Transatlantic Roundtable on Sustainable Public Procurement: 5 April 2019, Pace University, New York City

On April 5, 2019, scholars from Pace University, the University of Copenhagen and George Washington University hosted an all-day roundtable on emerging issues in sustainable public procurement, through Pace University’s Elisabeth Haub School of Law.

The First Annual Transatlantic Roundtable on Sustainable Public Procurement was hosted by:

Pace Environmental Law and the Elisabeth Haub School of Law,
The Centre of Enterprise Liability, Faculty of Law, University of Copenhagen, and
The George Washington University Law School’s Government Procurement Law Program.

Researchers and renowned specialists from around the globe discussed recent developments in the field of sustainable public procurement. The global value of public procurement spending is enormous. OECD countries alone spend a total of a trillion U.S. dollars per year, and each year their governments spend around 14-19% of GDP on the purchase of services, works and supplies. In many sectors such as energy, transport, waste management, social welfare, education and health services, public authorities are the principal buyers. The sheer scale of public procurement spending can literally create and shape markets, impact lives of citizens across the country, and foster greater sustainability in terms of environmental protection, public health, and economic equality.

Speakers included:

Professor Jason J. Czarnezki, Kerlin Distinguished Professor of Environmental Law and Associate Dean, Elisabeth Haub School of Law at Pace University,
Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark,
Professors Steven Schooner and Christopher Yukins, George Washington University Law School, Washington, D.C., and
Nicole Darnall, Associate Dean and Professor, School of Sustainability Arizona State University

This event was held at Pace University’s Downtown Campus – 1 Pace Plaza, on the 18th floor in the North and South Boardrooms.

Click here for detailed program information.

Introductions
Jason J. Czarnezki –Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York

Marta Andhov – Assistant Professor, Faculty of Law,
University of Copenhagen, Denmark;
Haub Visiting Scholar at Pace University’s Elisabeth Haub School of Law

Session 1 : Does the United States need a sustainable
public procurement legal framework?

U.S. Federal Public Procurement –
A lack of interest in sustainable purchasing? – Steven Schooner,
Nash & Cibinic Professor of Government Procurement Law,
The George Washington University Law School

Do state level and local contracting authorities drive the sustainable procurement agenda in the United States? – Jason J. Czarnezki, Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York City

Sustainable Procurement in Local Governments – Nicole Darnall
Associate Dean and Professor, School of Sustainability,
Arizona State University

Session 2: European Union – A leader in sustainable purchasing?

How we got to the Strategic Public Procurement Agenda-Understanding the EU legal framework – Roberto Caranta, Professor of Administrative Law, University of Turin, Italy

All that glitters is not gold – Paradoxes of EU Public Procurement Law –
Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at the Pace University’s Elisabeth Haub School of Law

The Evolution of Sustainable Procurement in the United Kingdom: From Thatcherism to the Social Value Act and a widening and deepening policy agenda. Where next post-Brexit? – Michael Bowsher QC – Director of the Distance Learning Diploma and Masters in Public Procurement Law at King’s College London; Visiting Professor, Dickson Poon School of Law, King’s College London; Barrister (Monckton Chambers), England & Wales, Northern Ireland, Republic of Ireland

Session 3: WTO & UNCITRAL

SPP: International perspectives, including under the UNCITRAL Model Law and the WTO Government Procurement Agreement – Christopher R. Yukins – Professor of Public Procurement Law and Co-Director, Government Procurement Law Program, George Washington University Law School

Chris Yukins – Sustainability Symposium – Pace – 5 April 2019 Download

Sustainable public procurement under the OECD and the multilateral development banks- Carol Cravero, PhD student at the University of Turin, Italy and University of Paris Nanterre (CRDP), France

Sustainable procurement at UNOPS –Benedetta Audia, Corporate Legal Advisor, Head of the Commercial and Institutional Law Practice, Legal Group, United Nations Office for Project Services, New York

Session 4: Selected Countries and Their Experiences

Canadian experience with Sustainable Public Procurement –Paul Emanuelli,General Counsel and Managing Director, Procurement Office, Toronto

Challenges and the future of sustainable public procurement in Poland – Michal Kania, Professor, Silesian University, Poland; Fulbright Visiting Scholar The George Washington University Law School

Sustainable Procurement in Poland – Michal Kania – Presentation Download

Brazilian experience with SPP – Luciana Stocco Betiol, Professor – Department of Social and Legal Sciences, São Paulo School of Business Administration – FGV/EAESP

Professor Michal Kania – European Defense Procurement – Presentation at GWU Law School

Defense_Security_UE_Michal_Kania_Final_version – Published

Visiting Fulbright scholar Professor Michael Kania (Silesian University) will present on European Defense Procurement at George Washington University Law School, Law Learning Center 006, 2028 G Street NW, Washington, DC, from 6-8 pm on Tuesday, November 6, 2018. His presentation is linked above. If you would like to attend this open seminar, please reserve a space with Cassandra Crawford, ccrawford@law.gwu.edu.

Professor ZHAO Yong, University of International Relations – Beijing – New Text on U.S. “Green” Procurement

An Analysis of American Governance through the U. S. Federal Government’s Green Procurement System

ZHAO Yong, University of International Relations, Beijing, email: yongjao@hotmail.com

(Text is in Mandarin, and available from the author)

[Abstract]

The formation of the green procurement system of the U. S. Federal Government is complex, the influence factors being numerous and the contents being comprehensive. This dissertation aims to provide a reference for the improvement of China’s government procurement system through exploring the cause, contents, features and evolution of the American green procurement system. Furthermore, by in-depth studying the American green procurement system as a breakthrough point so as to analyse the social problem conduction mechanism, interest distribution mechanism and the power allocation mechanism of the U. S. Federal Government, this dissertation tried to discover the characteristics and means of the American governance, promote transforming the mode of China’s Governance and enhance Chinese Governments’ ability of governance and solving the practical problems of the current Chinese society.

After the World War II, the rapid development of American economy aggravated the degree of environment deterioration. An endless stream of environmental incidents and the enhancement of environmental awareness have promoted the awakening of public environmental interests. With the help of environmental organizations and research institutions, the public environmental interests can be effectively expressed, which prompted the politicians to address environmental issues into the political agenda. Then the environmental policies were shaped after the multi-player game. From 1960’s, the importance of environmental policy in the United States has been rising, with the changing of its connotation and the value orientation. In the same period, the Federal Government’s procurement policy stepped into the policy-stage after the liberalization-stage and the standardization-stage. The the overlap of the dense introduction stage of environmental policies and the policy-period of government procurement formed the basis for establishing green procurement laws and actions.

In the process of the formation of the environmental legislation system in America, the macro path is the self-generation and the micro path is bargaining. Citizens, environmental protection organizations, interest groups, administrative agencies, the sub-committees of the Congress and other parties in the process of the legislation played different roles. The development of the governance system is embodied in the progressive development path, during which the interests’ equilibrium of the participating parties in the evolution has been reached. Through environmental legislation, the federal government expanded its powers. In the aspect of government procurement, the laws were becoming more and more plentiful. The objectives were increasingly rich. The maturity of the procurement system makes it possible to combine the the social-economic laws and the procurement laws.

Due to the vast scale of government procurement, the multiplier effect and the little political resistance, the executive branch of the Federal Government launched a series of green procurement programs based on environmental legislation and procurement legislation. By studying the green procurement programs with different legal bases, various objects and goals, diversified implementation bodies and multiple challenges, we could recognize the complexity of governance of the environmental problems.

In order to achieve the objectives of environmental governance, it is necessary to transform the policies, laws and programs into government procurement activities by the contracting officers’ and suppliers’ behavior. The contracting officer will, under the guidance of the policy, laws and the green procurement programs, weigh a variety of the procurement factors and the environmental factors, formulate the green procurement plans and implement green procurement through a variety of procurement tools. Finally, the green governance on the supplier was achieved through the government contract. During the process, the Federal administrative agencies, the Congress, the courts, and the public oversight or supervise the procurement in different forms.

From China’s perspective, the enlightenment of the U. S. Federal Governments’ green procurement system and the governance mode is: it is necessary to establish and improve the environmental problems transmission mechanism and a balanced interest distribution mechanism; to advance green procurement programs cautiously; to actively participate in the GPA negotiation; and to react the climate change negotiations carefully.

[Keywords] U. S. Federal Government, Green Procurement, Governance

International Conference on Public Procurement Law – Africa – Nov. 24-25, 2016

2ND INTERNATIONAL CONFERENCE ON PUBLIC PROCUREMENT LAW AFRICA ANNOUNCED

The African Public Procurement Regulation Research Unit (APPRRU), Faculty of Law, Stellenbosch University, is pleased to announce the second International Conference on Public Procurement Law Africa. The Conference will be held from 24 – 25 November, 2016 at the Century City Conference Centre & Hotel, Cape Town, South Africa. The Conference theme is Public Procurement Regulation suited for 21^st Century Africa: Reform, Governance and Innovation. The theme will address a range of critically important issues and themes relating to the intersection between procurement regulation, governance, reform, and innovation. Plenary speakers include some of the leading thinkers in public procurement in Africa and internationally, and the conference will feature numerous papers, and workshop presentations. More detail on the conference, including the call for papers, can be found at www.africanprocurementlaw.org/projects/conference2016.

Albert Sanchez-Graells: Update on EU Transposition of Procurement Directives

For those researching European nations’ transposition of the 2014 EU procurement directives, Albert Sanchez-Graells at the University of Bristol has compiled a highly useful update at http://www.howtocrackanut.com/blog/2016/6/14/some-anecdotal-updates-on-the-transposition-of-the-2014-public-procurement-package.

Paper on Brexit Published in Government Contractor

Christopher Yukins’ short paper reviewing the procurement issues under Brexit was published yesterday in Thomson Reuters’ weekly, The Government Contractor; it’s available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802637.

UNCITRAL Call for Papers – July 4-6, 2017 Conference in Vienna

Modernizing International Trade Law to Support Innovation and Sustainable Development

A three day Congress hosted by the United Nations Commission on International Trade Law to celebrate its 50th anniversary and explore new directions in cross-border commerce

4-6 July 2017, Vienna International Centre, Vienna

Join us to celebrate the 50th anniversary of the Commission and to engage with leaders in the field of international trade law, including practitioners, judges, academics, international officials and other experts to explore the opportunities that UNCITRAL should seize in the coming years.

Participants will examine ways in which UNCITRAL can contribute to managing new development issues and fostering innovation through the modernization of international trade law. The Congress will be open to anyone with an interest in international trade and business, the work of UNCITRAL and the potential of trade law reform and innovation to translate the United Nations sustainable development goals into action to advance business and trade at country level.

Attendance at the Congress is free of charge. More information will be available on this site when it becomes available.

Congress flyer

Call for papers

The Post-Brexit Pivot

Brexit While an earlier post discussed how Britain’s procurement rules may evolve after Brexit, this post assesses how international procurement reform — specifically, the UK-based colleagues engaged in those reforms — may shift focus after the historic referendum.

First we must put Brexit into context, with regard to procurement law. In 2014, the European Union revamped its procurement directives. By U.S. standards, the EU directives are relatively short and straightforward. For example, Directive 2014/24/EU, which covers most larger public purchases of goods and services, is less than 180 pages long, while by contrast the Federal Acquisition Regulation runs to thousands of pages. Though the EU directives tend to place first emphasis on economic integration, not best value, the EU rules generally align closely with global best practices, and the EU rules conform with international trade agreements such as the WTO’s Government Procurement Agreement.

Although EU member states had two years to transpose the 2014 directives into their own laws, in less than a year the UK government enacted its new Public Contracts Regulations 2015. The new UK law, it was noted by some, was an almost direct transcription of the governing EU directives, although the UK, as a member state, had more discretion to innovate. Some suggested quietly that the UK government rushed the Public Contracts Regulations to avoid the coming storm over Brexit; subsequent events seemed to confirm that.

During the Brexit debate this year, those urging that Britain leave the European Union condemned the EU procurement directives as an example of intrusive regulation from Brussels. The “Leave” campaign argued that “EU public procurement law imposes extremely onerous requirements on public authorities.” Justice Secretary Michael Gove, a Conservative leader in the Leave campaign, joined the chorus; he argued: “If we Vote Leave we can scrap the EU’s foolish rules on how Whitehall runs procurement processes which add billions to the cost of Government every year.”

The Brexit vote thus left UK procurement law in a jumble. Britain’s procurement law is today based on an EU governance model that many British voters have rejected, and on EU rules that Britain’s chief legal officer has called “foolish” — though the EU rules reflect, in the main, international best practices. If Britain abandons sound procurement rules, it risks losing legitimacy in its procurement system; if Britain instead rewrites its procurement law, it may come full circle to a body of rules, shaped by international obligations and best practices, which looks much like what it already has.

While it is difficult to predict how future UK governments will untangle all this, it may be easier to discern what role the UK procurement community could play, post-Brexit. Many of the world’s best procurement lawyers and academics work in Britain, and they may well pivot: from voices inside the European Union, bound sometimes by norms of European economic integration, to strong voices in a more global procurement community, focused first on procurement as an instrument of best value for governments and their citizens. If this shift does occur — if the British leaders in procurement do pivot to step beyond European goals, to more global concerns — Brexit ironically may have built a bridge, not a chasm.

– Chris Yukins

Editor’s note: On September 19, 2016, these Brexit developments will be discussed at our annual conference on transatlantic procurement at King’s College London; GWU Law School is a co-sponsor. Attendance is free, and further information is available at http://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589 .

Public Procurement Law Review Publishes Reviews of Multilateral Development Banks’ Procurement Reforms

The Public Procurement Law Review, led by Professor Sue Arrowsmith at the University of Nottingham, has published a very interesting set of essays on procurement developments at the MDBs. For U.S. lawyers, these are available on Westlaw.

1. All change at the World Bank? The new procurement framework

Public Procurement Law Review 2016 P.P.L.R. 2016, 4, 121-150 Peter Trepte

2. An update on procurement reforms at the African Development Bank

Public Procurement Law Review 2016 P.P.L.R. 2016, 4, 151-163 Vinay Sharma

3. The Inter-American Development Bank: reform to build up and increase the use of national procurement systems in Latin America and the Caribbean

Public Procurement Law Review 2016 P.P.L.R. 2016, 4, 164-171 Adriana Salazar

4. The procurement policies and rules and the procurement activities of the European Bank for Reconstruction and Development (EBRD)

Public Procurement Law Review 2016 P.P.L.R. 2016, 4, 172-178 Jan Jackholt