Examining the Normative-Ethical Orientation of Modern Public Procurement Governance Systems (original) (raw)

The regulation of Public Procurement (PP) has gained strategic focus for policy makers over the last forty years. 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 its' 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 (PPL) ontologies are examined sequentially, and an epistemic gap is identified between what PP is in reality (de facto) and how it is codified in law (de jure). A theory of the modern PPGS, (exemplified by the UN Model Law on the Procurement of Goods, Works, and Services (2011) as an antirealist form of "Neoliberal Legality" is advanced. The theory is then tested deductively in two phases first in law and then in practice. First, through a systematic, comparative law analysis identifying and tracing indicators of Neoliberal Ethical Orientation (NEO) 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). Secondly, the relationship (if any) 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 in practice immediately prior to January 2020 and why. The study found that despite variations in PPGS design in the UK and CARICOM, a reductive, materialist, conceptualization of value was encoded therein. Moreover, the exploration of PP in practice revealed that in all jurisdictions, immediately prior to January 2020, PPE was considered a "non-critical" item 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.