New paper available

This article analyses the conceptual link between law and compliance, exploring the different theories and types of compliance (corporate, state and regulatory) and how they can be found today within the EU legal public procurement framework.

The analytical focus is on Directive 2014/24/EU and within it how sustainable requirements have increased the level of compliance required, particularly regulatory compliance. Compliance was already present in previous EU public procurement frameworks, but its extent on Directive 2014/24/EU leads the authors to consider the current legal framework as subject to substantial regulatory compliance obligations external to the process of procurement. In short, procurement has been transformed in a way to enforce regulatory obligations that are not intrinsic to the process of buying.

This leads to the conclusion that questions such as the cost and trade offs from imposing compliance obligations to public and private bodies warrant further research, particularly at the legal, economic and political science intersection.

The paper was published on a special edition of the EPPPL co-edited by Marta Andrecka from the University of Copenhagen.

Links I Liked [Public Procurement]

1. Big tech's grip loosens on IT spend.

2. World Bank puts out it "Benchmarking Public Procurement 2017" report. Albert has the lowdown of it.

3. The best way to build big is to start small. Agreed, way too many initiatives in public sector are based in delusions of grandeur when there is plenty of low hanging fruit yet to be picked.

4. A more transparent public procurement (Catalan only). Mostly about how perspectives on public procurement have changed in Catalonia, albeit those reductions are fairly minor. 

5. Compliance and public procurement (Spanish only). I suspect this will be a bigger topic in the years to come as procurement gets dragged more and more into a compliance frameset.

Thoughts on the European Commission's Strategy to deepen the internal market

The Commission put out last week its strategy for a Deeper and Fairer Internal Market. Part of it is dedicated to public procurement and Albert commented on it here, pointing out the collusion risks of contract registers (which I do not subscribe entirely) and the perennial language problems in cross-border procurement (which I do agree with).

But there is more to drill out of the Commission's strategy. In my view, the focus on compliance is overstated. Most countries transpose the Directives on time and by and large compliance with EU requirements is ok, so that is not really the problem. The focus should have been instead on literally deepening the internal market for public procurement. It is time for the Commission to show some initiative in this area and solve the problem posed by the thresholds. I have a paper precisely about this coming out in the near future, explaining how they came about 40 years ago and how they are now effectively defined by the EU's external commitments with the GPA.

Today, due to the thresholds, only around 18% of public procurement spend is covered by the EU Directives, with the rest subject only to national rules. Well, not "only" national rules as if the contract has cross-border interest, then the Treaty principles of non-discrimination and transparency should be respected. As I wrote back in 2013, that is pretty much impossible to establish in advance and the Court has spent 15 years trying to solve the problem on a case-by-case approach.

There is another reason to deepen the internal market: digital services. By definition, digital services are cross-border (or at least they are not pry to the same transaction costs as other services) and tend to be cheaper than normal services. The vast, vast majority of digital services will come well below the current thresholds. This is for me a critical reason to review them in the near future, as if we do not do so, the digital services internal market will be as "complete" as the regular one.

As for the language issues, well Google translate is getting better and maybe Skype Translator will be the real deal.