Fortunate dip from a blended bag? Abstract outcomes of the session on the analysis of EU Procurement guidelines — Methods to Crack a Nut – Cyber Tech

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 partially) after the summer time, it’s value looking on the numbers on their face worth.

And even earlier than that, it’s value reflecting on the worth of a session that largely seeks enter on the ‘lived expertise’ of procurement however sidesteps the vital problem that respondents will present views based mostly on the precise implementation of the EU guidelines of their jurisdiction. Barring ‘pure copy-paste’ approaches (resembling the nice outdated UK method), this already creates a big methodological and analytical hurdle as a result of the underlying causes for any views expressed can’t with out extra be attributed to the EU directives—however are fairly by necessity mediated by home implementation choices, in addition to by home procurement tradition, authorized context and technical infrastructure. The latter is maybe the simpler to understand. Questions round e-procurement will elicit very completely different responses relying on the extent of performance, reliability, and class (prices, and so forth) of e-procurement techniques put in place in every of the Member States. Given the broad variation in that regard, it’s onerous 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 supplied by the Fee, it’s onerous to know what to make of it. In brief, in my opinion, the image that emerges may be very a lot a blended bag. This additional helps the rising (?) view that the precedence ought to not be the reform of the authorized framework, however fairly the rather more sophisticated (and costly) however probably extra impactful work on making certain procurement observe maximizes use of the pliability throughout the present framework (as mentioned within the current 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 just a few 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 easier guidelines for the general public procurement system.

• most of respondents (48%) suppose that the principles aiming at rising procedural flexibility (e. g. the selection of obtainable procedures, deadlines for submitting provides, contract modifications) are now not related and enough.

• the identical share of respondents (48%) take into account the Directives’ guidelines on transparency (e.g. EU-wide publication by way of Tenders Digital Each day ‘TED’) to be nonetheless related and enough.

• most respondents (53%) imagine that the Directives make sure the equal therapy of bidders from different EU nations in all phases of the method and the target analysis of tenders.

• virtually half of respondents (49%) take into account that the principles on eProcurement are nonetheless related and enough to facilitate market entry.

• there may be some settlement that the Directives’ guidelines that goal 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 individuals with disabilities and design for all customers) are nonetheless related and enough. 39% and 43% of respondents say so, respectively.

• Most respondents (39%) imagine that the targets of the three Public Procurement Directives are coherent with one another. Nevertheless, EU laws regarding public procurement (e.g. sectoral guidelines such because the Internet Zero Trade Act or Clear Automobiles Directive) are usually not regarded as 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 are usually not match for goal in pressing conditions. 44% take into account that they aren’t match for goal in case of main provide shortages (e.g. supply-chain disruptions throughout a well being, vitality 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 when it comes to 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 generally not even that enormous in any respect). Developing the figures to replicate ‘actually’ majority views to probably affect the path of reform proposals would require ‘appropriating’ the impartial area (which hovers between 15-28%, relying on the difficulty within the checklist 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 patrons, corporations 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 supplied by this method to public session. Furthermore, it may be regarding that the qualitative evaluation is being supported by AI instruments, as this creates all kind of dangers — from technical points (resembling confabulation and the straightforward making up of ‘insights’) to methodological points (particularly, if the AI is in search of to extract developments, which then largely replicates the issue of ‘evaluation by numbers’). It might 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 a very good sense of whether or not the qualitative evaluation is powerful or (use)much less.

professional (?) views

To place it mildly, some developments within the Abstract run instantly in opposition to professional insights on the operation (and shortcomings) of the Directives.

That is maybe most starkly proven within the responses round transparency. There’s to my thoughts no query by any means that the professional neighborhood 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. Nevertheless, 48% of respondents have stated in any other case. What to make of this? What’s the level of asking this kind 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 enough information infrastructure match for present coverage challenges, because the professional neighborhood retains advocating for?

Equally, although 53% of respondents take into account there is no such thing as a problem of equal therapy of non-domestic bidders, what’s the proof for that? Given how comparatively little cross-border tendering there may be, on what grounds is that this view fashioned? If the solutions are based mostly on some extent of precept, what weight (if any) needs to be given to this set of solutions? How does this sq. up with professional insights (and the Court docket of Justice’s occasional reminder) that fragmentation of necessities can create de facto unequal therapy (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 developments in competitors for public contracts replicate that: ‘No important conclusion could possibly be drawn on whether or not competitors had elevated, remained the identical or decreased over the past 8 years: 25% of respondents suppose that it decreased, 21% that it remained the identical, and 25% that it elevated’. Nevertheless, from the European Court docket of Auditors’ report, we know that (by obtainable metrics) competitors has been on a continuing discount over the past decade. What was the purpose of asking this query and what to make of this consequence?

sectoral bias

Furthermore, the qualitative evaluation would require considering the precise place (and agenda) of respondents. Clearly, for instance, the (declared) notion of features of the procurement system might be massively completely different relying on which facet 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 obvious: ‘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 modern (45%). Nevertheless, all different respondent teams are much less constructive. For example, corporations/companies disagree that the Directives have inspired contracting authorities to purchase works, items and companies that are environmentally pleasant (46%), socially accountable (50%), and modern (54%).’ Nevertheless, 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 Court docket of Auditors has clearly documented this. What was the purpose of asking this query and, extra importantly, how will this kind of consequence assist inform coverage going ahead?

What subsequent?

It is going to be fascinating to see what comes out of the fuller evaluation of the responses to the general public session. Nevertheless, it appears to me that this piece of knowledge gathering will end in a comparatively vast number of views and thus probably have little or no significant worth in informing the path of journey for the formulation of a proposal for revised guidelines. Extra importantly, I believe this train exhibits the restricted worth in making an attempt to acquire this kind of basic views on excessive degree questions round points which might be by definition advanced, multi-layered, and in some circumstances politically contested.

Because the conclusions to the Copenhagen convention present, there was broad basic settlement (in that context) that three parts must be on the core of the method of evaluate 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. Nevertheless, the Fee’s personal assertion of priorities included digitalisation, simplification and EU desire/strategic procurement. That’s in itself exhibiting a probably massive conflict in approaches and the probably impossibility of attaining a set of objectives that lower throughout one another.

Furthermore, I believe it isn’t too late to cease and rethink whether or not we’re falling in a legocentric entice. 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 believe 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 might even be useful to think about whether or not it’s doable to take a staged method and actually prioritise efforts, in order that we will transfer ahead in relation to a single precedence (which in my opinion needs to be digitalisation) earlier than trying the extra advanced and contested features of a reform.