Are English Universities likely to stop having to comply with EU public procurement law?

One of the elements implicit in the on-going discussion about higher education reform in England concerns the extent to which changes in the funding and governance structure of HEFCE (to be transformed into the Office for Students, or any other format that results from the consultation run by BIS) can free English universities from their duty to comply with EU public procurement law. 

The issue is recurring in the subsequent waves of higher education reform in England, and the same debate arouse last summer following BIS statements that the most recent reform (lifting the cap on student numbers) would relieve English universities of their duty to comply with EU public procurement law (see discussion here).

Overall, then, there is a clear need to clarify to what extent English universities are actually and currently obliged to comply with EU public procurement rules, both as buyers and as providers of services. That analysis can then inform the extent to which in the future English universities are likely to remain under a duty to comply with EU public procurement rules.

In this study we provide an up-to-date assessment of situations in which universities are bound by public procurement rules, as well as the combined changes that market-based university financing mechanisms can bring about in relation to the regulation of university procurement and to the treatment of the financial support they receive under the EU State aid rules. National differences in funding schemes are likely to trigger different answers in different EU jurisdictions. This study uses the situation of English universities as a case study.
The first part focuses on the role of universities as buyers. The traditional position has been to consider universities bound by EU public procurement rules either as state authorities, or because they receive more than 50% public funding. In the latter case, recent changes in the funding structure can create opportunities for universities to free themselves from compliance with EU public procurement rules.
In the second part, we assess the position of universities as providers. Here the traditional position has been that the State can directly mandate universities to conduct teaching and research activities. However, new EU legislation contains specific provisions about how and when teaching and research need to be procured if they are of an economic nature. Thus, accepting the exclusion of university services from procurement requirements as a rule of thumb is increasingly open to legal challenge.
Finally, the study assesses if and in how far universities can benefit from exemptions for public-public cooperation or in-house arrangements either as sellers or buyers. 
The full paper is available on SSRN: http://ssrn.com/abstract=2692966.

We have submitted our piece of research to BIS as part of the consultation on the green paper. We hope that our research and the insights it sheds can inform the discussion on the new mechanisms for the allocation of the teaching grant to English universities (and particularly the discussion around Q18 of the consultation).

Rethinking the Law School and the way law academics publish (reference to @CarelStolker)

I have recently been flipping through the (electronic) pages of Prof. Carel Stolker's Rethinking the Law School. Education, Research, Outreach and Governance (Cambridge, CUP, 2014) and found some of the insights and views he expresses particularly stimulating. The chapter on "Lawyer's ways of publishing" is my pick of the day. 

As an academic blogger (blawgger?), some of his remarks could not be more central to my day-to-day activities and to the hopes I have for a renovation in the way academic outputs are produced, published, graded and recognised by Universities and the international community of scholars alike.

Prof. Stolker encapsulates the law blogging phenomenon and the challenges it puts to 'traditional academic publication' as follows 
An interesting development is the rise of blogs. Law blogs (‘blawgs’), sometimes complemented by online companions and other vehicles of ‘short form’ legal scholarship, may better serve the needs of the practitioners and enhance the scholarly debate among the academics. Their increasing popularity–especially in the US where law articles tend to be the very opposite of ‘short form’– raises new issues: might these blogs harm legal scholarship, or are they becoming a legitimate form of legal scholarship in their own right? Do blogs register intellectual property, as journal publications do? Will these blogs replace our thousands of law journals worldwide in the long term, and do libraries have a responsibility to preserve the blogs for future generations? All these new developments might even herald the coming of an era where legal scholarship will mainly be available online rather than in print … (pp. 233-34, footnotes omitted, emphasis added).
Prof. Stolker also links the raise of online access to content (not only in blogs) with the neighbouring issue of scholarship dissemination via the use of social networks, and rightly points out that

Overall, one-third of our scientists and scholars are reported to use LinkedIn and Twitter. Science and scholarship are rapidly transforming into a fascinating variety of digitally networked forms. Too often the distribution and communication of the products of legal scholarship are considered the exclusive responsibility of the publisher. However, making your work widely accessible is, as we have seen, primarily a duty of the scholars themselves. Until we make progress in this area, cross-border scholarly debate will continue to be seriously hampered (p. 260, emphasis added).
These two insights trigger some important questions for further reflection. In my opinion, the answers that Law Schools give (or not) to these questions will determine whether they manage to attract or retain innovative legal scholars--who wants to work at an Institution that considers blawgging something you do on your free time?--and, maybe more importantly from the institutional perspective, whether they maintain or develop an online reputation that allows them to attract the best students, particularly at postgraduate level.

In my personal view--the reader should bear in mind that I blog as a passion and that I am very fortunate of my scholarship being on the top 0.5% of SSRN authors by downloads, so I may quickly be seen as conflicted on this--blogging about legal developments and engaging in debates and dissemination of research in social media are truly valuable activities and they should be recognised as such. Blogs allow for an immediacy of academic debate that is impossible to match for any other platforms, either printed or online. Moreover, given the increasing constraints on publishing "proper", "printed" research [at least in the UK as an (undesired?) effect of the REF], some traditional sorts of legal scholarship such as case comments or book reviews are languishing as scholars are pressured into publishing (only) 4* outputs (which, almost by definition, cannot be of those sorts). Consequently, I do not think that they will substitute all other forms of legal scholarship, but they are bound to fill a gap that has existed for a long time and that may be (in part) responsible for the distance with which practitioners look at legal research (if they ever look into law books at all).

However, blogs remain at the margin (if not completely outside) of academic assessments and blawggers are simply aficionados that share their views out of personal interest, search for fame/impact, or boredom. In my view, this needs to change. Not because that would make the life of the academic blawgger easier (which it certainly would), but because more academics would feel tempted to "take the risk to go online" if the incentives were not so clearly against it. And that would benefit all of us, both when the quality of the blogging was good, and when it was bad, as I would expect that academic debate and peer-review would swiftly establish quality controls or, at least, interesting exchanges of ideas.

Overall, to keep this rant short, I would like to see all deans and heads of law school's reading Prof. Stolker's book, at least to get the conversation really started.