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.
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!
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.