A political scientist's call (to the UK) to strengthen competition in the procurement of social services (Lamothe, 2014)

In its interesting paper 'How Competitive is "Competitive" Procurement in the Social Services?' (2014) The American Review of Public Administration 1-23 (advanced on-line access available here), Scott Lamothe conducts an interesting empirical study where he shows that using measures of competition for contracts that go beyond the crude number of tenders received (ie, assessing the quality of the bids submitted) casts new light on the assessment of the degree of effective competition in procurement settings. 

More importantly, his findings indicate that "while the measures used in earlier studies align reasonably well with the raw number of initial responders to competitive solicitations, they tend to overestimate competition when the quality component is included in the analysis. That is, social service markets may be even weaker than previously reported.

In view of that evidence from the US, EU policy-makers and legislators will be well-advised to read this paper and digest its insights before they embark into the transposition of Art 74-77 of Directive 2014/24 in a way that allows for a reduction in the competition for social services contracts that makes these markets even weaker. 

In the UK, this is particularly relevant for the transposition of Art 77 Dir 2014/24, where the Government insists in maximising the possibilities of limiting competition for the procurement of social and special services. This has been very recently stressed in the Government's response to the consultation on transposition through the Public Contracts Regulations 2015, which clearly emphasises that "The implementation of the proposed Regulation 77 [equivalent to Art 77 in the Directive] regarding reserved contracts for certain services is a strategic Government priority to support the mutuals programme" (para 132).  

The empirical evidence mentioned above suggests that this strategy is bound to create very poor results in the medium term, particularly because the lack of proper competition will not create appropriate checks and balances to the provision of those services by de facto monopolists.

Hence, the UK Government would be advised to further reconsider their strategy to maximise the carve-out from competitive procedures in the procurement of social and special services--not least because the regulatory constraints on these markets are also attenuated due to the structural conflict of interest that affects the sector regulator's ability to enforce competition and procurement rules in a proper way; as discussed in A Sanchez-Graells, Monitor and the Competition and Markets Authority (2014) University of Leicester School of Law Research Paper No. 14-32]. Will the UK Government respond to this wake up call?

Clouds in the horizon of Spanish airport operator privatisation?

According to recent press reports (for instance, Reuters or CincoDias), the Spanish government is seeking to privatise 50%+ of the capital of AENA, the Spanish airport operator. This process of privatisation and the strategy apparently devised by the government raise some issues of compatibility with EU Law that, in my view, might be highly relevant--particularly after the recent CJEU Judgment in Essent, where the application of free movement of capital to privatisation processes has been re-energised.
 
According to the most complete account of the government's strategy, up to 60% of AENA's capital would be privatised. A first package of around 30% would be divided between 3 to 5 'core (institutional) investors' and the other 30% would be floated in the (Madrid?) stock exchange.
 
The worrying part of the privatisation strategy lies, in my view, on the conditions of selection and participation of the 'core (institutional) investors'. These would be chosen on the basis of a restricted (tender) procedure, whereby they would be assigned 5-10% capital packages on the basis of the price offered and their commitments to both hold the investment at that level and not to increase it above 10% for the longest possible time period.
 
 
Therefore, the main selection criteria (other than price) will revolve around a 'voluntary' refusal to exercise investment freedom (both in terms of acquiring additional shares and divesting the ones acquired in the privatisation process). This clearly rings a bell of similarity with the Essent case, where an absolute prohibition to dispose of the shares (ie an absolute prohibition on privatisation) was subjected to a proportionality analysis.
 
The Spanish government's intention behind this privatisation strategy is to retain a sort of 'joint' control over AENA despite reducing its shareholding to 40% of the capital, and it (seems to) expect the selected 'core (institutional) investors' to remain faithful and to support the government's airport management strategy. In my view, there seems to be no clear public interest justifying such a strategy, as airport management can (easily) be regulated and there are clear indications of successful privatisation in other EU countries (pertinently enough, the privatisation of the London Luton airport, precisely managed by AENA).
 
Further, even if such a public interest could be fleshed out by the Spanish government, the (contractual) restrictions on the disposition of the investments (or their enlargement) by the 'core (institutional) investors' will now need to be subjected to a proportionality test under the Essent line of authority. In my view, the Spanish government's strategy is unlikely to pass legal muster. Only time will tell if the CJEU will have an opportunity to rule on this one.

Public sector reform in the UK: A procurement battlefield in the horizon?

With is forthcoming announcement of a new wave of privatisation, the Cabinet Office is envisaging a significant redesign of the public sector and the provision of public services in the UK

In broad strokes, the Ministers are preparing to spin off a significant number of state-owned services into independent companies that will be owned by the Government, private investors (with a share of up to 50%) and workers (up to 25%), and to which the Government will then guarantee contracts for a number of years – with the businesses free to sell their services in the market.

Such a strategy will reshape the UK public sector, but it will also have a very significant impact on competition in services markets (since the Cabinet Office is focusing on IT, personnel and legal functions, which could be provided by existing private suppliers in the markets concerned).

This is a strategy that deserves close scrutiny by the competition watchdog--as anticipated by the OFT in its 2013-14 Annual Plan, where it stresses that it "may focus on IT and local government issues in particular and work with government partners on a range of issues relating to the public sector reform agenda to ensure that government interventions maintain competitive markets. In addition to advocacy and influencing, [the OFT] will consider using the full range of tools at our disposal to tackle any breaches of competition law identified in public service markets." Maintaining competitive neutrality will be a major issue, as indicated by the OECD recently.

Importantly, the public sector reform will need monitoring from the public procurement perspective. Depending on how the privatisation and contracting out strategy is carried out, the Cabinet Office will create a complex scenario by running auctions  to acquire 'minority' stakes in the spin-off companies and (simultaneously?) running (open?) tenders or directly awarding the contracts to the newly created companies. 

If these procedures are not structured and timed in the proper manner, the UK government could easily fall foul of the relevant rules and exceptions to the current EU public procurement Directives--including, to name the most relevant ones, the 'public-public' cooperation exception, the 'in-house' provision exception, and the direct award of contracts on the basis of exclusive rights (which abuse determines the ineffectiveness of the contracts). 

It is worth noting that the current proposals for the reform of the EU procurement rules include some potential changes that could contribute to further legal complication, depending on the final calendar for the transposition of the new EU rules.

Moreover, the rules on State aid to services of general economic interest will also be relevant, particularly once the spin-off companies start competing in the market and incumbents or new entrants raise claims that public participation and public contracts allow them to cross-subsidise activities and compete unfairly for public and private business.

Given the multiple competition, public procurement and State aid implications of the new wave of public sector reform in the UK, this sector deserves close monitoring and will provide a myriad of opportunities for legal and economic analysis and research. Moreover, given that this is not the only strategy for public sector reform (since, at local level, aggregation of demand and pure public-public cooperation schemes are being developed), this promises to be an interesting battlefield.