Examining the Normative-Ethical Orientation of Modern Public Procurement Governance Systems

Abstract

The regulation of Public Procurement (PP) has gained strategic focus for policy makers over the last forty years. The reports, worldwide, of corruption, waste and mismanagement in PP during the earliest stages of the COVID-19 pandemic stimulated a plethora of research on root causes and lessons learned. The dominant consensus is that PP governance systems worked well and there was no need for “radical change”. This study challenges this consensus and investigates the normative-ethical orientation of modern Public Procurement Governance Systems (PPGSs) and it’s possible role in the COVID-19 Personal Protective Equipment (PPE) procurement crisis. Employing the philosophical tools of transcendental argumentation and immanent critique within Bhaskar’s metaRealist epistemological framework, PP and PP Law ontologies are examined sequentially, and an epistemic gap identified. Firstly, using transcendental argument a theory of Public Procurement (PP) de facto, as a socially-constructed, complex system for the exchange of public money for value in the form of goods, works and services, is advanced. Derived from this theory of what PP is, the normative-ethical argument is made that the indissociable purpose of modern PPGS design is maximizing the realization of value for public money in the acquisition of goods, works and services (Theory 1). Theory 1 is then used to explicate the complexity of value in PP transactions. Secondly, a Law & Political Economy (LPE) approach and the philosophical method of immanent critique are used to construct the retroductive theory of modern Public Procurement Law (PPL) de jure, as an antirealist form of ‘neoliberal legality’ that attempts radically to disembed PP from its indissociable purpose (both analytically and normatively) (Theory 2). Theory 2 is developed by first mapping indicators of ‘Neoliberal Ethical Orientation (NEO)’ in the “modern” PPGS as exemplified by the UN Model Law on the Procurement of Goods, Works and Services (2011). Theory 2 is then tested deductively through a systematic, comparative law analysis tracing the NEO indicators in the developments of PPL specifically in UK (England and Wales), and the Post-Slavery, Post-Colonial, English-speaking states of the CARICOM over a period of forty years (1980-2020). The relationship between the normative-ethical orientation in the design of the modern PPGS immediately prior to the COVID-19 procurement crisis and the lack of public sector readiness to meet the PPE procurement crisis in the earliest stages of the pandemic, is then explored. Interview data from public procurement advisors and experts in seven (7) jurisdictions : UK, Trinidad and Tobago, Belize, Bahamas, Lebanon, US, and South Africa was collected to examine the way in which the procurement of PPE was governed immediately prior to January 2020 and why. Through the systematic comparative law analysis of PPL in UK and CARICOM, the study found that despite variations in PPGS design, a reductive, materialist, conceptualization of value was encoded therein. Moreover, the interview data revealed that in all jurisdictions, immediately prior to January 2020, PPE was considered a low-value good and therefore did not attract strategic supply chain risk and inventory management, nor supply chain auditing. Ultimately, the study aims to (i) explicate and problematize the dominant normative-ethical orientation underpinning modern PPGS design (ii) explore its possible causal influence on public sector readiness in the earliest stages of the pandemic and (iii) query whether, despite the dominant consensus in the field, the COVID-19 PPE crisis instantiates the need to rethink the normative-ethical orientation of the design of modern public procurement governance systems.

Date of Award	27 Mar 2024
Original language	English
Awarding Institution	University of Bath
Supervisor	Emma Carmel (Supervisor) & James Copestake (Supervisor)