Regulating Public and Private Interactions in Public Sector Digitalisation through Procurement: the Clash between Agency and Gatekeeping Logics

Abstract

Public procurement is progressively being erected as the gatekeeper of digital technology adoption by the public sector and thus positioned as digital technology regulator, especially in the EU and UK context. Procurement is expected to ensure that the public sector only adopts trustworthy technologies, and that (private) technology providers adhere to the required technical, legal, and ethical standards to ensure that this is the case. Unpacking the gatekeeping role assigned to the procurement function in the context of public sector digitalisation requires moving past the general level of abstraction in which such proposals are formulated and analysing them by focusing on the actors, processes and tools involved, as well as the expected outcomes. To start exploring this gatekeeping function, this Chapter concentrates on the role of procurement in mediating interactions between the public and private actors involved in the adoption of digital technologies by the public sector. It starts by mapping the logic of the interactions between the public sector entities seeking to adopt the technology, the (private) economic operators seeking to provide it, and the procurement function as gatekeeper. In addition to the well-known ‘weak public buyer’ problem, this mapping will evidence the difficulties of the ‘two-sided’ gatekeeping that procurement is expected to carry out. This will show the heightened potential for tensions and governance challenges in the process of procuring underregulated technologies, where procurement’s agency and gatekeeping roles are overlaid. The Chapter concludes with a proposal to discharge procurement of this newest regulatory gatekeeping role through mandatory requirements and external oversight, which will be developed in more detail at a later stage.

Keywords: public procurement, digital technologies, regulation, public-private interactions, public-public interactions, gatekeeping, agency theory, weak public buyer, two-sided gatekeeping

JEL Classification: D73, H57, K23, K24, K49, O33