Here is the recording for the first part of today’s seminar ‘The principle of competition is dead. Long live the principle of competition’, with renewed thanks to Roberto Caranta, Trygve Harlem Losnedahl and Dagne Sabockis for sharing their great insights. A transcript is available here, as well as the slides I used. As always, comments welcome and more than happy to continue the discussion!
The principle of competition is dead. Long live the principle of competition (Free webinar)
Free webinar: 22 March 2024 *revised time* 1pm UK / 2pm CET / 3pm EET. Registration here.
The role of competition in public procurement regulation continues to be debated. While it is generally accepted that the proper functioning of procurement markets requires some level of competition – and the European Court of Auditors has recently pointed out that current levels of competition for public contracts in the EU are not satisfactory – the 'legal ranking' and normative weight of competition concerns are much less settled.
This has been evidenced in a recent wave of academic discussion on whether there is a general principle of competition at all in Directive 2014/24/EU, what is its normative status and how it ranks vis-à-vis sustainability and environmental considerations, and what are its practical implications for the interpretation and application of EU public procurement law.
Bringing together voices representing a wide range of views, this webinar will explore these issues and provide a space for reflective discussion on competition and public procurement. The webinar won't settle the debate, but hopefully it will allow us to take stock and outline thoughts for the next wave of discussion. It will also provide an opportunity for an interactive Q&A.
Speakers:
Prof Roberto Caranta, Full Professor of Administrative Law, University of Turin.
Mr Trygve Harlem Losnedahl, PhD researcher, University of Oslo.
Dr Dagne Sabockis, Senior Associate, Vinge law firm; Stockholm School of Economics.
Prof Albert Sanchez-Graells, Professor of Economic Law, University of Bristol.
Pre- or post-reading:
Claire Methven O’Brien and Roberto Caranta, ‘Due Diligence in EU Institutions' Own-Account Procurement: Rules and Practices’ (2024) European Parliament CONT Committee Study PE 738.335, Annex II.
Trygve Harlem Losnedahl, ‘The General Principle of Competition is Dead’ (2023) 2 PPLR 85-98 (£/€).
Trygve Harlem Losnedahl, ‘Ends and Means in the Regulation of Public Procurement — a legal historical analysis’, English translation of the original article written in Norwegian in Tidsskrift for Rettsvitenskap, vol. 136, 4/2023, 359–442.
Dagne Sabockis, ‘The Principle of Competition in the Context of Green Public Procurement – the Case of Green Award Criteria’ (2023) 18(4) EPPPL 237-243 (£/€).
Albert Sanchez-Graells, ‘Competition and procurement regulation’ in Carina Risvig Hamer et al (eds), Into the Northern Light – In memory of Steen Treumer (Ex Tuto, 2022) 65-81. Pre-print available through SSRN: https://ssrn.com/abstract=4012022.
Free registration open for two events on procurement and artificial intelligence
Registration is now open for two free events on procurement and artificial intelligence (AI).
First, a webinar where I will be participating in discussions on the role of procurement in contributing to the public sector’s acquisition of trustworthy AI, and the associated challenges, from an EU and US perspective.
Second, a public lecture where I will present the findings of my research project on digital technologies and public procurement.
Please scroll down for details and links to registration pages. All welcome!
1. ‘Can Procurement Be Used to Effectively Regulate AI?’ | Free online webinar
30 May 2023 2pm BST / 3pm CET-SAST / 9am EST (90 mins)
Co-organised by University of Bristol Law School and George Washington University Law School.
Artificial Intelligence (“AI”) regulation and governance is a global challenge that is starting to generate different responses in the EU, US, and other jurisdictions. Such responses are, however, rather tentative and politically contested. A full regulatory system will take time to crystallise and be fully operational. In the meantime, despite this regulatory gap, the public sector is quickly adopting AI solutions for a wide range of activities and public services.
This process of accelerated AI adoption by the public sector places procurement as the (involuntary) gatekeeper, tasked with ‘AI regulation by contract’, at least for now. The procurement function is expected to design tender procedures and contracts capable of attaining goals of AI regulation (such as trustworthiness, explainability, or compliance with data protection and human and fundamental rights) that are so far eluding more general regulation.
This webinar will provide an opportunity to take a hard look at the likely effectiveness of AI regulation by contract through procurement and its implications for the commercialisation of public governance, focusing on key issues such as:
The interaction between tender design, technical standards, and negotiations.
The challenges of designing, monitoring, and enforcing contractual clauses capable of delivering effective ‘regulation by contract’ in the AI space.
The tension between the commercial value of tailored contractual design and the regulatory value of default clauses and standard terms.
The role of procurement disputes and litigation in shaping AI regulation by contract.
The alternative regulatory option of establishing mandatory prior approval by an independent regulator of projects involving AI adoption by the public sector.
This webinar will be of interest to those working on or researching the digitalisation of the public sector and AI regulation in general, as the discussion around procurement gatekeeping mirrors the main issues arising from broader trends.
I will have the great opportunity of discussing my research with Aris Georgopoulos (Nottingham), Scott Simpson (Digital Transformation Lead at U.S. Department of Homeland Security), and Liz Chirico (Acquisition Innovation Lead at Office of the Deputy Assistant Secretary of the Army). Jessica Tillipman (GW Law) will moderate the discussion and Q&A.
Registration: https://law-gwu-edu.zoom.us/webinar/register/WN_w_V9s_liSiKrLX9N-krrWQ.
2. ‘AI in the public sector: can procurement promote trustworthy AI and avoid commercial capture?’ | Free in-person public lecture
4 July 2023 2pm BST, Reception Room, Wills Memorial Building, University of Bristol
Organised by University of Bristol Law School, Centre for Global Law and Innovation
The public sector is quickly adopting artificial intelligence (AI) to manage its interactions with citizens and in the provision of public services – for example, using chatbots in official websites, automated processes and call-centres, or predictive algorithms.
There are inherent high stakes risks to this process of public governance digitalisation, such as bias and discrimination, unethical deployment, data and privacy risks, cyber security risks, or risks of technological debt and dependency on proprietary solutions developed by (big) tech companies.
However, as part of the UK Government’s ‘light touch’ ‘pro-innovation’ approach to digital technology regulation, the adoption of AI in the public sector remains largely unregulated.
In this public lecture, I will present the findings of my research funded by the British Academy, analysing how, in this deregulatory context, the existing rules on public procurement fall short of protecting the public interest.
An alternative approach is required to create mechanisms of external independent oversight and mandatory standards to embed trustworthy AI requirements and to mitigate against commercial capture in the acquisition of AI solutions.
Registration: https://www.eventbrite.co.uk/e/can-procurement-promote-trustworthy-ai-and-avoid-commercial-capture-tickets-601212712407.
Registration open: TECH FIXES FOR PROCUREMENT PROBLEMS?
As previously announced, on 15 December, I will have the chance to discuss my ongoing research on procurement digitalisation with a stellar panel: Eliza Niewiadomska (EBRD), Jessica Tillipman (GW Law), and Sope Williams (Stellenbosch).
The webinar will provide an opportunity to take a hard look at the promise of tech fixes for procurement problems, focusing on key issues such as:
The ‘true’ potential of digital technologies in procurement.
The challenges arising from putting key enablers in place, such as an adequate big data architecture and access to digital skills in short supply.
The challenges arising from current regulatory frameworks and constraints not applicable to the private sector.
New challenges posed by data governance and cybersecurity risks.
The webinar will be held on December 15, 2022 at 9:00 am EST / 2:00 pm GMT / 3:00 pm CET-SAST. Full details and registration at: https://blogs.gwu.edu/law-govpro/tech-fixes-for-procurement-problems/.
