The European Fee has printed a Factual Abstract report on the general public session on Analysis of the Public Procurement Directives (the Abstract). Whereas we await for the Fee’s fuller evaluation of the responses to the session (which officers have publicly acknowledged to be processing with AI instruments, not less than partly) after the summer season, it’s price having a look on the numbers on their face worth.
And even earlier than that, it’s price reflecting on the worth of a session that largely seeks enter on the ‘lived expertise’ of procurement however sidesteps the vital challenge that respondents will present views based mostly on the particular implementation of the EU guidelines of their jurisdiction. Barring ‘pure copy-paste’ approaches (resembling the great previous UK strategy), this already creates a big methodological and analytical hurdle as a result of the underlying causes for any views expressed can not with out extra be attributed to the EU directives—however are relatively by necessity mediated by home implementation choices, in addition to by home procurement tradition, authorized context and technical infrastructure. The latter is maybe the better to understand. Questions round e-procurement will elicit very totally different responses relying on the extent of performance, reliability, and class (prices, and many others) of e-procurement techniques put in place in every of the Member States. Given the broad variation in that regard, it’s laborious to meaningfully extrapolate the suggestions and attribute it to the minimalistic guidelines on e-procurement within the directives. The identical applies throughout the piece.
Furthermore, even setting that apart and taking the statistical abstract as offered by the Fee, it’s laborious to know what to make of it. Briefly, for my part, the image that emerges may be very a lot a combined bag. This additional helps the rising (?) view that the precedence ought to not be the reform of the authorized framework, however relatively the far more sophisticated (and costly) however probably extra impactful work on making certain procurement apply maximizes use of the flexibleness throughout the current framework (as mentioned within the latest convention held on the College of Copenhagen by Professor Carina Risvig Hamer — see the important thing conclusions right here). Right here is why.
(small) majority and (giant) minority views
Let’s take a couple of headline figures and statements:
49% of respondents imagine that the Directives didn’t make the general public procurement system versatile sufficient and 54% suppose that they didn’t set up less complicated guidelines for the general public procurement system.
most of respondents (48%) suppose that the foundations aiming at growing procedural flexibility (e. g. the selection of obtainable procedures, closing dates for submitting presents, contract modifications) are now not related and sufficient.
the identical proportion of respondents (48%) take into account the Directives’ guidelines on transparency (e.g. EU-wide publication through Tenders Digital Every day ‘TED’) to be nonetheless related and sufficient.
most respondents (53%) imagine that the Directives make sure the equal remedy of bidders from different EU nations in all phases of the method and the target analysis of tenders.
nearly half of respondents (49%) take into account that the foundations on eProcurement are nonetheless related and sufficient to facilitate market entry.
there’s some settlement that the Directives’ guidelines that intention for environmentally pleasant procurement (e.g. high quality assurance requirements and environmental administration requirements) and for socially accountable procurement (e.g. reserved contracts, necessities on accessibility for folks with disabilities and design for all customers) are nonetheless related and sufficient. 39% and 43% of respondents say so, respectively.
Most respondents (39%) imagine that the goals of the three Public Procurement Directives are coherent with one another. Nonetheless, EU laws referring to public procurement (e.g. sectoral guidelines such because the Internet Zero Business Act or Clear Automobiles Directive) should not considered coherent with the Directives by the biggest a part of respondents (37% vs 11% who suppose that sectoral information are coherent).
Most respondents (49%) disagree that the Directives are match for goal to contribute to the EU’s strategic autonomy (together with the safety of EU provide chains). 42% suppose that the Directives should not match for goal in pressing conditions. 44% take into account that they don’t seem to be match for goal in case of main provide shortages (e.g. supply-chain disruptions throughout a well being, power or safety disaster). 38% suppose that the Directives don’t make sure that safety issues are correctly addressed by the contracting authorities.
The figures above, even when phrased by way of majority of respondents, hardly present a transparent majority view on any of these points. At greatest, the majoritarian view reaches a determine simply above the 50% threshold and, in most situations, the majoritarian view is in actuality a big minority view (and typically not even that enormous in any respect). Developing the figures to mirror ‘actually’ majority views to probably affect the path of reform proposals would require ‘appropriating’ the impartial house (which hovers between 15-28%, relying on the difficulty within the record above). This raises some questions on methodology itself (ought to impartial solutions be allowed in any respect?), in addition to on methods of treating information that stems from a non-representative and tiny pattern (given the figures round variety of public consumers, firms tendering for public contracts, and different stakeholders throughout the EU).
‘Session evaluation by numbers’ is clearly not going to work. This could push our hopes to the qualitative evaluation of the responses, which nonetheless raises no smaller questions on the relevance and reliability of the insights offered by this strategy to public session. Furthermore, it may be regarding that the qualitative evaluation is being supported by AI instruments, as this creates all form of dangers — from technical points (resembling confabulation and the straightforward making up of ‘insights’) to methodological points (particularly, if the AI is searching for to extract traits, which then largely replicates the issue of ‘evaluation by numbers’). It could be essential for the Fee to publish a methodological annex sooner or later report explaining how AI was used, in order that we will have an excellent sense of whether or not the qualitative evaluation is powerful or (use)much less.
knowledgeable (?) views
To place it mildly, some traits within the Abstract run straight in opposition to knowledgeable insights on the operation (and shortcomings) of the Directives.
That is maybe most starkly proven within the responses round transparency. There may be to my thoughts no query in anyway that the knowledgeable group considers that there’s inadequate procurement transparency and that the TED system is unfit to allow for the gathering, publication and facilitation of re-use of procurement information in ways in which result in useful information insights and, probably, AI deployment. Nonetheless, 48% of respondents have mentioned in any other case. What to make of this? What’s the level of asking this form of query in an open session? Will this be used as a justification (aham, excuse) to not decidedly revisit the difficulty of procurement information in a means that promotes the event of an sufficient information infrastructure match for present coverage challenges, because the knowledgeable group retains advocating for?
Equally, although 53% of respondents take into account there is no such thing as a challenge of equal remedy of non-domestic bidders, what’s the proof for that? Given how comparatively little cross-border tendering there’s, on what grounds is that this view shaped? If the solutions are based mostly on some extent of precept, what weight (if any) must be given to this set of solutions? How does this sq. up with knowledgeable insights (and the Courtroom of Justice’s occasional reminder) that fragmentation of necessities can create de facto unequal remedy (eg the place home tenderers are extra accustomed to necessities arising from a broad array of administrative regulation provisions)?
Jarringly, the end result of the session on the traits in competitors for public contracts mirror that: ‘No vital conclusion might be drawn on whether or not competitors had elevated, remained the identical or decreased during the last 8 years: 25% of respondents suppose that it decreased, 21% that it remained the identical, and 25% that it elevated’. Nonetheless, from the European Courtroom of Auditors’ report, we know that (by out there metrics) competitors has been on a continuing discount during the last decade. What was the purpose of asking this query and what to make of this end result?
sectoral bias
Furthermore, the qualitative evaluation would require bearing in mind the particular place (and agenda) of respondents. Clearly, for instance, the (declared) notion of features of the procurement system might be massively totally different relying on which aspect of the coverage desk respondents sit at.
That is most starkly proven round strategic procurement, the place the general public/non-public sector cut up is evident: ‘Public authorities agree that the Directives have inspired contracting authorities to purchase works, items and companies that are environmentally pleasant (56%), socially accountable (55%), and revolutionary (45%). Nonetheless, all different respondent teams are much less constructive. As an example, firms/companies disagree that the Directives have inspired contracting authorities to purchase works, items and companies that are environmentally pleasant (46%), socially accountable (50%), and revolutionary (54%).’ Nonetheless, extra importantly, and even with issues within the information, we know that uptake of inexperienced, social and innovation procurement is woefully low. Once more, the European Courtroom of Auditors has clearly documented this. What was the purpose of asking this query and, extra importantly, how will this form of end result assist inform coverage going ahead?
What subsequent?
It will likely be fascinating to see what comes out of the fuller evaluation of the responses to the general public session. Nonetheless, it appears to me that this piece of data gathering will end in a comparatively huge number of views and thus possible have little or no significant worth in informing the path of journey for the formulation of a proposal for revised guidelines. Extra importantly, I feel this train exhibits the restricted worth in making an attempt to acquire this form of normal views on excessive degree questions round points which can be by definition advanced, multi-layered, and in some circumstances politically contested.
Because the conclusions to the Copenhagen convention present, there was broad normal settlement (in that context) that three parts have to be on the core of the method of overview of the EU guidelines: digitalisation, a clarification of the aim/s of EU procurement guidelines, and sensible simplification of authorized necessities. Given the push to reform, we will hope that the Fee will take a path alongside these strains going ahead. Nonetheless, the Fee’s personal assertion of priorities included digitalisation, simplification and EU desire/strategic procurement. That’s in itself exhibiting a probably large conflict in approaches and the possible impossibility of reaching a set of objectives that minimize throughout one another.
Furthermore, I feel it’s not too late to cease and rethink whether or not we’re falling in a legocentric lure. Through the convention, ‘a component raised a number of instances … was whether or not it was the procurement guidelines or the procurement practices that wanted to vary?’. I feel there’s a lot worth in contemplating this intimately. We must always not delude ourselves pondering that simply because one thing is written within the procurement Directive, actuality follows… It could even be useful to think about whether or not it’s attainable to take a staged strategy and actually prioritise efforts, in order that we will transfer ahead in relation to a single precedence (which for my part must be digitalisation) earlier than making an attempt the extra advanced and contested features of a reform.
