Interesting paper on resistance to collaborative/centralised public procurement (Mason & Meehan: 2016)

I have just read the paper C Mason & J Meehan, ‘Collaborative public procurement: institutional explanations of legitimised resistance’ (2016) 22 Journal of Purchasing & Supply Management, forthcoming [a draft preliminary version of the paper is available on SSRN: http://ssrn.com/abstract=2152740]. 

The paper focuses on the very operational and subjective reasons that can lead practitioners involved in collaborative or centralised procurement to resist the roll-out of these innovative procurement strategies. I found their findings regarding financial reporting implications and job security particularly relevant because they bring home a reality bite that we need to incorporate into legal research if we are worried about the effectiveness of the rules we create.

In the rather more technical terms of the abstract:
The paper explores the barriers to regional collaborative public procurement. It reports the results of an empirical study of five public sector authorities in the emergency services sector in the UK. Exploring the barriers to collaborative procurement through the lens of institutional theory we frame the inter- and intra-organizational strategic resistant responses to isomorphic pressures. The study took a multi-stakeholder approach involving 70 individuals spanning budget holders, operational managers, procurement, and finance across 30 spend workstreams. The results show that operational barriers to collaborative procurement persist at national, regional, organizational and individual levels. While these barriers are used overtly as the rational defence, covert strategic responses of institutional logics, protectionism and symbolic tick-boxing legitimize stakeholder resistance to numerous isomorphic forces and further entrench the operational barriers. The findings contribute to an understanding of choice mechanisms in public procurement research by exploring where, and why, tensions and conflicts occur in collaborative public procurement strategies, both within, and between, organizations. The study contributes to, and addresses a central issue in institutional theory: identifying the social processes embedded in rational decision-making processes. By focusing on different internal stakeholder perceptions and their motivations, we add to current thinking on how organizations create internal power and agency structures through institutional logics to legitimize their actions. The results highlight the criticality of understanding underpinning motivation in behaviour in institutional theory and the links between operational and strategic processes. From an applied perspective, the research highlights that failure to provide sufficient evidence while applying pressure at a political level leads to tick-box approaches to collaborative procurement risking long-term damage and sub-optimized performance.
It is definitely well worth a read. 

New SSRN paper on State aid enforcement after the crisis

I have uploaded a new paper on the University of Leicester School of Law Research Paper SSRN Series. It is entitled "Digging Itself Out of the Hole? A Critical Assessment of the European Commission's Attempt to Revitalise State Aid Enforcement after the Crisis" and has the following abstract:

This paper aims to assess the likelihood that State aid enforcement can be revitalised in the post-crisis period as a result of the 2012-2014 State aid modernisation process (SAM). The paper takes the view that State aid enforcement was left in a difficult impasse as a result of the extraordinary measures the Commission implemented during and immediately after the 2008 economic breakdown, which left the Commission in a difficult position due to the unavoidable concessions and lowering of standards that dealing with the soaring volume of State aid required. The paper builds on this premise to critically assess whether a scenario of stronger enforcement can be foreseen under the modernised, post-2014 procedural framework of SAM. It pays particular attention to the need for the European Commission to (re)engage in a more substantive assessment of aid measures and to promote judicial (or private) enforcement of State aid rules in an effective manner. It concludes that revitalisation of State aid enforcement under SAM is highly unlikely.

I have attempted some statistical analysis to support my view that State aid enforcement is not being efficient. As a taster (full details in the paper), I argue that 'it seems conservative to estimate at around 100 billion Euros the amount of (non-investigated) illegally-granted State aid in the EU28 between 2008 and 2013' and that the Commission is accumulating a significant backlog of State aid cases (of around 500 in the same period), despite having expanded its State aid workforce by 53% between 2007 and 2011.

I also argue that the Commission's push for more transparency of the awards of State aid will not result in an actual involvement of private parties and society at large as stewards of EU State aid rules, in particular due to the restriction of the locus standi to submit (admissible) complaints to the Commission (following Sarc v Commission and the rules under the revised art 11a of reg 794/2004) and the compounded effect of the mandatory use of a standard form that requires significant information.


I will present a reworked version of this paper at the Antitrust Enforcement Symposium held by the Centre for Competition Law and Policy of the University of Oxford in June, where I am honoured to share a session on Competition and the State with such distinguished scholars and practitioners as Conor Quigley QC, Damien Geradin, James Cooper, David Szafram, Isabel Taylor, Angus Johnston and Ioannis Lianos. As you see, not the easiest audience. So all comments that can help me improve the paper are most welcome! I already thank my colleague Dr Paolo Vargiu for his first reactions.
The full citation for the paper is: A Sanchez Graells, "Digging Itself Out of the Hole? A Critical Assessment of the European Commission's Attempt to Revitalise State Aid Enforcement after the Crisis" (May 5, 2015) University of Leicester School of Law Research Paper No. 15-15. Available at SSRN: http://ssrn.com/abstract=2602798.

"Monitor and the Competition and Markets Authority": My new paper on health care, procurement and competition in the UK

I have just uploaded my new piece "Monitor and the Competition and Markets Authority" as the University of Leicester School of Law Research Paper No. 14-32. The paper looks at the institutional design for the enforcement of competition and public procurement rules in the health care sector in the UK and criticises the concurrency regime developed in 2013. It is linked to my previous paper on the substantive aspects of the NHS Competition, Choice and Procurement Regulations 2013 (about to be published in the Public Procurement Law Review and available here).

I will be presenting this new paper at the EUI (Florence), at a workshop on Antitrust Law in Healthcare organised by Prof Giorgio Monti. Comments welcome!
Abstract 
As part of its enforcement duties under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and in exercise of the powers assigned to it by the Health and Social Care Act 2012, the health care sector regulator for England (Monitor) is co-competent with the competition watchdog (Competition and Markets Authority) to enforce competition law in health care markets. Oddly, though, unlike other sector regulators, Monitor does not have a duty to promote competition but ‘simply’ to prevent anti-competitive behaviour. Monitor is also competent to carry out reviews and to decide bid disputes concerning procurement carried out by health care bodies, provided there is no formal challenge under the Public Contracts Regulations 2006.
This paper contends that such a concentration of regulatory, competition enforcement and procurement review powers puts Monitor in a unique situation of (potential) structural conflict of interest that can diminish significantly its ability to act as an effective (co-competent) competition authority. This paper focusses on this difficult structure for the enforcement of competition law in the health care sector in England, in particular due to the asymmetrical, sui generis concurrency regime created by the Enterprise and Regulatory Reform Act 2013 and the Concurrency Regulations 2014. As examples of such conflict of interest and its implications, the paper assesses Monitor’s incentives to bend the interpretation of both art.101(3) TFEU and the new special regime on procurement of social services (arts.72-77 dir 2014/24). The paper concludes that this situation requires regulatory reform to devolve powers to the Competition and Markets Authority.
A Sánchez Graells, 'Monitor and the Competition and Markets Authority' (November 20, 2014). University of Leicester School of Law Research Paper No. 14-32. Available at SSRN: http://ssrn.com/abstract=2528569.