Flexibility, discretion and corruption in procurement: an unavoidable trade-off undermining digital oversight?

Magic; Stage Illusions and Scientific Diversions, Including Trick Photography (1897), written by Albert Allis Hopkins and Henry Ridgely Evan.

As the dust settles in the process of reform of UK public procurement rules, and while we await for draft legislation to be published (some time this year?), there is now a chance to further reflect on the likely effects of the deregulatory, flexibility- and discretion-based approach to be embedded in the new UK procurement system.

An issue that may not have been sufficiently highlighted, but which should be of concern, is the way in which increased flexibility and discretion will unavoidably carry higher corruption risks and reduce the effectiveness of potential anti-corruption tools, in particular those based on the implementation of digital technologies for procurement oversight [see A Sanchez-Graells, ‘Procurement Corruption and Artificial Intelligence: Between the Potential of Enabling Data Architectures and the Constraints of Due Process Requirements’ in S Williams-Elegbe & J Tillipman (eds), Routledge Handbook of Public Procurement Corruption (Routledge, forthcoming)].

This is an inescapable issue, for there is an unavoidable trade-off between flexibility, discretion and corruption (in procurement, and more generally). And this does not bode well for the future of UK procurement integrity if the experience during the pandemic is a good predictor.

The trade-off between flexibility, discretion and corruption underpins many features of procurement regulation, such as the traditional distrust of procedures involving negotiations or direct awards, which may however stifle procurement innovation and limit value for money [see eg F Decarolis et al, ‘Rules, Discretion, and Corruption in Procurement: Evidence from Italian Government Contracting’ (2021) NBER Working Paper 28209].

The trade-off also underpins many of the anti-corruption tools (eg red flags) that use discretionary elements in procurement practice as a potential proxy for corruption risk [see eg M Fazekas, L Cingolani and B Tóth, ‘Innovations in Objectively Measuring Corruption in Public Procurement’ in H K Anheier, M Haber and M A Kayser (eds) Governance Indicators: Approaches, Progress, Promise (OUP 2018) 154-180; or M Fazekas, S Nishchal and T Søreide, ‘Public procurement under and after emergencies’ in O Bandiera, E Bosio and G Spagnolo (eds), Procurement in Focus – Rules, Discretion, and Emergencies (CEPR Press 2022) 33-42].

Moreover, economists and political scientists have clearly stressed that one way of trying to strike an adequate balance between the exercise of discretion and corruption risks, without disproportionately deterring the exercise of judgement or fostering laziness or incompetence in procurement administration, is to increase oversight and monitoring, especially through auditing mechanisms based on open data (see eg Procurement in a crisis: how to mitigate the risk of corruption, collusion, abuse and incompetence).

The difficulty here is that the trade-off is inescapable and the more dimensions on which there is flexibility and discretion in a procurement system, the more difficult it will be to establish a ‘normalcy benchmark’ or ‘integrity benchmark’ from which deviations can trigger close inspection. Taking into account that there is a clear trend towards seeking to automate integrity checks on the basis of big data and machine learning techniques, this is a particularly crucial issue. In my view, there are two main sources of difficulties and limitations.

First, that discretion is impossible to code for [see S Bratus and A Shubina, Computerization, Discretion, Freedom (2015)]. This both means that discretionary decisions cannot be automated, and that it is impossible to embed compliance mechanisms (eg through the definition of clear pathways based on business process modelling within an e-procurement system, or even in blockchain and smart contract approaches: Neural blockchain technology for a new anticorruption token: towards a novel governance model) where there is the possibility of a ‘discretion override’.

The more points along the procurement process where discretion can be exercised (eg choice of procedure, design of procedure, award criteria including weakening of link to subject matter of the contract and inclusion of non(easily)measurable criteria eg on social value, displacement of advantage analysis beyond sphere of influence of contracting authority, etc) the more this difficulty matters.

Second, the more deviations there are between the new rulebook and the older one, the lower the value of existing (big) data (if any is available or useable) and of any indicators of corruption risk, as the regulatory confines of the exercise of discretion will not only have shifted, but perhaps even lead to a displacement of corruption-related exercise of discretion. For example, focusing on the choice of procedure, data on the extent to which direct awards could be a proxy for corruption may be useless in a new context where that type of corruption can morph into ‘custom-made’ design of a competitive flexible procedure—which will be both much more difficult to spot, analyse and prove.

Moreover, given the inherent fluidity of that procedure (even if there is to be a template, which is however not meant to be uncritically implemented), it will take time to build up enough data to be able to single out specific characteristics of the procedure (eg carrying out negotiations with different bidders in different ways, such as sequentially or in parallel, with or without time limits, the inclusion of any specific award criterion, etc) that can be indicative of corruption risk reliably. And that intelligence may not be forthcoming if, as feared, the level of complexity that comes with the exercise of discretion deters most contracting authorities from exercising it, which would mean that only a small number of complex procedures would be carried out every year, potentially hindering the accumulation of data capable of supporting big data analysis (or even meaningful econometrical treatment).

Overall, then, the issue I would highlight again is that there is an unavoidable trade-off between increasing flexibility and discretion, and corruption risk. And this trade-off will jeopardise automation and data-based approaches to procurement monitoring and oversight. This will be particularly relevant in the context of the design and implementation of the tools at the disposal of the proposed Procurement Review Unit (PRU). The Response to the public consultation on the Transforming Public Procurement green paper emphasised that

‘… the PRU’s main focus will be on addressing systemic or institutional breaches of the procurement regulations (i.e. breaches common across contracting authorities or regularly being made by a particular contracting authority). To deliver this service, it will primarily act on the basis of referrals from other government departments or data available from the new digital platform and will have the power to make formal recommendations aimed at addressing these unlawful breaches’ (para [48]).

Given the issues raised above, and in particular the difficulty or impossibility of automating the analysis of such data, as well as the limited indicative value and/or difficulty of creating reliable red flags in a context of heightened flexibility and discretion, quite how effective this will be is difficult to tell.

Moreover, given the floating uncertainty on what will be identified as suspicious of corruption (or legal infringement), it is also possible that the PRU (initially) operates on the basis of indicators or thresholds arbitrarily determined (much like the European Commission has traditionally arbitrarily set thresholds to consider procurement practices problematic under the Single Market Scorecard; see eg here). This could have a signalling effect that could influence decision-making at contracting authority level (eg to avoid triggering those red flags) in a way that pre-empts, limits or distorts the exercise of discretion—or that further displaces corruption-related exercise of discretion to areas not caught by the arbitrary indicators or thresholds, thus making it more difficult to detect.

Therefore, these issues can be particularly relevant in establishing both whether the balance between discretion and corruption risk is right under the new rulebook’s regulatory architecture and approach, as well as whether there are non-statutory determinants of the (lack of) exercise of discretion, other than the complexity and potential litigation and challenge risk already stressed in earlier analysis and reflections on the green paper.

Another ‘interesting’ area of development of UK procurement law and practice post-Brexit when/if it materialises.

Some thoughts on procurement flexibility and accountability after the 2014 EU Public Procurement Package & recent trends in case law

I had the honour of being invited to deliver a keynote presentation at the annual conference on procurement organised by FCG in Helsinki on 2 June. The organisers invited me to address two topics: first, an overview of the 2014 reform of EU public procurement rules from the perspective of flexibility, discretion and checks and balances. Second, a more focused discussion of recent ECJ case law in three areas of relevance for the Finnish practice after the transposition of the EU rules: the exemption for in-house provision and public-public cooperation, the requirements derived from general principles of procurement law, and the rules on discretionary exclusion and self-cleaning.

These are the two sets of presentations I used, which I hope reflect some of the ideas I presented, and which gave rise to very stimulating debate.

CCS' Guidance on electronic communications and the issue of initial disclosure of procurement documents

As discussed in relation to regs. 53 and 28 of the Public Contracts Regulations 2015 (PCR2015), there has been unrest in the UK public procurement practitioner community derived from an assumption that new procurement rules required contracting authorities to disclose absolutely all contract documents in full and final form when they first published a notice calling for competition for a specific contract.

My preliminary view was that such strict reading of reg.53(1) PCR2015 was unnecessarily overcautious and that contracting authorities could carry on disclosing tender documents in a staggered manner provided they complied with general principles of transparency and equal treatment, and they made sure that no interested undertaking or tenderer was placed at a disadvantage (see here).

The Crown Commercial Service (CCS) has now published Guidance on e-Procurement and electronic communications that, in my view, supports this flexible approach and should reassure contracting authorities that the new rules preserve the level of flexibility existing under the pre-2014 Directives. The key to that flexibility stems from a reasonable and dynamic approach to the concept of 'procurement documents', which the CCS takes to provide
a wide explanation of what might constitute procurement documents and that where individual regulations refer to “procurement documents”, what is meant by that wording changes based on the different stages of the process that has been reached. As the procurement and competition becomes more crystallised, CCS expect more of the documents falling within that wide definition of procurement documents to be generated and therefore supplied. In contrast, at very early stages, fewer of the documents, if any, would be included. We believe a purposive interpretation is appropriate here.
Such interpretative approach is well suited to a functional interpretation of the general rules in the PCR2015 (and Directive 2014/24, by implication), which adjusts the meaning of concepts and rules to the operational requirements of each of the specific procedures they apply to. This seems particularly clear in this passage:
... for procedures involving negotiations, or two stage process, the contracting authority would need to publish all the documents that are available so the market could make the decision on whether to express an interest or not. In construction for example, detailed specifications are normally not available until further into the procurement process and therefore those documents would not be required to be published at the advert stage. However the procurement documents that explain what the final output would be, volume/size, any specific specialities etc would be required at advert stage as the supplier needs them so they can make the decision on whether to express an interest or not, and whether they would have the capacity and capability to do the work, and if not time to start preparing to build that capacity/capability. These documents would then be added to as more detailed information is developed. 
I think that this guidance should be welcome and that the discussion can be left behind, as it seems clear that the interpretation of the rules is not going to be as unreasonable and tight as some initially feared. 

GC hints at a reduction of the burden of motivation of administrative decisions under EU law (T-319/11)

In its Judgment of 8 April 2014 in case T-319/11 ABN Amro Group v Commission, the General Court has indicated that the context in which an administrative decision is adopted may reduce the burden of motivation imposed on an institution when it deals with undertakings as interested parties, particularly when the alleged failure to provide sufficient motivation concerns a relatively secondary matter.
 
In the context of the judicial review of a State aid Decision adopted by the European Commission in the recapitalisation of ABN Amro by the Dutch State, the challengers of the Decision argued that the Commission had breached its duty of good administration and, more especifically, its obligation to provide reasons for the rejection of certain commitments linked to the restructuring of the bank.
 
Taking a pragmatical approach to the issue of whether the succint explanations provided by the Commission allowed the interested bank to assess its legal position, and whether the general motivation of the Decision was sufficient to discharge the requirements of the duty of good administration, the GC ruled that
138 [...] referring, by analogy, to the case-law according to which the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 54 and case-law cited), it cannot be accepted in this case that the reasons stated in the contested decision do not meet the requisite legal standard because the decision does not discuss the alternative measures proposed by ABN Amro during the investigation procedure and rejected by the Commission (T-319/11 at para 138, emphasis added).
In my view, this Judgment can have interesting and positive implications if it is properly carried through to other areas of EU administrative law where, to date, the CJEU has adopted a much more demanding approach. In particular, I think that this incipient string of case law can be very helpful in the area of public procurement, where the current state of the law imposes what I deem as excessive debriefing obligations on the basis of the duty to provide reasons--which, in turn, result in a very dangerous and detrimental transparency in public procurement settings [for discussion, see "The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives", University of Leicester School of Law Research Paper No. 13-11]. I therefore hope that such pragmatical approach will be further developed and properly adjusted to other areas of EU Economic law, such as public procurement.

CJEU flexibilises treatment of formally non-compliant bids in public procurement (C-336/12)

In its Judgment of 10 October 2013 in case C-336/12 Manova, the Court of Justice of the EU (CJEU) has  followed its own approach in Slovensko and created some room for the flexible interpretation of the rules on formal compliance of bids submitted in public procurement procedures.
 
In Manova, the contracting authority had requested some of the tenderers to provide financial statements that had not been included in their bids after the deadline for their submission had ellapsed. Given that this decision was challenged on the grounds of a potential breach of the principle of equal treatment, the referring court decided to request a preliminary ruling from the CJEU, which was asked "whether the principle of equal treatment is to be interpreted as precluding a contracting authority from asking a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation – such as a copy of its published balance sheet – which were called for in the contract notice, but were not included with that candidate’s application".
 
In rather clear terms (although some caveats may have been dispensed with, in my opinion), the CJEU ruled that:
the principle of equal treatment must be interpreted as not precluding a contracting authority from asking a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation – such as a copy of its published balance sheet – which can be objectively shown to pre-date that deadline, so long as it was not expressly laid down in the contract documents that, unless such documents were provided, the application would be rejected. That request must not unduly favour or disadvantage the candidate or candidates to which it is addressed (C-336/12 at para 42).
In my view, the Manova Judgment must be welcome, both for its functional approach and for its alignment with domestic practices in a significant number of EU Member States--as discussed in Sánchez Graells, A, "Rejection of Abnormally Low and Non-Compliant Tenders in EU Public Procurement: A Comparative View on Selected Jurisdictions", in S Treumer and M Comba (eds), Award of Public Contracts under EU Procurement Law, vol. 5 European Procurement Law Series, (Copenhagen, DJØF, 2013) 267-302. This seems a good step in the direction of avoiding that overly strict formal requirements get in the way of actual good public procurement practices.