more information and interpretation, if that is from courts or from legislators to be able to use it in such a way.

Willem Janssen [00:20:40]

For sure. I mean, I think any lawyer arguing against legal certainty, it’s probably earning his money in practice, not just. Yeah, but luckily we’re in academia, I think and then perhaps we can start looking at those two instruments because that we’ve mentioned a couple of times. I think what’s difficult, obviously, there’s a lot to say against by national legislation. The US has traditionally known. What I find is the advantage of that is it serves a clear policy goal, whether you’re for it or against it. It’s very clear you cannot bid or you can only bid under certain conditions or for certain contracts, etc. So we’re only opening up our market for certain aspects, whereas I think generally and this is more of a general comment to these measures that the Commission has been pushing for the last couple of years  it’s trying to find a middle ground between open trade and still protecting the market or at least leveling the playing field. And I think that’s where or at least that’s where politics can come in one and or almost strongly, because it becomes very blurred, because the objective is it’s in that you say you lean on two legs, right? It’s you’re trying to achieve you’re trying to keep what’s good, but also maintain what is good at the same time.

Marta Andhov [00:22:01]

Yeah. Well, I think that it’s also this notion of broadly speaking, EU being a being. And we always go back whatever topic we discussed, I feel like we always come back to the on EU level, we’re trying to do something more at this point. That is just ensure that open trade within the borders, there is this sort of integration to larger extent. And I think it’s also a matter of that. And I think there is also… I sometimes feel like within this conversation, this element is overlooked or sort of dismissed because we always push for very open competition that brings us innovation, that brings us the best deals and things. Of course, I’m not dismissing that and I, of course, agree with that. But I think there is also plenty of study pointing out that you need to facilitate your own markets to actually support development of innovations within your own markets to. We used to be leaders in many, many things. We have been overtaken by our international trade partners. The question is how we can also support within E.U. there’s development of innovations of really big companies that can be actually a real competitors, right. So, it’s very, I think that is very delicate and is very complex conversation about it. And all that brings us then to this to this notion of international procurement instrument.

Marta Andhov [00:23:25]

That is something that has been already proposed in 2012, the sort of two-pronged …decentralized and centralized approach to solving the issue of lay level playing field and notion of international procurement instrument was to ensure there was reciprocity principle: “Saying in case that we don’t have the reciprocity, we need to have some sort of element instrument to fight there.” So the centralized approach that was proposed in 2012 would allow the contracting authorities to reject the bids that consist of more than 50 percent of non-EU based goods or services except where the bidders from the country with which the EU has an existing international procurement agreement, right. So that’s something to have in mind. And then the right to exclude would not be automatic, but a contracting authority would need to notify the Commission about the intent, what they want to do and commission would have two months to assess the existence of the reciprocity to proceed with the third country in question, to decide whether or not such a proof of exclusion would be would be valid, right? And that proposal at that time has not been met with enough of support. While the European Parliament supported it, the consensus among member states was not was not present.

Marta Andhov [00:25:09]

So, we have then the second layer in 2016, which was a sort of version of simplified international procurement instrument and pretty much what we said in regards to that or what the commission proposed in the regards, rather than excluding, we actually will introduce price penalties or price adjustments. In other words, if you not allow it. Oh, sorry. If you’re not obeying, let’s say, environmental standards or social standards to the same extent that EU there is a discrepancy there. There will be a certain cup of money that can be put on top. And that was up to 20 percent of actual price that that have been considered. And then later on, 50 percent. And that, again, very politically charged, disguised largely, but not really successful. We still did not have a chance to pass that on. So, it seems that it’s definitely that member states are worried about suddenly needing to pay much more for the supplies or services or excluding the bids that actually are a great deal for them. They worry about the international trading relationships with different partners. Also, a lot of the European companies using long supply chains that take them outside of your rights. It also touches the EU companies. And that’s pretty much where this has been stuck to. A third draft is currently contemplated. I sort of see a lot of similarities. And I also almost feel like this newest white paper on which in the second you will guide us through a little bit more is a sort of you know, we there’s also the saying and I’m not entirely sure if that’s in English or if this is me directly in my hand translating from Polish, but there’s the saying, you know:” If you’re not getting in through the doors, you’re trying through a window. It’s a little bit similar approach here. They’re trying to get something done. They cannot do it that way. So, they are trying if maybe a different approach would work.

Willem Janssen [00:27:21]

I like, I like the saying, by the way, I always heard it like when a door closes, a window opens. But yeah, maybe that’s…. I get it, though. Yeah, also the… In a way it’s kind of a… It’s an interesting way to get reciprocity going. You see the same thing like these heavy discussions with in terms of TTIP, international treaties. Right. The Transatlantic Trade and Investment Partnership, where we use one measure to get something else right, to open up a market based on the trade agreement or to, you know, force you to open up your market. Thing that always surprised me is why you would need to take so long to establish if there is reciprocity legally, you have it or you don’t have it. I mean, I would tend to think that you could set up a list of access of certain countries, not so much based on how much we actually wrote. The rules are clear, right? You can enter the US for a certain defense contractor. You can’t as a as a contractor, what I think is most difficult and I think this is also still very much into the white paper is the heavy reliance on the contracting authorities.

Marta Andhov [00:28:34]

Yes, it is.

Willem Janssen [00:28:35]

That’s I think the most difficult aspect of this is I understand that the commission went from a centralized approach to like that, that the commission, I should say, changed its approach to make it more perhaps more politically feasible. But the difficulty is that continuously we’re making contract and we keep adding choices for contracting authorities to apply in practice. And I know we’ve gone into this more often, but when you consider the amount of choices and perhaps also the seniority of purchasing organizations on the national level, particularly the local level, are they up for the task of using this instrument effectively? And of course, we can live in a legal world where we try to think of all these solutions to societal problems.

Willem Janssen [00:29:20]

But is that really practical, right? Ultimately.

Willem Janssen [00:29:23]

Ultimately, I have my doubts.

Willem Janssen [00:29:25]

I absolutely did, too, because I see…. But, you know, the challenge really sort of hit my head on both of the walls, so to speak, is that on the one hand side, decentralize issues where we saying: “OK, we are not the ones to decide, contracting authorities should have discretion, et cetera, et cetera. ” Of course, it has its pluses. On the other hand side, would you mention…. Not always…I wouldn’t necessarily say lack of professionalization, but this is just asking for a lot of other things, right?… than just deciding what type of, I don’t know, office supplies I want. So, it requires a whole different set of capabilities and skill set on other hand side, because commission also, if that is with the white paper or with previous versions of this international procurement instrument, proposes a version of actually Commission taking some part of the task. Right. Saying we will do some investigation; we will look into it. But the challenge of that is also in context of procurement deadlines and the time scales. I think right now within the white paper they are operating with 15 days, the initial looking into the matter and then up to two or three months. Well, this is quite problematic if you suddenly need to suspend the procurement and wait for the resolvance of something that will go for to three months, depending, of course, on which procurement, but I imagine with every procurement that costs, right? So I think that this is a super challenging question to or sort of scenario to find a good solution on how to resolve this issue?

Willem Janssen [00:31:00]

Shall we just briefly introduce the white paper? Is that… We mentioned it a couple of times already. And I think that….

Willem Janssen [00:31:06]

this is the sort of newest thing that happens in this area.

Willem Janssen [00:31:09]

Most recent thing came out before the summer. It’s a white paper called” On leveling the level playing field as regards foreign subsidies”, one of the most exciting title or perhaps the best English sentence, but that’s a side note… Is the guy saying who just messed up a couple of metaphors himself…just a bit of reflection?

Willem Janssen [00:31:32]

We need to be forgiven. Ultimately, none of us is a native speaker, right?

Willem Janssen [00:31:37]

Yeah. Without terrible Australian half accents lingering through. OK, so this is a white paper introduces a couple of measures. It’s not just about procurement. It also deals with foreign subsidies or shareholdings that are being taken by foreign companies. So, it’s a broader discussion, but it’s very much linked with the political legal discussion that we just had or that we touched upon. It basically concerns the question, if the fact that if a third country bidder or a participant that’s actually participating in the internal market has received foreign subsidies, and because of that, they’ve received a competitive advantage over their competitors. The financial contribution is then defined as a financial contribution by a government or any public body of a non-EU state, which confers a benefit to a recipient and is and which is limited to an individual undertaking or industry or group of undertakings or industry. So, very much is a parallel. I continuously see the dogmatic approach of state aid law as well coming back into this, the system is set up and I’m summarizing because it’s a bit more detail than that. It’s a very much a self-assessment. So, parties need to notify the contracting authority that is running the tender about all sorts of information, or at least that’s what the Commission is proposing, out of which they need to notify the main sources of overall financing of the tender. The total amount of foreign financial contribution received over the past three years that doesn’t just stop there. It goes also goes on to future financial contributions that will be received during the course of the execution of the contract, right? So, perhaps you can make a low bid now, because you’re expecting subsidies in the future,

Willem Janssen [00:33:29]

….and that in itself already is a big issue, right? There are elements that you just mentioned and elaborated. Disclosing quite a lot of information or asking to disclose quite a lot of information. And I can imagine that a lot of company already, companies already at this point. Not touching about anything else, a little bit of an issue.

Willem Janssen [00:33:49]

Definitely because of the fact that the definition that I just mentioned is so broad. Yeah, basically, it’s any type of financial contribution. And because the last three years, this is a time span is quite long because the definition is so broad, you would need to be disclosing quite a lot of confidential information about how you run your business, right? So, the question then is this notification is passed on to so it’s a decentralized thing, get to the national supervisory authority that would be made competent to assess it and if that authority and this is, I think, where the crux or at least where the most interesting aspect of it, or at least that’s what I think, is that, again, if that supervisory authority decides that the involved economic operator has received a foreign subsidy, then it is and I quote: ”The contracting authority that would determine whether that subsidy has distorted competition.” and based on that exclusion would follow. So, this party would need to be excluded from the tender if the contracting authority deems that not only there is a subsidy, but there is actually also distortion of competition because of it. Now, this leaves a lot of discretionary power, right? So, that leaves a lot of openness for exclusion. So, as we’ve seen with exclusion grounds, it can’t be an instant exclusion, right? You can’t just say any type of foreign bidder is excluded or at least you need to at least investigate. I’m sure in the final proposal, I didn’t see it here, that there would be some type of self-cleaning measure or at least some type of responsive measure or at least the court seems to really focus on that in the last couple of years, is that there need to be some type of dialog between…

Marta Andhov [00:35:32]

Yeah, you to give some sort of space for self-cleaning. Right? 

Willem Janssen [00:35:37]

For sure. And I mean, it’s difficult in this case because once it’s been established that there is a foreign subsidy.

Marta Andhov [00:35:42]

Yeah, it’s yes or no question.

Willem Janssen [00:35:44]

…remedy…

Marta Andhov [00:35:44]

Yeah, yeah.

Willem Janssen [00:35:47]

So, you would need to make the argument that you’re not going to use those….I’m just thinking out loud…..You’re not going to use those subsidies or that there isn’t actually….Yeah… It’s a difficult discussion that you end up in particular because it’s established by an external body rather than just the contracting authority itself. And then it’s not made explicitly, but the commission is, I think, hinting at adding another exclusion ground in the EU public procurement directives by saying that currently there is no exclusion ground that would allow for this.

Marta Andhov [00:36:20]

Yeah, and there is a legal issue here, right? Because that’s like you want to introduce ultimately a new exclusion and sort of circumvent the legislative process on certain level.

Willem Janssen [00:36:32]

I think in a certain in a certain way, you could raise the you could raise the question: ”Does the commission need to wait until the next batch of public procurement directives comes out and is this is this is there a need to include this?” I think it would be a good, good case to make or at least I think that has some type of basis is that you would need to include it questions then is: ” Is it going to be a facultative one or an obligatory one?” And still, I mean, the topic that we talked about before, what makes it hard, I think, is, again, the contracting authority needs to decide if this is a distortion. The easiest answer would be, is to always say there is a distortion. Right is based on the supervisory authority. It’s an automatic exclusion. But that’s not the approach of the Commission. So, again, we’re burdening these types of authorities with this, in a way, interesting development,

Marta Andhov [00:37:29]

I think it is. And, you know, the element to sort of round up the conversation of our main dish for today is also that I find it a bit difficult, because on the one hand side, we are saying: ”Oh, we don’t need anything else because we have open competition and all these rules for open competition and they’re going to be sufficient.” and then we have actually already measures, particularly there is this reference to sustainable public procurement, those measures that you can use to ensure a level playing field, ensure that the environmental laws, the labor laws, etc. are obeyed. But then on the second hand side, we have also this sort of viewpoint of really resisting sustainable public procurement, right? Saying: “No, no, no, this does not belong in a procurement.” So, I find it a little bit problematic here, to be honest. I think if you’re going to say, OK, we don’t do all the other stuff because we have existing provisions, that I think we need to more clearly establish how those measures are to be used and how they are allowed and how we ensuring all that, because it’s a little bit continuously, you know, pushing forward the issue. I do think that a lot of the small and medium enterprises…. I do understand why they bring all this is an issue… Right. So, it is topical and an important from both the legal perspective and legal lens of our discussion, but also extremely practically. That’s the reason, I think, why it’s politically so charged.

Willem Janssen [00:39:06]

So, if you’ll allow me just to briefly summarize, we do think we think it’s a fascinating topic because it’s a political but legally wise or from a legal perspective, it’s a difficult discussion. There are some instruments in the current legislation that could be used to serve this purpose. I think we’re both very skeptical about the decentralized approach of an IPI in international procurement instrument or such as subsidies measure that’s now floated by the European Commission simply because it’s putting a heavy burden on contracting authorities.

Marta Andhov [00:39:40]

…And it’s not getting… Exactly. It’s not like they’re getting something for it, right?  It’s just another task. Absolutely.

Willem Janssen [00:39:47]

Yeah. All right. Time for a time for dessert.

Marta Andhov [00:39:51]

Time for dessert!

Willem Janssen [00:39:55]

Travel stays, research stays. I think what’s interesting is we’ve kind of, we’ve both been to various institutions in the past, whether that be for conferences, but these are obviously longer stints, right, that you would actually get some time away, whether it be a week or it could be a couple of months. I stayed at George Washington University in the U.S. during my PhD, but I’m now probably join you, which is interesting.

Marta Andhov [00:40:23]

It’s true. That’s true. We just talk about it.

Willem Janssen [00:40:26]

For two weeks. If you can bear me that long…

Marta Andhov [00:40:31]

Tough, tough call.

Willem Janssen [00:40:32]

Perhaps we’ll will arrange some reciprocity for you to come to Utrecht after a while and figure that out. But, more generally, it is a part of our lives as academics. So you suggested it?

Marta Andhov [00:40:49]

I think I don’t I’m not sure how it’s in your university, but I know that when you do a PhD in Denmark, that’s actually one of the requirements by ministerial order. So, yeah, where you actually are to experience some type of external environment, which usually means foreign research stay. Some colleagues due to, you know, all different reasons, depending, I guess also what is your research and what is your family circumstances. They are just changing universities within Denmark for some time or go to some public institutions that are not always universities. But I guess the assumption of that is if that is a requirement within the PhD or if that is a part, let’s say, of your sabbatical, if you are a professor, associate professor, etc… The notion of that is that when you have an opportunity of changing work environment, this sort of research environment, you look at things with a fresh set of eyes from a little bit different perspective, and it can have a lot of great advantages. So, I just thought that it would be really interesting to talk about it little from from both our experiences. As you mentioned, we both have a bit excessive international experience, I guess, in this regards. What you would consider, what would be the purpose when we went on this research stays, what would be the purpose of those trips and what were some aspects did you consider when you were deciding where to go?

Willem Janssen [00:42:28]

Good, good questions. I didn’t…. I have to say at the time…. I didn’t…. I mean, I have to be honest, a lot of these things just happen as they happen, right?  I think in terms of the reason why or why I find it interesting or why I still pursue it is leaving like access to documents aside, which is very rarely still a reason why you would need to go abroad. So, there’s certain documents or case law that you can’t access still online. But for people coming into the Utrecht University Center for Public Procurement, that’s rarely the case. All Dutch case law is accessible online. Most (All) journals are also actually accessible online. So, there’s rarely…. So why do you go then? I think two reasons is: 1) space to think. So, if you do it well, it allows you to not have to think about daily ongoing business that’s going on….

Marta Andhov [00:43:25]

…. Administrative task, teaching stuff write like you have a bit of break of those for sure.

Willem Janssen [00:43:30]

That’s one and 2) people. I find that… Not just to have drinks or dinners with after a conference, but I find that really to really find the intricacies of the law or to talk to practitioners, see what’s really going on here. Right. So not just in terms of empirical data gathering or interviews or those type of things, which can also be a purpose of a visit. I find that through those you really get an idea of what’s going on, how is the law in practice experience so that can feed into your research as I think one of the (mumbling) to thinking people would be the reason why I would. So, if you’re wanting to know why I’m coming to Copenhagen, that’s…

Willem Janssen [00:44:15]

…. That’s the space to think, because people you already know for sure. This is very interesting. I’m going to throw in a bit curveball to this conversation because we both actually spend some time in in Australia. And I think both of us probably in regards to also what we research, I know that I did during my PhD time this question: “But why would you go to Australia when you’re looking into European Union stuff?”  So, I want to sort of be a bit real because I think this also when we when we set up the ambition for this podcast was to be very, very real. What about place, isn’t it, that you would really want to go? If that is Australia, if that’s California or whatever else, that this just allows you for this phenomenal opportunity, have also just go to these places. Is that playing any role you think?

Willem Janssen [00:45:11]

100 %

Marta Andhov [00:45:13]

Right! Yeah, I think that there’s also an element of that, that I feel that people don’t like to say out loud, but I do think that it’s very important, not very important, but I think that it plays a role when people make those choices.

Willem Janssen [00:45:25]

So let me justify this then and link it to the first thing I was saying, I do think it if you’re going somewhere and you feel like you’re really entering a different space of mind. I’m just saying different culture, different climate. It does change the way you look at things and the way you talking about the space to think. I do think at is part of it a little bit. Now, obviously, this shouldn’t be the sole reason why you do it. Right. So, the same is I mean, I think the time, particularly now with, you know, climate change, I think the time to just go to a conference in a beautiful place. But that’s on the other side of the world and the conference is not a conference of 20000 people and you’re in a back room with two people listening to your presentation. Yes, OK, maybe it has a tiny bit of a benefit, but I don’t think we can justify that anymore. But you’re right. I do think it adds and I think it’s functional. I mean, yeah, I don’t think it kind of makes me feel bad now that you’re saying.

Marta Andhov [00:46:22]

But I do know the reason I do that purposely, because I do think that a lot of people consider those elements too and I think that a lot of people are not willing to share that because they feel that there is something shameful about it. Now, I don’t mean that you go for research stay, for a month, I don’t know, to Italy, California, Hawaii or whatever, and you go one time to work.

Willem Janssen [00:46:46]

You did not mention the Netherlands in that list…

Marta Andhov [00:46:48]

The Netherlands is well known for their phenomenal weather! ha-ha

Willem Janssen [00:46:52]

And wine and food culture. We will go back to that.

Marta Andhov [00:46:55]

But, you know, it’s not about you saying that you go into those places because you want to go to those places and you don’t do any work and sit on the beach. It’s not about that. But I think that the part of being somehow removed from your immediate research environment, having this space to think sometimes even being in a research environment, that it’s not necessarily procurement research environment. I know that over the years I’ve been in two institutions, one in Australia, one in New York, that people were not necessarily researchers within procurement, but within other associated research areas that were relevant to my work. And I just thought that that was extremely helpful because we tend to sit within our own little bubble and kind of look at everything from very specific angle and getting exposure to people from different areas. I think your center, what is brilliant, that is also not a different area of law, but also different disciplines. It’s really helpful. So, I think that’s great. Now, when it comes to the elements of what are the things to consider? And that is an aspect that I feel I feel quite strongly about because I sort of seen it working time and time again, is that I think at some point, you know, you consider also ranking of universities, you know, how well respected, how well known, let’s say research center or faculty or law school is that you want to go and how great it will look on your CV that you’ve been to that place or specific professor that you want to work with and so on, so forth, versus other institutions that are maybe not Ivy League, let’s say, or top tier university. But there are people that you already somehow connected with and you have a feeling that that may be a more hospital or the sort of research, the environment. What I mean by that is that we had a very much this experience with my partner. We had a chance to both go at the same time on research stay. And we’ve both learn in two different institutions, right. One of the institutions was, you know, the leading top tier law school, super renowned, super prestigious. But I feel like a lot of those institutions that are used to having millions and millions of application for research stay they often don’t even have a capacity to give you an office. You just have access to library. Maybe someone once had a time to meet with you. And I think that you will get a bit less of that research stay experience versus if you go somewhere else. And there are people that genuinely want to talk to you and want to hear what is your research, give you a opportunity to present on some sort of internal seminars, have some sort of workshops. And I personally would choose the second option. I think that you’re getting more out of it. And I was wondering, what is your opinion?

Willem Janssen [00:49:48]

I 100% agree. It’s so annoying. Like, I know I’ve said the one hundred percent a lot in this podcast already. I think what’s very easy is to go for the resume building like you’re saying. But I think you also see a parallel of the other desert that we had in an episode a while ago. When you’re looking for the supervision of your thesis, right? A person that is still in their younger years of their academic career will devote a lot more time, perhaps more interest, also have a lot more time. It’s not always evil will, right? I’m not saying that. But, yes, I think the same the human connection or the connection that you have to a person also if that person sees some benefit in it, right. If it’s just, you know, if you’re the fiftieth person rolling in the for the year, I mean, it’s impossible to see….

Marta Andhov [00:50:34]

I’m sure that’s very true.

Willem Janssen [00:50:36]

So, yeah, in a way, I don’t even know what the ranking of Copenhagen is. I mean, I know I studied there, and I think it’s a beautiful university. You see people working there. But I mean, do know what I am trying to say?

Marta Andhov [00:50:52]

I understand. But, you know, when you made this comment, actually something else came to my mind that maybe is also actually that actually is connected with your seniority, because I also imagine that …. If you really, sort of, in the later years or stages of your career and you have a lot of ideas and just what you’re looking for in that research stay is change of environment, peace and quiet, kind of getting away from all the admin, teaching, et cetera, et cetera. Then actually maybe it does not matter so much if the reason why you go for research stay is, for example, to just be able to have access to library that you can write your monograph. Yeah, and you actually purposely will not want to have that much interaction maybe with different researchers…

Willem Janssen [00:51:35]

…People, it is just scrapped off it is a space to think in books instead of being. Yeah.

Marta Andhov [00:51:40]

And I think that maybe from that perspective it actually then is what for you to consider what you want to get out of such a research stay that your conclusions or perspective will be different.

Willem Janssen [00:51:52]

Yeah, for sure. You’ve given me lots to think about next year.

Marta Andhov [00:51:56]

Yeah. Where you want to go and what you want to do?

Willem Janssen [00:51:58]

No, I’m coming to Copenhagen.

Marta Andhov [00:52:00]

We’re waiting. We already rolled out the vacuum, the red carpet.

Willem Janssen [00:52:06]

Too much, too much. My strawberry blond hair. I think it’s time to….

Marta Andhov [00:52:11]

…. roll out. Yeah, absolutely.

Willem Janssen [00:52:13]

Yeah. I’ve been a terrible timekeeper. I have to apologize to everyone. I really enjoyed talking to you, which sometimes leads to longer discussions than we initially set out to do. So, there’s a podcast episode will be a bit longer than the normal. But anyways, if you’ve tuned out by now or if you’re still listening, it was great to great to have you. We look forward to your input. It was great to discuss access to third country or access of third country bidders to the EU market and to talk a bit about research stays. Should you have any feedback or comments, please know where to find us. Do you have anything more to add as one last thing?

Marta Andhov [00:52:47]

No, just thank you. Thank you for everyone that managed to still stay with us for 52 minutes.

Willem Janssen [00:52:53]

Should we mention potatoes again just to make go full circle. Enjoy your potato week and this was Bestek,the public procurement podcast.

About Bestek [00:53:05]

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

You might also be interested in Marta publication on this subject:

1. Andhov, “EU and public procurement: making better use of the existing tool box – The response to competition from third country bidders” in M. Wiberg: EU Industrial Policy in a Globalised World – Effects on the Single Market(SIEPS Project 2020)

Your content goes here. Edit or remove this text inline or in the module Content settings. You can also style every aspect of this content in the module Design settings and even apply custom CSS to this text in the module Advanced settings.