Tag: public procurement

The Procurement Act 2023’s Kaleidoscopic View of the Public Interest

Posted on by foluke.adebisi

Albert Sanchez-Graells, Professor of Economic Law, University of Bristol Law School

This blog post is based on the paper that was jointly awarded the Best Paper Prize Award 2024 by the Society of Legal Scholars. The paper will be published in Legal Studies in due course.(*)

Public procurement is concerned with the award of contracts for the supply, for pecuniary interest, of goods, services or works to the public sector. At its heart, public procurement governs the expenditure of public funds and, ultimately, should ensure that such expenditure is in the public interest. One could be forgiven for simplifying the goal of procurement to ensuring that public money is well spent, which could be further elaborated (following Schooner 2002) to encompass promoting integrity and value for money in the award of public contracts, and acting transparently to facilitate accountability. Even at this level of simplification, however, there is scope for contestation of e.g. what value for money entails (with a long-running debate on price/quality trade-offs), or whether it can or must (solely) be promoted through market-based competition (see e.g. Sanchez-Graells 2015, addressing the objections raised by Arrowsmith 2012 and Kunzlik 2013). (more…)

Can the government just go and ‘confidently and responsibly’ buy artificial intelligence?

Posted on by foluke.adebisi

by Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).

On 29 March 2023, the UK Government published its much awaited policy paper ‘AI regulation: a pro-innovation approach’ (the ‘AI White Paper’). The AI White Paper made it clear that Government does not intend to create new legislation to regulate artificial intelligence (‘AI’), or a new AI regulator. AI regulation is to be left to existing regulators based on ‘five general principles to guide and inform the responsible development and use of AI in all sectors of the economy’, including accountability, transparency, fairness, safety, and contestability. (more…)

What are the main governance opportunities and challenges for procurement digitalisation?

Posted on by foluke.adebisi

by Professor Albert Sanchez-Graells, University of Bristol Law School.

Approximately a third of public sector spending goes to procure third-party goods, services, and works. Procurement rules and policies seek to ensure that contract awards are free from corruption, conflicts of interest or anticompetitive practices, and that these vast sums of public funds generate value for money and support social, environmental, and innovative practices. There is always room for improvement, though. The adoption of digital technologies is seen as a strategic catalyst for procurement reform, to increase the effectiveness of procurement regulation. Digitalisation could reduce the administrative burden through automation, generate data insights to inform policies and boost efficiency in public spending, and serve as a living lab for GovTech experimentation.

However, the transformative potential presumed in digital technologies generates hype and excessive expectations on the true size and nature of the achievable improvements. It also tends to overshadow the required groundwork and preparatory investment. New digital governance risks and requirements are not always recognised or understood. The growing public sector digital capability gap raises further obstacles. Heightened expectations and a minimisation of the challenges can get on the way of successful reform. In ongoing research funded by the British Academy, I apply an innovative technology-centred methodology to assess the governance opportunities and challenges for procurement digitalisation. This blog post provides a summary of the main findings so far. I will also be discussing them with a stellar panel on 15 December 2022 (details and registration). (more…)

Why is entering into multiple procurement-related free trade agreements problematic?

Posted on by foluke.adebisi

by Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation

Banana stem cross section. Photo Credit: Ian Jacobs

Post-Brexit, the UK has been repositioning itself in the global trade scene. Focusing on trade-related public procurement liberalisation, the first two moves for the UK were: one, to join the World Trade Agreement Government Procurement Agreement (GPA), of which it had been a member via the EU, and two, to enter into a comprehensive procurement chapter with the EU in the EU-UK Trade and Cooperation Agreement (TCA). As a result of these two moves, the UK largely consolidated the pre-Brexit status quo and ensured continuity in market access for UK suppliers abroad, as well as foreign suppliers in the UK.

The next move is now for the UK to expand procurement-related trade liberalisation via free trade agreements (FTAs), of which it has signed one with Australia and another with New Zealand. The UK is also seeking accession to other multilateral FTAs covering procurement, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Interestingly, both Australia and New Zealand are parties to the GPA and to the CPTPP, so the UK is about to create a triple layer of regulation of procurement liberalisation with these two countries, as all relevant procurement exercises will be subjected to the GPA, the CPTPP and the FTAs. Is this a problematic strategy? (more…)

Can artificial intelligence bring corruption in public procurement to an end?

Posted on by foluke.adebisi

By Professor Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School)

Preventing, detecting, and sanctioning corruption in public procurement is one of the main goals of all systems of regulation applicable to the expenditure of public funds via contract (see eg Williams-Elegbe, 2012). Despite constant and regularly renewed efforts to fight procurement corruption at an international (such as the UN Convention against Corruption, or the 2016 OECD’s Preventing Corruption in Public Procurement report) and domestic level (see eg the UK’s 2020 ‘Local government procurement: fraud and corruption risk review’), corruption remains a pervasive problem in any given jurisdiction. Of course, there are different forms and degrees of corruption infiltration in different procurement systems but – if any evidence was needed that no system is corruption-free – pandemic-related procurement served as a clear reminder that this is the case (see eg Transparency International, 2021; as well as Good Law Project v Cabinet Office [2021] EWHC 1569 (TCC)). It should then not be surprising that the possibility that artificial intelligence (AI) could ‘change the rules of the game’ (eg Santiso, 2019) and bring procurement corruption to an end is receiving significant attention. In a recent paper*, I critically assess the contribution that AI can make to anti-corruption efforts in the public procurement context and find that, while it could make a positive incremental contribution, it will not transform this area of regulation and, in any case, AI’s potential is significantly constrained by existing data architectures and due process requirements.  (more…)

Are there any gains to be had from the proposed new provider selection model for NHS commissioning?

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By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School). 

One of the relatively recent developments in the post-Brexit review of UK public procurement law is the February 2021 proposal for the replacement of the current rules on the commissioning of healthcare services for the purposes of the English NHS (for background, you can watch here), with a new provider selection regime (‘the proposal’). This proposal forms part of the broader set of proposed reforms contained in the Health and Care Bill 2021-22 (on which the House of Commons Library has published a useful research briefing). 

(more…)

Procurement in the time of COVID-19

Posted on by lee.mcconnell

By Prof Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).

Public procurement is at the forefront of the response to the challenges of COVID-19. Only well-equipped hospitals can save patients’ lives without endangering those of the medical, nursing and support workers in the NHS. Shortages of relatively simple consumables such as personal protection equipment (PPE), but also cleaning and hygiene products, can endanger lives and have devastating effects on the resilience of the healthcare system to (continue to) cope with the pandemic. Shortages of essential equipment such as ventilators can have even more direct nefarious impacts on individual lives.

The importance of public procurement and supply chain management has rarely been so prominently in the public eye and political debate—except, perhaps, in the case of notorious procurement scandals, such as the recent Brexit-related #ferrygate. In this blog post, I reflect on some of the emerging issues in the procurement response to COVID-19 and on the perhaps even bigger challenges that will follow, from a regulatory perspective. (more…)

A Governance Revolution or Costly Distraction? Reassessing the promises of blockchain for public procurement governance

Posted on by lee.mcconnell

By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).

Blockchain or, more generally, decentralised ledger technologies (DLTs), are capturing the attention of policymakers. ‘Blockchain’ has become shorthand to refer to technology usually identified with the properties of a decentralised, trustless and immutable (or at least, tamper-proof) mechanism for information verification and recording that can enable self-executing digital transactions between anonymous parties (‘smart contracts’).

Blockchain’s touted tamper-proofness and potential to enable smart contracts are driving initiatives that seek to create automated ‘trust in trustless environments’ for public sector use cases, in particular concerning activities highly-exposed to corruption risks and/or the automation of administrative procedures devoid of discretion.

There are high economic stakes at play in public procurement—which represents around 12% of GDP and over a third of public expenditure in OECD countries, and even higher proportions in other economies. Coupled with the growing (over)reliance of policymakers on business consultants, the hype around blockchain—and, more generally, about public procurement 4.0—is perhaps particularly intense in this field of GovTech and RegTech.

Some legal scholars are rather optimistically jumping on the ‘disruptive technologies bandwagon’ and identifying blockchain as a main tool to increase the probity and efficiency of procurement governance at a national level.1 Some officially-backed ‘visions for the future’ go as far as promising blockchain-supported global e-procurement platforms capable of covering the entirety of procurement transactions carried out worldwide.

This is creating a set of expectations about how blockchain will revolutionise public procurement governance that does not translate into real action. Even further, I submit, blockchain is and will remain structurally inapt to generate such a governance revolution, for several reasons. (more…)

AI & sustainable procurement: the public sector should first learn what it already owns

Posted on by lee.mcconnell

By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).

Photo credit: Flickr

While carrying out research on the impact of digital technologies for public procurement governance, I have realised that the deployment of artificial intelligence to promote sustainability through public procurement holds some promise. There are many ways in which machine learning can contribute to enhance procurement sustainability.

For example, new analytics applied to open transport data can significantly improve procurement planning to support more sustainable urban mobility strategies, as well as the emergence of new models for the procurement of mobility as a service (MaaS).* Machine learning can also be used to improve the logistics of public sector supply chains, as well as unlock new models of public ownership of eg cars. It can also support public buyers in identifying the green or sustainable public procurement criteria that will deliver the biggest improvements measured against any chosen key performance indicator, such as CO2 footprint, as well as support the development of robust methodologies for life-cycle costing.

However, it is also evident that artificial intelligence can only be effectively deployed where the public sector has an adequate data architecture.** While advances in electronic procurement and digital contract registers are capable of generating that data architecture for the future, there is a significant problem concerning the digitalisation of information on the outcomes of past procurement exercises and the current stock of assets owned and used by the public sector. In this blog, I want to raise awareness about this gap in public sector information and to advocate for the public sector to invest in learning what it already owns as a potential major contribution to sustainability in procurement, in particular given the catalyst effect this could have for a more circular procurement economy. (more…)

Some thoughts on the frustrations of carrying out Brexit-related research (in the UK)

Posted on by lee.mcconnell

By Dr Pedro Telles, Senior Lecturer in Law (Hillary Rodham Clinton School of Law, Swansea University) and Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).

“Britain in the Crazed Brexit Vortex“

Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.

Researching a moving target …

The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort. (more…)