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The Public Procurement Rules in Action: An Empirical Exploration of Social Impact and Ideology

Published online by Cambridge University Press:  27 October 2017

Amy Ludlow
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Abstract

Governments are increasingly turning to the market to provide public goods, works and (perhaps most controversially) services. Markets, and market values, have come to govern our lives as never before and the financial crisis appears to have done little to dampen governments’ faiths in markets. The public procurement rules define some of the parameters within which governments must engage with the market but the ideology of these rules, particularly how much ‘space’ they afford Member States to pursue non-commercial policies in their procurement decision-making, is deeply contested. This chapter argues that there is a missing empirical dimension to these ideological discussions. It seeks to partially redress this by presenting findings from an ethnographic study of a competitive tendering exercise at a British prison, from which it is argued that a more complex ideological picture emerges than appears from doctrinal analyses of the rules.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 16 , 2014 , pp. 13 - 37
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2014

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References

2 Dekel, O, ‘The legal theory of competitive bidding for Government contracts’ (2008) 37 Public Contract Journal 237–67Google Scholar.

3 Trepte, P, Public Procurement in the EU: A Practitioner’s Guide, 2nd edn (Oxford, OUP, 2007) 5 Google Scholar.

4 General Programme for the abolition of restrictions on freedom to provide services (JO 2/32; English special edition, series II, vol IX, p 3) and General Programme for the abolition of restrictions on freedom of establishment (JO 2/36; English special edition, series II, vol IX, p 7).

5 For all three directives, see [2014] OJ L94/1–374.

6 HM Treasury, Public Expenditure Statistical Analyses 2009 (April 2009).

7 Audet, D, ‘Government procurement: a synthesis report’ (2002) 2 OECD Journal on Budgeting 149–94CrossRefGoogle Scholar.

8 See for example the privatisation of Thessaloniki Water and Sewage Company in Greece (www.popularresistance.org/troika-demands-privatization-of-greek-assets-workerspush-back/) and public utilities in Cyprus (www.euractiv.com/euro-finance/cyprus-parliamentrejects-troika-news-533830).

9 See for example Blyth, M, Austerity: The History of a Dangerous Idea (Oxford, OUP, 2013)Google Scholar, Deakin, S and Wilkinson, F, ‘Rights v. efficiency? The economic case for transnational labour standards’ (1994) 23 Industrial Law Journal 289–310 CrossRefGoogle Scholar and Busch, K et al, Austeritätspolitik und das Europäische Sozialmodell: Wie die Krisenpolitik in Südeuropa die soziale Dimension der EU bedroht (Berlin, Friedrich Ebert Stiftung, 2012)Google Scholar. See also the European Parliament’s recent criticism of the Troika: www.europarl.europa.eu/news/en/ news-room/content/20140307IPR38407/html/Troika-helped-to-avoid-the-worst-but-flawedstructure-harmed-recovery.

10 www.cabinetoffice.gov.uk/sites/default/files/resources/open-public-services-whitepaper.pdf.

11 See especially the British Coalition Government’s ‘Red Tape Challenge’: www.redtapechallenge.cabinetoffice.gov.uk/home/index/.

12 Sandel, M, What Money Can’t Buy: The Moral Limits of Markets (London, Allen Lane, 2012)Google Scholar.

13 For recent academic reflections see Giddens, A, Turbulent and Mighty Continent: What Future for Europe? (Cambridge, Polity Press, 2014)Google Scholar.

14 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OŰ Viking Line Eesti [2007] ECR I-10779; Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others [2007] ECR I-11767; Case C-346/06 Rüffert v Land Niedersachsen [2008] ECR I-1989; and C-319/06 Commission v Luxembourg [2009] ECR I-4323. See related debates about the meaning of Services of General Interest. On their relationship with the public procurement rules see Fiedziuk, N, ‘Putting services of general economic interest up for tender: reflections on applicable EU rules’ (2013) 50 Common Market Law Review 87–114 Google Scholar. On their relationship with internal market law more broadly see Cremona, M (ed), Market Integration and Public Services in the European Union (Oxford, OUP, 2011)CrossRefGoogle Scholar.

15 Kunzlik, P, ‘Neo-liberalism and the European public procurement regime’ in Barnard, C et al (eds), Cambridge Yearbook of European Legal Studies 2012–2013 (Oxford, Hart Publishing, 2013) 283–356 Google Scholar.

16 Arrowsmith, S, ‘The purpose of the EU procurement directives: ends, means and the implications for national regulatory space for commercial and horizontal procurement policies’ in Barnard, C and Gehring, M (eds), Cambridge Yearbook of European Legal Studies 2011–2012 (Oxford, Hart Publishing, 2012) 1–47 Google Scholar. See generally on horizontal procurement policies Arrowsmith, S and Kunzlik, P (eds), Social and Environmental Policies in EC Procurement Law: New Directives and New Directions (Cambridge, CUP, 2009)CrossRefGoogle Scholar and McCrudden, C, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford, OUP, 2007)CrossRefGoogle Scholar.

17 Graells, A Sánchez, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011)Google Scholar.

18 See n 16, above.

19 See n 15, above.

20 See particularly Hervey, T, Cryer, R, Sokhi-Bulley, B and Bohm, A, Research Methodologies in EU and International Law (Oxford, Hart Publishing, 2011)Google Scholar.

21 Though notable exceptions include Bekker, S, Flexicurity: The Emergence of a European Concept (Cambridge, Intersentia, 2012)Google Scholar, scholarship in the social cohesion field such as Bachtler, J, Mendez, C and Wishlade, F, EU Cohesion Policy and European Integration (Farnham, Ashgate, 2013)Google Scholar, and Daintith, T, Implementing EC Law in the United Kingdom (Chichester, John Wiley & Sons, 1995)Google Scholar.

22 For discussion, see for example McCrudden, C, Buying Social Justice: Equality, Government Procurement and Legal Change (Oxford, OUP, 2007)CrossRefGoogle Scholar.

23 Views reflected in, for example, the Commission’s Green Paper on the Modernisation of EU Public Procurement Policy: Towards a More Efficient European Procurement Market COM(2011) 15/47.

24 Catherine Barnard has recently coined ‘glocalisation’ as a term to describe this tension between globalisation and localism: www.youtube.com/watch?v=wMN6N8yWfbU.

25 I acknowledge though that the procurement rules have an internal market legal basis and the Court has used this before as a means of prioritising internal market objectives over competing social objectives. See for example interpretation of the Posted Workers’ Directive (96/71/EC), which is based upon free movement of services. See further Blanpain, R, Freedom of Services in the European Union: Labour and Social Security Law (The Hague, Kluwer Law International, 2006) 184–85Google Scholar and Novitz, T, ‘UK Implementation of the Posting of Workers Directive 96/71/EC’ in Evju, S (ed), Cross-Border Services, Posting of Workers, and Multilevel Governance (Oslo, University of Oslo, 2013) 329–57Google Scholar.

26 C-513/99 Concordia Bus Finland [2002] ECR I-7251.

27 C-448/01 EVN AG & Wienstrom GmbH v Austria [2003] ECR I-14527.

28 C-368/10 Commission v Netherlands [2012] ECR I-284.

29 C-31/87 Gebroeders Beentjes BV v Netherlands [1988] ECR 4635.

30 C-225/98 Commission v France (Nord-Pas-de-Calais) [2000] ECR I-7445.

31 See, for example, C-76/90 Säger v Dennemeyer & Co Ltd [1991] ECR I-4221 and C-110/05 Commission v Italy (trailers) [2009] ECR I-519. For general analysis of this case law see Barnard, C, The Substantive Law of the EU: The Four Freedoms (Oxford, OUP, 2013)CrossRefGoogle Scholar.

32 Snell, J, ‘The notion of market access: a concept or slogan?’ (2010) 47 Common Market Law Review 437–72Google Scholar.

33 See n 13, above.

34 Barnard, C, ‘Procurement law to enforce labour standards’ in Davidov, G and Langille, B (eds), The Idea of Labour Law (Oxford, OUP, 2011) 256–72CrossRefGoogle Scholar.

35 www.scotland.gov.uk/Topics/Government/Procurement/policy/procurecombenefits.

36 www.scotland.gov.uk/Topics/Government/Procurement/policy/corporate-responsibility.

37 www.scotland.gov.uk/Topics/Government/Procurement/policy/procurecombenefits.

38 Arrowsmith, see n 16, above at 26.

39 Ludlow, A, Privatising Public Prisons: Theory, Law and Practice (Oxford, Hart Publishing, 2015, forthcoming)Google Scholar.

40 See for example the divergence between the CJEU and ECtHR’s approaches to Art 11 ECHR described in Ludlow, A, ‘The right to strike: a jurisprudential gulf between the CJEU and ECtHR’ in Dzehtsiarou, K et al (eds), Human Rights Law in Europe (Abingdon, Routledge, 2014) 121–36Google Scholar.

41 See further on methods Ludlow, n 39, above.

42 For a somewhat different view see Damjanovic, D, ‘The EU market rules as social market rules: why the EU can be a social market economy’ (2013) 50 Common Market Law Review 1685–718Google Scholar.

43 L Back, ‘Take your reader there: some notes on writing qualitative research’, Durham University Department of Anthropology, ‘writing on writing’ series ((last accessed 26 September 2014).

44 T Brown, M Potoski and D van Slyke, ‘Managing public service contracts: aligning values, institutions and markets’ (2006) Public Administration Review 323–31.

45 L Maer, ‘Public Procurement’ (2012) Economic Policy and Statistics Section, House of Commons Library Note SN/EP/6029, p 6.

46 See www.tendersdirect.co.uk/Search/TenderSearch.aspx. Tenders Direct is licensed by the European Commission.

47 The Government refers to this as ‘lean sourcing’: Government Procurement, ‘Government Sourcing: A New Approach Using LEAN’ (2012).

48 Prison Reform Trust, ‘Bromley Briefings Prison Factfile’ (December 2011) 72.

49 For some similar reflections see Cox, H, ‘Questions about the initiative of the European Commission concerning the awarding and compulsory competitive tendering of public service concessions’ (2003) 74 Annals of Public and Cooperative Economics 7–31 CrossRefGoogle Scholar and Bajari, P, McMillan, R and Tadelis, S, ‘Auctions versus negotiations in procurement: an empirical analysis’ (2009) 25 Journal of Law, Economics & Organization 372–99CrossRefGoogle Scholar.

50 Bottoms, A and Tankebe, J, ‘Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminology’ (2012) 102 Journal of Criminal Law & Criminology 119–70Google Scholar.

51 The team was disbanded because it was thought to be no longer necessary in light of NOMS’ decision to run the competition using the competitive dialogue process. The local bid development team had expected the restricted procedure to be used as had been the case in previous competitions in the prison sector. Competitive dialogue was seen as a more complex process requiring high levels of ongoing national coordination, which displaced local participation.

52 There were six self-inflicted deaths in Birmingham in 2010, compared to none in 2009, two in 2008 and 2007 and one in 2005 and 2006: www.gov.uk/government/publications/safety-in-custody.

53 Patterson, A and Pinch, P, ‘Hollowing out the local state: compulsory competitive tendering and the restructuring of British public sector services’ (1995) 27 Environment and Planning 1437–61CrossRefGoogle Scholar.

54 Giddens, A, The Consequences of Modernity (Stanford CA, Stanford University Press, 1990)Google Scholar and Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge and Oxford, Polity Press, 1991).

55 A Liebling and N Lacey, Submission to the British Academy project on Crime, Punishment and the Prison (2014).

56 Sennett, R, The Corrosion of Character (New York, WM Norton & Co Ltd, 1998)Google Scholar, The Culture of the New Capitalism (New Haven CT/London, Yale University Press, 2006) and Together: The Rituals, Pleasures and Politics of Cooperation (London, Penguin, 2012).

57 Sennett, R, The Culture of the New Capitalism (New Haven CT/London, Yale University Press, 2006) 82 Google Scholar.