Marta Andhov  00:00

Welcome to Bestek, the public procurement podcast. In today’s episode, we will be talking about new exclusion grounds in public procurement, such as the ones occuring in Green Claims Directive, the Environmental Crime Directive and  Regulation on Deforestation-free Products.For the dessert, we will touch upon a recent book or an article that we both enjoy.

About Bestek  00:25

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 off public procurement law. 

Marta Andhov  00:50

Hi, Willem. So today, we’re talking about new exclusion grounds for our main, and that would be the substance of the main part of our podcast, we’ll dive straight into it because there are a couple of new interesting developments. And then we talk about, during dessert, some recent interesting stuff that we had a chance to read and share that with our listeners. So can we start with a brief recap on exclusion grounds, how exclusion grounds work under public procurement in Europe, or what we have, what we don’t have, where we are on this? 

Willem Janssen  01:33

Yeah, sure. So I think we’re in the directive, right? We’re in Article 57 and when I say directive, directive 2014/24/EU, and they’re really a means to assess the reliability of contractors, right? There’s certain contractors that we do not want to work with, and there’s some that we may not want to work with. And I think ultimately that’s where the setup of this provision also comes to the fall, right? We have those that are mandatory requirements or mandatory exclusion grounds, say, for the really bad stuff like that, terrorist organizations going into liquidity, those types of things, child labor. And then we have the ones that are voluntary, right, that you can, as a contracting authority, apply per procurement. Examples of those would be a violation of competition law, perhaps aspects of violation…

Marta Andhov  02:37

presentation, right, misconduct, yeah.

Willem Janssen  02:41

And also the aspect of the ones that we personally love is the violation of those provisions that are mentioned in Article 18.2, right? So related to environmental law, social law, labor law. And so there’s a system that that we’ve set up in that directive one, where, over the years, there are possibilities to “self-clean”. And I feel like in that system of exclusion grounds, there’s really a back and forth, right? Where automate, automatic exclusions are not something that the Court of Justice loves, right? You really need to give people a chance to show, perhaps, that they’ve bettered their life in terms of self-cleaning, right, the opportunity to show that you’ve set up compliance programs when you’ve or you fired those responsible when you violated competition laws, right, that you shouldn’t be excluded anymore.

Marta Andhov  03:37

And I think, to add to that, maybe just two points from my side, it’s important to underline the broadly in Europe, we really made a choice, or the European legislator made a choice, that when we’re looking at exclusion grounds, it’s really focused on, as you said, reliability of the potential contractor. So we really want to make sure that there’s as much competition as possible. And this is still, if you know, somehow preferred so. So in other words, it really is about ensuring whether we can really rely on them or not. And it’s not then excluding them, but it’s not the exclusion grounds are not used in the form of debarment, which is very much the American system, right, where you really have the blacklisting of certain companies, and it’s almost used as a type of punishment. So this is quite different approach, I think. Just to mention, we not punish, the idea the purpose behind exclusion is not to punish is just to ensure their reliability. And I think this is also shown in some of the European jurisdictions in which self-cleaning is actually a right of a bidder. In other words, there are certain jurisdictions in which it’s not that it’s solely. If contracting authority see it fit, they can allow for self-cleaning. But in places like Denmark, you actually have a right to simply so whenever there is a doubt, you will need to be provided within the opportunity to self-clean. And I, if I’m to guess, it’s exactly you know, the logic of smaller jurisdiction have already quite little competition, so ensuring that it really is protected, that there isn’t as much competition as possible. So I think that this is just this internal market, again, we logic behind those provisions.

Willem Janssen  05:38

Yeah, no, for sure, and I think also just maybe to… it feels a bit like a system that we’ve created over the years, right where we have a list of exclusion grounds, whether they mandatory or voluntary. There’s also still the option to say you’ve applied them, and that there’s all of a sudden overriding reasons in the general interest that you could still set them aside. So say you would in the covid pandemic, you’ve actually wouldn’t end up with any contractor being able to supply you with ventilators, because all of them, just to follow up on that example, before I violated competition law, you can still, for reasons of public health or public order, right? You can set them aside, right? So there’s a bit of it, to me, it always feels like a system that we can work with, right? It kind of feels like it’s balanced towards those that have, that have done things in the past, the bad things, or the not so bad things, but still bad things, and we don’t dismiss them automatically. There’s a room for self-cleaning. There’s still a bit of room also to put the handbrake on in those overriding reasons of general interest. So in a way, and I’m obviously front-loading this a bit, that’s how I feel about these new exclusion grounds. Is it, at least in the Dutch context, it’s perceived as a system that works rather well?

Marta Andhov  06:55

Yeah, I think that is also maybe to add to, you know, framing the discussion that we’re doing right now. It’s also it sometimes might be a bit misleading the usage of this terminology of mandatory and voluntary, because, from a perspective of a participant of tender procedure, particularly in case people would have someone for is a legal counsel to potential suppliers, right? So on the private side, when you participate in tender, the exclusion that are used, they’re always mandatory, because it’s rather from a design perspective, right? So from a design perspective, you are certain exclusions that need to be applied in every single procurement process. And those are those issues of human trafficking, money laundering, etc, etc, that we discussed. But then there is a catalog of what we refer to as voluntary that contracting authority can decide whether for the purpose of this specific tender, they want to use them or not. But when they decide that they’re using them, they ultimately for the purpose of that specific tender, they are mandatory, right? They are applicable. So I think that this is just a clarification, if potentially that might have been for someone not entirely, not entirely clear, but as you mentioned… 

Willem Janssen  08:15

Maybe just, sorry to bump in Marta. Just to also clarify, I said it’s a system that works rather well. It doesn’t mean that there’s no issues, right? So…

Marta Andhov  08:23

Of course. 

Willem Janssen  08:24

Maybe just to clarify that point, I mean that from like, a legal perspective, right? Whereas, if I look in practice, a lot of also Dutch contracting authorities just simply tick all of them, but they don’t actually check them. Yeah, right. So then it’s up to competitors to say, hey, but hold on, my competitor does not fulfill that one requirement, so you should kick him out, right? So I think that’s that’s one aspect that doesn’t work well, and I think particularly for those voluntary ones. I think contracting authorities in practice should more often really think about which one of this, these listed contracting, these, of these listed exclusion grounds, do I really need here, like, which ones are vital for the procurement? Right? Perhaps not all of them are always that relevant, right, particularly if you don’t have the capacity to check them in the end, and it’s just like something that you do for the show, right? 

Marta Andhov  09:18

That’s the one thing, another thing…

Willem Janssen  09:19

Is that just something, before I interrupted you? 

Marta Andhov  09:21

No, don’t worry. I think that was also, in a way, probably valuable to add is that there is also a certain, I don’t know whether that’s a challenge, but it is unclarity, because we do have certain grounds that are overlapping at least a certain extent, and we don’t really see clear differences between that, right? So there are aspects of misrepresentation and misconduct. There has been a study done a couple years ago. It’s already, I don’t know whether that was still under the new directive or just before on the proposal, but looking on, you know how different exclusions are applied. In different countries and asking various follow up questions, what will that classify as a misconduct or misrepresentation, what the courts use as an argument? And there’s a huge amount of overlap, so you might have the right one kind of misbehavior, so to speak, that takes couple grounds of exclusion, and because we don’t have that much guidance in that, it’s from new legislator of court still that really would differentiate. Sometimes it’s a bit… opaque. That was the word I’m looking for, to figure out actually, you know which one, which one to tackle. And I think with this new wave of exclusion that we that we discussed today, it also brings a question, well, is that, are they specific enough, so to speak? Are they really bringing something new? What is kind of different about them? Or whether we just building that catalog again, bringing something that maybe could be addressed already on the basis of, you know, some of the violations that are currently, currently present. 

Marta Andhov  10:00

And as you were mentioning, Willem, one of the ones that are a bit newer, it’s the voluntary exclusion grounds that refer to breaches of the obligation under Article 81 two, that refers to environmental social labor laws, if they are national laws or European laws. And that is quite nice segue to European Green Deal as a strategy for Europe that has been introduced. And on that basis, there have been some new developments we’ll share with our listeners on couple of them that are particularly related to the question of exclusions.

Willem Janssen  11:48

Yeah, sure, it’s kind of it’ll be one, interesting to see what will happen in the future, right? If this whole green wave and the Green Deal will be continued, at least we’ve got the same chair of the commission, Ursula von der Leyen, but it does, there’s definitely been a shift in politics in many member states, and also a shift in what that means for the parliament. So I do expect the years to be perhaps a bit green, but not as green as they were before. So that also might mean that we actually don’t have to, that we can keep up with legislative developments, which might be nice for a change, because when I look at the EU Green Deal, it’s really been a driver for many legislative proposals, a driver for a lot of legislative proposals that all of a sudden also contained provisions related directly impacting public procurement. And that was something that, you know, many of us have looked at over the last couple of years, but a more recent one, I suppose, or one that I think didn’t get enough attention so far, was…, and that’s why I presented on it also in a conference in Paris last year, and I’ve been trying to, like, unveil it a bit with three of my honors students, and I’d like to mention them briefly, if that’s allowed by you. 

Willem Janssen  13:12

Sophia Renstrom, Manouk van Huizen and Paula Corredor Quintana. And it’s really an ongoing research project about looking at how these so we took three of these new proposals to have been adopted since we started looking at them. And I’m talking about the proposal for a green claims directive, the deforestation regulation and the environmental crime directive, and all three of them, all of a sudden have references to exclusion in procurement. And this was, I think, perhaps the first bit of surprise, and when I thought so, just going back to also what you were saying before, I agree, there’s lots of interpretive difficulties. So in the Netherlands, we struggle to make a difference between what the past performance exclusion ground is and what professional misconduct is, because before everything that was past performance was seen as professional misconduct. And now, what does that the other one mean? But what I was hinting at was this the system, right? We have a specific list in one directive that is mandatory and voluntary, there’s a bit of debate about, you know, you being able to clean yourself, even though that’s an in the worst English terminology I find self-cleaning. I mean, 

Marta Andhov  13:12

Yeah, not particularly elegant. 

Marta Andhov  13:12

Sure. 

Willem Janssen  14:25

Yeah, exactly. It’s like having a shower, I suppose, and rinsing yourself, rinsing the badness…

Marta Andhov  14:42

of the fruit of you, of oneself?

Marta Andhov  14:44

Yeah, but in a way kinda… 

Willem Janssen  14:44

Yes, exactly. And so there’s a big bit of back and forth. It’s not just hey, we decided to kick you out, but you actually have some rights to as entities. And what I think is interesting, when I look at all of those different. Um, proposals is they’ve, all of a sudden, seen, and I’m sure we’ll look at the nitty gritty in a second, but they’ve, they’ve all looked at procurement as, hey, that’s a stick that we can hit potential entities with that do bad stuff for the environment. Look, I’m paraphrasing now a bit, of course, but like, I think that’s a, that’s, I think something, because it’s really framed under the in all of them, it’s framed as penalties. 

Willem Janssen  15:16

Instead of like, something that’s procedural.

Marta Andhov  15:28

Exactly, and that goes back to the point that we started in discussing today, right? That the system of exclusions generally has been built on this. Am I dealing with someone who is reliable, responsible, and I can count on, or used as penalising something you did something bad, so you don’t have access to your public, public business, right public contract? So this in itself, somehow changes a little bit a perspective of what that system is, how that system had been created, and what was the intention behind that system.

Willem Janssen  16:02

Yeah, for sure. And I think that the reason why it’s like, why I’m still puzzled by it, I can be honest by it, we’ve written some pages down, but we’re trying to get it published somewhere, at a point life gets in the way with certain publications. So I hope they’ll forgive me for that at a point. I think because the system is so different, I think it does bring up one, questions of interpretation. How does this, what does this mean? What this particular penalty then means in the bigger context of, you know, trying to make sure that forests aren’t deforested to for agriculture in across the supply chain, or that companies don’t make malicious of green claims that aren’t actually valid or based on science. And on top of that, not just that individual interpretation, but also the system. And so what does this mean, like for the procurement system, and how it functions, and how the law functions, when we look at comparison with those directives the system that we had, right? Where does this fit? I think those are two points of discussion that I think we’re not really having yet. And pass a part of it, I think has to do with that. Some of them haven’t really won. Well, the green claims directive hasn’t been adopted yet, but, 

Marta Andhov  17:23

Yeah.

Willem Janssen  17:23

That it hasn’t really landed yet in national practice, right? Certain parts haven’t been mandatory yet, or they’re trying to figure it out on the Member State level. But I think it is something that will happen anytime soon.

Marta Andhov  17:34

I think that from our discussions over the last years, and we also wrote together a little bit when we looked at different aspects with a couple of other different colleagues… On our bestek website, there is a blog post on ever growing restrictions on whom public buyers can contract with, and we will link it in this podcast, but we looked there, very briefly, into also green claims and deforestation, specifically pointing out that, you know, that it’s this ever-growing catalog of limitation on who is allowed to somehow participate, and that in itself, of course, from one perspective, we could say it is a bit stringent, in a way that we want to focus again on this open competition and ensuring that we have as much as possible, but we keep on adding this quite specific exclusion grounds. But also then this is connected with the Green Deal approach to sectoral legislation in connection with green public procurement and sustainable public procurement. The challenge that I have here is that, very often, maybe not very often, that’s not a very good way to start to go about it. Rather, I would say how specialized you need to be as a public procurer to, because it almost feels like right now, the expectation is that people go and fish to find out the other quota regulation. Or the assumption is that you know, if you work in a construction or you build construction that that you did, you are to know that under those specific sectoral legislations that are additional exclusions, because, you know, if the question is, well, how those two though, relate, right? So the exclusions that are in general direct, are they of some sort of more stringent, higher level, because they are applicable in a more general manner, or it’s just maybe a bit more like, you know, Lex specialis . These new exclusions from deforestation green claims and environmental crimes, they are more specific, but environmental claims, or green claims, they will be quite broad. The deforestation is relatively, I would say, narrow, right, to some extent. But the others, it can be in many different sectors, so the relationship between them starts to be a bit tricky.

Willem Janssen  20:13

Yeah. And I think it also means something for, or at least how I look at it now, it’s a different it requires a different type of approach for a contracting authority, because one you it’s really about what you refer to, just then, as the design of public procurement. It’s where you really, as a contracting authority, need to think about these ones. We have to apply the other ones we can. And it’s about designing your procedure in a way that gets you to, you know, an efficient best value, green, social outcome. Whereas these, you’re just notified as a contracting authority, right? Because in many, many cases here it’s not a contracting authority that would impose the penalty, oh, it’s a national enforcement agency. So it’s safe or it’s the national enforcement agency that would say, well, we’re going to fine you, in this regard, for a temporary exclusion with a maximum of 12 months. So I think in a way, then the system becomes to make it more concrete, so when you look at the green claims directive, the competent authorities will give due regard to the member states, right? And I think that’s where you know it’s the Nederlandse Voedsel- en warenautoriteit, the Dutch food and goods authority? I’m probably not going to, this is not the corrected translation, but they will be in charge of enforcing this. So then, you know, it almost turns into a system where, you know the competition authority, in the end, imposes a competition fine, and then you need to exclude them if you’ve applied a voluntary exclusion within the normal article 57 but here, all of a sudden, it becomes a whole different aspect where, and it reminds me a bit of the role that the commission is taking in, like the foreign subsidies regulation or The International procurement instrument, where a different body always is in charge of enforcement, rather than putting another burden on contracting authorities. And there’s also a benefit there, right? Perhaps these entities are better suited than contracting authorities to make judgments based on these type of provisions, but it does change the whole end game, because there’s one, need for strong information lines, right? Strong that you have…

Marta Andhov  22:43

For sure, the communication right?

Willem Janssen  22:44

The conversation between contracting authorities and those competent authorities, whatever they might be at the national level. But I think it’s a whole different system,

Marta Andhov  22:54

For sure, I think the question here, also, you know, from what you’re saying that comes to my mind, is also who has the obligation? So in this new system, when you are participating in procurement procedure, are you obliged, as a economic operator to disclose? Because you know, in the procurement procedure, the basis for exclusions will be given, those usually will be, I would assume the one from procurement directive. And then at some point you need to say, are you in any of those exclusion grounds? And you say, no, but are you? Are you obliged, out of yourself, to come and say, well, but actually, there are those others in this other you know, from the other directives, or from somewhere else, and I’m in breach of that, or I’ve been giving a fine or penalty of that, or actually the obligation to communicate or create some sort of database of those will be given to those authorities that are responsible for that right. And and then, then lastly, in context of this, the question that comes to my mind, so what about, then, the opportunities that are being given to the economic operators in breach of some of those exclusion grounds, or fulfilling some of those exclusion grounds under directive and self-cleaning? Because I don’t know you looked into it, as you said, with the students, a little bit more in detail, but my understanding, without conducting a in-depth research on this, that we don’t have a clarification whether we can apply self-cleaning to that or not, or not.

Willem Janssen  24:31

I think that’s yeah, no, it’s a major point, because it’s not just the relationship. Perhaps it touches a bit on the relationship between the system that we had and the exclusion grounds that we’re confronted with right now is, and that’s why I emphasized the system so much before, is because this is a penalty. It will very much rely depend on national legal procedural law or procedural law to see. If you can. So it’s a penalty, and then, you know, and then the courts you might be able to appeal, and right then that’s also a type of, of course, a balancing act of, you know, the contractual relationship that you might have, but it’s a total, total different, totally different scenario, because in a public procurement procedure, it’s that dialog that doesn’t require, perhaps it does, but it doesn’t necessarily require legal representation, whereas this instantly turns it into a penalty, and it means that you need to, would need to appeal, and you would need to litigate, right? And I think that is and perhaps one other element, perhaps this is what we’re talking about today will only, really, eventuate in a way, in the deforestation of the green, or, excuse me, in the green claims directive, because in the environmental crime directive, it’s optional, so the inclusion of that exclusion ground is, may, right? You may use these, right? So it’s not that you have to, whereas for those others, you really need to implement them international legislation or effectuate them when it comes to that regulation. 

Willem Janssen  26:14

And I think maybe just to make it even more confusing, is I find the wording of these exclusion grounds also fascinating. It’s really it gets me going, because if you’ll allow me, I’ll read them out loud.

Marta Andhov  26:27

Go for it. 

Willem Janssen  26:29

The uhm, so if I would just take the one from the green claims or the deforestation, which are which are the same, right? So they’ve harmonized those. But taking the one from deforestation, it’s temporary exclusion for a maximum period of 12 months from public procurement processes and from access to public funding, including tendering procedures, grants and concessions. Now, I have no idea what procurement processes are, and I always thought that public procurement was also tendering. And I also thought that we have public procurement directives for concessions. So it seems to and I also don’t know whether we’d need to include limited authorization schemes. Public funding seems to imply subsidies as well, grants, is that the same as subsidies? So I’m being an annoying lawyer right now. That is very confusing, 

Marta Andhov  27:29

For sure, because also by enumerating explicity concessions, it raises a question, well, then utilities are included or not? 

Willem Janssen  27:39

Yeah? Public contracts?

Marta Andhov  27:40

Yes? 

Willem Janssen  27:40

Are they included? 

Marta Andhov  27:41

Yeah, yeah. Or then similarly, the defense directive excluded or not. Because you know when you if they would say, public procurement dot and leave it there. That’s a one way, right? But when you’re starting to suddenly expressly mention things like concession, that it raises a question. Well, concession, yes, what about the other methods, right? What about public, private partnerships? What about, you know, framework agreements, and yes or no? So…

Willem Janssen  28:09

It makes it even more and let me make it more fun, even, because when I take the environmental crime directive, it reads exclusion from access to public funding. So it’s a bit different, because it doesn’t refer to those 12 months. So it’s not limited, and it doesn’t refer to public procurement processes. It’s just exclusion from access to public funding, including tender procedures, grants, concessions and licenses. So now all of a sudden, licenses get added, grants, tender procedures and concessions are the same. We don’t refer to public procurement processes anymore, and we don’t have that 12 month limitation. And I think, look, I think we can probably work this out, right? It seems to be very broad, right? A lot of type of instruments fall under it. Some we can debate, but I find that this difference with like exclusion from access to public funding, like concessions, that seems rather permanent to me, rather than a temporary limitation for a maximum of 12 months, which seems a bit more proportionate. Whereas, if this really means that if you’ve committed a crime as a natural person or as a legal person under the environmental crime directive, if that really means that you could be excluded from all tender procedures for the rest of your existence. That’s a rather hefty penalty. And I would imagine that that,  yeah.

Marta Andhov  29:32

And also on whose interest it really is, if you look at a specific end from a procurement scenario, right? Because, again, even if you want to penalize, you want somehow penalize, but you ultimately, if you think about it, you want them to do better and come back, because you actually want them part of the competition, right?

Marta Andhov  29:51

By them, I mean any potential economic operator like you, fully excluding someone, that’s very debarment style, like and, yeah, and that’s, that’s questionable, I guess, if you’re looking back from the system that we, that we, that we build, and then at the same time, don’t get me wrong, there are, I think, enough arguments to say that. And then thing, the system that we applied have been also to certain extent, criticize for some years that we need to have some sort of form of department system. But then I think that that should be done in a little bit more thoughtful way, rather than this very patchwork of provisions that are quite incoherent together and quite misleading.

Willem Janssen  30:35

It kind of seems, the impression that I get is, I think it was put in with the best intentions. I think it was kind of seen as, oh, we have procurement, right? We need to, yeah, we need to, kind of do something with procurement. We can use that as a stick. You know, sustainable public procurement is important. If you’re not sustainable, then it’s even worse. So let’s put in something in these pieces of legislation. But I think I would do, or at least recommend, is to streamline them, have a time limit on all of them, and to think about the time limits, or the look back period of three to five years that we have in procurement. This is more forward-thinking. So the system is a bit different, right? You get imposed the fine, and then you can’t participate for a certain amount of time. So I think that’s important really make sure that you specify the types of instruments, whether they be public contracts or concessions, that you want to have included in here, and also make sure that the link with the system that we have in public procurement law is clarified, is that we make sure that those aspects are clarified for the future. Because I think that will only help the operation of the system and of these new exclusion grounds in the future.

Marta Andhov  31:42

For sure. And I think that those are some really great points. I think that this episode and mentioning of that is at this point, quite signaling. A lot of those are new developments, and we just need to see what’s happening. But hopefully some of our listeners will find it interesting to even know if they didn’t until now that those new exclusions have been introduced at the context of green climate it is still in the process, right? Any final remarks on our main?

Willem Janssen  32:16

Yes, there was one shout-out that I wanted to give, and I forgot about it. It’s an article called: Towards deforestation-free public procurement, reflections on the interplay between deforestation regulation and public procurement in the EU, by Chiara Falvo and Federica Muscaritoli, one of your PhDs, and part both part of the SAPIENS network. And I really enjoyed reading their piece of work. So if you want to not have this like broader view on the different sets of legislation, but really look at how this deforestation works in public procurement, I recommend reading their work in published in the longest journal on the…

Marta Andhov  32:52

EPPPL, I think, right? We will link it. 

Willem Janssen  32:56

European procurement and public-private partnership law review,EPPPL, that one.

Marta Andhov  33:02

Exactly. So we will make sure that the publication that we mentioned, we will link them in the podcast and the one, the publication that Willem works on with his students will become available. We also will include that.

Marta Andhov  33:17

Trying to keep it short, sweet and brief on these episodes that we’re recording right now, and we usually, as always, get a little bit longer, more chatty as time goes. But we thought today we would just share maybe some thoughts ideas on a recent book or article that we enjoyed, because those are undoubtedly some of the things we read quite a lot forward, and maybe we might give some interesting suggestion to our listeners. So Willem anything particularly be standing out on your reading list?

Willem Janssen  33:57

Yeah, I had a big list I have, like, I have 10 books on my night cabinet at the moment, but none of them are being read, but all of them being read at the same time. And there’s obviously the work stuff that you have to keep up with, whether that be legislative things or jurisprudence or beautiful publications by our colleagues, but there was one that I’m particularly enjoying at the moment. And I think it’s, it’s a bit off topic, but not really. So it’s really on topic as well. And it’s, it’s called Tyrant, and it’s Shakespeare on power. And it’s a really nice read. It’s written by Stephen Greenblatt, if I pronounce that correctly. He works at Harvard, and it’s the two reasons why I think you should read the book. Is it says something about how governments operate and how power operates, obviously, under a tyrant here. So it’s. Very specific type of government. And I think that says also something about the relationship that we have between contractors and contracting authorities, right? How do we set ourselves up? What does that mean? How does how does that play out in the plays of Shakespeare? And two, why I really enjoy it is because I never read Shakespeare. I always thought that’s not for me, but I really enjoy how accessible the writing is and how easy it is to get through, even though it might, it is very high level and very much disclosing how Shakespeare looked at society and how we went about it. So for me, it was Tyrant, Shakespeare on power. 

Marta Andhov  35:36

Lovely. I feel like I already lost. I don’t think it’s not that we are competing. 

Willem Janssen  35:42

Wait, it wasn not a competition, right? 

Marta Andhov  35:45

But this sounds pretty, pretty, pretty interesting, pretty epic. I have been as we working as we continue to work on our project that is a collaborative work within that purple project, Willem and our third co-host Matanja, are also contributing to it, because it’s this project that looks on private commercial contract law, arbitration and its relationship to public procurement. I recently have been reading fair bit of things on European contract law and also on division between public and private law. And I did already part of it, this type of research on division between public and private law during my PhD. And I need to say that every time that I come back to that, I find it extremely theoretical, extremely abstract, extremely geeky. It’s not for everyone, but I absolutely love it. I absolutely love it. I think it is extremely fascinating how you know, how we make these different divisions, and then you can ultimately, uh, really question and every, every singular aspect of it. So I’ve been hearing about Hans Micklitz for some time. He’s quite a big name in the European contract law for a long time, also, after they did, I think maybe still today, with the European University in Florence. And I’m also, I’m not going to lie, I for a good title. So one that I would like to share today, because I think title is pretty great. And obviously the work within that article, too is European Regulatory and Private Law – between Neoclassical Elegance and Postmodern (pistachio…pasta,) Pastiche. Sorry, you see, just, sorry…

Willem Janssen  37:38

Pistachio.

Marta Andhov  37:39

Pistachio.

Marta Andhov  37:39

I’m just already, yeah, it’s been a long day, but, yeah, super, super cool, interesting piece, discussing, really, this, you know, the vision, and really looking at European law, European law, but not from, you know, directive perspective, all the things that we do on the basis, but how, really contract law exists, and how have been doing so Hans Micklitz is a really interesting author. I think if you have a chance, have a look. So those will be…

Willem Janssen  38:17

Great, I will, I don’t think there would. I don’t think there were any winners. I think that sounds really interesting, too so…

Marta Andhov  38:22

I think my pistachio wins.

Willem Janssen  38:26

Alright.

Marta Andhov  38:29

I hope that everyone will forgive me this pistachio that’s not particularly clever, but without further ado, thank you for joining us. It was a great chat about exclusion, new exclusion grounds in public procurement, new disallotment and some interesting books, articles that we’ve been spending time with. Without further ado, this was Bestek, the public procurement podcast. Come back. Listen to us. We are looking forward to the next episode. Thanks.

About Bestek  39:01

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.

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.