2024-11-21 16:20:00
During the McKinsey affair, the debates focused in particular on public money being misused. But how can we define when a public procurement is successful? Does the law simply establish it? In reality, a public market is constructed through administrative work and involves numerous actors and documents.
When we approach public procurement, we think above all of the expenses they represent as well as the scandals with which they are associated due to their opacity (the abusive use of consulting firms highlighted by l’affaire McKinseycorruption…). Two central dimensions of public procurement are missing from these debates: the public procurement as an administrative object, and the people who draft them (such as advisors, drafters and project managers). Both are, however, central, since it is the work of drafting these contracts which partly determines the conditions under which public money is spent and the missions that the beneficiaries must fulfill.
This writing work consists of determining the qualities that a market must possess. They cannot be reduced to a binary relationship to law (legal or illegal), but to multiple shapes to which a market can claim in order to be considered “good” or “bad” by administrative, legal services and businesses.
For example, which offer selection criterion should you choose? Should an environmental clause be included? How to allocate, that is to say separate the need into batches, in order to allow all companies to respond? How can we be sure that the documents will be understood by the candidates?
L’sociological analysis that I carried out shows that the allocation of public money is above all the result of administrative work, in which a legal object is produced (the public market) and where a meaning of the legal rule is determined. Studying this work allows you to go beyond the rigid discourses on the rule of law and to pay attention to the conditions under which the allocation of public money is carried out.
A system for allocating public money
A public contract is awarded through competition between candidates, who may be public or private organizations. It responds to a need determined by the Public procurement code and by the missions of the organization that issues it. It thus allows public organizations to ensure their operation. Toilet paper, computers, phone plans, goodiesetc., are purchased through it. This competition is enabled by offer selection criteria, generally divided into two categories: price and technique.
This system is based on the principle that the quality of the offers and the optimization of the allocation of public money are ensured by competition in the commercial sector. This justification is not new, it is mobilized from the Revolutionduring the first regulations relating to public procurement, in order to break with the abuses in matters of public finances under the Monarchy.
This argument is also taken up by the investigation of Cash investigation broadcast on September 17, when journalists compared the cost of the public consulting market with the usefulness of the deliverables produced by the McKinsey firm. The report also highlights how the use of consulting firms articulates, in the debates, a goal of entry into decision-making with a critique of public administration. In other words, how, more broadly, public sector work is “prevented”which results in a lack of time and resources which does not allow people to carry out their work properly.
In the case of public procurement, my analysis of drafting work within a Departmental Council shows how this context also has consequences on the relationship to rights within the community. While being framed by European and national texts, the public market is the result of administrative work, bureaucratic. It requires the circulation of documents that constitute the market between the offices of several organizations.
It is during this circulation that the documents will be read and written in order to assess whether they have the expected legal qualities. This work requires strong expertise to the extent that it mobilizes legal, economic and operational knowledge, which goes beyond rigid membership to a profession and an organization.
Who draws up public contracts?
Within public organizations, the directory of civil service professions lists thirteen professions linked to the work of drafting this system. They can be divided into four categories: buyer (who aims for economic performance), writer, advisor (who controls the documents) and project manager, who initiates the need.
It is difficult to establish a typical profile of these professions, whether in terms of status (civil servant, contractual) and recruitment methods (category C, B, A). In addition, having a background in law is not an obligation. Their work is close, however. It is characterized by the management of the flow of files. In the Departmental Council studied, this represents 448 public contracts per year. A market is produced on average in six months. In practice, the files overlap in time and they require mastery of various subjects (road construction techniques, law, standards of a sector of activity, etc.).
This is where the expertise inherent in writing a deal lies. An editor, for example, articulates in her work the legal framework, the economic environment of companies (strong competition, monopoly, VSE/SME) and the objectives of the organization (budgetary gains, development of the local economy) .
The interdependence of public procurement documents
A market is made up of around ten documents which form a network where everyone has a specific role. These documents are submitted on a digital platform so that candidates can submit their offers. Finally, there is the offer analysis report (RAO) which summarizes the stages of market analysis and allocation.
Each document contains several categories of information. We can distinguish technical information (the characteristics of the need), legal (references to the Code), economic (the price) or administrative (the terms of competition, the timetable). This information is all the more important because it is found in several documents at the same time (the price is present in seven documents) and because the law determines an order of value between the contractual documents.
Thus, the information present in the act of commitment (which binds the parties when it is signed) – the highest document placed in the hierarchy – takes precedence over that of a specification of technical and specific clauses (CCTP, which defines the technical need) during the execution of the contract or during litigation. A contradiction can then have consequences on the resolution of conflicts, but also on the ways in which a service is carried out.
A first conclusion would be to consider that this writing work would only consist of verifying the accuracy of the information in the documents in order to guarantee that they do not contradict each other. However, this administrative work requires articulating the variety of this information, finding one’s way in documents which can be several dozen pages long, as well as considering the effects of writing practices on potential offers.
The following case illustrates part of this work. An editor comments on a market for integrating young people through civic service within the community studied. In three different pages of the CCTP, paragraphs address differently the transport of young people to their place of internship. When reading, the editor weaves links between them, although they are isolated in a relatively large amount of information (the CCTP alone is thirty pages long). In one of the paragraphs, it is the service provider who must guarantee these means of transport, while in another, they rely on assistance from the community, the conditions of use of which are defined in two other paragraphs which contradict each other.
This repetition has three important issues. On the one hand, the search for information for future candidates: three pieces of information on the same subject are distributed across three different pages. The second is legal, since there is a contradiction in the role of the co-contractors regarding aid. Finally, there is an economic issue since in the case where the aid is paid by the Department, candidates do not have to include it in their financial offer.
This example, which seems trivial from an administrative point of view, illustrates the back and forth necessary to resolve these inconsistencies, but also the direct link between the work of writing and the law. Advisors, writers, project managers and buyers together write documents that allow public money to be allocated. These legal documents are enforceable before a judge and their terms are binding within the framework of a contractual relationship. Producing a public market cannot be reduced to a stereotypical shaping of the law which would give it in fact legal force.
The work of law, the right to work
If writers and advisors draft public contracts, they circulate to other actors who can also make judgments. Via a digital platform, a candidate can indicate that a criterion is not necessary to judge the offers. An elected official, when signing a commission analysis report on offers, may judge that the successful bidder should have been a VSE/SME. The public accounting services can reject a contract according to their own interpretations of the rule. Furthermore, private organizations (The Monitor, Purchase decision) and public (like the legal affairs department) specialize in publishing recommendations on the ways in which public contracts should be produced.
All of these judgments revolve around three relationships to the law that I identified in my research: legal security (the law is a distinct sphere, which is imposed and must be followed), operationality (the law is a constraint on activity which increases the workload and reduces efficiency) and the purchasing policy (the law is a tool allowing the objectives pursued by the organization to be achieved).
The articulation of these three relationships with the law is determined by the contexts where the work is carried out. For example, being understaffed and managing the overload of files leaves little time to optimize certain clauses or discuss the relevance of the chosen criteria. Operationality is then privileged. In certain cases, this results in the use of law firms to carry out the drafting work even though the community services have these skills. Thus, law is the result of work, that is to say that its place and its production are part of ordinary administrative operations. Professionals, who are generally considered far from the law, interpret it, manipulate it and transmit it to others.
In doing so, producing a public contract means producing an acceptable contractual framework, less in relation to a national legal framework, than to local expectations which meet the constraints relating to the work context of the people involved. The deterioration of working conditions in the public service then directly affects the capacity of communities and the State to determine the contractual frameworks which allow them to allocate public money.
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What training and resources are essential for public servants to navigate the complexities of legal and economic landscapes in public contract management?
Upport the drafting and execution of public contracts by providing guidance, resources, and oversight. This collaborative framework demonstrates the complexity and interdependence of various stakeholders in the public procurement process.
The drafting of public contracts, therefore, is not merely a technical task but a negotiation point where diverse interpretations, legal frameworks, and economic realities intersect. The composition and content of these contracts reflect a negotiation between fulfilling regulatory requirements and addressing practical needs. The importance of this work lies not only in the legality of documents produced but also in their implications for service delivery and accountability of public funds.
Ultimately, the sociological analysis underscores that the public procurement system is not just a procedural mechanism but a dynamic field of interaction between law, administration, and the public. By examining the administrative labor involved in drafting and managing public contracts, we can understand the broader implications for transparency, efficiency, and equity in public spending. This examination also highlights the need to invest in the capacity and training of public servants engaged in this vital work, ensuring that they are equipped with the necessary skills and resources to navigate the complexities of legal and economic landscapes surrounding public procurement.
while the processes surrounding public contracts are often viewed through a legalistic lens, a deeper sociological perspective reveals a rich tapestry of interactions, negotiations, and the inherent challenges in effectively allocating public money. This recognition is crucial for improving the mechanisms of public spending and enhancing the integrity of public administration.