GW Law Co-Chairs the U.S.-E.U. Procurement Leadership Roundtable

Law Students Attend Roundtable and Report on the Experience

By Christy Milliken and Collin D. Swan
J.D. Candidates, 2012

Roundtable participants pose for a picture during a break (photos by Collin D. Swan).

This past November, GW Law Professors Steven L. Schooner and Christopher R. Yukins co-chaired the inaugural U.S.-European Procurement Leadership Roundtable in Dusseldorf, Germany.  Practitioners, scholars, and government representatives from eight different nations, including two GW Law government contracts students, Collin Swan and Christy Milliken, gathered for this event, which was also chaired by Professor Dr. Martin Burgi from Ruhr-Universtat Bochum in Germany.  The roundtable was aimed at increasing communication and collaboration inside Europe and across the Atlantic in the government contracting field.

Set in the capital city of the North Rhine-Westphalia region of Germany, the roundtable spanned a range of topics that proved as diverse as its members, including discussions on procurement thresholds (limitations on the applicability of European Union – versus national – laws), protectionism, offsets, green procurement, social policies, and the implementation of the new E.U. Directive on defense procurement.  These discussions illuminated many of the similarities and differences between the U.S. and E.U. systems.  At an estimated $500 billion a year, the U.S. federal procurement system is one of the largest in the world.  However, the U.S. system is miniscule compared to the European Union’s massive procurement network, which is valued at over $2 trillion a year,1 Indeed, it is often easy to forget that our European colleagues can provide a unique perspective on the proper structure of a procurement regime.  The U.S. system is primarily driven by the Defense Department, which accounts for over half of our nation’s procurement.  In contrast, the EU procurement market is driven by Europe’s more liberal social policies, including its state-sponsored health care and education systems.  In fact, defense procurement is seen in Europe as an entirely separate process with its own set of unique rules and regulations.

Representatives from UNCITRAL and the World Trade Organization (WTO) also offered an international perspective on the emerging global procurement standards. The WTO’s Government Procurement Agreement (GPA) was specifically discussed, which is one of the most prominent international agreements on procurement and currently has 40 national signatories and 23 non-voting observers. China is currently negotiating to become the newest member to the Agreement and has pledged to train up to 10,000 personnel a year for its procurement system.  India, a non-voting observer at present, has also expressed interest in joining the Agreement. Another addition to the international body of procurement law was the UN Model Procurement Law, which currently provides a basis for the national procurement law of over thirty countries. While primarily seen as a tool for development in non-industrialized countries and economies in transition, many of the UN Law’s provisions have also found their way into EU directives.  This suggests a broader application of the law's versatility.  Indeed, it was incredible to hear about the substantive procurement practices currently crystallizing into this body of international law.  These legal standards will continue to evolve in practice as they are adopted by emerging economies looking to establish their own procurement systems.

Aside from the robust and lively discussions on procurement, the roundtable also exposed numerous cultural differences.  In contrast to the United States, law in Germany is a seven-year curriculum that begins immediately after high school.  German law students are also required to spend their last two years in an externship program that provides them with vital practical experience.  In these externships, students rotate between various legal positions, including as judicial clerks, with government prosecutors, in private practice, and as in-house counsel.  This is perhaps most analogous to the United States’ medical curriculum, where graduating medical students are required to spend three to five years in a residency program.  Also unusual were the number of attorneys with PhDs.  While it is rare in the United States for an attorney to obtain his or her doctorate, it is a fairly common practice in Europe that only requires an extra year or two of school and a well-written dissertation.

In addition to these educational differences, delegates at the roundtable expressed their appreciation for speakers in the time-honored German tradition by knocking their knuckles on the table in lieu of applause.  Differences in rhetoric were also apparent when Michael Bowsher, Queen’s Counsel at Monckton Chambers in London, spoke about the protracted Eurostar-Siemens case raging over the procurement of new rail vehicles for use beneath the English Channel.  Lamenting the inability of the British legal system to bring finality to the case within a timely fashion, as well as France’s inevitable appeal of any British decision to the European Commission, Mr. Bowsher decried the situation as “completely barking mad,” a unique and colorful characterization that has not yet migrated across the Atlantic.

The benefit of having international discussions is that they provide everyone with new perspectives on old situations.  Professor Yukins aptly summarized this sentiment in his concluding remarks by proclaiming that this event was “all about learning from one another.” Contrary to the views of some in the United States, there is indeed still a lot that we can learn from our European counterparts.