Willem Janssen [00:00:00] Welcome to Bestek. Today, Marta and I are discussing CJEU judgements in Sanresa, in Klaipedos and Privilege in academia.

About Bestek [00:00:14] 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 law.

Willem Janssen [00:00:39] Hello?

Marta Andhov [00:00:40] Hello. Hello.

Willem Janssen [00:00:42] Hello. Such a pleasure to record again. And for a change, let’s not laugh and let’s not do silly jokes. Or at least try to just talk. I’m really struggling to not laugh right now. But we’re talking about two cases today from the CJEU, both from 2021, and they kind of like look at criteria mostly to selection. But we get a bit of a discussion about technical specifications and then also contract performance conditions come in. So there’s a I think the general theme is selection, but also criteria. And the and the discussion that happened in these two cases. And then for dessert, we’ll be looking at or at least we’re trying to spark a bit of debate about privilege in in academia. What could be angles that you could discuss with your colleagues at the coffee coffee machine? Does that sound right?

Marta Andhov [00:01:34] Yeah, I think that that sounds about right.

Willem Janssen [00:01:37] All right. Fantastic. I’m so maybe to give to get everyone on the same page. If you’re listening from the car and you don’t have your text or your books with you or you’re not looking at Directive 2014/24. I mean, we read that on a Sunday night, right? 

Marta Andhov [00:01:54] Of course. Always. If you cannot fall asleep, that’s what you do.

Willem Janssen [00:01:56] Oh, okay. Now, so I tried to read it to my wife and I just say like, Oh, let’s go to Article 70 or 58.

Marta Andhov [00:02:02] You’re very lucky that you’re still married haha.

Willem Janssen [00:02:08] You go from there. So we thought it would be good. Let’s just start briefly at the directive and, selection criteria, because that’s kind of the motive for the red thread that runs through these two cases. So useful to just start there.

Marta Andhov [00:02:24] Yeah. And I think just maybe one sentence before that is just also that there is a relationship between our Today episode that we recording to the episode that we did in the past on contract performance conditions and sort of link to today. So if you’re interested in that, we also have something on that on what Article 70 is and up there we were discussing, you know, contract performance and technical specification in the context of the so-called Dutch coffee case. But today we, we, we starting broadly from this Article 58 that ultimately establishes the selection criteria and within selection criteria we can look at suitability to pursue professional activity, economic and financial standing and technical and professional ability. Now, what is this and how is that related to these cases? Is that both of those cases that we want to touch upon today, they really go into nitty-gritty details of selection criteria. One of the cases looks at the differentiation again between what’s technical specification selection criteria and contract performance conditions. Can something be unanimously kind of applied as a criteria in all of those three or even award criteria, Or if you use it once, you only can use it once and you need to pick and choose. And the other case also looks really on. A sort of differentiation between those three categories that I just mentioned within the selection criteria. So when something is economic, financial standing, when something is a technical professional body, and when it is that ability to pursue professional activity and sort of detailing across those. So this is where we are really with within a broader perspective on this.

Willem Janssen [00:04:15] Alright. And then so we stay in Lithuania, I think for both cases. Yes, I know it’s very so it seems I always find it interesting also to see what discussions happen on the national level, what gets referred to the courts. And whereas, say, Dutch courts, we have I think about six or seven cases that were ever referred to the Court of Justice when it came to public procurement, most recently [00:04:39]the connection case, and of course a Kavala [2.5s] like you mentioned. But it seems that some member states refer more that more often than than others. And also I find that it seems that this Lithuanian context really is very focussed on some of these issues that we’re discussing today. So I find that it’s always a nice insight into, particularly if you don’t speak the language into what’s happening on the ground before the courts in other jurisdictions.

Marta Andhov [00:05:04] What is really interesting and what is important and I think that the broader context of course here is this also applicable. As you know, we have a majority of cases that are referred to Court of justice that are the Italian cases. But up there at least, what has been communicated to me is also somehow related to the responsibility and almost the liability of a judges that actually they  really have to kind of check those things. And I think also some of these new countries that I think by new I mean that really sort of invested in the development of their procurement legal systems, they may have more questions. It’s also interesting sectoral ones. I think a lot of cases, for example, from Poland and from Lithuania, touch upon things related to telecommunication or to waste collection. So also particular sectors are quite interesting. And we actually are looking here also at waste collection.

Willem Janssen [00:06:03] For like 95% of the cases that we look at in procurement. The waste collection.

Marta Andhov [00:06:07] Yes, it’s very, it’s very interesting, right. It’s always it asks for specific work. Just going to waste.

Willem Janssen [00:06:13] Exactly. At the time I always had this when I didn’t want to work on my PhD a lot of years back. I always imagine what the cover of my Ph.D. would be. And at a point when I was going through all these these in-house public public cooperation cases, I thought, I’m going to picture myself and then take a photo on top of these this heap of rubbish. And I’ll sit there and I’ve conquered the rubbish that was whatever. But anyways, that never happened. It became this like not a thing that you know, and it’s so.

Marta Andhov [00:06:40] She would give it a jump to the first of them.

Willem Janssen [00:06:43] Yes. Let’s go for that. So this is a Sanresa case probably incorrectly pronounced correct as if you think that was too bad too for actually recording it. But we’re doing our best. But because of that, I’ll also add the dates and just maybe the case numbers of people can look it up. It’s the 8th of July 2021. It was a case that was asked by the Lithuanian Supreme Court. It was case number 295/20 and it was a case that was between Sunday. So who who got excluded from from a tender versus and I’ll use the English translation just to make life a little bit easier for myself. The Environmental Protection Department under the Ministry of Environment. All right. And that was where this debate happened. And basically it started with an a call for tenders related to hazardous waste management services. And the way I picture this and and I’m summarising very quickly now is that there were a couple of containers that was there. So there was a concrete job at hand, containers that had hazardous substances in them. It wasn’t specified how much was actually in them, containers that were also likely to leak already, right? So there was an inherent risk, which meant that there was that the procedural time was also lessened. It was a somewhat of an emergency standard procedure, the dated procedure.

Marta Andhov [00:08:02] Yeah, exactly. Ultimately, the prevention of the environmental disaster that was on the way.

Willem Janssen [00:08:09] And then for tender a submitted including the appellant in this case who had 2 subcontractors and the the issue or at least what led to the proceedings was that some of these subcontractors didn’t have a specific authorisation to ship hazardous waste. And then there was a bit of a procedural kerfuffle. The tender got terminated, came back up again. I don’t think that’s relevant to discuss very broadly, but ultimately the the the tenderers were given 40 days to get the proof that they actually had this this certificate. Right. And then some days ago. Excluded because it didn’t have or the subcontractors didn’t have it and claimed that it still fulfilled the technical criteria so that it was an illegitimate exclusion. And then then the fun stuff starts is basically then the court starts discussing, okay, what does this mean? Was this illegitimate or not? All right.

Marta Andhov [00:09:11] Yeah. Yeah, very much. I think that if I can just add to what you pointed out, it’s a little bit on that specific requirement because this is really where or where the point of contention really arose. So in the tender notice, there was so called a capacity requirement in that capacity requirement pointed out that the tenders were to be required to meet the deadline of the submission, this capacity requirement, but only the first ranked tender. So ultimately the one that was to be the winner were to prove or to provide the evidence of that capacity. And that capacity was exactly this. There’s this requirement of authorisation here. And the question was really, you know, to what extent and what that requirement is, is that a selection criteria or is that a poor performance condition? And this really where the where the question arose, Because what happened here was that the classification of the case of the clause, excuse me, really came at the forefront, the clause that was requiring the consent to be issued to the economic operator, which was necessary to ship the waste from one member state to to another.

Willem Janssen [00:10:39] And that was a there was a European that’s a European regulation. Right. That regulates. So it’s regulation 113/2006.

Marta Andhov [00:10:48] Exactly. So this.

Willem Janssen [00:10:49] Certificate so.

Marta Andhov [00:10:50] The question really here was whether this is a condition relating to this supplier capacity that has been referred as a requirement of a capacity in the tender notice, or this is a condition relating to performance of the contract once the contract has been concluded. And what happened here was that the Court ultimately, and in its debriefing in his judgement, ultimately pointed out, was that Article 58 So the selection criteria relates to the suitability of an economic operator is that it does not relate to economic or financial standing. This, this clause where we where we are at now, but it does relate to this pursuit of professional activity relevant to the public contract. And here the question was whether this obligation was one of such a requirement, whether this was potentially a technical or professional ability, which here it was decided by the court that this does not relate to evaluation of the of the experience here and having this capacity. The court was here also doubtful whether this would be this requirement of suitability to pursue professional activity. And ultimately here the point is being giving that the consent is a contract performance condition, laying down the special conditions, addressing the environmental consideration which are to apply to operators, that will be fulfilling the contract. And yes, sorry, no….

Willem Janssen [00:12:34] So what I like to also to recap what I liked, what the court did in this case. Sometimes I mean people criticise the Court’s reasoning, but it’s quite clear in the sense that the court really peels down all the different options under 58, right when it comes to selection criteria and it basically looks at it and it goes: nah, no, no. And then it ends up with Article 70 where it concludes that it that it’s likely. I mean, there’s of course, a reference again to head should the National Court decide that under these conditions, etc.. But I thought that was quite useful. I mean, in a way as an academic you also look at cases is like it would be good if this if the reasoning is clear, not only because that helps us out in class or when we need to explain certain cases in a podcast. But I thought that was quite nice in this case.

Marta Andhov [00:13:21] Exactly. So so here ultimately the conclusion is, is being given to the fact that any conditions of performance here should be, of course, included in the call for tender or the procurement documents. And the failure of doing this stage of doing that is problematic. So the general reference, you know, to the principles here and ultimately courts is that the tenders bid may not be rejected. Solely on the ground that at the time of submitting the tender, they did not produce a proof of meeting those conditions of performing the contract performance conditions. And this is what we will come back after. We also look at the clay photos because both of those cases in their way really reconfirmed this notion. And just in one sense, a spoiler alert, what we’ll be talking about, but that you actually cannot verify proofs for contract and evaluate contract performance conditions in the process of awarding contract, which I think it’s in a way quite different to what we had in RegioPost or even Bentjees. Yes and no. This case is that somehow the window has been open stating that, well, you need to agree to certain things that are in the tender documentation. On that basis, the contracting authority can hold you responsible for that. So this sort of evaluation kind of was allowed to a certain extent when right now both of the cases quite, quite unanimously say, no, this is a certain level of risk that you need to take upon yourself as a contracting authority and you need to review it after the contract.

Willem Janssen [00:15:02] After the awarding of contract. Yeah. And also I think it’s I think probably something related to, you know, it’s at least you’re opening the scope for competition a bit more. Right. You are allowing perhaps lessening of administrative burdens by not asking everyone to comply prior to it. And also what I think is interesting is in a way and I don’t know if this is the catch in this case is that. In order to be able to get this certificate. There was this. So the economic operators, all of the tenderers that subscribe to the tender, they were allowed to inspect right. An on site visit which is very not uncommon. But still it was unclear what the amount or type of waste was.

Marta Andhov [00:15:42] Yeah that was the demotic. Right. That it was not specific enough.

Willem Janssen [00:15:46] Exactly. And but then you couldn’t even request if you don’t know what the hazardous waste is that you transporting, or at least this is what the judgement states is, then it would be impossible to get the certificate.

Marta Andhov [00:15:56] Yeah, I think that the court sort of, to paraphrase, said at some point something will this would be fiction on the basis of which or at least there will be a level of fiction on the basis of which you would obtain that certification because you would still need to. Then when you investigate and when you really know all the details, you would need to kind of almost resubmitted to not be to be really legally compliant, right, with that. Yeah. So I think that did. I hope that some of our listeners there work with all of this or have been listening to our previous episodes. This should as I mentioned few here at least sounds sorry at least a little bit connected to Dutch coffee. Right. Because why the substance quite different but it is really well in Dutch coffee. We had something that was described as a technical specification and the court ultimately said, Well, this is not technical specification is contract performance condition. And up here there was a similar element. What is quite nice with this case, that cord goes to each one of the selection criteria that we mentioned at the beginning of the episode and assess it and says, yeah, this one, not because of this and that, this one, not because this and that. And then it concludes really with this reference to contract performance condition, the argument also being used, how you to protect yourself a little bit of taking upon too large of a risk with this non assessment of the contract performance condition is that and I don’t remember right now from top of my head in the court said that in Sanrese or in the other one. But I think it’s applicable in both ways is that you can set the fairly, you know, high or as high as you think is relevant selection criteria and things like experience on previous project that hopefully should get you a type of economic operator that really knows what they doing. So this contract performance conditions really will be fulfilled.

Willem Janssen [00:17:43] Yeah, so that was [00:17:43]mostly clip. [0.3s] It was just also for reference when it came to the annual turnover, but we’ll get to it afterwards. Yeah, but it’s relevant in any of these cases. Yes, clearly. Yeah.

Marta Andhov [00:17:54] Should we go to the other one so our listeners know kind of where we are. So this is the first stake or sort of the first issue. And up here we can give a very short shout out to Ezgi Uysal, who wrote actually this the case sort of little commentary that is open access and we’re going to link it somewhere in the transcript and commercialisation ofthe on the podcast on our website. And she wrote a really interesting a short case commentary that we did. We would say just, you know, jump in and have a read if you’re interested or.

Willem Janssen [00:18:29] Someone once told me how to pronounce the acronym of this journal, the European Procurement and Public Private Partnership  Law Review. E Triple PLA. Then all of a sudden that made sense.

Marta Andhov [00:18:42] And sounds kind of cool – E triple P LA.

Willem Janssen [00:18:46] E triple P LA. So this is the Klaipėdos case.  We’re all still in 2021 September C- 927/19 again, waste like we already provided in the…. It’s a regional wage management centre of the region of Klaipeda versus Euro service,  and there was an award of contracts for waste collection and transport to a group of economic operators, which was referred to as the consortium, and it was in an open international procurement procedure as the the case record notes. And there were a couple of criteria that were added, which I thought was quite interesting, that there was there needed to be compliance with the Euro five standard when it came to to the vehicles, you needed to have continuous GPS running so that the municipality could track it. And basically the question that popped up is Euro five has said that the consortium, that one is that they didn’t meet the requirements this. So basically it was the competitor again complaining of course stating that they’re at. Well, I would say to say to a negatively the adversary who took the contract didn’t have the right goods to be able to fulfil the contract. And then a number of I think six was going to be wrong, but like quite a lot of preliminary questions were asked, not all related to the topic that we’re discussing today, also bits about confidentiality, etc..

Marta Andhov [00:20:22] Yes. So I think.

Willem Janssen [00:20:23] Let’s start with them.

Marta Andhov [00:20:24] I think that we can categorise this sort of three groups of question and we going within this episode addressed just two. So one is the differentiation between two different type of selection criteria. This is where we’ll jump in in a second. Yep. The second one was whether the Euro five standard relating to pollution emissions can be applied and technical specification selection criteria and contract performance conditions simultaneously. So what I mentioned early on, can we have one thing that sort of applied on a multiple stages and then this several of the question and this is just a point here that if you might have interest in this, it’s a good case to have a look. Various questions relating to things like access to information, protection of confidentiality information and some related to that exclusion grounds and those we won’t touch upon because that sort of would not really fit with the purpose.

Willem Janssen [00:21:20] Of interesting before another episode.

Marta Andhov [00:21:22] Exactly when we would dive into that. But if you might have interested in that. So now you know what is in the case in case that you didn’t have a chance to look at.

Willem Janssen [00:21:29] So also just on a sorry, it’s also on a side note, like it’s always I find that it’s so weird and also annoyingly frustrating how so many of the cases of the Court of Justice always have a lot of different things in them. Yeah. So you might label them as ones. This is a concessions case. This is about pecuniary interest. This has to make sense in your head. And then someone says, Yeah, but the court said, I think you like, No, no, no, that’s not in that case that’s I labelled that and it’s and then you realise yes it and you go back to it. Oh yeah. And of course also says something relevant about it that so.

Marta Andhov [00:22:00] It’s very.

Willem Janssen [00:22:00] Difficult. Does it. The court strikes again.

Marta Andhov [00:22:03] Yeah. It’s very difficult to kind of create for your own use. It’s like a catalogue of cases because they do go through so many different aspects. Yeah.

Willem Janssen [00:22:09] Yeah. All right. Okay, back to the case.

Marta Andhov [00:22:11] Let’s dive into it. And I’m going to and this is a sort of free a free field for Willem, right? Not to laugh at me because whenever he read some quotes from court, I’m sort of always laughing and I’m.

Willem Janssen [00:22:23] Actually accepting about.

Marta Andhov [00:22:24] Snoozing sound. But I think that.

Willem Janssen [00:22:26] This is I think I’m just the kind of person out of the.

Marta Andhov [00:22:31] Let’s go with that. But I think that I need to kind of support myself a little bit with Paris because this becomes a little bit like really detail and complicated. And this is where we are right now, this differentiation between two different types of selection criteria. So as I mentioned, the main case contribution really is in this area. And namely whether the tenders, economic and financial standing or the tender’s technical and professional ability sort of fulfils the particular particular requirement here, which one we really should apply. And what the court here says, and this is where I saw a little bit of, of the of the quoting is if contracting authority has imposed only only a requirement of a certain minimum annual turnover without requiring that that minimum turnover has been achieved in the area. So here important only without and in the area covered by the contract, nothing precludes the economic operator from relying on the income received by a temporary group of are the taking so pointing out toward Villar mentioned early on consortia as they were and were bidding as a consortia to which it belonged. Even if even if that specific economic operator did not actually contribute in the context of specific public contract to the performance of the activity that is, so to speak, at hand. So in other words, here the court said if it’s only requirement of minimum turnover without really specifying in which area you have a little bit more space of relying on your consortia and within consortia qualification, you have it. However, where in situation where contracting out three has required the same minimum turn over to but and this is where the change of circumstances apply, but to be achieved in specific area covered by the contract, that requirement ultimately has a twofold purpose in the court’s opinion. It is in this it is intended to establish the economic and financial standing of the economic operator and helps to demonstrate the technical and professional abilities. So in this situation, the operators, the operators financial standing is like its technical and professional abilities, specific and exclusive to the operator or the legal entity. So it’s sort of narrower. It’s focusing not on the consortia but specific member of the consortia.

Willem Janssen [00:25:13] Yeah. So it’s basically a call or a further emphasis on just be precise. When you post your criteria, it’s like a search, any fruit, that type of clear and precise, it needs to be beforehand. You need to notify everyone of how you’re going to judge it, how you’re going to look at it, how they can prove it. And if you leave discretion, that’s your problem, then they can use that.

Marta Andhov [00:25:35] And I think that it also reminds me a little bit of this partner apples case, [1.7s] you know, when there was like, well, you cannot create a sort of legal fiction. You actually need to do something specific. And again, this sort of precision really comes through. So court very clearly here in a quite detailed manner, sort of dissects one and another and says under which circumstances which is to be applied. So this differentiation between how you apply both of the selection criteria comes forward, and that’s the main contribution of the case. The second one, the aspect of this case that is a little bit kind of also close to those various sort of interests of ours and sustainable public procurement is relating to this aspect of simultaneous application of particular element at the various stages of the procurement. And the reason why it’s slightly delayed related is because we actually looking at this Euro five standards, are we looking at standardisation in the EU, but also the specific standard relates to emission of pollutions. Right. So the question here was whether this can be textbook selection criteria. And under selection criteria here, the consideration was of the technical and professional ability or contract performance condition. And the question may be was whether all of them can be applied simultaneously. And the court actually said, yes, they can. Yes, you can. And this specific context, this standardisation can be applied simultaneously across.

Willem Janssen [00:27:08] All of them. And I think interestingly, that also underlines, like I suppose maybe starting from a different angle, What we often get as as procurement lawyers is we’re not always a welcome guests at the party, right? We have to explain ourselves and obviously we try to think along, but sometimes something is just not possible. I think what’s interesting here is that it really underlines is that the choices you make as a contracting authority are vital to what you’re going to get. And from a legal perspective, in many ways you can press different buttons or switches in a procurement procedure to make sure that you get a certain outcome. And the court basically tells you here, look, this is the substance, but you can apply it in different. In spots with different results. Right. If you use it, if just irrespective of this example, if you use awards criteria, the advantage there is that you might get more out of the market. Right. There’s a competitive feature to it because they run next to each other. If you go for technical specifications, it’s really like a standard, right? That’s really what you want from all that that that bid in. Basically you’re setting you’re setting a certain minimum. And so in a way, I find it interesting and I’m happy with this because I use it a while back already just to say, look, it’s really the first step is really depicting how you’re going to set up and structure a proper procurement procedure to get out of the market. What you want and you need to make the call on where you want to apply them. And luckily the court is aiding you here in saying, look, this certificate or sorry, I’m going back to the B to the other case, this is not a certificate, this this standard, this Euro five standard. It’s useful in other spots as well. Right. You can apply it in different spots of.. And when I say spots of parts of a procedure.

Marta Andhov [00:28:51] Yeah. And I think that the court also obviously here clarifies that this is not. You still need to be quite careful how you read that case, because this works here for this specific standard. It touches upon, of course, admissions, Right? If we looking back on and against that, the reference to Dutch coffee, that was not a standard, but it was a label. So there was that that was the difference, but also the specificity, what the label was about, which in that was about fair trade, when up here we talking about emissions, there was a differentiation really, he said. I think the court makes the detail assessment what is certified or label at hand and whether that fulfils the requirements of what technical specification is as we know, whatever that would be, if that would be also standard or things like that. On fair trade, you couldn’t put it in technical specification because that’s not something that is, that is allowed. So, so.

Willem Janssen [00:29:47] Fully I fully agree. It’s of course it is a case by case assessment. But and you’re totally right and they always needs to fulfil the tests of the different provisions. Yes. But I do think it’s interesting that you can kind of, you know, you can implement one aspect in different areas for sure.

Marta Andhov [00:30:03] And there is a certain, I think, reassured level of discretion, which we don’t often see really in the court of justice. I guess the rulings that the court actually sort of says, well, you’re the buyer, you know, where it fits the best, right? So you have a choice to to pick and choose that. And I don’t remember that case. And I was trying to kind of refer to it on a couple of occasions. Willem, maybe you’ll remember this case that also was a big sort of issue years back on how you use experience, particularly in a service contracts, whether that’s if you applied it in the selection criteria that you cannot really apply it. And then what [00:30:43]I think the marquis [0.5s] would not be Yes, I think so. So there was also this sort of notion of can you simultaneously apply requirement. The court kind of in one of those cases there said no. And then there was a kind of clarification that you can, but you need to kind of again differentiate how it’s used and for which purpose and so, so forth. So we have a certain line of cases within similar consideration.

Willem Janssen [00:31:09] Yeah. So just going back to that, I think we can I feel dessert is also coming up.

Marta Andhov [00:31:15] Yes. So before we jump to dessert, just to wrap it up in context of this one more kind of relevant aspect that I think that really comes out of it. So if we want to tie it with the bow, what is also something that we get far thought of those both cases going forward is really in a way, as I mentioned early on, is something different communicator right now about those cases that in RegioPost because with RegioPost we have contract performance conditions and when that specific requirement that has been established in a tender was not comply to the court of justice in that case was of opinion that exclusion from participation in the contract cannot be regarded as a penalty of course here, but it is a mainly consequence of failure characterised by the failure to end to and close with a tender. A written requirement that that tender in a read post was asking for. So they were kind of wrapping it and saying, Well, you can ask about certain things connected with contract performance conditions and if that is failed to comply with, you can on that basis exclude the tender. When you both of those cases really clearly state that you cannot check before the contract is awarded the contract performance conditions. However, when I have a slight caveat here is also because they talking about waste collection and then Sunrese the 18.2 is being mentioned. So and there is a slide because you know, this is quite the language is used quite strongly. You cannot check that out. You only can do it afterwards. But I think that this needs to be consider also in the broader context of what are other provisions into directive. And more specifically here relevant is Article 56.2  that specifically reflects to define this. You can decide not to award a contract if the economic operator is in violation of 18.2. It’s your right. So, you know, if you want to apply that provision in context with what 18.2 covers, which talks about, you know, certain requirements of legal capacities or illegal compliance with the laws that apply to performance of the contract. I think the juxtaposition of all those three provisions, 18 to 56.2 and then this discussion of contract performance here, I feel like if it’s a mandatory thing that you need to comply with that is covered by 18.2, you can ask and check it before the contract is awarded. And I wonder, would you think, because at least that would be my reading.

Willem Janssen [00:34:01] Yeah, particularly because it seems that I got 18.2 because of its scope. And then the question is like, you know, would you only be able to do it probably for environmental or labour or an a missing one now.

Marta Andhov [00:34:16] Social.

Willem Janssen [00:34:18] Social? Yes. Thank you. Aspects that are mentioned so that there’s a reference in when it comes to national, European and international international conventions. But I think that would I think it would be a valid, valid line of thought to think that that might be the carve out when it comes to checking prior to what?

Marta Andhov [00:34:38] Yeah, Yeah, undoubtedly. So I think that that’s kind of interesting here because it seems that the court didn’t they didn’t reflected on that at all.

Willem Janssen [00:34:46] No. So maybe we can leave this leave this with our listeners. Do you agree?

Marta Andhov [00:34:50] Yes. I think you mean if you might have opinions on that, you may disagree with us or let us know what you think. Like. Okay.

Willem Janssen [00:34:57] Exactly. And that’s and that’s always a question, right? Sometimes we can be as annoying as we want, but please disagree. Right. All right. Let’s move to dessert. For Main, we looked at two cases from the Court of Justice, Klaipedos case and the Sanrese is a case from from 2021. And now we’re moving to dessert. And it’s a topic that I think is gaining far more attention than before or traction, I should say, perhaps also attention. And it’s privilege in academia, because you you noted, Marta, that you said, hey, let’s have a chat about that and perhaps you could, you know, guide the listeners along into your line of thought or why you think, let’s put it differently. Why do you think there should be at least a conversation topic at the coffee machine if people end up going to work and not work remotely? Yeah.

Marta Andhov [00:35:53] I think that this is something that I came across in some of the new it. I started to branch out a little bit out of researching really, you know, the procurement and the substance of the research that we do know.

Willem Janssen [00:36:07] You went beyond the wall.

Marta Andhov [00:36:08] I And behind the wall. Yeah.

Willem Janssen [00:36:10] Beyond. Beyond. Did you not watch the show?

Marta Andhov [00:36:12] I did. I did.

Willem Janssen [00:36:14] So you didn’t take it.

Marta Andhov [00:36:17] Yeah, but to the topic and reading a little bit, you know, like what is the role of academic in society. What like you know, a little bit like if you want to call it a midlife crisis, but in a very professional sense, like what I’m doing here, what I should be contributing to what’s sort of going on. Right? And one of the things that I also came across is there’s various points of access to to to academia and also how are we making sure that the conversations that we have when we’re giving advices, when we organising stuff, that is a really question. I think about mentoring, equality and equity also. And I came across this this circle that is called the academic will of privilege and how your privilege is being increased depending on various categories. So just to give you a context of this, categories there are things like childhood and development, living in culture, caregiving, education and career, gender and sexuality, race and health and well-being. So you see, they are very broad. But bottom line, what that will kind of creates for you and points out is that. Depending on those various categories you kind our predisposition to have quite well access to academia and that can be education primarily, but it also can be academic careers and access to the best education, the best peers, the best of the best versus you may not. And that impacts in the way your career trajectory. That means that, you know, for example, some people become assistant professors, associate professors, and then professors in a fairly, fairly quick amount of time. Some others, it takes them longer time. And of course, it’s all like we trade very lightly in the conversation that we having, because it’s not to say that there is always sort of like a reason of that type. Some people can have all the privilege and still not manage. Some others can be really, really phenomenally talented people and they trajectory also can be different. But there’s but the reason why I wanted us to kind of have a bit of conversation, but because I thought that some of those catheters were quite interesting and not this very obvious one. And a point of that is that if you young scholar, and sometimes you feel like, Oh, I’m not at the same level of development that others did, I think that may be reflecting of some of this can point out to you why your path might be more difficult and also for the people that are in a more senior position when you organise things or when you organise, if that’s PhD seminars, conferences, projects, stakeholders, groups, all the different things. We often talk of a solo aspect of, you know, quality, quote unquote, and that quality quote unquote, I think it’s times also is very. From a very privileged perspective applied. So it’s also point of access. How are we ensuring access for everyone as much as we also can as creators of different opportunities?

Willem Janssen [00:39:31] Yeah, I think you’re touching on something very important and I do hope that people have these conversations at the coffee machine. You can have them anywhere you want, really, but like I think it’s a very nice visual because you bump into random people, you have a small chat, or maybe that leads to more. But I think also into it, I think this discussion that we’re having, I think the purpose generally is, is what would be good is I think is to for people to gain an understanding of it. Right. All of that context matters. Yeah. And that I think it also means, like you rightly say, is how does that influence our life, Right. How does that go from how do we organise events like you say? So yeah, I think there’s a it’s a very clear also I think. In a sense, the purpose of this conversation is also very concrete. And it’s yeah, and I find that. So just to take out one of the discussions we’ve been having here at Utrecht University is also about first generation students.

Marta Andhov [00:40:31] Yeah. So that’s also one of these categories in that we’ll. Right.

Willem Janssen [00:40:34] Yeah. And it’s, I, I never really experienced it because my, my father went to tertiary education. So for me the world of academics wasn’t very far away. If I had questions, I could ask him. And I also see it in class when it’s also about vocab vocabulary and when you when you refer to. So I find that first generation students often refer to the university as school.

Marta Andhov [00:41:03] Yeah.

Willem Janssen [00:41:04] And in a way, you can dismiss that. Perhaps people laugh about it because like, Oh, that’s so silly. You’re not going to school, you’re not a kid anymore. You’re going to university. That’s something else. You’re here to debate and analyse and not learn in a very, very perhaps if I say it really in a nasty way, it’s you’re not in a childish invite environment anymore. And I think recognising that there’s no difference in intelligence, it’s just you haven’t been exposed to it. Right. You don’t know what it means to study at a university because your parents aren’t able to guide you or your context is just different.

Marta Andhov [00:41:41] But I think it’s also, you know, this notion of of where you started because the whole thing, it even goes back as far back, you know, to what are the conversations that are on the table when the kids are small and go to school and so on. Usually there are studies that point out, you know, the families that have university degrees, they would talk about and they have much more knowledge about helping out their children, how they are to study and why they study and kind of are able to take a lot of the unknown for the future because they kind of been through a similar path. So they can you know, there is more like a support system versus if you first generation university student or then academic, everything from very scratch is new. And unless you’re quite lucky to a, you know, established as mentorship with particular, let’s say, professors somewhere at the university or someone else who can kind of guide you through that process, it’s over a new process and everything is a bit extra hard in that regards. And, and you can also see that very often those are the most hard working also academics that you have because they sort of really scrapped everything from the very beginning on their own. But there are this sort of various categories. So one of them, as you mentioned, is this sort of what is your background and is the background coming from academia? So the privileges acknowledge here did at every university you for sure see that because this is quite common, right? There is some parent or uncle or grandparent that kind of is maybe professor and someone else that stance PhD. And I would want to very clearly point out that we not saying or we’re not trying suggesting that this is wrong or corruptive or any of that type, because each of each of those persons can be perfectly qualified and, you know, sort of skilled in their way. But this is a privilege. Did we the same way did you know, we talking the two of us as as white European academics, we already have a huge amount of privilege that we need to acknowledge. And the aspect of that is how you extend yourself to be empathic to kind of also do the service back. So why someone help us? How we helping the others? And sometimes that can mean, you know, someone wants to apply for a Ph.D. and I see that very clearly. I’m sure that you saw that Willem in your career to, People who never wrote an application for PhD and did not have anyone kind of helping them to figure out how you write something like that will submit something that is that is often quite poor, and the poor element is not necessarily of the substance, but in the form. But that’s because, you know, someone did not have any idea how to do that. So. Exactly. So your extension here can be okay. We before you know, we will be having the deadline, we will have some sort of zoom open zoom for everyone that we go through main points of how good application looks like. Right. So so this is sort of what I mean, that was a point of access and acknowledging the privilege.

Willem Janssen [00:44:47] You kind of so it’s it doesn’t explain everything and doesn’t justify everything, but it is a factor to take into account. And definitely and I think also concretely, you’re trying to level the playing field a little bit because otherwise and also talking about benefits, you might miss out on fantastic speech to these fantastic students for that could be future leaders of countries, etc., simply because they had a different start to others. And I think also to to make it even more concrete because some people are also like sceptical. Right. They this is, I accidentally said tension in the beginning, but there is also tension, right. Because what does it mean for us and I think on a very accessible level. So when we so we’re organising the interdisciplinary public became a forum again we end up with discussions about is it going to be hybrid or not. Mm hmm. And inevitably if you don’t do it, hybrid people from countries far away that don’t have the funds to travel and will never otherwise be able to give, be given the opportunity, won’t be able to join. Right. So we do it in a hybrid way. You already mentioned also the quality. Will we be strict on quality? And I think what I’m very happy about is that we’re not going to be strict on quality. If you’re doing a Ph.D. that’s related to procurement. Well, and beyond that, maybe it could be on Scott’s rates or whatever. But if it’s related to that and you submit something that you’ve worked hard on, we’ll try to help you.

Marta Andhov [00:46:16] Yeah.

Willem Janssen [00:46:17] And of course, that means that some is some are really, you know, are a very preliminary stage. Others are really advanced.

Marta Andhov [00:46:23] And I think that you also would you really acknowledging what I really would want to take a chance to commend you and the team at Utrecht is that you really take it as a you know it’s a paid any type of Ph.D. seminar. It’s training. It doesn’t really matter. No. Where are you right now? What will matter is when you finish and a whether you finished up Ph.D. and you submitted and then what the quality of that it will be, then it doesn’t matter whether someone is a superstar right now. Because they may not ever finish, for example. Right.

Willem Janssen [00:46:53] And also, the superstars might not need it as much.

Marta Andhov [00:46:56] Exactly.

Willem Janssen [00:46:57] And I find that so it’s not so much about getting everyone to a nine out of ten. It’s about giving everyone 5% of help or two. What, ten? Sometimes the advice is obviously more helpful than in other situations, but I think that’s also a clear example of like the discussions that we’re having about these differences that exist. The different categories that you mentioned lead to concrete choices about how we operate as academics in academia. And just looking at the at the time. I’ll give you the last shout out about this topic and then we’ll run off.

Marta Andhov [00:47:30] Yeah, I think that the way we hope that we communicated, the main point of this is that of course the feedback to this could be, you know, quite critical to what we discuss here also that, you know, then you can kind of expand that privilege on kind of everything and nothing. And you know, what about really quality? Like you can have a lot of different conversation. What we try to approach with this or at least, you know, my idea when I was trying to pitch it to to to film was really let’s talk about how we can create more access and how we can more build than divide and how we can be more empathic rather than, you know, critical over everyone else. So everyone, that’s not the best way. But, you know, sort of like how to try people, bring people together. And for that, we need to acknowledge also that each one of us has certain blind spots and we all learn all our life. And this is one of the conversation that I hope that in all your own reflections and conversations with colleagues, friends, that can just push that a little bit. Mm mm. Further for us to make a good global echo, you know, and sorry, because of our academic environment, a little bit nicer and a little bit more welcoming.

Willem Janssen [00:48:48] Fantastic. I have nothing more to add to that. This was Bestek, the public procurement podcast.

About Bestek [00:48:56] This was Bestek, the public procurement podcast. Do you want to contribute to today’s discussion? Then share your thoughts on LinkedIn or Twitter. Do you have an idea for a future episode? Write to us at www.bestekpodcast.com  

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