Launch of the Procuring for Growth Balanced Scorecard - Some Initial Thoughts

The UK's Crown Commercial Service and Cabinet Office have launched a new scorecard system to "use its huge purchasing power to help support economic growth" (emphasis added). Ultimately, the UK Government considers that it "can play an important role in supporting economic growth by helping to level the playing field through the way it buys public goods, works and services. It can maximise the economic benefit of what it spends through public procurement, directly through the outcomes of major investments or by playing a catalytic role in the development of supply market capabilities and competitiveness through the way it designs its procurement and requirements" (emphasis added). Quite frankly, and already from the outset, I struggle to understand the reference to levelling the playing field in any terms that do not hint at protectionism of the local industry as a means of promoting (domestic / local) economic growth (which is also a claim open to contention).

In very similar lines, they also indicate that the aim of this policy is "to maximise the value of taxpayers’ money through public procurement in a way that supports economic growth by ensuring that full value for money is taken into account. The Public Contracts Regulations 2015 provide greater clarity on how broader policy considerations, such as social and environmental factors, may be integrated into procurements. Taking account of relevant broader policy considerations will help to ensure value for money is fully considered and reflected in the procurement process where appropriate, contributing to economic growth in the UK" (emphasis added). Thus, there seems to be a rather strong link between the aim of promoting economic growth in the UK and the inclusion of social and environmental considerations. Certainly, smart procurement can contribute to economic growth (for example, by investing in infrastructure that enables the emergence of new economic activity) but this is an issue on decisions of what to invest in / what to buy, rather than decisions on how to buy it / who to buy it from. In my view, the whole policy seems to focus more clearly on the second type of questions, which should raise some flags concerning its compatibility with EU law.

In that regard, a maybe cynical remark is that the policy comes with an excusatio non petita when it stresses that "On 23 June, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation". This was not necessary at all. It could be seen as a hint that the Government is trying to already implement "Brexit-aligned policies" (whatever that means) within the (recognised?) constraints of EU law. Two points here. One, if everything in this policy is EU compliant, what is the point of mentioning Brexit? And two, if everything that the policy aims to do is EU compliant, then is there any reason to believe that the Government will change its procurement policy in any meaningful way after Brexit actually takes place?

Regardless of those more general ideas, overall, it seems necessary to assess the new scorecard together with the also very recent CCS Guidance on social and environmental aspects of public procurement (Guidance on S&E aspects, criticised here), and, more generally, in view of the economic analysis of the effects that exercising such buyer power can create. 

Scorecard, Guidance on S&E aspects and EU procurement law

According to the press release

The new scorecard system has been designed to help ensure that major government procurements have a positive impact on economic growth, as well as achieving best value for the taxpayer.
The guidance ... introduces a balanced scorecard approach, which government departments should use in designing major works, infrastructure and capital investment procurements where the value is more than £10 million.
The scorecard helps procurers to consider the project requirements and needs, with criteria such as cost balanced against social, economic and environmental considerations.
By using this method, government departments can clearly set out how priority policy themes such as workforce skills development, small business engagement and sustainability may be integrated into their procurement activities.
This underlines to suppliers the overall impact that the department wants to achieve and signals how this will be assessed when considering individual tenders.
Each department should produce a project-specific balanced scorecard to be published with their procurement documentation.

The full scorecard paper provides additional details. It stresses that "A balanced scorecard (BSC) approach is a way of developing a procurement (e.g. the requirements and evaluation criteria) so that more straightforward matters such as cost, are balanced against more complex issues such as social and wider economic considerations" (emphasis added). This may seem to indicate that the BSC is actually a new method that aims to operationalise social and wider economic considerations in a way that makes them compatible with cost-based and legal requirements. 

However, an crucially, the document clearly sets out that "It is important to remember that nothing within the [BSC] guidance ... should be interpreted in a way that overrides or conflicts with departments’ obligations to comply with the PCR 2015, in particular departments’ obligations to determine whether potential requirements would be linked to the subject matter of the contract and proportionate to apply" (emphasis added). 

Thus, obviously, the scorecard cannot be seen to create more space for broader economic, social or environmental considerations than the applicable rules themselves. However, this raises the practical questions (a) why, if the BSC is nothing else than a method that needs to be assessed against regulatory requirements for the inclusion of social, environmental and broader economic considerations, it has been adopted separately from the Guidance on S&E aspects, and (b) to what extent the BSC is actually a useful tool for contracting entities beyond the mere formal aspect of formalising their tender / contract design analysis.

Moreover, the full scorecard paper runs the risk of misrepresenting regulatory requirements in the way that it pushes for the creation of discretionary space for the application of the BSC. Indeed, it stresses that

The EU Directive and the PCRS 2015 make clear that the award of contracts should be on the basis of the most economically advantageous tender (MEAT). The price or cost assessment part of the evaluation of bids must be on a whole life cost basis, and, as set out in the PCRs 2015, the entire cost-effectiveness of the project should be examined, not just the initial price. Cost-effectiveness can include the assessment of the cost of transport, insurance, assembly and disposal as well as costs over the life-cycle of a product, service or works, including: costs of use, such as consumption of energy and other resources, and maintenance costs; and costs associated with environmental impacts, including the cost of emissions (emphasis added).

In my view, this is problematic because Art 67 Dir 2014/24/EU and reg.67 PCR2015 do not actually impose an obligation to assess the price or cost on a "whole life cost basis" but simply allow contracting authorities to do so. This is recognised in technically more accurate terms in a separate piece of Guidance on awarding contracts also published by CCS in October 2016, where it is stated that "When a contracting authority uses cost as an award criterion, it should do so on the basis of a cost effectiveness approach. Life cycle costing (LCC) is an example of this approach, but contracting authorities are free to use other approaches" (emphasis added). 

Indeed, Art 67(2) Dir 2014/24 establishes that "The most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing in accordance with Article 68, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question" (emphasis added).

This requires that cost or price (ie cost-effectiveness) forms part of the award criteria (which is nothing new), and simply opens up the opportunity of adopting a life-cycle method, always provided that is in compliance with Art 68 Dir 2014/24, which in turn establishes that "Where contracting authorities assess the costs using a life-cycle costing approach, they shall indicate in the procurement documents the data to be provided by the tenderers and the method which the contracting authority will use to determine the life-cycle costs on the basis of those data." And additionally requires, amongst other issues, for that method to be "based on objectively verifiable and non-discriminatory criteria. In particular, where it has not been established for repeated or continuous application, it shall not unduly favour or disadvantage certain economic operators" (emphases added).

Therefore, unless contracting authorities have a pre-defined (and pre-published) methodology for the assessment of life-cycle costing (which they generally do not, at least currently), the award of contracts on the basis of "whole life cost" analysis is subjected to the double requirement that it focuses on requirements linked to the subject matter of the contract and is also not such as to unduly favour or disadvantage certain economic operators. In my view, this may be sufficient to disincentivise contracting authorities from aiming to actually award contracts on the basis of "self-made" life-cycle costing methods and the BSC may only be effective if such method was developed by the CCS itself for general use.

Further, it seems difficult to square the fact that, on the one hand, the guidance stresses that the BSC must be tailor-made to each procurement process (which would result in evaluation methods not designed for repeated or continuous application), while in that case the contracting authority must not only develop its own life-cycle costing methodology but also ensure that it does not result in an undue advantage of specific economic operators--which pretty much neutralises the incentive effects that the use of the BSC may be intended to create.

The detail of the BSC is also not helpful in that regard because it does include criteria that are discriminatory, such as "Number of UK jobs created or sustained by new government contracts" in terms of employment impacts; or the assessment of community benefits and legacy, which are more likely to advantage domestic contractors. In my view, contracting authorities will be in a difficult position when trying to translate these general criteria into legally-compliant and useful evaluation criteria that are not discriminatory.

 

More generally, on (ab)use of public buying power

The second perspective that is worth considering is that of the long-term effects of the Government's attempt to "use its huge purchasing power to help support economic growth". This reopens yet again the discussion on the desirability of the instrumentalisation of public procurement for extraneous policy goals. Suffice it to say here that (a) the inclusion of social, environmental or wider (community) requirements does not come free because it either raises bidders' costs or reduces competition, or both and (b) that the long term effects can be very significant in terms of reduced dynamic competition. This is an issue I have repeatedly raised (see here, for example) and a more structured analysis is available here

New paper on intersection of competition law and public procurement

During the Spring of 2014, Dr Jonathan Galloway and Dr Francesco De Cecco of the Newcastle Law School organised a seminar series on ‘The Intersections of Antitrust: Competition Law and…’ and I was fortunate to be invited to present my views on the interaction between competiton law and public procurement. A condensed re-run of the presentations will take place in London on 15 September 2015 in a joint LSE/Newcastle event.

This seminar series is now turning into an edited collection to be published by Oxford University Press. I have uploaded my contribution on SSRN, which abstract is as follows:
The interaction between competition law and public procurement has been gaining visibility in recent years. This paper claims that these two bodies of EU economic law mainly intersect at two points, or in two different dimensions.

Firstly, they touch each other at the need to tackle anticompetitive practices (or bid rigging) in public tenders. This has attracted significant attention in terms of the enforcement priorities of competition authorities and led to recent regulatory developments in the 2014 EU public procurement Directives aimed at increasing the sanctions for bid riggers.

Secondly, competition and public procurement cross again at the need to avoid publicly-created distortions of competition as a result of the exercise of buying power by the public sector, or the creation of regulatory barriers to access to public procurement markets. This second intersection has been less explored and the development of regulatory solutions has been poor in both the fields of EU competition law and EU public procurement law. Moreover, the protection of the ‘public mission’ implicit in the public procurement activity led the CJEU to deform the concept of undertaking in a way that can distort EU antitrust enforcement beyond public procurement markets.

This paper assesses these issues and stresses the possibilities for a better integration of competition considerations in public procurement through the principle of competition of the 2014 Directives. 
Full details of the paper are: A Sanchez-Graells, 'Competition Law and Public Procurement', in J Galloway (ed), Intersections of Antitrust: Policy and Regulations (Oxford, OUP, 2016).

Some comments on Robinson (2013) "Social Public Procurement: Corporate Responsibility Without Regulation"

In a recent paper entitled "Social Public Procurement: Corporate Responsibility Without Regulation",  John Robinson Jr., a student at the University of Utah College of Law, 'explores the EU’s framework for achieving [...] social goals and suggests that the US should undertake many of the same policies. In the US, public procurement accounts for over 10% of GDP. Therefore, using the marketplace rather than regulation to achieve positive change offers a powerful tool: the upside of social good without the downside of increased regulatory burden' (emphasis added). 
 
Even more specifically, the paper claims that 'EU’s position on CSR, specifically that expenditure of public funds provides a powerful mechanism with which to drive corporate responsibility. Essentially, this reflects a collective EU decision (sic) that market forces are superior (eg., more efficient) to regulation in terms of promoting socially responsible business practice' (emphasis added). However, the superiority or efficiency of the mechanism is not an issue that can simply be agreed upon or opted for, but an empirical question. And, difficult as it may be to measure, economic theory does not support the premise that exercising buyer power is a more efficient mechanism than (adequate) regulation when it comes to the pursuit of social (or any other) regulatory goals.

In my view, the whole argument in the paper and the final policy recommendation (as, more generally, the use of public procurement to pursue secondary considerations) is problematic because it does not duly take into account the short-term, static competitive distortions
and the (implicit) higher costs of procurement based on non-economic considerations, nor the undesirable dynamic distortions that can be created by the public buyer. Readers may be bored already with my argument, but I cannot help stressing that using public buyer power to achieve regulatory goals is an inefficient strategy [for further discussion, see my Distortions of Competition Generated by the Public (Power) Buyer].
 
Nonetheless, Robinson completely ignores the fact that imposing regulatory requirements through the backdoor of public procurement decisions significantly muddles the working of the market. Such ommission is clear in the argument that 'Using their already-existent presence in the market, governments may encourage corporate social responsibility through favoring those corporations, goods, and services that produce better social outcomes. The EU terms this as socially responsible public procurement, and has actively engaged in SRPP for some time'. In passing, it is worth stressing that the CJEU has created some important limitations as to what can be done in terms of pursuing CSR objectives through procurement (see case C-368/10 and my comment, in Spanish, though).

In my view, the foundations of the logic behind the proposals to 'use' the market (ie buyer power) to achieve regulatory objectives (which Robinson borrows from McCrudden's 'Buying Social Justice') are essentially flawed. Remarkably, it can hardly be supported that 'Although not perfect, markets constitute the best method yet found for “optimizing the use and distribution of scarce resources.” Traditionally, society placed social justice and equality outside of the market, but within the sphere of government influence. However, the movement towards [socially responsible public procurement], particularly within Europe, signals a recombination of the two—integration of social justice into the marketplace'. In my view, such a recombination is simply not possible, as the preference for social (or other) regulatory requirements distorts the market mechanism and, consequently, there can be no guarantee that it can still optimize the use and distribution of scarce resources.
 
Contracting authorities are clearly in a position to decide what to buy and to require that the products or services they purchase or hire meet certain technical specifications that include environmental or social requirements. They will be able to do so as long as there is a market for such products or services. Equally, they are free to decide to what social or environmental projects they give preference and where the money should be spent. And, once they do that, they should aim to take full advantage of the undistorted market mechanism to maximise the value of their expenditure or investment to achieve those goals. However, they are in a very bad position to attempt to regulate the market through purchasing decisions, and they should refrain from doing so. Otherwise, they may see how their own efforts are in vain as a result of their unforeseen impact in the market.
 
The boundaries of what can and what cannot be done in terms of promoting social and environmental goals through procurement still require some further clarification (particularly in light of the novelties in the new public procurement directives), but it should come with some sound understanding of the economics underpinning procurement mechanisms. Bottom line: public procurement needs to take place in properly functioning markets and any (pseudo-regulatory) strategies that distort the market will be inefficient, however appealing it may seem to exploit buying power in the short term.

US DoD to consolidate contracting for healthcare professionals in view of GAO recommendation

The US Government Accountability Office (GAO) has released a Report on Defense Health Care (GAO-13-322), where it concludes that the Department of Defense (DoD) needs a strategic approach to contracting for health care professionals. According to GAO, 
DoD does not have a consolidated agency-wide acquisition strategy for medical services. In the absence of such a strategy, contracting for health care professionals is largely fragmented. For example, the military departments had not consolidated their staffing requirements by developing joint contracts beyond a limited number of instances amounting to about 8 percent of the fiscal year 2011 spending on health care professionals. The departments have made efforts to use multiple-award contracts to consolidate intraservice staffing requirements, but GAO identified several instances where multiple task orders were placed for the same type of provider in the same area or facility. A more consolidated strategic sourcing strategy could allow DOD to acquire medical services in a more cost-effective way.
Therefore, GAO is recommending that the Secretary of Defense develops a DoD-wide strategic approach to contracting for health care professionals, with which DoD concurs. This means that there are winds of consolidation in US DoD healthcare procurement. Hopefully it will take into consideration previous GAO recommendations concerned with consolidation and centralisation, as discussed here in relation to inter-agency agreements.

#PublicProcurement Promoting #PublicHealth: A New Risk for Potential Distortions of #Competition or a Fat Chance?

In their recent paper Government Purchasing to Improve Public Health: Theory Practice and Evidence, Noonan, Sell, Miller and Rubin explore how using government purchasing power to stimulate demand for healthier products provides a pathway to healthier food purchasing. At first sight, this is yet an additional instance of the use of public procurement to achieve secondary policies [see Prof. Arrowsmith's taxonomy of horizontal policies in procurement here] and, consequently, deserves some attention.

As the authors clearly stress,
The sheer amount of money government spends on procurement gives it a unique capacity to shape markets that, in turn, may affect public health. Through public procurement, government can, for example influence private companies competing for its business. Government’s influence can shape not only the types of products and services offered to government by private contractors, but markets themselves and the choices available to both corporate and individual consumers.
And, it is precisely this vast potential to shape (rectius, distort) the markets where the public buyer is active that justifies the need to take such impacts on commercial markets when designing public procurement rules and practice [as clearly emphasized recently by Prof. Yukins and Cora here, and as I have argued elsewhere]. However well-intended the 'secondary policy' promoted by the government, it may (will) come at a significant (and opaque) cost if it is not thoroughly assessed and carefully designed in view of its potential impact on the competitive dynamics of the markets concerned.

Focusing on the promotion of public health, Noonan, Sell, Miller and Rubin consider that
Although the specific elements and the aims of healthy procurement policies may vary, the key component of such initiatives is their use of government’s role as a buyer to shape the food environment in ways that promote better public health [...] Through healthy procurement, governments have an opportunity not only to improve the nutritional quality of the food they distribute or sell to the public, but by increasing the market demand for and availability of healthful products, to influence the options available to a much broader range of consumers.
Government procurement policies provide an alternative to policies where government regulates industry directly. Rather than establishing rules that require an industry to alter its products to meet certain standards, government can purchase products that already meet those standards. This approach can alleviate the administrative burden for the government; overcome political resistance often associated with traditional regulation; facilitate less adversarial relationships with private industry that places more emphasis on achieving outcomes than on punishing violations; and stimulate and promote innovation that the market, alone, may not produce (emphasis added).
The use of public procurement as a tool of industrial policy has been discussed for the best part of the last 25 years (see Geroski's seminal work in 1990). As a counter-argument to the advantages perceived by Noonan, Sell, Miller and Rubin, I think that it is clear that the use of public procurement as a regulatory tool creates significant issues of democratic and legitimacy deficit, as well as difficulties in monitoring and oversight--not to mention the potential (implicit) economic costs and losses in economic efficiency that would have otherwise been identified in the regulatory impact assessment (RIA) / cost-benefit analysis that would have preceded the adoption of the regulation now substituted with public procurement practice. Therefore, the picture is far from the ideal / neutral description provided by Noonan, Sell, Miller and Rubin.

Therefore, it should not be lightly used as the preferred 'regulatory tool' and, in any case, the implications of allowing the government to intervene in the market through the sheer use of its buying power would then need to be subjected to some kind of check and balance--which, in my view, should be competition / antitrust law and, more specifically, the rules on abuse of dominance / monopolisation [Sanchez Graells, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011) ch 4].

The process diagram designed by Noonan, Sell, Miller and Rubin is interesting because it helps explain the way in which secondary policies work and the (indirect?) way in which the substitution of legislation with procurement (specifications) may affect industry structure.
Noonan, Sell, Miller and Rubin (2013: 8) circles added.
It is clear that moving public health (or any other secondary policy) from the set of legal requirements to the public procurement specifications completely alters the framework in which the public buyer operates, sets it free from significant regulatory constraints, and diminishes the transparency and predictability of the system for companies active in these sectors. On the other hand, the expected industry adjustment may not always be comprehensive, and it can generate a truncation of an economic market (eg that for foodstuffs) into two artificial (sub)markets: a 'public market for food' and a 'private market for food'. The economic consequences of such truncation are hard to predict but, in all likelihood, they are bound to be negative from a social welfare standpoint.

However, in the specific case of 'healthy procurement' discussed by Noonan, Sell, Miller and Rubin, it seems apparent that the pursuit of public health objectives is done exclusively through the setting of the 'technical' specifications of the food to be provided (in most instances, to schools). In this regard, the promotion of public health in procurement should not be seen as a 'classical' exercise of secondary policy promotion, since the government is defining what to buy and the 'healthy' component is intrinsic to the goods to be delivered. In that regard, the choice of healthy food for schools seems unobjectionable also from a competition perspective. The issue would be different if the government decided to buy from vendors that only sold 'healthy food'--an issue that, at least in the European Union, has been clearly prohibited by the Court of Justice in the Commission v Netherlands (Fair Trade) case.

In any case, given the growing attention to the promotion of public health and the prevention of obesity and its related health issues (see the World Health Organisation and its initiatives),  this new potential area of pursuit of 'secondary' / horizontal policies in public procurement deserves academic and policy-making attention.


US GAO report on streamlined use of strategic sourcing: Again, on exercising public buyer power

The US Government Accountability Office has issued the "Strategic Procurement: Improved and Expanded Use Could Save Billions in Annual Procurement Costs" report (Sept 2012, http://www.gao.gov/products/GAO-12-919), where it analyses the procurement activities of the Departments of Defense (DoD), Homeland Security (DHS), Energy, and Veterans Affairs (VA) during 2011 and finds that US Federal Agencies are not reaping the benefits of a more strategic exercise of their buyer power.

According to GAO, the federal agencies included in the report leveraged only a fraction of their buying power through strategic sourcing (a process that moves an agency away from numerous individual procurements to a broader aggregate approach) and achieved limited savings. "In fiscal year 2011, the four largest federal departments accounted for 80 percent of the $537 billion in federal procurement spending, but reported managing about 5% or $25.8 billion through strategic sourcing efforts. These agencies reported savings of $1.8 billion—less than one-half of one percent of procurement spending."


GAO considers this situation unsatisfactory because "While strategic sourcing may not be suitable for all procurement spending, leading companies strategically manage about 90 percent of their procurements and report annual savings of 10 percent or more. Further, most agencies’ efforts do not address their highest spending areas such as services, which may provide opportunities for additional savings."

Therefore, GAO issues a series of recommendations for a more strategic use of the leverage that the high volume of expenditure provides to the largest federal agencies. In particular, GAO refers to the DoD Office of the Undersecretary of Defense's 2010 "Better Buying Power" Guidelines (http://tinyurl.com/DoDBetterBuyingPower) which are designed in pro-competitive terms and indicate to procurement officials that they have to promote real competition if they truly want to achieve savings and obtain long-term superior procurement results.

I find these guidelines interesting and worth reading, particularly as regards this:
Real competition is the single most powerful tool available to the Department to drive productivity. Real competition is to be distinguished from a series of directed buys or other contrived two-source situations which do not harness the full energy of competition. Competition is not always available, but evidence suggests that the government is not availing itself of all possible competitive situations.[...]
 
Remove obstacles to competition. In recent years, the Department has achieved the highest rates of competition in its history. Having said that, the fact is that a significant fraction of those competitive procurements have involved what is termed “ineffective competition,” since only one offer to a solicitation was received even when publicized under full and open competition. This occurs in about $55 billion of Department contracts annually. One step the Department can take is to mitigate this loss of savings from the absence of competition. A common practice has been to conclude that either a bid or proposal submitted by a single offeror in response to a full and open competition met the standard for adequate price competition because the bid or proposal was submitted with the expectation of competition. As a result, no certified cost or pricing data was requested, no cost or price analysis was undertaken, and often, no negotiations were conducted with that single offeror. Henceforth I expect contracting officers to conduct negotiations with all single bid offerors and that the basis of that negotiation shall be cost or price analysis, as the case may be, using non-certified data. 
 
A more important approach is to remove obstacles to competitive bidding. For example, the Air Force’s PEO for Services reviewed the Air Force's Design and Engineering Support Program (DESP) for effective competition. She found 39 percent of the task order competitions under the Indefinite Delivery/Indefinite Quantity (IDIQ) contract resulted in one bid. The Air Force team undertook an analysis to determine why they were getting the one bid and made two changes. First, they amended their source selection methodology so that technical, cost, and past performance factors were more equally weighted. No one factor can be less than 25 percent or more than 50 percent. This served to lessen the advantage of the incumbent contractor since the technical factor could not overshadow past performance and cost. Second, the team provided a monthly report to all DESP IDIQ holders listing all known requirements in the pipeline. The report includes sufficient information to allow contractors to evaluate whether or not to bid and to start to prepare a bid package. The team has effectively added an additional 45 days to the time a requirement is made known to the potential offerors and the bid due date. These two changes have reduced the percentage of task orders receiving one bid by 50 percent. The team continues to evaluate its processes to further reduce the percentage. 
 
Each service component and agency has a competition advocate. I am directing each competition advocate to develop a plan to improve both the overall rate of competition and the rate of effective competition. Those plans should establish an improvement rate of at least 2 percent per year for overall competition and an improvement rate of at least 10 percent per year for effective competition. Those plans are to be approved by the CAEs. The Department’s competition advocate shall brief me on the overall progress being made to achieve those goals.

Even if some of the recommendations are hinting towards potential exploitation of suppliers (such as the mandate to negotiate when a single offer is received), the particularities of the defense industry (where supplier concentration is high and increasing over time) may justify them as an exercise of countervailing seller and buyer power. In any case, in my view, the importance of the message particularly lies in the need to find creative ways of lifting barriers to effective participation (particularly by revising tender requirements) and the existence and key role of the competition advocates within each of the federal agencies conducting major procurement activities. 

In my opinion, the creation of a similar position within main domestic procurement agencies would be desirable [see Sanchez Graells, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011) 387-388], but this is an issue that, unfortunately, has not found space in the current revision of the EU public procurement Directives (where the more general proposal to create oversight bodies under Art 87 of the 2011 Proposal has been scrapped from the July 2012 Compromise text, most likely due to lack of funding and/or to concerns about the Member States organisational autonomy). 

However, in view of the evidence reported at the other side of the Atlantic, maybe we will at some point realize the relevance of having dedicated officials overseeing the competitiveness of public procurement processes (whether we call them competition advocates, auditors or something else is a discussion for another day). As GAO points out, the potential economic benefits should act as a strong incentive to move in that direction. Particularly in times of economic crisis, it seems clear that you need to invest (in human capital) if you want to save and, ultimately, to grow.