gender vulnerability theory and public procurement

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Gender, Vulnerability Theory and Public Procurement

Taking up the concept of vulnerability, this book examines the gendered impact of market-based procurement practices.

In recent years, ideological shifts and real managerial constraints have forced states everywhere to rely on private resources to solve public problems. Focusing on instances where the state retains ownership of assets and rights, even if it temporarily devolves its authority to a private entity (profit or non-profit), this book uncovers the ways in which these private actors are not just suppliers of materials goods, but increasingly policy influencers. More specifically, the book focuses on the gendered dynamics within the law, policy, and practice of public procurement and investigates how vulnerability is conceptualized and coded in the process of public acquisition of works, goods, and services from private suppliers. In this book, a series of rich case studies from Africa, the Middle East, and Europe show how vulnerability theory can inform the design of public institutions that are more responsible and responsive to gender-informed demands for social justice.

This is the first book to integrate vulnerability theory into public procurement studies in global and comparative perspectives, and it will appeal to scholars and others with interests in gendered dynamics in law and society, international development, public policy, and international political economy.

S.N. Nyeck is Associate Professor of African Studies, Political Economy, Gender,

and Queer Studies at the University of Colorado Boulder, USA, and Adjunct Professor at CriSHET Mandela University, South Africa.

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Series Editor

Martha Albertson Fineman, Emory University School of Law, USA

Gender in Law, Culture, and Society will address key issues and theoretical debates related to gender, culture, and the law. Its titles will advance understanding of the ways in which a society’s cultural and legal approaches to gender intersect, clash, and are reconciled or remain in tension. The series will further examine connections between gender and economic and political systems, as well as various other cultural and societal influences on gender construction and presentation, including social and legal consequences that men and women uniquely or differently encounter. Intended for a scholarly readership as well as for courses, its titles will be a mix of single-authored volumes and collections of original essays that will be both pragmatic and theoretical. It will draw from the perspectives of critical and feminist legal theory, as well as other schools of jurisprudence. Interdisciplinary, and international in scope, the series will offer a range of voices speaking to significant questions arising from the study of law in relation to gender, including the very nature of law itself.

Other titles in the series

Vulnerability and the Legal Organization of Work

Edited by Martha Albertson Fineman and Jonathan Fineman

ISBN 978-1-138-69860-4 (hbk)ISBN 978-1-138-69882-6 (pbk)

Privatization, Vulnerability, and Social Responsibility: A Comparative Perspective

Edited by Martha Albertson Fineman, Ulrika Andersson, and Titti Mattsson

ISBN 978-1-4724-8904-3 (hbk)ISBN 978-1-4724-8907-4 (pbk)

Islamic Feminisms: Rights and Interpretations Across Generations in Iran

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Gender, Vulnerability Theory and Public Procurement

Perspectives on Global Reform

Edited by S.N. Nyeck

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by Routledge

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Routledge is an imprint of the Taylor & Francis Group, an informa businessA GlassHouse book

The right of S.N. Nyeck to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

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British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Names: Nyeck, S. N., 1977- editor.

Title: Gender, vulnerability theory and public procurement : perspectives on global reform / edited by S.N. Nyeck.

Description: Abingdon, Oxon ; New York, NY: Routledge, 2024. | Series: Gender in law, culture, and society | Includes bibliographical references and index. Identifiers: LCCN 2023005716 (print) | LCCN 2023005717 (ebook) | ISBN 9781032442815 (hardback) | ISBN 9781032443416 (paperback) | ISBN 9781003371663 (ebook) Subjects: LCSH: Government purchasing—Social aspects—Case studies. | Social justice—Economic aspects—Case studies. | Economic

development—Social aspects—Case studies. Classification: LCC JF1525.P85 G46 2024 (print) | LCC JF1525.P85 (ebook) | DDC 352.5/3—dc23/eng/20230215

LC record available at ebook record available at 978-1-032-44281-5 (hbk)

ISBN: 978-1-032-44341-6 (pbk)ISBN: 978-1-003-37166-3 (ebk)DOI: 10.4324/9781003371663Typeset in Times New Roman

by Deanta Global Publishing Services, Chennai, India

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List of Contributors viiAcronyms x

3 Gender Justice in Public International Organizations’

Procurement Work: A Contrasted View 43

EMILIE COMBAZ

4 Growth Pattern in Women-Owned Construction Companies as

ABIMBOLA WINDAPO

5 Contracted Vulnerability?: Job Quality, Service Quality, and

Public Procurement of Services 85

E.K. SARTERAND ORLY BENJAMIN

6 The Case for Gender-Responsive Public Procurement in Botswana 100

EMMANUEL BOTLHALE

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7 Gender-Responsiveness of Public Procurement and Tendering

Policies in Kenya 119

GEDION ONYANGO AND MARYGORETTY AKINYI OTIENO

8 Policy Perspectives on Engendering Public Procurement in

Africa: The Case of Rwanda and South Africa 136

ANGELITA KITHATU-KIWEKETE AND SHIKHA VYAS-DOORGAPERSAD

9 Vulnerability in Higher Education: The Case of Managerialism

in Cleaning Services Procurement in Israel 150

ORLY BENJAMIN

10 The Paradox of Equity in Public Procurement Policies:

A Vulnerability Analysis of Jordan 166

WA’ED ALSHOUBAKI

Index 181

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Abimbola Windapo, Ph.D., is a Professor at the Department of Construction

Economics and Management, University of Cape Town, South Africa, with more than 30 years of experience in practice, teaching and research. She is a C2 Rated researcher with the National Research Foundation (NRF) and a Professional Construction Project Manager and Mentor registered with the South African Council for the Project and Construction Management Professions (SACPCMP) and Registered with the Council of Registered Builders of Nigeria (CORBON). Her research is interdisciplinary and focusses on construction industry development, management of the business of construction and projects from a performance perspective. She is the recipient of several awards including the prestigious NSTF-South32 Engineering Research Capacity Development ‘Science Oscars’ Award.

Angelita Kithatu-Kiwekete, Ph.D., is expert in the public sector’s role in

socio-economic development with knowledge and experience acquired from ing, research and graduate studies in public financial governance on the local and national spheres of African government. She has conducted work, research and published on the continental, national and local governance landscape of the conti-nent. She is passionate about gender issues and works to provide strategic linkages conceptually and practically between vulnerable women in community; policy and in development processes. She is a facilitator on public and corporate govern-ance and conducts training on gender and gender budgets to the public sector and civil society organizations. She lectures at the University of Witwatersrand, South Africa, and is an independent research and governance consultant.

consult-Atieno Mboya Samandari, SJD is an Adjunct Professor and Postdoc fellow,

Emory University School of Law, USA.

Caroline Marygorety Akinyi, Ph.D., is a lecturer at African Women’s Studies

Centre – University of Nairobi, Kenya in charge of linkages and tion, Senate Representative. She holds Doctor of Philosophy in Gender and Development Studies, Doctor of Philosophy in Anthropology, Master of Arts in Gender and Development Studies and Bachelor of Education in Linguistics

Contributors

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collabora-and Literature in English. Currently, I am the Secretary-General at Forum for African Women Educationalists (Kenya Chapter) (FAWEK) and World Health Organization Awardee on outstanding contribution towards Non-Communicable Diseases (NCD) related Sustainable Development (2019) and former Board of Management member Thogoto Teachers’ Training College, an international visiting scholar at Shanghai Open University, Shanghai, China. A gold member University of Nairobi Alumni Association (UONAA), a member World Society of Victimology, Catholic Women Association (CWA), International Society for the Study of Behavioural Development (ISSBD), African Council for Distance Education (ACDE), International Women Academy (IWA) and The League of Kenyan Women Voters.

Emilie Combaz, Ph.D., is a social science researcher and consultant and a

special-ist in human rights and international organizations, based in France.

Emmanuel Botlhale, Ph.D., is a Professor in Public Administration in the

Department of Political and Administrative Studies in the University of Botswana. His primary teaching and research interest area is Public Finance. Secondary teaching and research areas are: Public Budgeting, Financial Administration; Project Management; Public Governance; and Research Methodology.

E.K. Sarter, Ph.D., is a Research Fellow at the Institute for Employment and

Research at the University of Warwick, United Kingdom.

Gedion Onyango, Ph.D., is the co-editor of the book Governing Kenya: Public

Policy in Theory and Practice. Palgrave MacMillan (2021) and the editor for the Routledge Handbook of Public Policy in Africa (2022). He currently teaches

Public Policy and Administration courses at the graduate and undergraduate els at the Department of Political Science and Public Administration, University of Nairobi, Kenya.

lev-Orly Benjamin, Ph.D., is a Professor of Sociology and Anthropology, Bar-Ilan

University, Israel.

Shikha Vyas-Doorgapersad, Ph.D., is a Professor in the School of Public

Management, Governance and Public Policy at University of Johannesburg, South Africa. Her previous lecturing experience includes International College for Girls (India); University of Zululand, and North-West University (South Africa). She holds degrees of M.A., M.Phil., and Ph.D. in Public Administration from the University of Rajasthan (India). Her research interests are in Public Policy, Gender Issues, and in Municipal Governance.

S.N. Nyeck, Ph.D., is Associate Professor of African studies, political economy,

gender and queer studies at the University of Colorado Boulder, USA. She is also a visiting scholar at the Vulnerability and Human Condition Initiative at Emory University. She holds an appointment as extraordinary professor at the University of Western Cape, South Africa associated with the Desmond Tutu

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Center for Religion and Social Justice. Dr. Nyeck further serves as Adjunct Professor with the Chair for Critical Studies in Higher Education Transformation (CriSHET) at Mandela University, South Africa.

Wa’ed Alshoubaki, Ph.D., is an assistant professor of public policy and

admin-istration at the University of Jordan. She obtained her Ph.D. in Public Policy and Administration from Tennessee State University, Nashville, Tennessee, the United States of America in 2017. Her main field of research is public policy and governance. Dr. Alshoubaki made several scholarly contributions, includ-ing research papers in areas of the Governance system, public budgeting, social policies, refugees and migration policies, poverty, and Women's Rights.

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AfDB: African Development Bank

AGPO: Access to Government Procurement Opportunities

CEDAW: Convention on the Elimination of All Forms of Discrimination against Women

CGE: Commission for Gender Equality

EIGE: European Institute for Gender Equality

EDD: Economic Diversification Drive

HDI: Historical Disadvantaged Individuals

GSP: Gender-Sensitive Procurement

GDP: Gross Domestic Product

GII: Gender Inequality Index

GPS: Gender Parity Score

ITC: International Trade Centre

JVP: Joint Venture on Procurement

JVA: Joint Venture Alliances

LPO: Local Purchase Order

OECD: Organization for Economic Cooperation and Development

OPC: Optional Protocol to the Convention

PPADB: Public Procurement and Asset Disposal Board (Botswana)

PPDA: Public Procurement and Disposal Act (Kenya)

PPDR: Public Procurement and Disposal Regulations (Kenya)

PPOA: Public Procurement Oversight Authority (Kenya)

Acronyms

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PPOAB: Public Procurement Oversight Advisory Board (PPOAB)

PPPFA: Preferential Procurement Policy Framework Act

PWD: People with Disability

SADC Protocol on Gender and Development

SBA (US): U.S. Small Business Administration

WHO: World Health Organization WHO Gender Responsive Assessment Scale

YEF: Youth Enterprise Fund

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The status of1women has become a global indicator of normative measurement of development, social openness, and economic growth. Since at least 1979, global advocacy has shed light on the multivariate aspects of gender-based discrimina-tions and sought global institutional remedies through the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Global conversations about the status of women at the United Nations Fourth Conference on the Status of Women in Beijing in 1995 expanded the understanding of gender-based discriminations and specifically called attention to strategic areas such as public finance that was undergoing significant change due to shifts in the global economy and norms.2 In most cases, states have adopted and adapted this global human-rights approach to qualifying and remedying gender-based discriminations by emphasizing the vulnerability of women as a justification for state affirmative public policy actions especially in representative institutions. Central to this global gender-based ‘consensus’ is the pivotal role of the state envisioned as the mitigator of vulnerability to embed women’s economic and social well-being in the institu-tional fabric of society.

While the domestication of this human-rights vision of a gender-responsive state has taken different forms depending on the institutional culture in different coun-tries, it is noteworthy that the United States, a key agenda-setter in world politics, has never ratified the CEDAW. Instead, the U.S. has sought to change or downplay the human rights discourse and approaches to women’s economic rights and aspi-rations and to replace them with its own conception of vulnerability with negative and positive implications on state actions. Thus, in the shadow of the post-1990s world of Beijing conferencing emerged another alternative model to understanding vulnerability and its institutional remedies. Trade, not socially responsive policies, 1 Associate Professor of African Studies, Political Economy, Queer and Gender Studies. Department of Ethnic Studies, University of Colorado Boulder and a Visiting Scholar, Vulnerability and Human Condition Initiative, Emory University. ORCID: 0000-0002-3514-5918.

2 Nyeck, S.N. “(Out)bidding Women: Public Procurement Reform, Policy Diffusion and Gender

Equality in Africa.” In Women and Government Outsourcing in Transnational Perspectives (Special Issue) Wagadu: A Transnational Journal of Gender and Women’s Issues Vol. 14, (2015): 13–56.

DOI: 10.4324/9781003371663-110.4324/9781003371663-1

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was proposed as the solution to addressing the vulnerability of state institutions and entrepreneurship was hailed as a preferred mode of organizing specific domestic groups deemed ‘vulnerable.’ The implications of the norms and ideologies of this ongoing period of deregulation and market-based orientation in public services delivery are still being debated. What is obvious though, is that market-based solu-tions to public needs are shifting the ways in which public resources are allocated. They are also circumscribing the scope of collective and individual responsibility, the state, and its institutions.3

In recent years, the capability of the state to function as the sole provider of sweeping collective victories has come into question. Ideological shifts and real managerial constraints have forced states everywhere to rely on private resources to solve public problems.4 Outsourcing, or public procurement, is one way in which governments purchase from private suppliers the works, goods, and services they need to meet their public mission. Although privatization can be an aspect of a public procurement, conversations in this book are restricted to cases where the public (the state) retains ownership of assets and rights, even if it may temporar-ily devolve its authority to a private entity (profit or non-profit) for the delivery, management, or regulation of such assets or rights. These private actors are not just suppliers of materials goods, they are increasingly policy influencers. While existing scholarship on gender and economics is abundant and sometimes draws heavily on ‘social provisioning as starting point for feminist economics’5 method-ology, the gendered dynamics within public procurement or government outsourc-ing remain understudied. Feminist economics reification of conventional theory such as scarcity impedes the field’s ability to consider how public resources can be stretched out or further made scarce through the cooptation of the private sector in the production, management, and delivery of public goods. Public procurement shows that scarcity is not just a situated statement about the state’s capability but also a relational opportunity/potentiality in partnership with non-state actors for the provision of public works, goods, and services. This type of organizing for social provision is distinct from and at times may bypass classical collective bargaining that informed welfare provision for most of the twentieth century.

This book investigates the ideological changes and institutional impacts of market-based orientation in public procurement with a specific attention to how vulnerability is conceptualized and coded in this process of public acquisition of works, goods, and services from private suppliers. How is the liberal vision of 3 Freeman, Jody and Martha Minow. Editors. Government by Contract: Outsourcing and American

Democracy. Cambridge: Harvard University Press, 2019. Wolin, S. Sheldon. Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism. Princeton: Princeton University Press, 2017.

4 Bromberg, Daniel. Editor. Problem Solving with the Private Sector: A Public Solutions Handbook. New York: Routledge, 2016.

5 Power, Marilyn. “Social Provisioning as a Starting Point for Feminist Economics.” Feminist Economics, Vol. 10 No. 3 (2004): 3–19.

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state capability transforming gender in public procurement operations and tions worldwide? What does vulnerability theory add to the conversation about government outsourcing and social justice in the twenty-first century? The essays presented in this book explore these questions through case studies that focus on gendered dynamics in global public procurement reform in Africa, the Middle East, Europe as well as selected international organizations to expand as well as chart new directions for a substantive enrichment and application of vulnerability theory in comparative studies.

legisla-Thus, contrary to critique,6 the case studies in this book show the explanative power of vulnerability theory for situated economic dynamics within the inter-national system, especially those governed by trade laws, human, and even envi-ronmental rights. Within the international arena, vulnerability theory cannot be confined to issues of resources allocation only. It effectively helps us approach the state not just as a provider of works, goods, and services but also as a consumer of the same through procurement, a powerful catalyst of positive and negative governance. As a double-edged sword of responsive and responsible governance, vulnerability theory in its international applications and extensions uniquely helps explain the determinants of both market failure and state capture or corruption in public procurement schemes. It follows that a traditional notion such as scarcity can be revisited through the lens of vulnerability theory not as an economic statement of facts, but as a dynamic relationality that pulls in specific institutional responses to the needs of the states. Furthermore, by calling attention to the suspicious ideali-zation of contract and ‘correspondingly reif[ication of] individual choice in ways that mask society’s role in perpetuating inequality,’7 vulnerability theory enriches public procurement studies by facilitating inquiries that treat contractual agencies and social responsibility as intertwined and consequential.

This book brings together a critical understanding of what vulnerability is and how it structures social relationships. It further examines the transformation of these relations and the institutions that sustain them when the state is no longer the sole provider of public works, goods, and services on the other hand. The book does so by firstly paying attention to the ideological underpinnings of public pro-curement operations in specific contexts. Case studies presented here are in conver-sation with vulnerability theory advanced by Martha Fineman to assess the many institutional trajectories that public procurement, or government outsourcing takes against the neoliberal backdrop premise of efficiency and economy.8 As scholars in this book show in detail, global trade harmonization through the liberalization of

6 Kohn, Nina. “Vulnerability Theory and the Role of Government.” The Yale Journal of Law and Feminism, Vol. 26, Issue 1 (2004): 1–27.

7 Fineman, Martha A. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale Journal of Law and Feminism, Vol. 20, Issue 1 (2008), 2.

8 Nyeck, S.N. “Gender Vulnerability in Public Procurement.” In Global Encyclopedia of Public Administration and Governance, edited by Ali Farazmand and Christopher Atkinson. New York:

Springer, 2020.

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public procurement does not just lead to opportunity creation; it also leads to the reorganization of labor, to trade allocation for the maintenance of privilege and dis/advantage leading to institutional capture, and corruption. Thus, the varying con-figurations of institutional resilience with respect to gender-responsible public pro-curement policies and their implementations around the world offer materials that qualify vulnerability theory as an embodied and embedded human condition, and as an ever-emerging resilience-responsiveness aimed at preventing and correcting potential institutional harm through monitoring. If the trend of government out-sourcing is not reversible in a foreseeable immediate future, vulnerability theory tasks us with the job of monitoring the complex terrain of public-private partner-ships and of remaining vigilant about the norms that constitute the human subject embedded in the neoliberal public choice of contractual production, management, and allocation of public procurement resources and opportunities. Thus, in consid-ering the slippery terrain of government reliance on profit and non-profit-oriented private suppliers to fulfill its public functions, a focus on gender dynamics illu-minates the arenas that need fair monitoring to ensure that public institutions are safeguarded from harm through non-responsiveness and forms of capture through corruption and complacency.

Vulnerability Theory: A Three-Pronged Heuristic Concept

Vulnerability theory advanced by Martha Fineman starts with the recognition that the perfectly autonomous and independent individual as a legal subject is a liberal myth. Instead, vulnerability is a constant universal human condition that illuminates the differing levels of resilience in society. Resilience here is considered not an innate characteristic of a few, but the outcome of organizing institutions that confer rela-tionship, power, and privilege. Social institutions worth building up are then those that allow us to mitigate the corrosive effects of the venerable human condition.

To say that resilience is socially produced is to appreciate the need and evance of the state as a fair mechanism for the allocation of responsibilities after repudiating the fallacy of the autonomous individual. Thus, while the universal condition of vulnerability speaks of its embodiment, it is the process of embedding vulnerability in public institutions to produce more resilience that is the concern of vulnerability theory. Furthermore, while embodiment is latent inequality, embed-dedness is realized equity through specific political and legal institutions. The pro-cess of embedding vulnerability to harness resilience highlights contextual ways in which social institutions self-adjust through acts of monitoring informed by a recognition of the universal embodiment of inequality. Conversations in this book unpack this process of embedding vulnerability discourse in gender-responsive public procurement legislations and practices in comparative perspectives to show both gaps in theorizing and possibilities for reframing gender affirmative policies in government outsourcing schemes.

rel-The case studies presented in this book show that the discourse over responsive public procurement is and remains dominated by a narrow understanding

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of vulnerability. That is, global public policy, discourse, and practices over responsiveness overwhelming treat vulnerability as a ‘woman’s condition’ needing intervention to argue for equality. While this human rights trope aims to move legal and political institutions closer to equality outcomes by mobilizing vulnerability as a group identity, it is not without problems. In its positive legal rendition, vulner-ability as a group identity for women has inspired global conversations and policy reforms that support various degrees of affirmative actions to boost women’s entre-preneurship in government public contracts. In the United States, for instance, the U.S. Small Business Administration runs special contracting assistance programs, one of which is the Women-owned Small Business Federal Contracting Program with the goal to ‘award at least 5% of all federal dollars to women-owned small business each year.’9 In this case, although the language of vulnerability is not pervasive in the U.S. policy approach, this procurement initiative is classified as ‘special’ owing to both the group identity as ‘women’ and the size of business as ‘small.’ Elsewhere as in Kenya and South Africa, the affirmative policy language is more explicit and the target threshold for a percentage of national public con-tracts spending allocated to women’s businesses higher. To date, countries that are attempting to bring us closer to a gender equality outcome in public procurement have in common the one-sidedness of their perspectives. In these equality-outcome public initiatives, gender as a ‘special’ group identity and vulnerability are situated on the supply side of business enterprise only.

gender-Arguably, when disentangled from the transactional needs of the states (the supply of specific works, goods, and services) entrepreneurial citation of special categories deemed vulnerable in public procurement fulfills another function of theoretical and practical importance. It operates as a selective and redemptive pol-icy device for categories and identities whose vulnerabilities, however coded, can be overcome through transactional interactions with the state only. The expecta-tion is that the more entrepreneurial women become, the more they consciously or unconsciously opt out of the vulnerability group that currently renders their categorical identity legible to policymaking. To some, this global policy logic puts us on the road toward gender equality in public procurement. Yet, the same logic operates with a truncated understanding of vulnerability as a human condition and further introduces an artificial distinction and split between gender/vulnerability on the supply and consumer sides as not mutually co-dependent and mutually reinforcing.

Currently, a truncated view of vulnerability is pervasive in neoliberal global public procurement reform models that assume efficiency is inherent to the private sector only. However, the universality of the vulnerable condition that vulnerability theory proposes should not narrowly be understood as an identity-based condition, but rather as an institutional inevitability that allows procurement inquiry to free 9 U.S. Small Business Administration. Women-Owned Small Business Federal Contract Program.

https://bit .ly /2HVtpXV accessed July 2022.

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itself from the one-sidedness of the efficiency analytic straitjacket that impedes the field’s ability to address substantive and structural inequality, including inequality between states and between some (developing states) and powerful transnational corporations. Thus, the assumptions about private sector efficiency on one hand, and formal equality between contracting parties (state and private sector), on the other hand, ‘may even serve to validate – existing institutional arrangements that privilege some and disadvantage others. [They] do not provide a framework for challenging existing allocation of resources and power’10 within the international system, especially for developing countries. Still, irrespective of their economic power, it is noteworthy to remember that ‘institutional vulnerability is almost always obscured, and those in control of institutions have a powerful interest in dis-claiming the appearance of vulnerability.’11 Vulnerability theory therefore expands procurement studies explanatory power by treating contracting parties and institu-tions as vulnerable and always ‘susceptible to harm and change.’12 The question of gender within these parameters helps refocus attention to the global, regional, bilateral, and domestic institutions and best practices – or lack thereof – that render social contexts specifically resilient. Furthermore, the obscure nature of institu-tional vulnerability reform in gender-based public procurement schemes should critically be assessed when such policies are used as a front or political compro-mise for institutional performativity intended hide vulnerability rather than address it.13 Gender-responsive and affirmative schemes that pass the test of vulnerability theory egalitarian culture will be those that also secure an affirmative obligation on the part of the states, its institutions, and contractors ‘to offer explanations justify-ing the disparate circumstances.’14

States are very diverse in their framing of vulnerability and inequality. However, it is the embedding premise of vulnerability theory that makes it potent and chal-lenging to global public procurement reform analysis about gender inclusion. First, we are dealing with global trade norms that are not equally negotiated among states and their policy outcomes reflect power rather than a condition of universal vulner-ability among states. Second, in the process of negotiating and embedding inter-national norms into national policies, a great deal of the monitoring agency of the public is sometimes diminished or even lost especially when areas of reform are complex. Thirdly, global public discourse on public policy reform is not always

10 Fineman, Martha A. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale Journal of Law and Feminism, Vol. 20, Issue 1 (2008), 3.

11 Fineman, Martha A. “The Vulnerable Subject and the Responsive State.” Emory Law Journal, Vol.

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fully domesticated by the agenda-setters or the biggest influencers such as the tion of the United States on CEDAW shows.

posi-It is therefore not surprising that in complex public-private dealings, the lic is not always where the news breaks. To illustrate, since the deregulation that started in the mid-1990s leading to global public procurement reform, there hasn’t emerged a strong advocacy or scholarly leadership that puts at the disposition of the average citizens the knowledge and tools to grasp the entanglements of global public finance. Every now and then, investigative journalism cracks a case and reveals serious corruption15 but what is yet to be articulated globally is that corrup-tion and waste tied to government contracting is on the rise and noted everywhere among rich as well as poor nations. Vulnerability theory’s concerns with public values and norms further allows one to engage in comparative perspectives on grounds other than efficiency which alone does not explain public procurement-related corruption in both rich,16 developing, and poor countries.17

pub-E.K. Sarter argues that knowledge is fundamental to a successful design and implementation of socially responsible and responsive public procurement. Her chapter in this book further proposes that a unilateral transmission of technical knowledge cedes place to a more participatory formation of new knowledge based on a broader understanding of vulnerability and the required institutional remedies it entails. The possibility of new knowledge creation can potentially sustain pub-lic procurement as a critically monitored site for experimenting with institutional resilience in the delivery of public works, goods, and services. There is, however, a difference between a potential and its actualization. The current state of gender inclusion in public procurement reform is heavily skewed toward technical knowl-edge dissemination, not cooperative knowledge creation, in part because efficiency has been presented as the exclusive prerogative of the private sector saddled with solutions for public sector’s ills and needs. In this sense, gender discourse may be playing more to neoliberal expectations than to substantive dialogical transforma-tion. Nevertheless, vulnerability theory’s articulation of monitoring18 as a crucial aspect of embedding resilience in responsive institutions takes a deeper meaning in helping us understand what is at stake in government outsourcing schemes. That is, against the promise of market-based efficiency and against the election of the autonomous and independent subject as the preferential agent of liberal reform,

15 Fitzgibbon, Will and Michael Hudson. “Five Years Later, Panama Papers Still Having a Big

Impact.” International Consortium of Investigative Journalists. 3 April 2021.

16 See Charbonneau Commission report on corruption in the management of public construction tracts in Quebec, Canada and New York State Comptroller’s investigations and arrests based on corruption in public procurement contracts as a few examples.

con-17 Newham, Gareth. “What Guptagate says about the Rule of Law in South Africa.” Institute for Security Studies, 27 May 2013.

18 Fineman, Martha A. “Vulnerability and Social Justice.” Valparaiso University Law Review, Vol.

53, Number 2 (2019), 366.

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vulnerability theory allows us to consider both the positive and negative incentives in public procurement and organization.

Vulnerability theory helps us ground public policy responses in a relational ethic of resilience and equity in the world for its transformation. This ethical link may be found not so much in specific public procurement legislations taken sepa-rately or together, but in conjunction with constitutional provisions in each coun-try. Atieno Mboya contributes this point in documenting institutional vulnerability through an analysis of the effect of corruption in Kenya, corruption that further complicates any discussion on gender-based economic responses. She juxtaposes broad-based constitutional values of equity and dignity to specific public procure-ment regulations to show the benefit of a resilience approach as a ‘generative and creative condition that propels us to form relationships and to build institutions that strengthen individual and collective resilience.’ The implication for gender policies is the recognition that although the state may be engaged in testing and appropriat-ing a neoliberal agenda in some areas of public policy, a resilient perspective is not impossible to envision provided constitutional provisions protect social justice and equal treatment of all (also see Waed on Jordan in this book).

The case study of international organizations’ internal procurement processes finds incoherence and discrepancies between on the one hand what is promoted externally and in-house practices on the other hand. These gaps raise questions about the extent to which global discourse on gender and public procurement is gender transformative. Combaz observes that international organizations still adopt ‘“technical fixes” [also see Sarter in this book] to achieve gender equality in pro-curement without consideration for the depth and context that transform power and structures of inequality.’ These contradictions show the limits and complications that arise from the treatment of vulnerability as embodied condition of specific groups only. Mere-responsiveness to gender does not necessarily lead to gender-transformative procurement reform which entails ‘putting the onus of change on institutions and people with the greatest responsibility and power.’ Combaz’s anal-ysis of international non-governmental/transnational organizations contributes to critique of market-based solutions while internationalizing concerns put forward by others19 about the future of democratic governance considering the outsourcing prerogatives of governments.

South Africa offers an interesting case where public policy created ferring institutions and policies’ in the form of the Broad-Based Black Economic Empowerment (BBBEE) that proved to significantly mitigate the vulnerability of post-apartheid founders of black women-owned construction companies. In South Africa, Abimbola Windapo writes, favorable government policies were essential to the creation of opportunities for construction firms entering the sector, other factors such as the capacities/capabilities embodied in the founder and human assets were

‘assets-con-19 Freeman, Jody and Martha Minow. Government by Contract: Outsourcing and American Democracy. Cambridge, Harvard University Press, 2009.

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important in successfully bidding for and winning government contracts. Without a significant contribution of government to such opportunities, historically disad-vantaged women-owned companies would have found it hard to specialize in the construction industry. In South Africa then, it could be said that a gender-respon-sive public procurement framework diversifies the prospect of assets accumulation and the networking power of women-owned firms in the construction industry. Resilience is shown in the ability of these women-owned firms to enter lucrative joint ventures.

Still, although the windfall of affirmative public procurement policies had a positive impact in the private sector for black women-owned businesses, Kithatu-Kiwekete and Vyas-Doorgapersad argue that the constitution-backed affirmative public procurement is slow in transforming public sector bureaucracy itself as dif-ferent agencies fail to integrate the constitutional mandate in their procurement (also see Oyango, Mboya, and Combaz in this book). Contrasting South Africa with Rwanda, the authors note that constitutional provisions, though important, may not in themselves prove sufficient without critical mass representation in deci-sion-making processes. Put differently, ‘the existence of gender sensitive public procurement policies is not a sole guarantor that more women-led businesses will benefit from public procurement.’ Substantive equality and representation require more than formal equality and it becomes an elusive goal when ‘the requirements of reaching equality of opportunity in the pursuit of procurement contracts is uni-dentified and large potential in terms of improved outcomes for equitable and sustainable economic grown remain untapped’ due to the lack of reliable disaggre-gated data on how women-owned/led firms fare in public procurements contracts in many countries. Furthermore, embedding vulnerability in resilience-conferring institutions then may entail a strategic exploration of regional peer learning and review mechanisms for gender-responsive and responsible public procurement reform, the case of Botswana suggests.

While most case studies in this book focus on the state’s behavior, thematic contributions related to labor condition, wage standards, and qualification levels of bidders in public procurement highlight the complex dependency that can arise when public entities are unwilling or reluctant to introduce additional requirements on private suppliers for social justice’s sake. As Sarter and Benjamin show, the demand on public resources itself can become a justification for doing less rather than more and substantively make public procurement gender-responsive. As the study of procurement in higher education institutions in Israel further shows, man-agerialism and leadership structure play a crucial role in bringing about substantive transformation in labor equity. Substantive transformation then might come about because of worker’s mobilization in broad coalition against the instrumental use of gender inclusion in public procurement to sideline other concerns about employ-ment conditions in supply chains especially in service areas such as cleaning ser-vices that attract low-skilled employees and other special groups. Benjamin’s study of public higher education in Israel tests both market-based assumptions of effi-ciency and gender identity-based expectations for women’s leadership in public

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procurement against the premise of institutional resilience in vulnerability theory. She notes the crucial importance of social activism in transforming and embedding vulnerability as a responsible and responsive framework for managing institutional power and leadership in public procurement. In this sense, social activism becomes one of the monitoring spaces that ensures accountability and fairness in govern-ment outsourcing schemes.

The conversations undertaken in this book formally started in the form of a virtual conference organized in early 2021 by the Vulnerability and Human Condition Initiative at Emory University, USA. It is hoped that findings presented here contribute to exploring comparatively, the phenomenon of government out-sourcing or public procurement considering the transformative expectations that vulnerability theory puts on the international system, social institutions, and the state. In grappling with the situated entanglement of international and domestic factors that shape trade and gender politics, contributors from different fields were invited to engage in the heuristic exercise of figuring out how vulnerability theory could inform research on gender-based dynamics of government outsourcing in comparative perspectives. There is certainly more than one way this book could engage with the literature on gender and public economics. Focus, however, is on vulnerability theory and the situated intersections it illuminates in public pro-curement laws and practices regarding gender inclusive schemes. Consequently, this book is not one that provides a rethinking of feminist economics considering public procurement schemes. Rather, it is one that circumscribes itself to engaging with vulnerability theory only. One of the challenges has been to steer analysis in directions that do not betray the spirit of vulnerability theory or the fundamentals of public procurement while recognizing that the outsourcing dynamics of states in the public provision of works, goods, and services remain poorly articulated in feminist economics.

Current approaches to vulnerability theory predominantly look inward tic public policy). This book primarily deals with domestic issues that are shaped by international economic norms. It is the first work to establish a conversation between international relations and vulnerability theory. One of the enduring and foundational theoretical assumptions in international relations is that unlike domestic politics, the international system is anarchical20 by essence. This is to say, no one is ‘really in charge.’ While this book does not engage this foundational claim from the perspective of vulnerability theory, it examines how the law (stand-ing in lieu of the anarchical assumption) reshapes domestic policy and economics through the study of public procurement. The global subtext in this book is inten-tional and calls attention to domestic and international factors that impact gender responsible and responsive procurement reforms in comparative perspectives. It is hoped that this book contributes on one hand to expanding the international scope of engagement with vulnerability theory, and to more research on the global

(domes-20 Waltz, Kenneth. Theory of International Politics. Illinois: Waveland Press, (domes-2010.

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reform of public governance with a special focus on state-business relations ing gender and economics on the other. More research on this thematic is of practi-cal interest to policymakers and stakeholders arguing for the benefit of generating and making available more qualitative and quantitative data on gender-responsive schemes in public procurement.

Bromberg, Daniel, Editor. Problem Solving With the Private Sector: A Public Solutions

Handbook. New York: Routledge, 2016.

Fineman, Martha A. “The Vulnerable Subject: Anchoring Equality in the Human Condition.”

Yale Journal of Law and Feminism, Vol. 20, No. 1 (2008): 1–23.

———. “The Vulnerable Subject and the Responsive State.” Emory Law Journal, Vol. 60,

No. 2 (2010): 251–275.

———. “Vulnerability and Social Justice.” Valparaiso University Law Review, Vol. 53, No.

2 (2019): 341–369.

Fitzgibbon, Will, and Michael Hudson. “Five Years Later, Panama Papers Still Having a

Big Impact.” International Consortium of Investigative Journalists, 3 April 2021.Freeman, Jody, and Martha Minow, Editors. Government by Contract: Outsourcing and

American Democracy. Cambridge: Harvard University Press, 2019.

Kohn, Nina. “Vulnerability Theory and the Role of Government.” The Yale Journal of Law

and Feminism, Vol. 26, No. 1 (2004): 1–27.

Newham, Gareth. “What Guptagate says about the Rule of Law in South Africa.” Institute

for Security Studies, 27 May 2013.

Nyeck, S. N. “Gender Vulnerability in Public Procurement.” In Global Encyclopedia of

Public Administration and Governance, edited by Ali Farazmand and Christopher

Atkinson. New York: Springer, 2020.

———. “(Out)bidding Women: Public Procurement Reform, Policy Diffusion and

Gender Equality in Africa.” In Women and Government Outsourcing in Transnational

Perspectives (Special Issue) Wagadu: A Transnational Journal of Gender and Women’s Issues, Vol. 14 (2015): 13–56.

Power, Marilyn. “Social Provisioning as a Starting Point for Feminist Economics.” Feminist

Economics, Vol. 10, No. 3 (2004): 3–19.

U.S. Small Business Administration. Women-Owned Small Business Federal Contract

Program. https://bit .ly /2HVtpXV. Accessed July 2022.

Waltz, Kenneth. Theory of International Politics. Illinois: Waveland Press, 2010.

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Public procurement, the purchase of works, goods, and services by public bodies, is an increasingly important tool for safeguarding the availability of goods and services in Western welfare states. Over the last few years, the social impact of public procurement laws and practices has come under growing scrutiny. In line with the rise of the regulatory welfare state (Benish and Levi-Faur 2020), public policies on public procurement increasingly aim to provide added benefits that go beyond the mere supply of goods and services (Hartlapp 2020). Among the wide variety of policy goals that have entered public procurement laws and practices is the promotion of equality.

Drawing attention to the importance of knowledge, this chapter first argues that knowledge is a key resource in devising and implementing public procure-ment practices that foster equality. It secondly explores and systematizes differ-ent approaches to promote knowledge for improved public procurement practice. This chapter thereby proceeds as follows. First, it briefly outlines the existing knowledge on the implementation of social aspects in general and equality, more specifically in public procurement. Turning to equality, this chapter then outlines different approaches to equality and the vulnerability approach. Adopting a vulner-ability approach to equality, this chapter then turns to consider the linkage between public procurement and equality. It highlights the importance of knowledge for public procurement practices that promote equality. It highlights that while sound knowledge of both equality and public procurement is on the one hand a prerequi-site for successfully devising and implementing public procurement practices that promote equality, it is on the other hand one of the major challenges. Particularly, but not exclusively, in the light of a vulnerability approach to equality, revisiting existing and creating new knowledge is one of the core prerequisites for devising and implementing public procurement strategies that promote equality. Based on 1 Senior Lecturer for Social Policy and Public Administration, University of South Wales. ORCID:

Chapter 1 The Challenge of Knowing

Public Procurement Between Unilateral Knowledge Dissemination and Participatory Knowledge Creation

DOI: 10.4324/9781003371663-2

10.4324/9781003371663-2

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The Challenge of Knowing 13

empirical data, this contribution comparatively examines different measures that aim to equip public procurement professionals with the knowledge to effectively and efficiently use public procurement to promote equality. Departing from the empirical data, this chapter then develops a typology of knowledge-promoting measures and assesses their contribution to an equitable provision of assets in view of human vulnerability. Thereby, this chapter contributes to furthering knowledge on public procurement and offers practitioners further insights into the benefits of distinct approaches for promoting knowledge.

Public Procurement

Public procurement is an essential and increasingly important tool of Western welfare states. It serves as a tool for safeguarding the availability of goods and services and delivery of works. Yet, public procurement’s impact goes beyond safeguarding the availability of goods and services and securing works. With a growing importance of public contracts, not least for the provision of services, public contracts increasingly act as a tool for the regulation of labor (Donaghey et al. 2014, Holley 2014; Ravenswood and Kaine 2015; Howe and Landau 2009; Sack and Sarter 2018; Sarter and Sack 2016). In addition, based on a long-standing history of being used strategically, public procurement is increasingly used to support broader social and economic policy goals, from promoting small and medium sized enterprises (SMEs) and stimulating regional development to fostering inclusion of people with handicaps and supporting equality (McCrudden 2007).

As part of the expansion of the regulatory welfare state (Benish and Levi-Faur 2020), public procurement regulation increasingly aims to promote social benefits beyond the mere supply of goods and services (Hartlapp 2020). Especially in the past few decades, legal regulations have increasingly drawn a linkage between public procurement and equality (McCrudden 2007; Medina Arnáiz 2010; Sarter 2015). The existence of a legal impetus has been highlighted as an important factor for the implementation of social and sustainability aspects more broadly (Brammer and Walker 2011; McCrudden 2012). In addition to the existence of legal regula-tions, as has been argued elsewhere, the design of these regulations is important in shaping their outcomes (Sarter 2020). Yet, the impact of regulatory policies is not defined by these alone. It hinges to a large degree on their implementation (among others Hill and Hupe 2002; Lipsky 1980; Meyers and Vorsanger 2007; Sabatier 1991; Sabatier and Mazmanian 1980). Linking ‘the policy itself to its effects on the ground’ (Schofield 2001, 254), the implementation has a vital impact on the content and the impact of policies. While regulatory policies provide a framework of rules, which enables certain choices and disables others, they also leave consid-erable discretion to those implementing the policies (Tummers and Bekkers 2014). In the implementation, policies are interpreted and decisions taken on ‘which out-comes to pursue and how to achieve them’ (Meyers and Vorsager 2007, 154). Consequently, ‘the content of that policy, and its impact on those affected, may

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be substantially modified, elaborated or even negated during the implementation stage’ (Hill and Hupe 2002, 7).

Several factors have been highlighted as influential in the successful mentation of social aspects in public procurement. In addition to a legal impetus mentioned above (McCrudden 2012; Brammer and Walker 2011), these include financial aspects and (perceived) viability, organizational culture, and attitudes regarding the specific objective of the policy and regarding change more gener-ally (Walker and Brammer 2009), the existence of supportive incentive structures (Preuss 2009; Sarter 2020) as well as managerial support and commitment (Grandia et al. 2013). In addition, the conceptual familiarity, knowledge, and expertise have been highlighted as important factors for the success or failure of public procure-ment practices aimed at achieving social and environmental goals (Brammer and Walker 2011; Grandia et al. 2013; Walker and Brammer 2009).

imple-Focusing on public procurement and equality, particularly in relation to der, the literature highlights the importance of a legal impetus (McCrudden 2012) and the design of legal regulations (Sarter 2020) as well as the impact of exter-nal pressure from a range of actors, particularly from civil society organizations and engagement with stakeholders (Wright and Conley 2018). In addition, the understanding of the aim and scope of purchasing as well as existing incentive structures have been found to be vital in determining the success of the imple-mentation (Sarter 2020). Further, the existing literature shows that to achieve a cross-stage continuous and full appreciation of the gender impact of public pro-curement, specified and detailed knowledge is a major prerequisite (Callerstig 2014; Sarter 2020).

gen-Equality and Public Procurement

Before exploring ways to use public procurement as a tool to promote equality more in detail, it seems crucial to briefly consider the meaning of equality and challenges for devising ways to promote equality. Equality can be devised in dif-ferent ways. One approach focuses on equality of treatment. Taking the example of gender equality, this interpretation of equality aims to promote a ‘“gender-neutral” social world’ (Pateman 1988, 252) by giving everyone, regardless of their personal position and their belonging to different groups with varying lived experiences and situations, the same treatment. However, equal treatment and (seemingly) neutral rules and practices encounter a reality that is differentiated according to a range of structural categories, for instance gender. In a world organized by hierarchical divisions, unequal opportunity structures and lived experiences, equal treatment risks reinforcing rather than dismantling inequality. Take the example of gender equality. Equal treatment under rules constituted by and with a male norm implies accepting these norms, albeit they do not account for the lived realities of (many) women (Lombardo 2003). If a seemingly neutral policy, which was designed with a specific (in the case of gender equality) male norm in mind, is applied to indi-viduals with a different lived reality (in this example women), then this ‘policy

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will be badly targeted and therefore, at worst, ineffective in achieving its goals’ (Himmelweit 2003, 51).

In contrast to a vision of equality that focuses on equality of treatment, a second interpretation of equality takes differences as a starting point and calls for recog-nizing differences and accounting for these. It encourages differentiated treatment to account for existing differences. Yet, just as an understanding of equality as equal treatment, acknowledging differences via differentiated treatment does not come without problems. First, acknowledging differences takes places within a hierarchically organized society, which does not view differences as value-neutral but attaches different values to each positioning. As a result, treating for instance women differently may easily mean ‘including women as women, not as full citi-zens: that is, as different members who need a special legal treatment’ (Lombardo 2003, 160). In addition, an approach that relies on the recognition of difference, which traditionally relies on underlying ideas of different groups with shared char-acteristics, creates important further problems. An important challenge arises for group-based approaches, which seeks to recognize differences to promote equality, from the fact that this approach is built on assumptions of and an inherent focus on characteristics of pre-defined groups with shared characteristics.

In contrast to the assumed homogeneity of pre-defined groups, in reality, viduals who share one characteristic (e.g. the same sex) are very differently posi-tioned and more heterogeneous than group-based approaches assume. Different characteristics associated with disadvantage may overlap and individual disad-vantages may not result from membership of one particular group but from the individual combinations of characteristics, which place individuals at a specific societal position. Individuals may experience a certain reality not because they

indi-are members of one group but rather because of overlapping characteristics. As

Crenshaw points out,

this single-axis framework erases Black women in the conceptualization, tification and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise-privileged members of the group. In other words, in race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women. This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.

iden-(1989, 140)As a result, it has been argued, group-based approaches to equality, which assume a homogenous group but do not place importance at the intersection of these groups and the individuals placed at these intersections, risk oversimplifying reality to an extent where they cannot account for the multilayered realities of inequality. Consequently, group-based approaches have been credited with a limited ability

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to capture the multifaceted realities of inequality (among others Crenshaw 1989; 1991; Fineman 2015; 2008).

In response to the complex realities of inequality, different approaches have emerged over the past few decades that seek to promote a more complex under-standing of equality, which is suited to account for the nuanced and multilayered realities. In this context, the concept of intersectionality (among others Crenshaw 1989, 1991) has gained importance. Taking the complexity of individual identity as a starting point, the concept of intersectionality has highlighted the importance of individual combinations of features and the intersecting nature of inequality. In a similar vein, Fineman (2008, 2015) proposes shifting the understanding of equality to bring into the conversation particular and individual circumstances. More specifically, she argues for an understanding of equality that departs from the uniqueness of an individual’s situation combined with the inherent vulnerability of human nature. As Fineman (2018, 2008) highlights, by virtue of its embodied nature, which exposes human beings to the possibility of harm, human existence is inherently and inevitably vulnerable and vulnerability in itself is an integral and

inevitable part of the condicio humana, the very essence of being human. In

con-trast to group-based approaches, the vulnerability approach thereby enables an individualized approach to equality that promises to reflect the multitude and mul-tifaceted nature of individual circumstances and to systematically integrate them in a new understanding of equality.

While vulnerability is a shared and crucial part of the condicio humana, the

degree to which individuals are exposed to this vulnerability differs between viduals as well as over the life course of any given individual because individu-als are differently embedded in economic and social relations and endowed with privileges and (dis)advantages. As the state and its institutions establish programs, structures, and institutions that provide individuals with the (physical, human, and

indi-social) assets to build resilience en face their vulnerability, they can mediate,

miti-gate, compensate, and decrease vulnerability for individuals and thereby promote equality. On the other hand, they can also exacerbate individual vulnerability and reinforce or create inequalities, depending on their design (Fineman 2008).

For Fineman (2018, 2015, 2008), acknowledging the essential nature of human vulnerability – as well as the changing nature and degree of vulnerability over an individual’s life course – calls into question the notion of humans as self-reliant and autonomous individuals, able and responsible for providing for themselves and their dependents. Challenging the notion of autonomous, competent, and self-reli-

ant individuals, placing individual vulnerability at the core of the condicio humana

highlights individual dependencies and the (at least temporary) need to rely on others. With an individual bereft of their (assumed) autonomy and independence and social embeddedness and the state and its institutions as key agents shaping individual vulnerability, the vulnerability approach also implies a different per-spective vis-à-vis the state and its institutions. Rather than placing responsibility on an individual trapped in its vulnerability, the vulnerability approach confers normative responsibility to the state and its institutions.

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In the following, the vulnerability approach to equality will form the basis of our considerations of public procurement. Understood in this sense, promoting equal-ity means the providing of assets and resources that mitigate vulnerability for a wide range of individuals (users) with the aim to lessen the degree of exposure to vulnerability because of initial disparity in assets and resources. At the same time, it has also been argued that taking a vulnerability approach to public procurement calls for a broader inclusion of actors and perspectives in the consideration of pub-lic procurement practices (Nyeck 2020).

Public Procurement and the Mitigation of Vulnerability

Public procurement and equality interact in a multitude of ways. Public ment can be used to strategically support women-owned businesses or companies. It can also include contractual obligations that serve to promote equality, such as, for instance, including strict stipulations on anti-discrimination or contrac-tual obligations such as quotas in the delivery of a service (Sarter 2020). In the light of the differentiated impact of seemingly neutral provisions outlined above, taking equality considerations seriously also means examining the differentiated impact of seemingly neutral provisions, which may have unequal implications for different individuals. In a similar vein, promoting equality takes aim at underly-ing assumptions about users that are embedded in the design of the objects of purchase.

procure-Adopting individual vulnerability as a starting point for equality thereby means not only revisiting the meaning of equality and the causes of inequality but also adopting a different approach to considering equality in public procurement. As the vulnerability approach to equality exposes the importance of acknowledging individually different social and economic embeddedness, it draws attention to the impact of and the different ways in which services, for instance, can mitigate vul-nerability for different individuals. Given the high importance of individualized circumstances of social embeddedness, of resources and resilience – rather than of group membership – adopting a vulnerability approach draws attention to the question how the objects purchased can aid the mitigation of individual vulner-ability for a variety of users. It thereby highlights the impact of the design of ser-vices and the importance of considering how, by virtue of their design, services are able to mitigate vulnerability at an individual level and draws particular attention to the different ways in which a service may affect individuals in very different positions. Therefore, adopting a vulnerability approach requires a structural and wide-ranging analysis of potential and actual implications on a wide range of dif-ferently endowed users rather than the examination of its impact on a limited set of pre-defined groups with assumingly shared characteristics. Taking a vulnerability approach to equality thereby encourages us to shift the attention towards exploring first how the services purchased can, by virtue of their design, account for diverse circumstances and mitigate vulnerability for different users and, second, how pub-lic procurement practices can promote services that account (better) for diverse

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circumstances.2 Having established the framework and central tenet of the nerability approach, namely that equality can be enhanced through strategies that provide individuals in very different (and individual) social and economic positions with assets to mitigate vulnerability, we will in the following examine the impli-cations of adopting a vulnerability approach to equality for public procurement practices.

vul-The Challenge of Knowing

Detailed knowledge is crucial for devising and implementing procurement tices that promote equality. Before turning to public procurement practices, it is essential to visualize the importance of knowledge, already pointed out as a facili-tating factor for the successful implementation of sustainable public procurement, as well as the specific requirements and challenges that public procurement profes-sionals seeking to devise implement processes and practice that promote equality face in practice. While knowledge is an essential feature determining the success-ful design and implementation of public procurement practices that foster equality by mitigating vulnerability for individuals in very different situations, in practice, the requirements for in-depth knowledge about the differentiated impact of public procurement practices is only one part of a complex concoction of requirements placed on public procurement professionals. Notwithstanding further demands that may arise, at a basic level, designing and implementing public procurement practices that promote equality by providing a wide range of users with assets and resources that mitigate human vulnerability is a demanding task that raises twofold demands on public procurement professionals’ knowledge.

prac-First, any purchasing process, and particularly public procurement practices that promote equality, requires a substantive knowledge of public procurement laws, relevant jurisdiction, and procedures as well as of the object of purchase itself. Public procurement is regulated by a complex framework at international, national, regional, and in some countries subnational laws. These regulations set distinct standards and requirements for public procurement procedures. To plan, design, and carry out public procurement procedures, public procurement professionals

2 While a vulnerability approach calls for attention to the design of services and their contribution to mitigating vulnerability for a diverse public, this does not mean that including contractual obligations does not have added benefits for promoting equality. Yet, the impact that contractual obligations placed on the provider of services cannot substitute attention to the design of services. Without care-ful consideration of the design of services, the impact contractual obligations can have is limited by the way in which services are able to mitigate vulnerabilities for users. As the design of services has immense implications for the degree to which the service itself can mitigate individual vulnerability and account for diverse circumstances, special attention must be paid to the design of services them-selves and to the technical specifications drawn up in the procurement of services.

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need detailed knowledge of the oftentimes complex legal regulations and the scope they afford.3

Secondly, to successfully promote equality through public procurement, public procurement professionals furthermore need substantive knowledge, a high level of awareness, and a clear conception and knowledge of inequalities as well as knowledge about how to promote equality through public procurement. Without an understanding of broader societal inequalities, their causes, and ways to promote equality, devising public procurement practices that promote rather than impede equality is a task that is both practically and theoretically insoluble. It is only by having a clear concept of societal inequalities as well as the ways in which they are reinforced or mitigated that public procurement professionals can devise specific public procurement practices that promote equality. The requirements for (new) knowledge are particularly high for an approach that seeks to strategically use pub-lic procurement to mitigate vulnerability at an individual level.

When adopting a vulnerability approach to equality, strategically using public procurement to promote equality requires a detailed understanding of public pro-curement and its ability to provide individuals in their different social and economic embeddedness with assets to mitigate vulnerability. Taking a vulnerability approach thereby raises questions about the accuracy of existing knowledge, which is mainly build on assessing the implications of public procurement practices for pre-defined groups. Shifting the interpretation of equality to the recognition of the implications public procurement practices have for mitigating individual vulnerability hence requires revisiting existing knowledge and calls for (re)assessing the impact of pro-curement practices in the light of their impact on individual vulnerability.

Whereas public procurement professionals can be assumed to have expertise in the legal, practical, and procedural aspects of public procurement, they are not 3 International, regional, national, and subnational regulations set a tight framework that regulates public procurement practices and set binding requirements for the purchasing process, which affect the scope for including equality considerations (for an analysis of European law in this regard see Sarter, 2015). However, generally, they only affect the specification of the good or services to a rather limited extent. While the specifications must not affect the competition (e.g. by specifying a specific provider), as a rule, legal regulations set only limited requirements for the technical specifications of services, which may already include an awareness for the differentiated impact of services procured.

For instance, Article 42 of the Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC requires that all

goods or services ‘intended for use by natural persons, whether general public or staff of the ing authority, the technical specifications shall, except in duly justified cases, be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users’ (Article 42(1)). While elaborate and complex requirements particularly relating to procedural questions including the criteria used (how to buy) exist, public procurement professionals enjoy a broad discre-tion for defining the object of purchase (what to buy) as well as in devising services that account for different circumstances and successfully mitigate vulnerabilities for a wide range of users. As legal

contract-regulations tend to focus on regulating how to buy rather than what to buy, focusing on the design

of services rather than on contractual obligations not only promotes a broad equality impact but also affords public procurement professionals with rather broad discretion.

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necessarily experts in assessing the equality impact of different services. This holds particularly true when adopting an individualized concept of equality such as the vulnerability approach, which requires the structural assessment of how services can mitigate individuals differently endowed with assets and resources. A further chal-lenge arises if public procurement officials procure more than a very limited set of services. Given that the (potential) impact of each of the services needs to be assessed to successfully devise strategies that promote equality, it seems questionable in how far public procurement officials would and can be aware of differentials in the level to which they mitigate vulnerability for all works, goods, or services they procure.

With knowledge being a major factor for the successful design and tion of purchasing strategies that promote equality on the one hand, and a practical challenge for procurement professionals on the other, promoting access to knowl-edge is of paramount importance. It is particularly important when shifting from group-based approaches, which rely on assumed impact for a rather homogenous group, to a vulnerability approach that places the individual situation at its core. This shift in the conceptualization of equality requires not only identifying and measur-ing the impact of individual procurement practices and actions but also entails a close link between procurement practices and the revisiting of existing and creation of new knowledge. Against this background, the question arises whether and in how far measures taken by contracting authorities enable public procurement profession-als to gain further insights into the equality impact of their procurement practices.

implementa-Public Procurement between Unilateral Knowledge Dissemination and Participatory Knowledge Creation

To examine whether and in how far measures taken by contracting authorities enable public procurement professionals to gain further insights into the equal-ity impact of their procurement practices, it seems indispensable to capture which measures contracting authorities have adopted to implement public policies on equality and public procurement and to promote a positive equality impact of their public procurement practices. To date, only one study took a broader compara-tive look at measures adopted by contracting authorities. Focusing on one specific type of contracting authorities (local councils) in a specific country (Scotland), it identified a range of measures taken by local councils, including measures relating to knowledge (Sarter 2016). Whereas this study took a broader view and aimed to identify distinct types of measures that local councils adopted, this chapter will in the following revisit and reappraise the data to take a specific look at measures relating to knowledge. Focusing on measures that aim to foster a deeper under-standing of the equality impact of public procurement procedures, three types of

measures can be distinguished: First, knowledge dissemination, second, knowledge transfer and exchange, and third, knowledge creation.4

4 It is important to note that these categories represent ideal types; in practice, measures taken can transcend the boundaries between these three types.

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Knowledge Dissemination

Knowledge dissemination includes activities such as the issuing of written ance and the provision of training. Through knowledge dissemination activities, the existing knowledge on the impact of purchasing practices and ways to pro-mote public procurement practices that have a positive impact on equality is dis-seminated among those in charge of purchasing processes, who can then use it to improve the equality impact of future procurement procedures. Aiming to diffuse existing knowledge and make it available to public procurement professionals, knowledge dissemination presupposes an essentially unilateral mode of interac-tion in which the holder of knowledge transmits knowledge to those seeking this knowledge. It hinges on the existence of a knowledge base on the equality impact of public procurement practices.

guid-Knowledge dissemination can make a clear and valuable contribution in viding access to clearly defined existing knowledge, for instance about the legal foundations of public procurement and the scope for specific practices. Yet, knowl-edge dissemination strongly depends upon clear and detailed knowledge to be dis-seminated. To date, specialized knowledge on the impact that public procurement practices have on equality at an individual level remains scarce. Further, given the divergence in local, regional, and national circumstances, doubts arise about the extent to which knowledge and practices can be easily transfer from one specific context to another.5 Given a lack of existing knowledge as well as doubts about the transferability of knowledge to the specific circumstances in which the concrete procurement procedure takes place, the impact of measures that aim to unilaterally disseminate pre-existing knowledge alone seems limited. While the dissemination of knowledge, particularly regarding the legal scope for action, can be essential tools in a broader attempt to promote equality, against the background of a lack of pre-existing knowledge and a need to reassess knowledge, approaches that aim to disseminate knowledge can be but one piece in a holistic mosaic of public procure-ment practices that promote equality.

pro-Knowledge Transfer and Exchange

Knowledge transfer and exchange includes activities that seek to promote an

exchange between those that have expertise in equality and experts in public ment. Examples of this type identified in the above-mentioned study were the promo-tion of collaboration between equality and public procurement staff or the creation of a dedicated post that advocates and supports equality in public procurement (Sarter 2016). In contrast to knowledge dissemination, which represents an essentially 5 As the extent to which vulnerability is mitigated is shaped by the interplay of different institutions, policies, and programs, of which public procurement is but one part, the impact of public procure-ment needs to be assessed within its context. This also means that transferring practices beyond a specific context may result in different outcomes.

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procure-unilateral relationship between the holder of knowledge and those that seek to ipate in the knowledge, knowledge transfer and exchange are dialogical interactions that aim to bridge the gap by bringing together individuals with expertise in different fields. Seeking to transfer knowledge to a specific case by creating an interaction, actions pertaining to this type do not necessarily require pre-existing knowledge on the equality impact of public procurement practices themselves. Rather, knowledge transfer and exchange brings together expertise in two different fields with the aim of either transferring broader knowledge on equality to the specific field of public pro-curement and linking it to knowledge on public procurement regulations, procedures, and practices or transferring promising practices to other circumstances.

partic-Promoting exchange between public procurement professionals and equality experts, knowledge transfer and exchange seeks to create new knowledge about the impact of public procurement practices on users by transferring knowledge gained in other contexts to public procurement. Like knowledge dissemina-tion, knowledge transfer and exchange activities set rather high requirements on detailed knowledge on (in)equality. Yet, in contrast to knowledge dissemi-nation activities, knowledge transfer and exchange requires general knowledge on services and inequalities and less specialized knowledge on the impact that specific public procurement practices have for different users. If a sound knowl-edge base exists on services and inequalities, knowledge transfer and exchange activities can shed light on the potential equality impact of public procurement practices and thereby improve public procurement practices. Yet, most of the existing knowledge is based on the examination of equality impacts on pre-defined groups. Whereas knowledge might be rather detailed with regard to these groups and specific services, knowledge that is based on a consideration of the realities of (in)equality in their complexity and that sheds light on the impact of procurement practices on users at the ‘crossroads’ of characteristics, and seeks to understand the impacts of procurement practices in the light of individualized experiences and circumstances, is less readily available. While knowledge transfer and exchange activities thus have the potential to improve existing practices, these current limitations in knowledge raise doubts whether such activities alone can be enough to realize public procurement’s potential for promoting equality.

Knowledge Creation

The third category, knowledge creation, seek to create new knowledge by

identi-fying the impact that specific public procurement practices have on individuals. Knowledge creation depends on the gathering and analysis of primary data that can provide insights into the impact of procurement practices on stakeholders. To generate new insights and foster a deeper understanding of the equality impact that public procurement procedures generate, knowledge creation builds on a partici-patory approach that involves external stakeholders. Aiming to identify the con-crete impact of public procurement practices, more specifically how the design

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of a services enables and/or limits the extent to which the service can mitigate vulnerability for individual users (and those with the least assets and resources in particular), it engages a wide range of actors, particularly individuals as users or employees, in a conversation. Knowledge creation can take differed forms; new knowledge can be generated by engaging with individuals as users or employ-ees through surveys, interviews, or focus groups. While external organizations can be instrumental in facilitating knowledge creation (for instance as gatekeepers or organizers of focus groups), the distinguishing feature between knowledge transfer and exchange and knowledge creation is not the inclusion of external organizations but whether or not the aim is to apply existing non-specific knowledge to public procurement in a specific situation (knowledge transfer and exchange) or to gener-ate new knowledge (knowledge creation).6

In contrast to both, knowledge dissemination and knowledge transfer and exchange, knowledge creation activities seek to identify the impact specific public procurement practices have on different users by engaging with stake-holders and individual users. As knowledge creation aims to explore the impact of specific public procurement practices and identify how best to mitigate indi-vidual vulnerability, knowledge creation activities set rather low requirements for pre-existing knowledge and can thereby be a particularly useful tool when only limited knowledge is available and/or when shifting from a group-based conceptualization of (in)equality to a vulnerability approach requires the reas-sessment of existing knowledge. Additionally, if adopting the concept of vul-nerability needs to go along with a process that ‘initiates a dialogue between all agents interacting in public procurement processes and values their lived expe-riences of self-insufficiency and interdependency’ (Nyeck 2020, 4), this can generate additional benefits. Similar to participatory budgeting, which engages citizens and communities in the allocation of public funds and seeks to gener-ate an empowering effect for local communities (O’Hagan et al. 2020), giving users a voice in devising public procurement decisions and practices can be conceived as an empowering tool that highlights the value and importance of individual experiences and circumstances of different users.

Given the specific aims of the three approaches, which range from unilateral mission of existing knowledge (knowledge dissemination) via the dialogical transfer of existing knowledge onto a field where knowledge is still scarce (knowledge trans-fer and exchange) to the participatory formation of new knowledge (knowledge crea-tion), the three types of approaches identified here raise different demands regarding pre-existing knowledge and can make clear yet divergent contributions to promoting public procurement practices that are able to foster equality (see Table 1.1).

trans-6 Once again, it seems important to reiterate that the types identified here are ideal and that in practice, the borders between these types of actions may be blurred.

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Knowledge transfer and exchangeCreating knowledge by transferring knowledge that exists in one field to anotherActivities promoting the exchange between experts in equality and public procurementLimited range of actorsHigh demands; in-depth knowledge on equality and on public procurement

Creating new knowledge by identifying impact of public procurement practices Activities that engage with stakeholders, and particularly on individuals as usersWide range of actors

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The social and particularly the equality impact of public procurement practices is gaining increasing attention in research, policy, and practice. Devising and imple-menting public procurement practices that promote equality requires not only a detailed knowledge of public procurement but also sound knowledge of the equal-ity impact of specific practices. Taking the vulnerability approach to equality, this contribution argued that this is especially true when shifting attention from group-based assumptions of equality towards a more individualized understanding of public procurement’s impact. Yet, sound, specific knowledge remains rather scarce and existing knowledge may not be transferable to all circumstances. Against this background, this chapter examined strategies to enable access to knowledge as a first step to promoting a positive equality impact of public procurement practices.

This chapter identified three different approaches to enabling public ment professionals to gain (further) knowledge on the equality impact of pub-

procure-lic procurement practices: Knowledge dissemination, knowledge transfer and exchange, and knowledge creation. Knowledge dissemination aims to provide pro-

curement professionals with knowledge and guidance in an essentially unilateral interaction between a holder of knowledge and procurement professionals and rests on the foundation of pre-existing specialized knowledge on the equality impact

of public procurement practices. Knowledge transfer and exchange is based on

a dialogical interaction, which brings together at least two parties, each of which holds knowledge in a specific field. It aims to transfer knowledge that exists in one specific field to another. This can either be in the form of transferring gen-eral knowledge on equality and services to public procurement to transfer prom-ising practices to the specific circumstances. Knowledge transfer and exchange requires sound and detailed knowledge as well of public procurement as of equal-ity. However, to be effective, it requires less specialized knowledge of the equal-ity impact of public procurement practices in each situation than does knowledge

dissemination. Knowledge creation aims to capture individual experiences to gain

new insights into how public procurement practices affect individual lived ences by engaging stakeholders and users in a participatory interaction.

experi-These three types of measures differ considerably regarding their aim, the mode of interaction, and the actors involved. The specific aims of these three approaches range from the unilateral transmission of existing knowledge (knowledge dissemi-nation) via the dialogical transfer of existing knowledge onto a field where knowl-edge is still scarce (knowledge transfer and exchange) to the participatory formation of new knowledge (knowledge creation). Correspondingly, the importance of pre-existing specialized knowledge on the impact of public procurement practices for equality is highest for knowledge dissemination and lowest in knowledge creation.

By drawing attention to the importance of knowledge and presenting a typology of approaches to enable access to knowledge, this chapter contributes to advanc-ing academic knowledge as well as public procurement practice. It adds to aca-demic research by first drawing attention to the importance and the challenge of

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knowing and shedding light on a hitherto neglected question, namely how public procurement professional can be equipped with the necessary knowledge to devise and implement public procurement practices that promote equality. By systema-tizing approaches and presenting a typology of approaches that aim at providing public procurement officials with knowledge, it furthermore provides an analytical tool for further research. In addition to its contribution to academic research, this chapter can contribute to practice by highlighting the importance of knowledge for devising and implementing public procurement practices and offering insights into the benefits of distinct approaches for promoting knowledge.

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