Socially responsible public procurement (SRPP) in multi-level regulatory frameworks: Assessment report on policy space for SRPP regulation and implementation in Germany and Kenya

Public Procurement is a highly regulated process ruled by a complex legal framework. It comprises not only national but also, increasingly, suband supranational regulations, giving rise to a multi-level regulatory governance of public procurement. The integration of sustainability aspects into public procurement, as called for in goal 12.7 of the Sustainable Development Goals (SDGs) of the Agenda 2030, needs to take this multi-level character into account. This reports focuses on social considerations, which are a central part of sustainable procurement – whether with a domestic focus or along international value chains. Social considerations have been somewhat neglected in Europe, whereas they feature prominently in procurement regulations in many countries of the Global South, especially in Sub-Saharan Africa (SSA) (see Stoffel, Cravero, La Chimia, & Quinot, 2019). The advanced process of regional integration in the European Union (EU) and the progress made towards integration in some regional economic communities in Sub-Saharan Africa call for deeper analyses of the influence of the higher levels of the regulatory framework on the lower levels, and the consequences of regulation. The question is whether public entities, from the national down to the local level, are required to integrate socially responsible public procurement (SRPP) into their procurement processes and tenders, or at least have the option to do so. This report compares procurement in Germany and Kenya. The countries have some structural similarities as regards the role of regional economic communities in their multilevel regulatory framework. In the EU, however, the degree of harmonisation of public procurement regulation is much higher; also, the EU has turned from a purely price-based view on public procurement to a more qualitative one. These experiences may be valuable for the harmonisation of procurement regulations within the Common Market for East and Southern Africa (COMESA), of which Kenya is a member. Furthermore, comparing Germany, with a strongly decentralised system of public procurement, to the much more centralised Kenya provides insights into the effects of different political systems. Kenya is in an ongoing process of devolution and, as a consequence, procurement decisions are being partly shifted from the central level towards sub-national public entities. It might therefore benefit from insights into Germany’s decentralised system of public procurement, and vice versa. In addition, Kenya is the only country in COMESA, and one of the few countries in SSA, that has already gained considerable experience of sustainable public procurement (SPP) and is therefore a good case for South–North learning. This report is conducted as part of the project Municipalities Promoting and Shaping Sustainable Value Creation (MUPASS) – Public Procurement for Fair and Sustainable Production, implemented by DIE in cooperation with the Service Agency Communities in One World (SKEW) with funds from the Federal Ministry for Economic Cooperation and Development (BMZ). The main goal is to analyse the policy space that actors at the national and especially at the municipal levels have for implementing SRPP practices and policies within the multi-level regulation of public procurement. It will try to answer the following research questions: What are the effects of the multi-level regulatory framework of public procurement on the policy space for regulating and implementing SRPP? How is this policy space used at the national and local level? And what potential measures can be derived from the analysis of the two country cases to accelerate implementation? Here are the main results: 1. In both countries, the multi-level regulatory frameworks allow for SRPP regulations and practices at the national and sub-national levels of government. 2. There is an implementation gap for SRPP in Germany and Kenya, which appears to be independent from the specifics of their respective regulatory frameworks. 3. Supportive measures such as capacity building are key to closing this implementation gap. They are also central to achieving other overarching objectives of public procurement, such as economic efficiency, good conduct and transparency. 4. Regional economic communities such as the EU and COMESA can play a role in promoting SRPP, even without introducing mandatory provisions. COMESA should include SRPP in its procurement regulation, and provide support for SRPP, for example through guidelines and expert exchange, as is happening in the EU. Further analysing the latest EU reforms related to public procurement might lead to policy recommendations for COMESA and other regional economic communities that enable their member states to reach economic, ecological and social goals. At the other end of the multi-level regulatory spectrum, municipalities in the EU had, and still have, an important role in SRPP implementation, and as catalysts for change that might be replicable by subnational public entities in Kenya and other contexts.