A couple of years ago, Ivo Locatelli — a Senior Procurement Expert at the European Commission — published a first analysis of the emerging trends in cross-border procurement in the EU/EEA based on TED data and, in particular, based on the publication of contract award notices (CANs). His paper is available as: I Locatelli, ‘Do European public buyers purchase together? An assessment of joint cross-border procurement contracts published in TED in 2017 and beyond’ (2019) 1 Ius Publicum art 1.
Locatelli reported that, in 2017 only, 34 CANs were published concerning joint cross-border procedures involving buyers in different Member States. The paper provides detailed analysis and classification of those 34 instances of cross-border joint procurement. The paper acknowledged that, in the grand scheme of things, this was meagre (but important) cross-border experimentation, and Locatelli was hopeful for more intense cross-border joint procurement in the future, once the best practices of a ‘group of brave buyers’ were disseminated and some policy interventions by the European Commission took root.
I am now working on a paper on cross-border procurement with Kirsi-Maria Halonen, so I thought it would be a good idea to try to update Locatelli’s analysis, following as close a methodology as I could. This should allow for a longer view analysis of emerging trends over an almost five year period (2017, as per Locatelli's analysis, plus 2018-2021 to date). This blogpost reports the results and reflects on some issues preventing a proper understanding of the emergence of cross-border joint procurement ‘on the ground’ [for theoretical analysis, see A Sanchez-Graells, ‘The Emergence of Trans-EU Collaborative Procurement: A “Living Lab” for European Public Law’ (2020) 29(1) Public Procurement Law Review 16-41].
‘Mining’ TED for 2018-21
Given how counterintuitive I find the advanced searches in TED, I thought I would cast my net wide (if anyone has suggestions for a more effective approach, I would be most grateful to receive them). So, I searched TED for CANs with the free text “joint procurement” and then manually checked whether there was a cross-border element. I thought the search would, if anything, be overinclusive, as the mandatory CAN standard form requires in part I.2) to indicate whether there is any element of joint procurement and ‘In the case of joint procurement involving different countries, state applicable national procurement law’.
184 results were returned. This is the breakdown of what came up, organized by country of the buyer:
The results were a little surprising, if nothing else for being such few, as well as for the very clear bulges of ‘activity’ in the UK and Norway and, to a lesser extent, Denmark. In order make the analysis of the CANS for the 2018-2021 period comparable to Locatelli’s for 2017, I screened them manually and applied the same exclusion criteria detailed in the paper.
To carry out his analysis of emerging trends in ‘true’ cross-border procurement, Locatelli conducted an ‘assessment of joint cross-border procurement … limited to cases of a contract being awarded, or a framework agreement being concluded, either jointly or via a joint entity, by several contracting authorities located in various Member States or via two foreign CPBs. Therefore, coordinated procurement implying several parallel procedures managed by buyers in different Member States is not covered here.’ The paper also clarified that ‘CANs relating to European Union (EU) institutions’ procurement procedures that are open to agencies and institutions located in different Member States are not covered by this assessment’, and that ‘CANs concerning pre-commercial procurement are not included since public procurement Directives apply to public service contracts for research and development services only where specific conditions are met’.
Doing that resulted in only 11 eligible cross-border joint procurement projects for the period 2018-2021 — with only very few pre-commercial procurements and procurements of the EU Institutions excluded. Interestingly, the bulk of the CANs referred to single-country joint procurement and mostly to municipal or regional collaboration in Norway and the UK, to utilities collaboration in Denmark, as well as collaboration within the English national healthcare system.
What was in TED for 2018-21?
The CANs identified above show a limited picture of cross-border collaboration mainly in the Nordic countries (and remarkably in defence and security procurement), and mostly where there is either a physical or regulatory network requiring (or justifying) cross-border management, or where there is EU funding for a specific activity. The sample is way too small to try to extrapolate any clear trends, so it is worth listing the 11 projects here (from newer to older), in case anyone wants to dive deeper:
General procurement (with EU funding)
Spanish-led collaboration with UK for the procurement of innovative healthcare services, funded by the EU (project RITMOCORE) [2021/S 040-100288 (and also 2020/S 255-642149)]
Swedish-led collaboration with Finland for a digital service gathering travel information for visitors in the Stockholm and Turku archipelago, with EU funding (EU Central Baltic funding: CB767) [2020/S 107-259917]
French-led collaboration (with Spain, Germany and Italy) for the acquisition of super-computers, funded by the EU (under PPI4HPC) [2020/S 092-219297]
Network procurement (not necessarily utilities)
Swedish-led Nordic (plus Dutch) collaboration for the maintenance and further development of software for financial reporting via the Northern Transaction Reporting System (NTRS), which was already jointly procured in 2016 [2021/S 094-247849]
Austrian-led collaboration (with Slovakia, Croatia, Bulgaria and Romania) for the setting up of a transnational Waterway Monitoring System (“WAMOS”) within the Framework of the programme “FAIRway Danube”, co-financed by the Connecting Europe Facility (CEF) programme [2018/S 097-221820]
German-led collaboration (for the entire Eurosystem, under the auspices of EPCO) to acquire rating agency services [2018/S 069-153490]
Finnish-led collaboration (with Estonia, Latvia and Lithuania) regarding the identification of the most suitable option for a Baltic-Finnish energy market [2018/S 014-029097]
Defence and security procurement
Norwegian-led collaboration with Denmark for a joint procurement for inspections and maintenance of the respective countries’ C130J Hercules planes [2021/S 076-195801]
Swedish-led collaboration with Norway to acquire UAS-Systems (Unmanned Air System) for their police forces [2019/S 182-442948]
Danish-led collaboration with Norway for the purchase of type rated courses to maintain the C-130J Block 6.1 Hercules air crafts [2018/S 179-407131]
Swedish-led collaboration with Finland to procure strategic sealift operations [2018/S 031-068254]
Is this really all the cross-border joint procurement there is?
I think there are problems with this information. Anecdotally, I am aware of a cross-border joint procurement between France and Italy in 2019 that did not show in the search results. There are also some examples in this recent iProcureNet report that also do not show in the search results. More broadly, I think that the poor form-filling that tends to affect TED notices may mask some of the joint cross-border procurement taking place, in particular because mistakes in a small sample can have more relevant effects than in a large sample (contra, Locatelli 2019: 7-8).
Be it as it may, even if the search was defective and the results were massively under-reported by (say) 10 to 1, the picture that emerges is one of extremely limited action in joint cross-border procurement. If the EU-funded projects are excluded and Nordic defence collaboration is set aside, all that is left is joint procurement linked to physical or regulatory network activities with an obvious EU dimension. Therefore, there seems to be very little ‘grassroots’ collaboration on the public buyer side of the EU’s public procurement internal market, except at its margins.
What then?
To my mind, this poses a few relevant questions. First, whether the existence of language and legal barriers that are generally brushed under the carpet in EU policy-making need a serious reconsideration (and I am not the only one to think this; see eg MA Simovart, ‘Choice of law applicable to joint cross-border public procurement by central purchasing bodies or under occasional collaboration agreements’ (2021) 1 Procurement Law Journal 1-18). Second, whether joint cross-border procurement can really be the channel for trans-EU collaboration that the European Commission hopes — eg in relation to the adoption of AI, where the Commission considers that ‘collaborative cross-border procurement has the potential to exploit synergies and achieve higher critical mass in bringing AI solutions to the public sector market across Europe‘ [as announced in the 2018 Coordinated Plan on AI, and detailed in a recent Innovation Procurement Newsletter]. Third, whether the low uptake of collaboration between public buyers and the structurally low level of (direct) cross-border tendering by foreign potential suppliers (as recently reconfirmed, in this new Study on the measurement of cross-border penetration in the EU public procurement market) warrant the current regulatory approach, not only by the Commission, but also by the European Court of Justice.
As you see, there is plenty to think about and discuss. Kirsi and I hope to publish a draft of our paper in a few months. So stay tuned if this is of interest. And, as always, all comments and suggestions most welcome: a.sanchez-graells@bristol.ac.uk.
