Gender, Vulnerability Theory and Public Procurement: Perspectives on Global Reform [1 ed.] 1032442816, 9781032442815

Citation preview

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.

Gender in Law, Culture, and Society

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 singleauthored 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 Roja Fazaeli ISBN 978-1-472-48915-9 (hbk) Gender, Truth and State Power: Capitalising on Punishment Anette Ballinger ISBN: 978-0-754-67478-8 (hbk)

Gender, Vulnerability Theory and Public Procurement

Perspectives on Global Reform

Edited by S.N. Nyeck

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business A GlassHouse book © 2024 selection and editorial matter, S.N. Nyeck; individual chapters, the contributors 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. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. 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 https://lccn.loc.gov/2023005716 LC ebook record available at https://lccn.loc.gov/2023005717 ISBN: 978-1-032-44281-5 (hbk) ISBN: 978-1-032-44341-6 (pbk) ISBN: 978-1-003-37166-3 (ebk) DOI: 10.4324/9781003371663 Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

List of Contributors vii Acronyms x Introduction

1

S.N. NYECK

1

The Challenge of Knowing: Public Procurement Between Unilateral Knowledge Dissemination and Participatory Knowledge Creation

12

E.K. SARTER

2

Law and Public Procurement in Kenya: A Human Vulnerability Analysis 29 ATIENO MBOYA

3

Gender Justice in Public International Organizations’ Procurement Work: A Contrasted View 43 EMILIE COMBAZ

4

Growth Pattern in Women-Owned Construction Companies as Evidence of Vulnerability

70

ABIMBOLA WINDAPO

5

Contracted Vulnerability?: Job Quality, Service Quality, and Public Procurement of Services 85 E.K. SARTER AND ORLY BENJAMIN

6

The Case for Gender-Responsive Public Procurement in Botswana 100 EMMANUEL BOTLHALE



vi Contents

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

Contributors

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 socioeconomic development with knowledge and experience acquired from consulting, 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 continent. 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 governance 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. 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 collaboration, 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 

viii Contributors

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 specialist 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 levels at the Department of Political Science and Public Administration, University of Nairobi, Kenya. 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

Contributors 

ix

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 administration 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, including research papers in areas of the Governance system, public budgeting, social policies, refugees and migration policies, poverty, and Women's Rights.

Acronyms

AfDB: AGPO: AU: BMTHS: BBBEE: CEEP: CEDAW: CGE: CIDB: EIGE: EDD: HDI: GSP: GDP: GII: GGGR: GPS: HDI: IHDI: ITC: JVP: JVA: LPO: MFMA: OECD: OPC: PFMA: PPADB: PPDA: PPDR: PPOA: 

African Development Bank Access to Government Procurement Opportunities African Union Botswana Multi-Topic Household Survey Broad-Based Black Economic Empowerment Act Citizen Economic Empowerment Policy (Botswana) Convention on the Elimination of All Forms of Discrimination against Women Commission for Gender Equality Construction Industry Development Board European Institute for Gender Equality Economic Diversification Drive Historical Disadvantaged Individuals Gender-Sensitive Procurement Gross Domestic Product Gender Inequality Index Global Gender Gap Report Gender Parity Score Human Development Index Inequality-adjusted HDI International Trade Centre Joint Venture on Procurement Joint Venture Alliances Local Purchase Order Municipal Financial Management Act Organization for Economic Cooperation and Development Optional Protocol to the Convention Public Finance Management Act Public Procurement and Asset Disposal Board (Botswana) Public Procurement and Disposal Act (Kenya) Public Procurement and Disposal Regulations (Kenya) Public Procurement Oversight Authority (Kenya)

Acronyms 

PPOAB: PPPFA: PWD: RFB: RPPA: SELA: SDGs: SADC SADC SAPS: SBA (US): SMEs: WEF: WHO: WVEF: YEF:

xi

Public Procurement Oversight Advisory Board (PPOAB) Preferential Procurement Policy Framework Act People with Disability Request for Bids Rwanda Public Procurement Authority Student for the Workers (UN) Sustainable Development Goals Protocol on Gender and Development Gender Barometer Structural Adjustment Programs U.S. Small Business Administration Medium Sized Enterprises Women Enterprise Fund World Health Organization WHO Gender Responsive Assessment Scale Women Vendors Exhibition and Forum Youth Enterprise Fund

Introduction S.N. Nyeck 1

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 discriminations 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 genderbased 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 institutional 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 countries, 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 aspirations 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:  10.4324/9781003371663-1

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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 solutions 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 temporarily 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 methodology, the gendered dynamics within public procurement or government outsourcing 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 legislations 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. Thus, contrary to critique,6 the case studies in this book show the explanative power of vulnerability theory for situated economic dynamics within the international system, especially those governed by trade laws, human, and even environmental 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 idealization 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 procurement operations in specific contexts. Case studies presented here are in conversation 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 configurations of institutional resilience with respect to gender-responsible public procurement 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 outsourcing is not reversible in a foreseeable immediate future, vulnerability theory tasks us with the job of monitoring the complex terrain of public-private partnerships 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 considering the slippery terrain of government reliance on profit and non-profit-oriented private suppliers to fulfill its public functions, a focus on gender dynamics illuminates 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 relationship, 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 relevance 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, embeddedness is realized equity through specific political and legal institutions. The process 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. The case studies presented in this book show that the discourse over genderresponsive 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 genderresponsiveness 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, vulnerability as a group identity for women has inspired global conversations and policy reforms that support various degrees of affirmative actions to boost women’s entrepreneurship 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 contracts 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. 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 policy device for categories and identities whose vulnerabilities, however coded, can be overcome through transactional interactions with the state only. The expectation 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 disclaiming the appearance of vulnerability.’11 Vulnerability theory therefore expands procurement studies explanatory power by treating contracting parties and institutions 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 institutional vulnerability reform in gender-based public procurement schemes should critically be assessed when such policies are used as a front or political compromise 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 justifying 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 challenging 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 vulnerability among states. Second, in the process of negotiating and embedding international 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. 60, Issue 2 (2010), 273. 12  Fineman, Martha A. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale Journal of Law and Feminism, Vol. 20, Issue 1 (2008), 11. 13  Fineman, Martha A. “The Vulnerable Subject and the Responsive State.” Emory Law Journal, Vol. 60, Issue 2 (2010), 273. 14  Ibid., 275

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fully domesticated by the agenda-setters or the biggest influencers such as the position of the United States on CEDAW shows. It is therefore not surprising that in complex public-private dealings, the public 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 corruption 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 procurementrelated corruption in both rich,16 developing, and poor countries.17 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 public 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 knowledge 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 transformation. 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 contracts in Quebec, Canada and New York State Comptroller’s investigations and arrests based on corruption in public procurement contracts as a few examples. 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 separately or together, but in conjunction with constitutional provisions in each country. 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 procurement 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 appropriating 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 procurement 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 gendertransformative procurement reform which entails ‘putting the onus of change on institutions and people with the greatest responsibility and power.’ Combaz’s analysis 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 ‘assets-conferring 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

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 disadvantaged 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-responsive 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, KithatuKiwekete and Vyas-Doorgapersad argue that the constitution-backed affirmative public procurement is slow in transforming public sector bureaucracy itself as different 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 decision-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 unidentified and large potential in terms of improved outcomes for equitable and sustainable economic grown remain untapped’ due to the lack of reliable disaggregated 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, managerialism 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 employment conditions in supply chains especially in service areas such as cleaning services that attract low-skilled employees and other special groups. Benjamin’s study of public higher education in Israel tests both market-based assumptions of efficiency and gender identity-based expectations for women’s leadership in public

10  S.N. Nyeck

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 government 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 outsourcing 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 procurement 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 (domestic 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 (standing in lieu of the anarchical assumption) reshapes domestic policy and economics through the study of public procurement. The global subtext in this book is intentional 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

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

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reform of public governance with a special focus on state-business relations affecting gender and economics on the other. More research on this thematic is of practical 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. References 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.

Chapter 1

The Challenge of Knowing Public Procurement Between Unilateral Knowledge Dissemination and Participatory Knowledge Creation E.K. Sarter 1

Introduction 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 procurement practices that foster equality. It secondly explores and systematizes different 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 vulnerability 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 prerequisite 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: 0000-0002-3658-7099.

DOI:  10.4324/9781003371663-2

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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 regulations, 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 considerable discretion to those implementing the policies (Tummers and Bekkers 2014). In the implementation, policies are interpreted and decisions taken on ‘which outcomes 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

14  E.K. Sarter

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 implementation 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 generally (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 procurement practices aimed at achieving social and environmental goals (Brammer and Walker 2011; Grandia et al. 2013; Walker and Brammer 2009). Focusing on public procurement and equality, particularly in relation to gender, 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 external 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 implementation (Sarter 2020). Further, the existing literature shows that to achieve a cross-stage continuous and full appreciation of the gender impact of public procurement, specified and detailed knowledge is a major prerequisite (Callerstig 2014; Sarter 2020). 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 different 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 individuals with a different lived reality (in this example women), then this ‘policy

T he Challenge of Knowing  15

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 recognizing 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 citizens: 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 characteristics, 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, individuals who share one characteristic (e.g. the same sex) are very differently positioned and more heterogeneous than group-based approaches assume. Different characteristics associated with disadvantage may overlap and individual disadvantages 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 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, identification 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. (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

16  E.K. Sarter

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 understanding 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 contrast to group-based approaches, the vulnerability approach thereby enables an individualized approach to equality that promises to reflect the multitude and multifaceted 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 individuals as well as over the life course of any given individual because individuals 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 social) assets to build resilience en face their vulnerability, they can mediate, mitigate, 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-reliant 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 perspective 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 equality 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 public procurement practices (Nyeck 2020). Public Procurement and the Mitigation of Vulnerability Public procurement and equality interact in a multitude of ways. Public procurement 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 contractual 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 underlying assumptions about users that are embedded in the design of the objects of purchase. 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 vulnerability 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 vulnerability for a variety of users. It thereby highlights the impact of the design of services 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 differently 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 public procurement practices can promote services that account (better) for diverse

18  E.K. Sarter

circumstances.2 Having established the framework and central tenet of the vulnerability 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 implications of adopting a vulnerability approach to equality for public procurement practices. The Challenge of Knowing Detailed knowledge is crucial for devising and implementing procurement practices that promote equality. Before turning to public procurement practices, it is essential to visualize the importance of knowledge, already pointed out as a facilitating factor for the successful implementation of sustainable public procurement, as well as the specific requirements and challenges that public procurement professionals seeking to devise implement processes and practice that promote equality face in practice. While knowledge is an essential feature determining the successful 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. 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 careful 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 themselves 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 public 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 procurement 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 procurement 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 contracting 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 discretion 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 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.

20  E.K. Sarter

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 challenge 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 implementation of purchasing strategies that promote equality on the one hand, and a practical challenge for procurement professionals on the other, promoting access to knowledge 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 measuring 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 professionals to gain further insights into the equality impact of their procurement practices. 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 equality 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 comparative 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 understanding 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 guidance and the provision of training. Through knowledge dissemination activities, the existing knowledge on the impact of purchasing practices and ways to promote public procurement practices that have a positive impact on equality is disseminated 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 interaction 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. Knowledge dissemination can make a clear and valuable contribution in providing access to clearly defined existing knowledge, for instance about the legal foundations of public procurement and the scope for specific practices. Yet, knowledge dissemination strongly depends upon clear and detailed knowledge to be disseminated. 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 procurement practices that promote equality. 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 procurement. Examples of this type identified in the above-mentioned study were the promotion 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 procurement needs to be assessed within its context. This also means that transferring practices beyond a specific context may result in different outcomes.

22  E.K. Sarter

unilateral relationship between the holder of knowledge and those that seek to participate 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 procurement and linking it to knowledge on public procurement regulations, procedures, and practices or transferring promising practices to other circumstances. 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 dissemination, knowledge transfer and exchange activities set rather high requirements on detailed knowledge on (in)equality. Yet, in contrast to knowledge dissemination 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 knowledge 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 predefined 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 identifying 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 participatory approach that involves external stakeholders. Aiming to identify the concrete impact of public procurement practices, more specifically how the design

T he Challenge of Knowing  23

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 employees 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 generate 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 stakeholders and individual users. As knowledge creation aims to explore the impact of specific public procurement practices and identify how best to mitigate individual 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 reassessment of existing knowledge. Additionally, if adopting the concept of vulnerability needs to go along with a process that ‘initiates a dialogue between all agents interacting in public procurement processes and values their lived experiences 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 generate 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 transmission of existing knowledge (knowledge dissemination) via the dialogical transfer of existing knowledge onto a field where knowledge is still scarce (knowledge transfer and exchange) to the participatory formation of new knowledge (knowledge creation), 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).

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.

Measures

Participatory

Dialogical

Unilateral

Actors involved Requirements for knowledge Mode of Interaction

Dissemination of knowledge Activities to provide Small range of High demands; in-depth knowledge and guidance actors specialized knowledge to public procurement professionals Knowledge transfer Creating knowledge by Activities promoting the Limited range High demands; in-depth and exchange transferring knowledge exchange between of actors knowledge on that exists in one field to experts in equality and equality and on public another public procurement procurement Knowledge creation Creating new knowledge Activities that engage Wide range of Low demands by identifying impact with stakeholders, and actors of public procurement particularly on individuals practices as users

Knowledge dissemination

Aim

Table 1.1 Approaches to Advancing Knowledge (Own Compilation).

24  E.K. Sarter

T he Challenge of Knowing  25

Conclusion The social and particularly the equality impact of public procurement practices is gaining increasing attention in research, policy, and practice. Devising and implementing public procurement practices that promote equality requires not only a detailed knowledge of public procurement but also sound knowledge of the equality impact of specific practices. Taking the vulnerability approach to equality, this contribution argued that this is especially true when shifting attention from groupbased 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 procurement professionals to gain (further) knowledge on the equality impact of public procurement practices: Knowledge dissemination, knowledge transfer and exchange, and knowledge creation. Knowledge dissemination aims to provide procurement 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 general knowledge on equality and services to public procurement to transfer promising practices to the specific circumstances. Knowledge transfer and exchange requires sound and detailed knowledge as well of public procurement as of equality. However, to be effective, it requires less specialized knowledge of the equality 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 experiences by engaging stakeholders and users in a participatory interaction. 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 dissemination) via the dialogical transfer of existing knowledge onto a field where knowledge is still scarce (knowledge transfer and exchange) to the participatory formation of new knowledge (knowledge creation). Correspondingly, the importance of preexisting 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 advancing academic knowledge as well as public procurement practice. It adds to academic research by first drawing attention to the importance and the challenge of

26  E.K. Sarter

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 systematizing 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. References Benish, Avishai, and Levi-Faur David. 2020. “The Expansion of Regulation in Welfare Governance.” Annals of the American Academy, 691: 17–29. Brammer, Stephen, and Helen Walker. 2011. “Sustainable Procurement in the Public Sector: An International Comparative Study.” International Journal of Operations & Production Management, 31(4): 452–476. Crenshaw, Kimberle. 1989. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum, No. 1: Article 8. Available at: http:// chicagounbound​.uchicago​.edu​/uclf​/vol1989​/iss1​/8. ———. 1991. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review, 43(6): 1241–1299. 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. OJ 94, 28.3.2014, pp. 65– 242. Available at: https://eur​-lex​.europa​.eu​/legal​-content​/EN​/TXT​/PDF/​?uri​=CELEX​ :32014L0024​&from​=EN. Accessed 31 October 2020. Donaghey, Jimmy, Juliane Reinecke, Christina Niforou, and Benn Lawson. 2014. “From Employment Relations to Consumption Relations: Balancing Labor Governance in Global Supply Chains.” Human Resource Management, 53(2): 229–252. Fineman, Martha Albertson. 2008. “The Vulnerable Subject: Anchoring Equality in Human Condition.” Yale Journal of Law and Feminism, 20(1): 8–40. ———. 2015. “Equality and Difference – The Restrained State.” Emory University School of Law, Legal Studies Research Paper Series, Research Paper 15–348. Available at: https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=2591689. Accessed 30 May 2020. ———. 2018. “Injury in the Unresponsive State: Writing the Vulnerable Subject into Neo-Liberal Legal Culture.” In Injury and Injustice: The Cultural Politics of Harm and Redress, edited by Anne Bloom, David Engel, and McCann Michael. Cambridge: Cambridge University Press. Grandia, Jolien, Sandra Groeneveld, Ben Kuipers, and Bram Steijn. 2013. “Sustainable Procurement in Practice: Explaining the Degree of Sustainable Procurement From an Organisational Perspective.” Rivista di politica economica, 2: 41–66. Hartlapp, Miriam. 2020. “Measuring and Comparing the Regulatory Welfare State: Social Objectives in Public Procurement.” Annals of the American Academy, 691: 68–83. Hill, Michael, and Peter Hupe. 2002. Implementing Public Policy. London: Sage. Himmelweit, Susan. 2003. “Making Visible the Hidden Economy: The Case for GenderImpact Analysis of Economic Policy.” Feminist Economics, 8(1): 49–70.

T he Challenge of Knowing  27 Holley, Sasha. 2014. “The Monitoring and Enforcement of Labor Standards When Services Are Contracted Out.” Journal of Industrial Relations, 56(6): 672–690. Howe, John, and Ingrid Landau. 2009. “Using Public Procurement to Promote Better Labor Standards in Australia: A Case Study of Responsive Regulatory Design.” Journal of Industrial Relations, 51(4): 575–589. Lipsky, Michael. 1980. Street-Level Bureaucracy: Dilemmas of the Individual in Public Services. New York: Russell Sage Foundation. Lombardo, Emanuela. 2003. “EU Gender Policy: Trapped in the ‘Wollstonecraft Dilemma’?” European Journal of Women’s Studies, 10(2): 159–180. McCrudden, Christopher. 2007. Buying Social Justice: Equality, Government Procurement, & Legal Change. Oxford: Oxford University Press. ———. 2012. “Procurement and Fairness in the Workplace.” In Making Employment Rights Effective: Issues of Enforcement and Compliance, edited by Linda Dickens, 87–114. Oxford: Hart Publishing. Medina Arnáiz, Teresa. 2010. “Integrating Gender Equality in Public Procurement: The Spanish Case.” Journal of Public Procurement, 10(4): 541–563. Meyers, Marcia K., and Susan Vorsanger. 2007. “Street-Level Bureaucrats and the Implementation of Public Policy.” In Handbook of Public Administration, edited by Guy B. Peters and Jon Pierre, 153–163. London: Sage. Nyeck, S. N. 2015. “(Out)bidding Women: Public Procurement Reform, Policy Diffusion and Gender Equality in Africa.” WAGADU: A Transnational Journal of Gender and Women’s Issues, 14: 55–83. ———. 2020. “Gender Equality in Public Procurement.” In Global Encyclopedia of Public Administration, Public Policy, and Governance, edited by Ali Farazmand. Cham: Springer. Available at: https://doi​.org​/10​.1007​/978​-3​-319​-31816​-5​_1598​-1. O’Hagan, Angela, Claire MacRae, Clementine Hill O’Connor, and Paul Teedon. 2020. “Participatory Budgeting, Community Engagement and Impact on Public Services in Scotland.” Public Money & Management, 40(6): 446–456. Preuss, Lutz. 2009. “Addressing Sustainable Development Through Public Procurement: The Case of Local Government." Supply Chain Management: An International Journal, 14(3): 213–223. Ravenswood, Katherine, and Sarah Kaine. 2015. “The Role of Government in Influencing Labor Conditions Through the Procurement of Services: Some Political Challenges.” Journal of Industrial Relations, 57(4): 544–562. Sabatier, Paul. 1991. “Toward Better Theories of the Policy Process.” Political Science and Politics, 24(2): 147–156. Sabatier, Paul, and Daniel Mazmanian. 1980. “The Implementation of Public Policy: A Framework for Analysis.” Policy Studies Journal, 8(4): 538–560. Sack, Detlef, and E. K. Sarter. 2018. “Collective Bargaining, Minimum Wages, and Public Procurement in Germany: Regulatory Adjustments to the Neo-Liberal Drift of a Coordinated Market Economy.” Journal of Industrial Relations, 60(5): 669–690. Sarter, E. K. 2015. “Contracting Out of Services, European Public Procurement Law and Gender Equality in Tendering.” WAGADU: Journal of Transnational Women’s and Gender Studies, 14(3): 55–83. ———. 2016. Public Procurement & the Public Sector Equality Duty: Equality Sensitive Tendering in Scotland, WiSE Working Paper Series No. 5. Glasgow: Glasgow Caledonian University. Available at: https://www​.gcu​.ac​.uk​/wise​/media​/gcalwebv2​/

28  E.K. Sarter theuniversity​/centresprojects​/wise​/103006​_WiSEBRIEFINGPAPER​_v4​.pdf. Accessed 15 June 2020. ———. 2020. “The Development and Implementation of Gender Equality Considerations in Public Procurement in Germany.” Feminist Economics, 26(3): 66–89. Sarter, E. K., and Detlef Sack. 2016. “Von Märkten, Konsum und einer besseren Welt. Nachhaltigkeit und Fairtrade im öffentlichen Sektor.” In Nachhaltiger Konsum. Institutionen, Instrumente, Initiativen, edited by Kerstin Jantke, Florian Lottermoser, Jörn Reinhardt, Delf Rothe, and Jana Stöver, 379–394. Baden-Baden: Nomos. Schofield, Jill. 2001. “Time for a Revival? Public Policy Implementation: A Review of the Literature and an Agenda for Future Research.” International Journal of Management Reviews, 3(3): 245–263. Tummers, Lars, and Victor Bekkers. 2014. “Policy Implementation, Street-Level Bureaucracy, and the Importance of Discretion.” Public Management Review, 16(4): 527–547. Walker, Helen, and Stephen Brammer. 2009. “Sustainable Procurement in the United Kingdom Public Sector.” Supply Chain Management: An International Journal, 14(2): 128–137. Wright, Tessa, and Hazel Conley. 2018. “Advancing Gender Equality in the Construction Sector Through Public Procurement: Making Effective Use of Responsive Regulation.” Economic and Industrial Democracy. Published Online 21 March 2018. Available at: https://doi​.org​/10​.1177​/0143831X17745979

Chapter 2

Law and Public Procurement in Kenya A Human Vulnerability Analysis Atieno Mboya 1

Introduction Public1procurement is the means through which the state spends revenue raised annually for the implementation of public service delivery.2 Procurement is the acquisition of any works, assets, services and goods by purchase, rental, lease, license, tenancy, franchise, or by any other contractual means. It is estimated that weaknesses in public procurement, including vulnerability to corruption, are a global problem with approximately $500 billion reported as lost to bribery and corruption in procurement globally.3 This chapter will discuss corruption and public procurement in Kenya using a human vulnerability analysis. It examines the extent to which the provisions of the Public Procurement and Asset Disposal Act (PPDA, henceforth PPDA) can address corruption issues, considering the positioning of the state, its suppliers, and the beneficiaries of the procurement process (citizens). The goal is to examine how/whether a human vulnerability approach to procurement in Kenya can advance social resilience. Kenya recently enacted a Public Procurement and Asset Disposal Act (2015 henceforth the Act or PPDA) to regulate the procurement and disposal of public assets.4 This is an important development that will hopefully curb the corruption that has bedeviled public procurement in the country.5 In order to understand how corruption works, it is important to know about the general principles in the Act that guide state procurement and disposal of assets. The principles are important because their application should optimally produce a transparent and efficient procurement process that also mitigates corruption. The discussion of the principles 1  Adjunct Professor and Postdoc fellow, Emory University School of Law. ORCID: 0000-0003-1208-5884. 2  Mutangili, S. (2019). Corruption in Public Procurement in Kenya: Causes, Consequences, Challenges and Cures. Journal of Procurement & Supply Chain, 3(1), 63 - 72. https://stratfordjournals​.org​/journals​/index​.php​/journal​-of​-procurement​-supply​/article​/view​/254 3  ​h ttps:/​/ blogs​. worldbank​. org​/ governance​/ tackling​- corruption​- governments​- covid​- 19​- heal​t h​ -responses 4  ​http:/​/kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​?ac​​tid​=N​​o.​%2​0​​33​%20​​of​%20​​2015 5  Note 1 supra.

DOI:  10.4324/9781003371663-3

30  Atieno Mboya

is presented through the lens of human vulnerability theory, which focuses on the role of the state and its institutions in promoting transparency, fairness, and social justice.6 The first part of the chapter describes human vulnerability theory and the rationale for using it to analyze Kenya’s procurement law. The second part lays out the principles of Kenya’s procurement law and discusses them in the light of human vulnerability theory. The third part discusses resilience, which is the goal for both the state and its subjects under human vulnerability theory. The fourth part is the conclusions. Human Vulnerability Theory Human vulnerability theory is a descriptive concept that recognizes that as embodied beings, humans are ‘dependent on social institutions and relationships throughout life.’7 The state is pivotal in this regard given that it is the custodian of the public resources its subjects rely on that can ensure that basic needs like affordable housing, clean water, affordable food, and affordable healthcare and education are available to all. Procurement is central to state distribution of public resources to meet the aforementioned basic needs and the state’s development goals. Procurement is, therefore, an important site for promoting resilience through state responsiveness to its inhabitants. The responsive state is central to human vulnerability theory, which looks to catalyze ‘greater juridical responsiveness’8 by engaging ‘vulnerabilities inherent in the bio- and socio-materiality’9 of life, by providing ‘much-needed deepening of ethico-juridical responsiveness to the complexity, affectability and vulnerability of the living order and of the multiple beings co-constituted by and within it.’10 The engagement of the embodied vulnerability shared by all human beings is a foundational premise for state and institutional responses that should foster equitable resilience and vulnerability mitigation programs11 throughout the country, and procurement standards and methods are integral to achieving this. While the PPDA doesn’t use the term ‘vulnerable’ when identifying subjects that should be given preferential consideration in the procurement process, it refers

 6  See Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition,’ 20  Yale J.L. & Feminism  (2008). Available at: https://digitalcommons​.law​.yale​.edu​/ yjlf​/vol20​/iss1/2  7  Martha Albertson Fineman, ‘Vulnerability and Social Justice,’ Valparaiso University Law Review, vol. 53, no. 2, Winter 2019, 358.  8  Anna Grear, ‘Vulnerability, Advanced Global Capitalism and co-Symptomatic Injustice: Locating the Vulnerable Subject’ in Fineman, Martha Albertson & Grear, Anna (Eds.), ‘Vulnerability, Reflections on a New Ethical Paradigm for Law and politics,’ Ashgate Publishing, Burlington VT, USA 2013, p. 41.  9  Ibid. 10  Ibid. 11  Martha Albertson Fineman, ‘The Vulnerable Subject and the Responsive State,’ Emory Law Journal, Vol. 60, 2010, No.2, pp.266–269.

L aw and Public Procurement in Kenya  31

to historically disadvantaged groups like women, the disabled, youth, and others.12 Under liberalism, these groups are often referred to as vulnerable and are defined as liberal legal subjects. Human vulnerability analysis notes that use of the designation ‘vulnerable’ to set aside some groups that are considered disadvantaged within the larger society, often also results in a stigmatization that carries with it ‘an air of victimhood, deprivation, dependency, or pathology.’13 By contrast, the term ‘vulnerable’ as used in human vulnerability theory is ‘detached from specific subgroups’14 and instead defines ‘the very meaning of what it means to be human.’15 To be human is to live in an embodied vulnerability that is ‘inevitably and constantly susceptible to changes – both positive and negative, developmental and episodic – over the course of life.’16 Human embodiment makes us dependent on social institutions and relationships, most of which are mediated by law, throughout life.17 The concept of human vulnerability, therefore, ‘must be at the heart of our ideas of social and state responsibility.’18 Human vulnerability analysis is a mode of studying law and institutions, with vulnerability being that ‘characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between the state and its institutions and the individual.’19 The theory introduces the concept of the vulnerable subject as an alternative to the narrow, self-interested liberal subject of human rights20 that is referenced in Kenya’s Constitution and the PPDA, since Kenya’s legal framework is consonant with the neoliberal turn in development theory.21 This is evident in the ‘vulnerable groups’ referenced in the PPDA above. The vulnerable subject of human vulnerability theory, on the other hand, considers the life cycle of the human being, which goes from childhood, to adolescence, to adulthood, and into old age. It is not static based on characteristics such as gender, age, or disability. At each stage of the life cycle, individuals and groups in any given society face both a collective vulnerability to harm or injury given their positioning to each other, and specific, individual vulnerability deriving from their life stage. To mitigate vulnerability, relationships and institutions that reduce risk

12  Article 53 of the KPPDA at http://kenyalaw​.org​/kl​/fileadmin​/pdfdownloads​/Acts​/Pub​licP​rocu​reme​ ntan​dAss​etDi​sposalAct_​_33of2015​.pdf accessed 10/22/20. 13  Note 10 supra 266. 14  Id. 15  Id. 16  Note 6 supra 358. 17  Id. 18  Note 10 supra 267. 19  Fineman at http://web​.gs​.emory​.edu​/vulnerability/ Accessed 10/28/20. 20  Fineman, note 10 supra 269. 21  For a thorough discussion of the neoliberal legal turn in development that occurred from the 1980s, see Tor Krever, ‘The Legal Turn in Late Development Theory: The Rule of Law and the World Bank’s Development Model,’ Harvard International Law Journal, Volume 52, Number 1, Winter 2011, at https://harvardilj​.org​/wp​-content​/uploads​/sites​/15​/2011​/02​/HILJ​_52​-1​_Krever1​.pdf accessed 3/3/21

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are vital and in the context of procurement, such relationships are found between suppliers and the state, contractors and the state, service beneficiaries and the state. The positioning vis-à-vis the state is linked to increased resilience and the mitigation of vulnerability for both the state and its suppliers, contractors and the citizens. By engaging with the vulnerable subject rather than the liberal subject, vulnerability theory posits that law can provide more just solutions to societal problems, by reaching all strata of society with procurement mechanisms and programs that will foster their resilience. To achieve this, the legal subject should be seen in a social context, which goes beyond the narrow category of ‘disadvantaged,’ to a life-cycle positioning within the political economy, which, in its current neoliberal form, unfortunately engenders winners and losers instead of social justice. The liberal subject is one of the products of the ‘closures of mainstream legal and political theory,’22 in which the ‘liberal juridical order focally include a highly selective, complexly incomplete (and ultimately impossible) excision of both bodies and of socio-material context.’23 This disembodiment of the liberal subject has been linked to ‘the body’s objectified fungibility as a commodified, fragmented construct available for market exploitation,’24 a construct that ‘cannot yield substantive equality’25 because markets, in which government procurement is embedded, are about making profit, which, in its neoliberal form, inevitably generates inequality. On the other hand, both the human rights regime, from which the PPDA principles flow, and human vulnerability analysis, have as their goals the establishment of a more equal and just society. Procurement distribution that moves away from the self-gain ethic to one of responsiveness to universal vulnerability, will require state officers, suppliers, and contractors to be transparent and accountable in delivery of service. Human vulnerability analysis is thus ‘a critical normative project – in the sense that it combines a critique of the liberal order and its fallout… with an attempt to imagine an alternative foundation for the ethics of the legal and political order.’26 Liberalism, on the other hand, is ‘the structuring of individual interactions in society on the basis of a set of rights that require human beings to respect each other’s liberty and equality.’27 Liberalism aims to ‘promote outcomes that are, as far as possible, the result of free individual choices.’28 Vulnerability theory goes beyond a focus on the individual to include the collective. The theory also examines ways in which the law and institutions can also create or aggravate vulnerability for citizens. In the context of procurement, the state, through law, must put in place

22  Grear note 7 supra 43. 23  Id. 24  Halewood quoted by Grear in id. 25  Id. 26  Grear note 7 supra. 27  John Charvet & Elisa Kaczynska-Nay, ‘The Liberal Project and Human Rights’ Cambridge University Press, New York, 2008, p. 3 28  Ibid. 2.

L aw and Public Procurement in Kenya  33

mechanisms and processes that foster social equity, mitigate corruption, and promote resilience for all. Classical liberalism upheld the laissez-faire economy and the night watchman state, while the new liberalism became concerned with ensuring that everyone enjoyed a sufficient level of social and economic rights in order to be able to exercise their liberty effectively as an equal member of society.29 Liberal doctrines range from ‘anarchical libertarianism at one extreme through laissez faire and the minimal state to the big bureaucratic state of welfare liberalism… on to… social liberalism.’30 Anarchical liberalism rejects a role for the state, believing that state functions are ‘best left to voluntary organizations or self-help.’31 Socialist liberalism ‘rejects economic liberalism of the market society altogether on the grounds of its incompatibility with equality but otherwise affirms liberal values regarding opinion, religion, movement, association, sexual orientation, and so on.’32 Human vulnerability theory falls in between these two extremes in that it does not advocate a complete rejection of a market society but, rather, calls for state regulation of markets in order to achieve substantive equality by having a society certain actors like corporations and political elites, are not privileged to the detriment of other parties. Kenya’s Procurement Principles and Vulnerability Theory The PPDA is a recent, important addition to the country’s laws33 that can potentially curb the corruption that has bedeviled public procurement in the country.34 This section will discuss some of the general principles in that Act. The principles are important because their application should optimally produce a transparent and efficient procurement process that promotes the state’s development agenda and meets the basic needs of the people. The discussion will be through the lens of human vulnerability theory, which, as already mentioned, focuses on the role of the state and its institutions in promoting transparency, fairness, and social justice through law.35

29  Charvet & Kaczynska-Nay note 26 supra 6. 30  Id. supra 7. 31  Id. 32  Id. 33  The PPDA was enacted in 2015. http://kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​?ac​​tid​=N​​o.​ %20​​33​%20​​of​%20​​2015 34  Note 1 supra. 35  See Fineman, note 6 supra.

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Section 3 of the PPDA states that public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation, including: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

the national values and principles provided for under Article 10; equality and freedom from discrimination provided for under Article 27; affirmative action programs provided for under Articles 55 and 56; principles of integrity under the Leadership and Integrity Act, 2012 (No. 19 of 2012); the principles of public finance under Article 201; the values and principles of public service as provided for under Article 232; principles governing the procurement profession, international norms; maximization of value for money; promotion of local industry, sustainable development and protection of the environment; promotion of citizen contractors.36

Under (a), these national values include: ‘patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people’37 These values are compatible with vulnerability theory, which looks to promote collective interests as the state responds to vulnerability. Equality and freedom from discrimination in Article 27 of the Constitution primarily relates to gender equality, affirmative action, and non-discrimination covering a range of physical traits and matters of conscience. These are typically areas covered under human rights and can provide criteria for measuring state responsiveness, and any gaps found can be responded to by drawing on human vulnerability. Additional principles, such as the public finance identified under Article 201 of the Constitution, call for equitable sharing of national revenue and the burdens and benefits of public resources and borrowing to be equitably shared between present and future generations. This inter-generational approach would also be consonant with vulnerability theory. Additional values mentioned under the Constitution that are incorporated into Section 3 of the PPDA are: (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; (c) good governance, integrity, transparency and accountability; and (d) sustainable development.38

36  ​http:/​/kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​?ac​​tid​=N​​o.​%2​0​​33​%20​​of​%20​​2015 37  Kenya Constitution, Article 10, at http://www​.kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​?ac​​tid​ =C​​onst2​​010 accessed 3/3/21. 38  Id.

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All these values can be translated into measurable yardsticks for gauging state responsiveness, making them compatible with the goals of human vulnerability theory if they are implemented in a manner that mitigates vulnerability for all Kenyans promotes resilience for the unprivileged. Section 53 of the PPDA states that all procurement by State organs and public entities are also subject to the rules and principles of the Act, which includes: ‘Any public officer who knowingly recommends to the accounting officer excessive procurement of items beyond a reasonable consumption of the procuring entity commits an offence under this Act.’39 This provision, if implemented faithfully, can curb corruption that is seen as widespread in Kenya. Section 53 (6) echoes the gender rule found in the Constitution and includes other historically marginalized groups that should be given preferential opportunities in procurement: ‘All procurement and asset disposal planning shall reserve a minimum of thirty per cent of the budgetary allocations for enterprises owned by women, youth, persons with disabilities and other disadvantaged groups.’40 A plain reading of the Article would suggest that when choosing suppliers, for example, the government will prioritize competitive bids from Kenyan companies in a spirit of patriotism. Distribution of tenders could also consider the location where the company operates, in order to promote national unity – the implication being, for example, that tenders would be awarded with the goal of distributing contracts to various regions in the country. Kenya has devolved to a decentralized system of government, ending almost 50 years of a unitary state that was established at independence. Self-governing counties now share power with the national government, and one expects that procurement will reflect this new form of governance. Tenders that were previously offered by the national government, can instead be devolved to country governments that will in turn, look to prioritize partnerships with companies that are operating in their county. All this is to be executed within a rule of law framework that promotes democracy and participation of the Kenyan people. The enactment of the PPDA is part of promoting the rule of law in procurement in the country. Article 54 (4) of the PPDA makes public procurement at inflated prices (rather than market prices) an offence, with any public officers caught engaging in such corrupt practices being sanctioned and required to reimburse the State for losses incurred. While the Act is not specific on the sanctions that will be imposed, it would be important to impose sanctions that are severe enough to deter corruption.

39  PPDA Section 53 (3). 40  Id. 53 (6).

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Suppliers bidding for government tenders need to conform to Article 55, which states that: (a) the person has the legal capacity to enter into a contract for procurement or asset disposal; (b) the person is not insolvent, in receivership, bankrupt or in the process of being wound up; (c) the person, if a member of a regulated profession, has satisfied all the professional requirements; (d) the procuring entity is not precluded from entering into the contract with the person under section 38 of this Act; (e) the person and his or her sub-contractor, if any, is not debarred from participating in procurement proceedings under Part IV of this Act; (f) the person has fulfilled tax obligations; (g) the person has not been convicted of corrupt or fraudulent practices; and (h) is not guilty of any serious violation of fair employment laws and practices.41 These provisions provide additional safeguards for mitigating corruption, fraud, and conflicts of interest, and ensure the supplier is a responsible legal subject, whether corporate or an actual person. The onus is on the supplier to show that they meet these standards.42 On the state side, the accounting officers handling procurement are to be held to professional standards, which naturally preclude corruption. Vulnerability theory, it should be noted, moves away from categorizations found in the human rights field like ‘disadvantaged groups,’ noting that such designations carry with them an air of stigmatization that is not conducive to advancing universal wellbeing.43 That said, the principles of the PPDA are to be read as being in harmony with the ones found in the Constitution, which is the supreme law of the land. In case of any conflicts, the Constitutional principles, which draw from human rights foundations, would prevail. The values found in Article 10 (b) of the Constitution continue the theme of rule of law and democracy by mentioning human dignity, equity, human rights, non-discrimination, and protection of the marginalized, which are all components of achieving social justice under the rule of law. Article 10 (c) comes closer to dayto-day procurement practice, which is a form of governance through the provision of public services. Success in this area requires integrity in tender allocation as well

41  PPDA Article 55 at http://kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​?ac​​tid​=N​​o.​%20​​33​%20​​of​ %20​​2015 accessed 3/3/21. 42  Id. Article 55 (4). 43  See the discussion by Veronika Fleger and Emma Iedema, ‘The Use of the ‘Vulnerability’ Label by the Committee on the Elimination of Discrimination Against Women: Protecting or Stigmatizing Women and Girls in the Forced Migration Context?’ Brill Open Law (2019) 1–41, at https://brill​.com​/view​/journals​/bol​/aop​/article​-10​.1163​-23527072​ -20191021​/article​-10​.1163​-23527072​-20191021​.xml​?language​=en accessed 3/3/21.

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as transparency and accountability in all steps of the procurement process. The last national value mentioned in the Article 10 (d) of the Constitution is sustainable development. As a concept, sustainable development seeks to balance economic development, social development, and environmental conservation. Its inclusion in Kenya’s procurement law suggests that Kenya will try to implement ‘green procurement’ when feasible. If procurement as a mode of governance in Kenya follows the values in the Constitution described above, Kenya’s approach may be counter to the neoliberal understanding of governance that aims to capture the actual performance of public administration in the delivery of services, has also been treated as ‘a broad and demanding concept [that] trumps democracy,’ where the challenge is exclusively posed in terms of modeling performance through the deployment of ‘sophisticated quantifiable criteria to measure outputs, not subjective inputs.’44 Operationalizing the principles articulated in the Constitution, however, unless structured in the procurement framework, can end up as a subjective judgment of the accounting officer interfacing with suppliers. Article 27 of the Constitution mandates equality and freedom from discrimination as another value that should underlie procurement. Article 27 defines these values in broad terms: (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (6) To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

44  See S.N. Nyeck, ‘Gender Equality in Public Procurement,’ (quoting Rotberg), in A. Farazmand (ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance, Springer Nature Switzerland AG 2020. https://doi​.org​/10​.1007​/978​-3​-319​-31816​-5​_1598-1

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(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.45 This Article suggests that procurement in Kenya is to be undertaken in an integrated manner, taking into consideration other laws and programs that foster and/or guarantee equality and freedom from discrimination. Article 27 (1) and (2) refer to equality of all before the law while 27 (3) targets gender equality. ‘Concerns about gender equality naturally arise when one considers the economic, social, and political objectives of public policy.’46 Thus, despite legal equality, the gender lens requires law to be placed in social context to uncover possible blind spots that an equality mandate can mask. In the procurement context, adding a gender equality lens would mean giving equal or even preferential tendering opportunities to female suppliers, because historically, Kenyan women have not had parity with men in commercial economic opportunities because gendered ‘social norms and hierarchies limit women’s opportunities and market access, in turn hindering their ability to reach their full potential.’47 Article 27(3) reads as a confirmation of this. Article 27(4) gives specific contexts under which discrimination on procurement tendering is illegal and sex and pregnancy are included. Article 27(6) goes beyond prohibiting discrimination to call for affirmative action in procurement to address past inequities. Kenya’s two-thirds gender rule, in which the Constitution mandates that ‘not more than two-thirds of the members of elective or appointive bodies shall be of the same gender’48 also applies to procurement practice. One interpretation of this would mean that no more than two-thirds of procurement tenders can be awarded to suppliers representing the same gender. Despite the legal stipulations, poverty, growing inequality, and corruption remain seemingly intractable problems in Kenya, which places the rationale and functioning of the state and its institutions under the spotlight, making vulnerability analysis relevant in procurement through which significant state distribution occurs. The neoliberal state primarily facilitates transactions in which corporations and economic growth take center stage, but if Kenya could operationalize most of the principles articulated in both the Constitution and the PPDA, the expectation would be mitigation of the growing inequality that neoliberalism has engendered

45  Constitution of Kenya, Article 27. 46  Nyeck, note 43 supra. 47  https://www​.idrc​.ca​/en​/growth​-and​-economic​-opportunities​-women​-east​-africa​-call accessed 10/22/20. 48  Constitution of Kenya, Article 27 (8) at http://www​.kenyalaw​.org​:8181​​/exis​​t​/ken​​yalex​​/actv​​iew​.x​​ql​ ?ac​​tid​=C​​onst2​​010 accessed 3/3/21.

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as implementation of the principles can moderate negative impacts of neoliberal development.49 The next section discusses human vulnerability and the need for state activity to promote resilience, which is the capacity of the state and its subjects to recover from adverse economic, social, and environmental impacts. Vulnerability and Resilience Market economies are expressions of liberal values in that ‘free and equal individuals interact in pursuit of their economic interests on the basis of voluntary arrangements.’50 Some of the principles underlying procurement practice in Kenya, such as affirmative action, are designed to counteract asymmetries that arise from economic pursuits with the state, which is the final arbiter of coercive power in society. The state itself is vulnerable, too, as evidenced by the presence of corruption, which hampers the state’s ability to fulfil its development goals and meet the basic needs of its citizens.51 Self-gain on the part of implementing officers and cartels in government can defeat the distributive goals of procurement tenders, suggesting that in the final analysis, the crisis is one of morality. A vulnerability analysis would call for deeper state responsiveness, such as ensuring salary scales can mitigate corruption and thereby promote resilience for all parties in the procurement chain, from state employees to suppliers. The state and suppliers are two ends of a mutual vulnerability spectrum, with the state having the resources to promote resilience for itself and its suppliers through transparent and equitable procurement practices. Vulnerability theory ‘does not mean that different treatment, even the conferral of privilege or advantage, is never warranted.’52 We see this reflected in some of the principles already discussed, suggesting that despite its liberal embeddedness, the PPDA can be implemented in a manner that would promote resilience thereby making it consonant with a human vulnerability theory approach. Vulnerability theory sees resilience as not merely a response to tragedy or injury, but as how we generate individual and collective well-being during all stages of life. The state and social institutions are at the heart of fostering human resilience, a perspective that compels us to ask: Which institutions should provide resources to support human flourishing? The state is an obvious answer and procurement is one way in which it does this. To illustrate, a central issue could be how we arrange our social institutions for successful environmental management,

49  See Philip McMichael, Development and Social Change, Pine Forge Press Sage Publications, Los Angeles, 4th Edition, 2008, Chapter 1. 50  Id. 27. 51  See CIA Factbook, 2021, which notes that Kenya’s “economic development has been impaired by weak governance and corruption. Although reliable numbers are hard to find, unemployment and under-employment are extremely high, and could be near 40% of the population.”: https://www​.cia​ .gov​/the​-world​-factbook​/countries​/kenya/​#economy accessed 3/3/2. 52  Fineman, note 10 supra 275.

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which requires balancing our natural resource extraction needs with conservation. Resilience, therefore, is measured only in part by an individual’s ability to survive or recover from harm or setbacks that inevitably occur in one’s lifetime. Rather, resilience has important positive implications for individual and social progress as well. Resilient individuals can form relationships, undertake transactions, take advantage of opportunities, and take risks, confident that they will likely have the means and ability to recover should they fail such challenges or meet unexpected obstacles. In other words, resilience allows us to respond to life – to not only survive, but also thrive within the circumstances in which we find ourselves. The inequality of resilience is at the heart of vulnerability theory because it focuses us on society and social institutions. Human beings are not seen as more or less vulnerable because they possess certain characteristics or are at certain stages in life. Rather, they experience the world with differing levels of resilience based on their relationship with the state, societal institutions, and the assets each confers. Those assets or resources can take five forms: Physical, human, social, ecological or environmental, and existential. Nobody is born resilient. Rather, resilience is produced within and through institutions and relationships that confer socioeconomic support, privilege, and power. Those institutions and relationships, whether public or private, are at least partially defined, legitimized, and reinforced by law. The principles in the Constitution and in the PPDA that should guide procurement in Kenya can, if faithfully implemented, strengthen resilience for suppliers across a spectrum that includes corporations and consultants that come from the groups identified in the Act. Corruption is a barrier toward achieving this, putting the onus on the state to put in place mechanisms that will ensure internal accountability. Diversion of resources that would go to suppliers is antithetical to the reality of universal human vulnerability given that everybody needs basic resources to survive and the state is an important generator of such resources. Vulnerability theory holds that vulnerability arising from physical embodiment is a common, constant, and shared condition among all human beings, regardless of social status or geographic location. Vulnerability should be understood not just as a potential source of harm and injury, but also as a generative and creative condition that propels us to form relationships and build institutions that strengthen our individual and collective resilience. Through the generative aspect of vulnerability, it is possible to craft ‘an alternative foundation for legal and political subjectivity’53 that is responsive to claims for justice from all strata of society and that does not privilege the more resilient, wealthier subjects, over the less resilient. In this context, vulnerability is defined as ‘the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between the state and its institutions and the individual.’54 Vulnerability

53  Grear note 7 supra 42. 54  Vulnerability Index, Emory University, http://web​.gs​.emory​.edu​/vulnerability​/index​.html accessed 10/28/20

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analysis, we can surmise, focuses on the human part of the rights discourse and uses the human condition to bring ‘societal institutions, in addition to the state and the individual, into the discussion and under scrutiny.’55 To the extent that operationalization of the PPDA is able to moderate the inequality that neoliberalism engenders, it can be an example of state responsiveness that mitigates vulnerability. Legal theory that is built on individual self-interest, as neoliberalism is, cannot lead to social justice, whether in the climate change context or any other, because social justice is about promoting collective self-interest, which is tied to wealth distribution in society. The current neoliberal approach to law and its institutional implementation is aggravating inequality within nations56 and procurement, as a significant function of state engagement with its citizens, has the potential to mitigate this disparity. Conclusion Kenya’s Constitution and the PPDA contain principles that, if faithfully implemented, could promote wider distribution of state resources to citizens. Corruption, however, remains a big scourge for the government, suggesting that robust accountability mechanisms must be operational for successful procurement. Adopting human vulnerability as a foundational premise in procurement activities would mean moving away from the self-gain ethic that drives neoliberal development, an ethic epitomized by corruption in government programs. Operationalizing the principles in the Constitution and the PPDA can mitigate the selfish ethic since those principles reflect a concern by the state for various strata of society to benefit from government procurement of works, goods, and services that are, in the final analysis, aimed at meeting basic needs of all Kenyans and advancing the state’s development agenda. To the extent that these principles are implemented within a neoliberal framework, growing inequality in Kenya and problems of corruption are unlikely to be mitigated. The human and economic impacts of state procurement must be addressed in a balanced way, which calls for translating legal equality into substantive equality that responds to the actual lived experience of goods and services suppliers and the users of publicly procured programs. Liberalism’s propensity to divide, separate, and foster self-interest above common well-being needs to give way to an ethic of interrelationship and fair reciprocity at all societal levels. The PPDA and Constitutional principles discussed here reflect this aspiration. As the government strives to implement these principles, safeguarding against corruption must become a priority, otherwise the goal of effecting wider resource distribution and opportunities to promote resilience through public procurement programs will remain challenging.

55  Fineman, note 10 supra 255. 56  McMichael note 48 supra 12–15.

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References Charvet, John, and Kaczynska-Nay, Elisa. The Liberal Project and Human Rights. New York: Cambridge University Press, 2008. CIA Factbook 2021. “Constitution of Kenya.” 2010. Available at: https://www​.cia​.gov​/the​ -world​-factbook​/countries​/kenya/​#economy; http://kenyalaw​.org​/kl​/index​.php​?id​=398. Fineman, Martha Albertson. “The Vulnerable Subject and the Responsive State”. Emory Law Journal, Vol. 60, No. 2 (2010): 266–269. ———. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale J.L. & Feminism, Vol. 20 (2008). Available at: https://digitalcommons​.law​.yale​.edu​/yjlf​/ vol20​/iss1​/2. ———. “Vulnerability and Social Justice.” Valparaiso University Law Review, Vol. 53, No. 2 (Winter 2019). Fleger, Veronika, and Emma Iedema. “The Use of the ‘Vulnerability’ Label by the Committee on the Elimination of Discrimination Against Women: Protecting or Stigmatizing Women and Girls in the Forced Migration Context?” Brill Open Law (2019): 1–41. Grear, Anna. “Vulnerability, Advanced Global Capitalism and Co-Symptomatic Injustice: Locating the Vulnerable Subject.” In Vulnerability, Reflections on a New Ethical Paradigm for Law and Politics, edited by Martha Albertson Fineman and Anna Grear, Vol. 41. Burlington, VT: Ashgate Publishing, 2013. International Development Research Centre (IDRC). “Growth and Economic Opportunities for Women - East Africa Call.” Available at: https://www​.idrc​.ca​/en​/growth​-and​ -economic​-opportunities​-women​-east​-africa​-call. Krever, Tor. “The Legal Turn in Late Development Theory: The Rule of Law and the World Bank’s Development Model.” Harvard International Law Journal, Vol. 52, No. 1 (Winter 2011). McMichael, Philip. “Chapter 1.” In Development and Social Change, 4th ed. Los Angeles: Pine Forge Press Sage Publications, 2008. Mutangili, S. “Corruption in Public Procurement in Kenya: Causes, Consequences, Challenges and Cures.” Journal of Procurement & Supply Chain, Vol. 3, No. 1 (2019): 63–72. Available at: https://stratfordjournals​.org​/journals​/index​.php​/journal​-of​ -procurement​-supply​/article​/view​/254. Nyeck, S. N. “Gender Equality in Public Procurement.” In Global Encyclopedia of Public Administration, Public Policy, and Governance, edited by A. Farazmand. Switzerland: Springer Nature Switzerland AG, 2020. Available at: https://doi​.org​/10​.1007​/978​-3​-319​ -31816​-5​_1598​-1. Public Procurement and Asset Disposal Act. 2015. Available at: http://kenyalaw​.org​/kl​/ fileadmin​/pdfdownloads​/Acts​/Pub​licP​rocu​reme​ntan​dAss​etDi​sposalAct_​_33of2015​.pdf. Samandari, Atieno Mboya. “Gender Responsive Land Degradation Neutrality, U.N. Global Land Outlook, 2017.” Available at: https://knowledge​.unccd​.int​/sites​/default​/files​/2018​ -06​/3.​%20Gender​-Responsive​%2BLDN_​_A​_M_​_Samandari​.pdf. World Bank Blogs. “Tackling Corruption in Governments’ COVID-19 Health Responses.” Available at:https://blogs​.worldbank​.org​/governance​/tackling​-corruption​-governments​ -covid​-19​-health​-responses.

Chapter 3

Gender Justice in Public International Organizations’ Procurement Work A Contrasted View Emilie Combaz 1

Introduction Public international1organizations’ spending on procurement represents a major market worldwide. In the system of the United Nations (UN) alone, 39 organizations spent a collective USD 19.9 billion in procurement of goods and services in 2019 (UNGM n.d.). In countries with a significant UN presence, UN procurement can be an important part of the economy, for better or for worse.2 International organizations as a whole procure extremely diverse goods, works, and services, ranging from pharmaceuticals and food, construction, transportation, and fuel, to administrative support, research services, management consultancy, and insurance (UNGM n.d.). Winning a procurement contract from an international organization can make a big difference in the trajectory of women entrepreneurs and women-owned businesses.3 Winning contracts with an international organization can ‘contribute to the critical mass that a women-owned business needs to grow, and could be a powerful reference/entry point for winning other contracts,’ as noted by the World Bank Group (Combaz 2018a, 18). Of course, realizing gender justice in international organizations’ procurement work fundamentally requires changes well beyond the procurement sector, such as undoing gender inequalities in basic education, capital, and labor. But international organizations can indeed play a crucial role to bring their procurement work in line with gender equality and women’s empowerment. However, just as other public procurement entities, international organizations have historically failed to make their procurement gender-responsive, although public data on this is scarce. Certainly, a number of international organizations

1  Social Science Researcher and Consultant. Specialist in Human Rights and International Organizations. ORCID: 0000-0001-6411-155X. 2  For examples of discussions about the economies generated by large UN presence in a country, see: Autesserre 2014; Carnahan, Gilmore, and Durch 2007; Carbonnier 2013. 3  In the remainder of this chapter, ‘women-owned businesses’ will be used as shorthand for both women entrepreneurs and women-owned businesses.

DOI:  10.4324/9781003371663-4

44  Emilie Combaz

have acknowledged that their procurement has fallen far short on gender equality (Combaz 2018a, 2). In response, in the past few years, some of them have started to try and make their procurement gender-responsive, thus following in the steps of a variety of public, private, and non-profit actors around the world. For instance, efforts to both adopt and promote gender-responsive procurement (GRP) have picked up pace in the UN system. In 2017, the UN High-Level Panel on Women’s Economic Empowerment named GRP as one important way to advance gender equality and women’s rights in local, national, and international economies (HLP-WEE 2017b, 2017a). Actors supporting GRP in international organizations have called for making procurement gender-responsive or even gender-transformative, among others by removing unjust obstacles, or applying affirmative action to redress past and current imbalances. Still, progress has remained limited, and only a handful of international organizations are systematically implementing GRP in their own operations (Combaz 2018a, 2). To better understand the current situation, the present chapter looks at international organizations’ procurement work on gender, which encompasses their internal and external procurement actions. This chapter asks: What is the state of gender justice in international organizations’ procurement work? And, taking their constraints and context into account, what can they do to go further? To ask and answer these questions, the chapter brings into dialogue critical perspectives about human vulnerability – as proposed by Fineman and Nyeck – and insights from my prior work. After a brief presentation of the study framework and methodology in the next section, the chapter first offers an analysis of what different international organizations have done to date on gender and procurement. Next, it assesses the results of international organizations’ promotion of GRP. Lastly, it lays out recommendations for international organizations’ policy, advocacy, and programming. Vulnerability and International Organizations’ Procurement Work I define international organizations’ ‘procurement work’ on gender as the combination of their internal efforts to make their own procurement gender-just, and their external efforts to promote gender-just procurement in the public and private sectors, at international, regional, national, or local level, through norm-setting, policy, programing, or advocacy.4 International organizations can play several

4  While international organizations differ from states in fundamental ways, their ‘procurement work’ belongs in the category of public action and public procurement, if only because they are indeed, legally, and functionally, public entities doing public procurement, and are constituted and formally governed by Member States. Some of their specificities create distinct constraints in their procurement work (such as having to be financially and politically accountable to numerous public and private donors and Member States) and distinct capacities (such as being fora with the legal powers, and potentially the political legitimacy, to set hard and soft law, policies, and international precedents).

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important roles in influencing the policies and practices of public (and private) procurement actors toward gender equality and equity, including leading by example in their own large procurement spending; setting and shaping international norms, agendas, policies, and decisions; conducting or facilitating dialogue and advocacy; and providing practical support and knowledge. To analyze international organizations’ procurement work, I use a theoretical framework that brings two perspectives into dialogue and comparison with each other: First, my prior research framework on this topic, which combines gendertransformative feminist approaches, intersectionality, human rights, and political economy;5 second, critical vulnerability theory – as proposed by Martha Fineman (Fineman 2008) and as applied to gender and procurement by Nyeck (Nyeck 2020). Fineman’s theory is that vulnerability is ‘universal and constant, inherent in the human condition’ (Fineman 2008, 1–2). Humans live with two types of vulnerability. First, they are vulnerable throughout their lives because they are e­ mbodied: Their bodies may be harmed by events largely outside individuals’ control. There is no such thing as human invulnerability (Fineman 2008, 8–15; 2014, 614). Second, humans are vulnerable because they are embedded in institutions and social relations. Some of this is due to developmental, inevitable dependency arising from embodied differences: humans depend on care provided by others when they live through infancy, illness, disability, and old age. Another part of this is due to institutions, whose set-ups vary across time and space. Institutions often generate unequal power and advantages for different individuals and groups, leading to socially imposed vulnerability (Fineman 2014, 614, 618–20, 622; 2017, 138–41). This includes ‘derivative dependency,’ for instance where caregiving for dependents gets assigned to families with little to no support from the state and workplaces (Fineman 2014, 620–21; 2017, 138–41). This is why there is no human ­independence, only mutual dependence (Fineman 2014, 614, 618–20, 622; 2017, 138–41). Empirically, the chapter examines two sets of public material I gathered between 2018 and 2020.6 The most substantial set is made up of secondary material. The

5  Each of these components in my framework relates to large bodies of academic, practitioner, and policy literature that offer a plurality of perspectives. For this chapter, the following references are suggested as examples to introduce major ethical, epistemological, conceptual, theoretical, and empirical approaches I have used in each component. – On gender-transformative feminist approaches: Kabeer 2018; Molyneux 1984; in international aid, Hillenbrand et al. 2015. – On intersectionality: Crenshaw 1989; Collins 2002; in international aid, Chaplin, Twigg, and Lovell 2019. – On human rights: Cook 2012; Evans 1998; in international aid, Crichton et al. 2015. – On political economy: J. Elias and Roberts 2018; Polanyi 2001; Rai 2013; in international aid, Haines and O’Neil 2018. 6  The chapter examines public material that I gathered or generated while carrying out paid consultancies about GRP for the British Department for International Development in 2018, and for UN Women between 2019 and 2020. The chapter only draws on and refers to public information, thus

46  Emilie Combaz

main part of this consists of published literature about GRP in the public and private sectors, from academic, practitioner, and policy sources. In 2018, I conducted online literature searches about the different models that major international entities (multilateral, bilateral, or non-profit) working in international development or similar sectors use to implement gender-sensitive procurement in their own operations, with a focus on information published in the previous five years (Combaz 2018a, 4–5). Then, in 2019–20, I conducted broader, in-depth reviews of academic, practitioner, and policy literature about GRP in the public and private sectors, with a focus on publications from the previous five years. A smaller part of my secondary material consists of the websites of a selection of international organizations. I systematically reviewed the public web pages on procurement and on gender of selected international organizations in 2018 (Combaz 2018a, 4–5), and did so again in 2019–20. A second, small set of public information the chapter examines consists of primary material that I generated. In 2018, I emailed relevant contacts in charge of procurement and/or gender issues in 44 organizations, receiving and analyzing information from a total of 17 organizations in response (Combaz 2018a, 4–5). The immediate empirical objects of this chapter are thus these two sets of materials. From there, my in-depth reviews and analyses of this material constitute second-order objects in the research framework. Indeed, I explore vulnerability theory by looking at the commonalities and differences between my own thinking about international organizations’ procurement work, and the implications of vulnerability theory applied to this same object. The next three sections discuss the current state of international organizations’ procurement work, finding uneven progress and heterogeneous approaches. Considering Vulnerability in the First Place The first requirement – and benefit – of vulnerability theory is its insistence that vulnerability be considered in the first place. It is important to ask whether international organizations consider vulnerability at all in their procurement work. A first step here can be to consider gender responsiveness in organizations’ own procurement as a working stand-in (admittedly a narrow and partial proxy) for their consideration of vulnerability. Findings on this show that the current situation is mixed, with progress uneven and limited overall. While all international organizations state their support for gender equality, their procurement practices reveal heterogeneous stances, few firm commitments overall, and even fewer tangible results given that even the most advanced organizations have only recently adopted GRP. Out of the nine international organizations that responded with information in my research (Combaz 2018a), two did not implement GRP in any way. The World

upholding the confidentiality of non-public documents and information I received from consultancy partners. The chapter solely represents my views, not those of these partners or any other organizations. I received no funding from any source to write this chapter.

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Health Organization (WHO) did not implement GRP and was not considering it. The Asian Development Bank (ADB) did not implement GRP but was considering it. Next, one organization, the International Labor Organization (ILO), was considering GRP and had piloted it. Two further organizations, the Inter-American Development Bank (IADB) and the UN Office for Project Services (UNOPS), had adopted GRP and were implementing it through pilots or ad hoc projects. Three more organizations had adopted GRP and were launching it organization-wide. The UN Industrial Development Organization (UNIDO) did so on a voluntary and small-scale basis, while the UN Development Program (UNDP) and the World Bank Group – comprising the International Finance Corporation (IFC) and the World Bank – did so with firm goals and mandatory processes. Lastly, just one organization, UN Women, had adopted and implemented GRP organization-wide since 2016–17 (Combaz 2018a). Critique of Formal Models of Equality Vulnerability theory and its application to procurement articulate a useful critique of dominant models of formal equality (Fineman 2008, 1, 11; 2014, 609– 10). Formal equality is based on non-discrimination and sameness of treatment toward identity-based groups, and on approaches to personal liberty that hamper equality for social justice. It is too individualistic (Fineman 2008; 2014). At the same time, it paradoxically refers to categories of identity that ‘are both over- and under-­inclusive’ (Fineman 2008, 4). It is also too focused on the moment of a discrimination ‘rather than on the historical, systemic, and institutional structures that surround that moment’ (Fineman 2014, 612). This leaves intact the existing allocation of resources and power – among others in markets and families – and the types of spaces and institutions scrutinized (Fineman 2008, 3–5, 9–15, 23; 2014, 609–12). The formal model positions the state as naturally unaccountable for inequalities, denies it legitimacy to intervene against them, drastically restricts and impoverishes the scope of its interventions and institutions, and even lets it treat individuals poorly, if it treats them the same. All the while, the model presents the private sector as necessarily more efficient, less corrupt, and not bound by duties to advance public goods such equality and justice (Fineman 2008, 5–8; 2014, 609–12). Building on this, Nyeck examined what the dominant models of public procurement mean for individual and institutional vulnerability. What does presenting public procurement as a mechanism of governance imply for states’ (or international organizations’) core financial responsibilities and capabilities, and for the trajectories of GRP (Nyeck 2015)? First, there is a dominant focus on quantifiable procurement outputs and on harmonization of governance mechanisms, and a corresponding avoidance of discussions about procurement inputs, about what gets to count and how it measured in procurement, and about the economic, social, and political objectives of public policy (Nyeck 2020, 1–2). Second, the dominant ideology frames the relation between efficiency and justice as a zero-sum game and prioritizes efficiency – as thus framed – over social justice, including gender equality

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and equity. It has given rise to the notion of ‘“unilateral efficiency,” a presumptive halo of entrepreneurial virtue pre-assigned to the private sector and denied to the public sector as the point of departure for […] public procurement reform’ (Nyeck 2020, 3). Gender becomes irrelevant, blamed for lowering managerial expectations, or only considered if equal treatment is seen to add value. It is not taken on its own terms, and ‘is often linked to different agendas that tame the demand for social justice or the recognition of the engineering and differential distributive effects of public procurement’ (Nyeck 2020, 3). This is on display in the limited results achieved by gender mainstreaming initiatives (Nyeck 2020, 5). Third, dominant global reforms of public procurement leave substantive engagement with gender equality peripheral or unexplored. In particular, their approach to gender equality is a narrative about simple exclusion or inclusion, rather than a discussion of the terms of inclusion and exclusion (Nyeck 2020, 1–2). My analysis of international organizations elicits striking commonalities with these points. One of the organizations that did not implement any GRP used arguments that largely draw on and echo this dominant formal model. The WHO pointed to its General Contractual Conditions requiring that suppliers refrain from any discrimination, including based on the gender of its personnel, and to a provision on discrimination in the UN Code of Suppliers, which the WHO refers to in all its contracts conditions and solicitation documents (Combaz 2018a, 16). Such a gender-neutral approach is unlikely to advance gender equality in international organizations, especially in organizations that also do not collect and monitor ­gender-disaggregated procurement data (AWCCI 2012). Moreover, even organizations somewhat more engaged with GRP framed GRP within the dominant model. Many organizations, such as IADB, highlighted nondiscrimination or equal opportunity as a major component of their approach to GRP, and presented provisions for gender equality as being in potential or actual contradiction with other principles of good procurement such as value for money, economy, competition, or efficiency, stating that this called for trade-offs (see Combaz 2018a). Moreover, others present GRP primarily through a utilitarian, market-centric view that does not seem embedded within a wider substantive approach to equality. For example, ADB presented GRP as ‘an approach that is evolving as a way for promoting women’s and women-led enterprises’ economic empowerment’ (Combaz 2018a, 19). Requirement to Realize Substantive Equality In opposition to formal equality, vulnerability theory and its application to procurement place an obligation on public entities to realize substantive equality – a meaningful standard against which to assess international organizations’ procurement work. Under this approach, the state has a duty to ensure equality in response to the vulnerability of both individuals and institutions (Fineman 2008, 15; 2014, 613). It has an obligation to achieve egalitarian results – i.e., egalitarian ends, not just means – by providing richer and more robust guarantees of equality whereby the

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state affirmatively and actively structures conditions for equality (Fineman 2008, 8–9, 20–23; 2017, 134–38). It would ‘recognize and accommodate differences and consider outcome as well as treatment’ (Fineman 2014, 610). Fineman argues that any progressive approach should thus concentrate on the structures in society that manage people’s common vulnerabilities (Fineman 2008, 1–2). The possibility of demanding substantive equality from international organizations’ procurement work is helpful in judging the extent and quality of their efforts. Here again, I take gender responsiveness in these organizations’ own procurement as a proxy for their consideration of vulnerability. This reveals that the seven organizations that have adopted some form of GRP display different degrees of commitment and different approaches to realizing gender equality. Specifically, I propose four axes of enquiry. First, does the international organization’s model of GRP address only women and women-owned businesses, or does it address gender equality among vendors and buyers more broadly? Second, does the organization mainstream gender in general, or does it additionally adopt specific policies and provisions to make its procurement work gender-responsive (and, ideally, gendertransformative)? Third, does the organization implement GRP only ad hoc or in pilot projects, or systematically across the organization? Fourth, does the organization make GRP voluntary or mandatory? My data show that based on these questions, ILO’s work is less advanced than IADB’s and UNOPS’s, which in turn is less advanced than UNIDO’s. UNDP and the World Bank Group are further along, and UN Women is distinctly further ahead. Even so, however, frontrunner UN Women admits that GRP has been such a recent endeavor that, while its commitment has depth and breadth, results have remained limited so far, although trends are promising (Combaz 2018a, 8–11). To investigate this more precisely, the next six sections examine in greater depth the work done by international organizations that have embraced some form of GRP, however minimal, and asks how well this takes vulnerability into account. Putting Responsibility for Results on Public Entities and Institutions Under Fineman’s vulnerability theory, the state is ‘responsive to and responsible for the vulnerable subject’ (Fineman 2008, 2). The theory rejects an individualistic focus about impediments and blame about personal failures. Instead, it places responsibility and scrutiny onto asset-conferring institutions, assessing their fairness and effects against vulnerability and equality – regardless of any intent or discrimination (Fineman 2008, 18–19, 21; 2014, 616). It considers need and disadvantage, and ‘takes into account past circumstances and future obligations’ (Fineman 2008, 4). For Fineman, the state is the only legitimate and capable public authority with the duty to coercively supervise institutions in order to ensure that they remedy individuals’ vulnerability and that they do so equally for all persons (Fineman 2008, 18–19, 20–21, 23). The aim should be to construct a democratic, non-authoritarian state ‘around a well-defined responsibility to implement

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a comprehensive and just equality regime’ (Fineman 2008, 19). The question then becomes: Where and how do public entities maintain the gendered status quo, as opposed to advancing gender equality between individuals (Nyeck 2020, 4)? For example, UN Women has oriented a significant part of its actions toward women-owned businesses. Fortunately, it has also paid strong attention to the roles and responsibilities of other actors, institutions, structures, and systems. Still, this remains a balancing act, and there is always a risk that the more visible and easyto-measure actions focused on women-owned businesses end up taking too much importance relative to others. In particular, international organizations risk falling into fallacies arising from a liberal ‘lean-in’ approach to gender equality, which claims that if women make enough strategic efforts and overcome problems such as low self-confidence, they can succeed professionally (Gregoratti, Roberts, and Tornhill 2018; Tornhill 2015, 2016, 2019). GRP runs the risk of implicitly adopting at least two such fallacies. One is about attributing equal power and responsibility for change to all parties. As the evidence shows that an overwhelming number of women, especially the more disadvantaged ones, are not represented in procurement (Chin 2014, 2017; Combaz 2018a; UNGM n.d.), this surely suggests that international organizations must put the burden of solving this problem squarely on the more powerful, dominant actors, institutions, and systems, not on women themselves. The other fallacy is about attributing power and responsibility for change more to individuals than collective entities. When inequalities are so structural, it is collective aspects – norms, institutions, structures, and systems – that need to change first and foremost, not the disadvantaged individuals. Identifying and rejecting these fallacies ties back to critiques of formal equality. In practice, international organizations should act at multiple scales and toward multiple actors, without overfocusing on women-owned businesses and their capacities, to avoid the risk of working too little on structural and systemic factors. Women-owned businesses are not primarily responsible for, nor capable of changing, gender-unjust procurement. International organizations should not contribute to burdening women-owned businesses with solving this as their own problem. Instead, they could assist these businesses, but be clear about where the core of the problem lies and put the burden of solutions on root causes. Women-owned businesses, alone and in the aggregate, cannot force GRP to happen, no matter how good they become at procurement. Consequently, international organizations should aim to systematically translate any descriptive findings about the disadvantages of women-owned businesses into relational and causal findings about what is holding them back. For example, the problem is less that women-owned businesses lack relevant networks or funding, and more that women-owned businesses are denied information about and access to men-dominated networks and funding. International organizations should ensure their perspective remains rooted in equal rights as a foundation, rather than merely in equal opportunities. Similarly, within work on women-owned businesses, international organizations should direct requests to groups first (e.g.,

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women and industry associations), not to individual women-owned businesses and women entrepreneurs. When engaging with individual women-owned businesses, international organizations should be supporters and enablers, but leave it up to each women-owned business to decide if it wants to take on the role of champion for GRP if its capacities are limited. Lastly, international organizations should also take into account the burdens of collective action. For example, in publications about GRP by international organizations and others, a frequent recommendation is for women-owned businesses to form collaborations and joints ventures. While the advantages are incontrovertible, there is little acknowledgement that successful cooperation has costs, and typically takes time to set up and work efficiently. Overall, dominant models of GRP risk putting excessive burdens on women entrepreneurs, instead of putting the onus of changing power and gender relations on systems and people that either cause gender inequality in the first place, or that have the greatest responsibility and power to generate equality. In practice, international organizations’ efforts must strike the right balance between work toward women-owned businesses on the one hand, and work toward changing laws, institutions, structures, and practices, and toward challenging wider gender inequality in society on the other hand. Acknowledging the Ambiguous Roles of Institutions Fineman acknowledges that social institutions, including those purporting to ameliorate individuals’ vulnerability, often exacerbate it instead. This makes ‘reliance on these institutions particularly frightening’ (Fineman 2008, 13). Indeed, institutions themselves, including the state, are vulnerable because they ‘can be captured and corrupted,’ ‘damaged and outgrown,’ and ‘compromised by legacies’ of exclusion and discrimination, even as institutions as such remain vital to remedying individual vulnerability (Fineman 2008, 18). Nonetheless, Fineman argues, only committed egalitarian action by the state can enable individuals to achieve effective autonomy (Fineman 2008, 23). My prior work on gender in various economic, social, and political institutions echoes this ambiguity of institutions in warnings about adverse inclusion.7 On public and private procurement too, my reviews of quantitative and qualitative evidence confirm that mere inclusion is not enough and can harm participating women-owned businesses – and women and men working in the production chain more broadly. Not all economic inclusion is good for women and gender equality. Suppliers in procurement can be subjected to exploitation, low income, poor labor conditions, and sexual harassment, among other problems.8 Simultaneously,

7 See for example: Combaz 2013b; 2013c; 2014a; 2014c; 2014d; 2018d; Combaz and Mcloughlin 2014; Khan, Combaz, and McAslan Fraser 2015. 8 This is well documented in many academic, practitioner, and policy publications about economies worldwide. For discussions on procurement specifically, see for example: Arora 2019; Benjamin

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we should acknowledge ongoing debates about how best to bring about positive changes in procurement where all workers and some suppliers have long been severely exploited, and where international campaigns have rarely been led by and accountable to the affected workers, especially where the supply chain ends up involving the informal sector.9 International organizations must therefore look beyond mere access and inclusion, address adverse inclusion as an ongoing risk, and push for inclusion into procurement to be positive. Issues to address include gender inequality in buyers’ prices and conditions, economic exploitation, and labor rights and conditions. International organizations’ internal and external procurement work must uphold and advance the rights, including the labor rights, of the contractors, subcontractors, and employees involved. They can do so for example by embedding human rights into their policy and programming about procurement – not through mere references to rights, but through substantial realistic plans and actions to achieve them. This does not have to grow into heavy formal requirements in procurement processes, which risk excluding women-owned businesses even further from qualifying, as these businesses tend to be smaller and less able to meet complex administrative requirements for application and contracting upfront. Rather, the key is to build in real checks and consequences, to hold accountable all entities and individuals involved throughout the procurement chain (see e.g., BSR 2019; ETI 2018a, 2018b, n.d.; Goff 2018; OCCR, n.d.; Rajagopal 2018; Wright and Conley 2018). Relatedly, international organizations could – and likely should – bring in trade unions as stakeholders in GRP. Publications on GRP by international organizations and others hardly ever mention any role for formal and informal trade unions. Yet, representative, democratic trade unions – especially unions with a stronger practice of advancing gender equality – could act as checks on companies’ claims of having policies and practices that support gender equality, whether the company is owned by women or men (Kabeer 2018; Quayyum 2019; Wright and Conley 2018). International organizations should also help all disadvantaged suppliers – including women – to obtain fair prices and conditions in procurement, and to move up the value chain where relevant. Moreover, they should help break down the gender-based segmentation of procurement markets and suppliers.

2015; Bock Mullins and Moreno Saldivar 2015; Brown 2019; Bullock et al. 2018; Crawford-Garrett et al. 2016; M. Elias and Arora-Jonsson 2017; ENERGIA 2019; Feigenblatt 2020; Gengenbach et al. 2018; Gregoratti, Roberts, and Tornhill 2018; Kruijssen, McDougall, and van Asseldonk 2018; Manyungwa, Hara, and Chimatiro 2019; McCarthy 2018; Mihyo et al. 2019; Sesan et al. 2019; Tornhill 2015; 2016; 2019; UNDP 2019. 9 Here again, these issues are examined in much wider literature. For discussions on procurement specifically, see for example: Barrientos 2019a; 2019b; Barrientos, Bianchi, and Berman 2019; Brown 2019; Gurumurthy, Chami, and Anwar 2019; Kabeer 2018; Loconto 2015; Lyon, Mutersbaugh, and Worthen 2019; McCarthy and Moon 2018; Quayyum 2019; Said-Allsopp and Tallontire 2015; Schumacher 2014; Stoian et al. 2018.

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Women and women-owned businesses disproportionately work in less valued ­procurement sectors with lower remuneration rates relative to men (Maheshwari et al. 2020; NextWin Services 2016; Orser, Riding, and Weeks 2019; USAID 2018; Wright and Conley 2018). International organizations can use collaborative research, advocacy, and programing in coalitions to highlight the gender equity gaps and push for solutions (e.g., Said-Allsopp and Tallontire 2015). Solutions may include supporting women-owned businesses in moving up value chains (see Boodhna 2011 for one approach among many), establishing affirmative ­sectoral quotas for women-owned businesses, and ensuring welcoming labor and social conditions for women in areas where they are underrepresented or underpaid (ETI 2018b). In this regard, if international organizations encourage women to move into men-dominated sectors, their plans should address high risks of ­gender-based violence. Identifying Power Relations in Seemingly ‘Natural’ or Technical Aspects Importantly, Fineman separates her approach to vulnerability from those that associate vulnerability ‘with victimhood, deprivation, dependency, or pathology’ in specific categories of ‘populations,’ rather than viewing vulnerability as universal (Fineman 2008, 8). This valuable distinction is particularly relevant here because, since the 1980s, international organizations, alongside the other major actors in international development and humanitarian aid, have predominantly used ‘vulnerability’ in the much more depoliticizing and disempowering approach that Fineman and authors such as Hélène Thomas reject (Thomas 2010). Instead, applying the vulnerability framework to how law organizes wealth and work in the US, Fineman suggests assessing the state’s regime of equality through questions about institutions. Questions could include for example who is represented as stakeholders in corporate governance and in markets (corporations, workers, consumers, government?), and whether the law privileges market over family or individual (Fineman 2008, 21). This line of thinking echoes my calls to deal with procurement, including GRP, as a political economy issue, not just as an economic or ‘non-political’ technical issue. GRP is not just a set of technical measures, such as laws, procedures, and processes: it takes place and intervenes in relations of money and power – gender being one of many dimensions in these relations. Consequently, as a complement to changes in procurement laws and regulations, international organizations’ procurement work must ensure that the required components in political economy – in the factors, actors, issues, and dynamics – are in place to sustain changes in procurement practices. The bodies of literature on women’s political empowerment, and on gender mainstreaming, likely offer relevant lessons in this regard. One illustration that procurement is profoundly enmeshed in power relations and inequalities is corruption. Women and men entrepreneurs often report corruption and favoritism as a major barrier to engaging in procurement, including in

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public procurement.10 Such corruption includes sexual extortion in procurement processes (Feigenblatt 2020). Consequently, international organizations should help fight corruption and favoritism in public procurement, so that the less powerful, less wealthy, or less well-connected participate. Internally, their own procurement needs to prevent corruption (see e.g., Dávid-Barrett et al. 2020). Externally, they need to draw on evidence-based action to fight corruption. This can include conducting political economy analyses of public procurement and of corruption. This can also include building wide coalitions and advocacy on this in their countries of work. Here again, labor unions that are already mobilized for gender equality could be interesting actors to bring in, as they may have willingness and expertise to advance GRP, not just for women-owned businesses, but also for gender equality more broadly.11 Accounting for Inequalities and for Different Vulnerabilities in Systems and Structures While all individuals are inherently vulnerable, Fineman notes that different individuals experience different types and degrees of embodied and embedded vulnerabilities, depending on how systems of power and privilege have conferred them accumulated advantages or disadvantages (Fineman 2008, 8–19; 2014, 612–14; 2017, 143–45). This applies whether the difference results from discrimination or from other inequalities, including acceptable or inevitable ones such as, according to Fineman, the relationship between employer and employee, or parent and child. In this regard, vulnerability theory seeks equity, not equality (Fineman 2014, 613; 2017). The issue of how institutions address inequalities echoes my previous work warning that GRP risks uplifting only those women who are already better off in multiple socioeconomic hierarchies, notably socioeconomic class, caste, gender and sexualities, ethnicity, indigeneity, race, culture and religion, age, geographies, nationality and migration status, and disability and health. While it will be impossible to avoid this entirely, international organizations’ procurement work should take this into account and aim to help uplift skilled but excluded women (and men) entrepreneurs who can already win tenders, while laying the groundwork for future ones who are in even more disadvantaged positions. Indeed, fine-grained analyses of women-owned businesses can identify different profiles of women-owned businesses, from those engaged in mere survival to those secure and growing,

10  This is established in multiple references. See for example: Amadi 2015; Kirton 2013; KithatuKiwekete 2018; Nyeck 2015; OCP and VfW 2020; Vyas-Doorgapersad and Kinoti 2015. 11  Another seemingly technical area that is deeply tied to power and inequalities is the use of information and communication technologies in procurement. International organizations should support the upsides of digitization and actively prevent their downsides, especially for informal businesses (see e.g., Gurumurthy, Chami, and Anwar 2019; Sicat et al. 2020; UN Women, n.d.).

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and suggest how best to support the people involved in each category (see e.g., Maheshwari et al. 2020). International organizations should thus ensure intersectionality in their work by accounting for all structures of inequalities and for how they interplay – in synergy or in opposition – in both existing procurement and proposed GRP. For example, they can mainstream intersectionality into ‘theories of change’ for programs. They can broaden and deepen the networks of contacts that major businesses and procurement offices are in relation with. They can provide differentiated support to the main profiles of women-owned businesses involved, adapting it based on business size, sector, place and trajectory in value chain, formal vs. informal status, and position in intersecting inequalities (Maheshwari et al. 2020; Orser, Elliott, and Cukier 2019). More broadly, thinking transformatively about gender equality in relation to cross-cutting systems is essential. International organizations should thus integrate labor rights and intersectional inequalities, as previously mentioned. They also need to integrate sensitivity to violent conflict. This applies at the macro level, where deliberate biases and/or unwitting effects in procurement decisions can contribute to violence, be it war or other political violence such as electoral violence. Procurement work should, at a minimum, do no harm, and ideally should feed into factors and dynamics of positive peace.12 To make their procurement work conflict-sensitive (or even conflict-transformative), international organizations will typically need to use an analysis of conflict or political economy in the country.13 In countries most affected by political violence, international organizations can also look at the connections between GRP, humanitarian aid, and recovery (Care International UK, n.d.). Moreover, conflict sensitivity applies at the micro level too, with the problem of gender-based violence (GAA and COVAW 2019; Krauser et al. 2019). For example, international organizations should plan to help prevent economic exploitation or physical violence that partners, families, or wider communities may subject some women entrepreneurs to. Lastly, international organizations’ procurement work needs to take into account the environmental systems that support life on the planet, including climate, soils, water, and biodiversity (Thiebault and Tonda 2018). So far, international organizations have hardly explored environmentally sustainable procurement, despite its paramount importance (Hasselbalch, Costa, and Blecken 2015). Conversely, my research found that international organizations that have explored environmentfriendly procurement have explored GRP little. To bridge this gap, international organizations could for example support women-owned businesses and businesses with gender-just practices to participate in circular-economy procurement. While there has been some – limited – work on advancing labor rights and intersectional

12  On doing no harm, see for example: Fabo, n.d.; Garred, Booth, and Barnard-Webster 2018; Haider 2014. 13  See for example ILO guidance on how to make market assessments conflict-sensitive: ILO, 2020.

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equality in procurement, there has been very little to no research and knowledge base on conflict sensitivity and environmental life-supporting systems to date. International organizations will need to systematically build diverse internal and external collaborations in these areas to achieve any significant progress. Addressing Public Entities’ Own Vulnerability and Finding Useful Resources Institutions, including states and markets, are susceptible to change, ‘whether it is negative, such as decline and decay or corruption and capture, or positive, such as enhancement and augmentation or development and enrichment’ (Fineman 2014, 615; also see 2018, 70–72). Within this, the state can be ‘among the most powerful and pervasive mediators of institutional change or vulnerability’ (Fineman 2014, 615; also see 2017). For instance, public discontent can arise at procurement tainted by corruption, and even at procurement that conformed to the rules. When the state does not promote and protect public values, it is therefore worth exploring where and how the state fails to address its own vulnerability (Nyeck 2020, 4). In this regard, international organizations do have several institutional vulnerabilities. Their vulnerabilities include instances of questionable procurement and corruption,14 and the everyday realities of work for staff. Indeed, relative to their stated missions and workload, some segments of international organizations are actually underfunded and understaffed, and some staff have experienced lack of job security or the outsourcing of some of their roles (Autesserre 2014; Seitz and Martens 2017; Tkach and Phillips 2020). They also work with counterparts in states who are sometimes underfunded and understaffed too, which limits their capacities. As a result, international organizations may be tempted or forced to only take up actions that are easier to do or most visible to their donors, while leaving out work on underlying or more difficult issues. To work with and on their institutional vulnerabilities, international organizations should pursue easy demands and easy wins in GRP to build momentum and offer showcases of success, while continuing work on harder objectives associated with more gender-transformative procurement. Some easy wins are thus valuable as entry points, especially in countries with little to no public framework for GRP. There, international organizations may for example advocate for establishing a formal definition of women-owned businesses. The process of achieving this can help organizations identify which key actors are supportive, neutral, or hostile, and can build familiarity and momentum among target actors for subsequent work on GRP. In other cases, easy wins are valuable to sustain existing successes. For instance, organizations should encourage public and private actors of goodwill to work with existing women-owned businesses that are well-established and successful. This helps these businesses to further develop and may create role models.

14  For recent illustrations, see Transparency International 2019; White and Hook 2020; Coyle 2017.

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In all contexts, international organizations should look for easy wins that nonetheless speak to structural issues. For instance, they could account for women’s time poverty (Hyde, Greene, and Darmstadt n.d.) by promoting longer tender ­deadlines. Throughout their efforts, international organizations should work on gender, not just women. One way to translate this can be to find where and how to enroll men as supporters, in roles such as mentors, contacts in network, champions, or supportive family members (Business Fights Poverty 2020a, 2020b). Holistically Considering People’s Multiple Roles to Comprehensively Tackle Vulnerability What if a public procurement that some women benefitted from economically as suppliers wasted or diverted public spending away from budgets that would significantly improve public goods for masses of women? More broadly, how does the state resolve potential contradictions between gender-responsive vs. genderresponsible procurement (Nyeck 2020, 2–3)? When women’s vulnerability is considered beyond their role as procurement vendors, this brings out ‘a comprehensive picture of demands for institutional reform,’ centering ‘on a responsive and responsible state committed to linking and protecting equality inputs and equity outputs in public procurement’ (Nyeck 2020, 3). This perspective considers the vulnerability of women as vendors, but also as consumers, taxpayers, and members of civil society (Nyeck 2020, 2–3, 5). Rather than starting only from markets, state, equality or equity, vulnerability theory can thus serve as an inclusive, affirmative anchor for all parties in public procurement (state, entrepreneurs, consumers, and civil society) to appreciate the overlapping vulnerabilities at stake, ‘thereby making gender equality everybody’s business’ (Nyeck 2020, 4–5). Nyeck concludes that gender-responsive public procurement should strive to simultaneously increase the number of women-owned suppliers and ‘the quality of essential goods and services important to women and men as consumers and taxpayers’ (Nyeck 2020, 3). In this regard, Nyeck calls for examining how privatization and the shrinking of public responsibilities and scope of action since the 1980s in many countries worldwide have affected the provision of public works, goods, and services, and to individuals’ and institutions’ vulnerabilities (Nyeck 2020, 1–2). The implications of Nyeck’s points strongly echo my prior calls on international organizations to strive to make procurement work gender-transformative, not just gender-responsive.15 Gender-responsive procurement often ends up with a strong or even sole focus on women. It also tends to be about seemingly ‘technical fixes’ to achieve gender equality in procurement. In contrast, gender-transformative procurement does not reduce ‘gender’ to ‘women,’ and instead considers gender

15  On the differences between gender-responsive and gender-transformative approaches, there is plentiful literature. For introductions, see for example: Hillenbrand et al. 2015; UNICEF, n.d.

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equality in depth and in context, and aims to transform power and all structures of inequality (see e.g., on Canada, Lukiwski 2018). Perhaps most importantly in the big picture, succeeding at gender-­ transformative procurement requires that international organizations connect their work on procurement to their larger work for gender justice, ensure that the former does not contradict the latter, and that they build alignment and synergies into it all. Among other actions to this end, international organizations should advocate for supportive policies, practices, and accountability, not just in the area of procurement (HLP-WEE 2017b, 2017a), but also for whole economies that realize gender equality (HLP-WEE n.d.). Meaningful, gendertransformative procurement necessarily requires international organizations to connect procurement to areas such as gender analyses of budgets and macroeconomic policies (see e.g., Combaz 2013a, 2014b), to gender equality in the paid and unpaid care economies, in social protection, and in public services and infrastructure, to the fight against gender-based violence, and to women’s political empowerment and gender equality in politics and social movements (see e.g., Combaz 2018b, 2018c). Conversely, this may require opposing some procurement – even if awarded to a women-owned business. This applies whenever outsourcing some public services leads to a degradation of the quality of these services, on which all, but especially the most disadvantaged, depend to survive, live, and thrive – a well-documented problem that has followed massive privatizations and outsourcing in many countries worldwide since the 1980s (Benjamin 2015; Bock Mullins and Moreno Saldivar 2015; Goetz 2020). Where a gender-responsive approach to procurement might support damaging privatization, a gender-transformative one would instead identify where procurement may be the wrong way to go, and call instead to invest in gender-transformative public budgeting and services (see e.g., Elomäki 2015). While aiming to be gender-transformative is nuanced and ambitious, international organizations should realize that it is not out of reach, and not necessarily harder to do than aiming for gender responsiveness – this really depends on context and is a meaningful goal to pursue. Recommendations Based on all the findings presented, I offer two sets of recommendations to ensure gender justice in international organizations’ procurement work. The first is meant for organizations that have not adopted any GRP (i.e., gender-neutral). They should measure the share that women and women-owned businesses receive from their own procurement, breaking down the results by business size, sector, and place in the value chain. The results should be disaggregated as much as possible by multiple criteria (gender, disability, age, ethnicity or race, nationality), and published. The organizations should also review and adapt their internal and external procurement work in light of practices known to facilitate access to micro, small, and medium enterprises (SMMEs) for women-owned businesses and track any changes

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resulting from this. Lastly, they should collaborate with other international organizations to ensure ongoing learning on gender justice in procurement work. The other set of recommendations is meant for organizations that have adopted GRP. First, they should identify where their procurement work is ‘merely’ genderresponsive, and how it could be gender-transformative, then strive to be gendertransformative. This includes putting the onus of change on institutions and people with the greatest responsibility and power, and fighting corruption and favoritism in procurement. It also includes integrating intersectionality, and ensuring that inclusion into procurement is positive, not exploitative, or adverse. Throughout, it includes pursuing ‘easy wins’ while continuing to tackle long-term issues. Second, organizations should design country-specific strategies and theories of change because countries’ specific history, economy, sociology, politics, and laws deeply shape how gender and procurement work in that country, and what the constraints and opportunities are. Third, they should clarify relations between their work on public and private procurements, to be clear on the major differences, commonalities, contradictions, and dynamics between both, and on their implications for procurement work. Fourth, they should decide what role, if any, SMMEs can play as procuring entities alongside large ones. Fifth, they should push for systematic use of, and learning based on, collected data, by supporting partnerships with academia or non-profit research institutions to facilitate the production and use of evidence. Sixth, they should publish as much of the evidence that they produce on GRP as possible, to start filling the massive gaps in evidence about GRP. Conclusion Examining international organizations’ procurement work considering vulnerability theory proved valuable in three regards. Normatively, Fineman’s vulnerability lens makes a solid ethical case for radicality, with conclusions like those brought out by perspectives on gender-transformative procurement, and on gender-just economies and societies more broadly. Conceptually and theoretically, it articulates several useful lines of enquiry on what constitutes vulnerability, what may undo or mitigate it, where responsibilities and agency to do so lie, and how to assess results in this regard, which proved to be applicable to international organizations. Empirically, it invites helpful comparisons between formal and substantive models of equality. At the same time, I believe that vulnerability theory works best as a complement (equal and distinct, not subsidiary) to radical systemic, structuralist, and constructivist traditions that have always started from the premise of universal vulnerability and of human-made trajectories of equality and inequality brought about mostly by collective forces. These traditions include gender-transformative approaches rooted in radical feminism, human rights approaches – especially ones that robustly include substantive economic rights and positive state obligations –, structural anti-racism – such as Black feminism and indigenous thought in the US –, leftist thinking about class – including socialism, Marxism, and anarchism –,

60  Emilie Combaz

progressive systemic thinking about economy (e.g., Raworth 2017; HLP-WEE, n.d.), and critical disability studies. These traditions – in all their diversity and sometimes contradictions or opposition – provide irreplaceable enhancements. In particular, a number of demands made under vulnerability theory remain ‘defensive,’ such as calls to provide assets for resilience and to protect from vulnerability. The other radical traditions additionally call for transforming or abolishing certain types of socioeconomic relations, such as class, or certain assets, such as some environmental resources that humans need to stop exploiting altogether. These traditions also offer robust responses to dominant groups’ attempts to favor market-centered, private-sector answers to vulnerability, such as private insurance, and to dismiss public solutions such as tax-based universal social protection. These radical traditions may thus be more resistant to co-optation into models of formal equality. Lastly, each of these traditions offers unique ethical, epistemological, conceptual, theoretical, and empirical insights into histories, sociologies, politics, and economies in diverse places and times. For instance, they offer vital, fine-grained distinctions between independence and autonomy, and between dependency, interdependence, and enabling assistance. They also offer sophisticated thinking about how institutions can enable autonomy and empowerment, rather than leading to all-too-frequent abuse. Such contextual richness is necessary and cannot be replaced by general thinking about vulnerability. In fact, these traditions can challenge and inform some aspects of vulnerability theory. For example, taking the case of the US, the claim that collective mobilizations around shared vulnerability would be easier or more successful than identity-based ones would have to answer to the long history of many White women, including feminists, ignoring and even fighting calls from Black, Brown, and indigenous women to struggle collectively on precisely that basis (see Collins 2002). This conclusion is thus an invitation to keep the dialogue going between vulnerability theory and like-minded radical traditions. References Amadi, Henry. 2015. “Emerging Procurement Laws and Women Empowerment: Assessing the Costs and Benefits of Privatization of the Telecommunications Sector in Kenya.” Wagadu: A Journal of Transnational Women’s and Gender Studies 14: 142–167. Arora, Pallavi. 2019. “Gender Inclusive Trade and the Limits of Liberal Feminism.” Völkerrechtsblog (Blog). 11 March 2019. https://voelkerrechtsblog​.org​/gender​-inclusive​ -trade​-and​-the​-limits​-of​-liberal​-feminism/. Australian Women Chamber of Commerce & Industry (AWCCI). 2012. “Collection of Sex Disaggregated Data and the Procurement of Contracts for Women Business Owners in Australia.” Issue Paper. Australia Women Chamber of Commerce & Industry. http://www​.awcci​.org​.au​/Portals​/0​/NewFolder​/AWCCI​%20Issues​%20Paper​%20LSG​ %20Aug​%202012​.pdf. Autesserre, Séverine. 2014. Peaceland: Conflict Resolution and the Everyday Politics of International Intervention. Cambridge: Cambridge University Press.

G ender in International Procurement Work  61 Barrientos, Stephanie. 2019a. Gender and Work in Global Value Chains: Capturing the Gains? Cambridge: Cambridge University Press. https://www​.cambridge​.org​/fr​/ academic​/subjects​/politics​-international​-relations​/political​-economy​/gender​-and​-work​ -global​-value​-chains​-capturing​-gains​?format​=AR​&isbn​=9781108600651. ———. 2019b. “Gender Dynamics in Global Value Chains.” In Handbook on Global Value Chains, 324–338. Cheltenham: Edward Elgar Publishing. https://doi​.org​/10​.4337​ /9781788113779​.00028. Barrientos, Stephanie, Lara Bianchi, and Cindy Berman. 2019. “Gender and Governance of Global Value Chains: Promoting the Rights of Women Workers.” International Labour Review 158(4): 729–752. https://doi​.org​/10​.1111​/ilr​.12150. Benjamin, Orly. 2015. “Time is Money: Deskilling Caring Work Through Time Allocation in Services Procurement.” Wagadu: A Journal of Transnational Women’s and Gender Studies 14: 85–110. Bock Mullins, Lauren, and Karina Moreno Saldivar. 2015. “Research Associating Gender and Government Privatization: Lessons From International Literature.” Wagadu: A Journal of Transnational Women’s and Gender Studies 14: 169–186. Boodhna, Anoushka. 2011. “Sourcing Gender: Gender Productivity and Sustainable Sourcing Strategies.” Topic Brief Series. New Business Models for Sustainable Trading Relationships. International Institute for Environment and Development, Sustainable Food Lab. https://pubs​.iied​.org​/pdfs​/16027IIED​.pdf. Brown, Drusilla. 2019. “Working Conditions in Global Supply Chains.” In Women Shaping Global Economic Governance, 89–99. Centre for Economic Policy Research; International Trade Centre. http://www​.intracen​.org​/uploadedFiles​/intracenorg​/Content​/ Publications​/Women​%20Shaping​%20Global​%20Economic​%20Governance​-WEB​.pdf. BSR. 2019. “Making Women Workers Count. A Framework for Conducting GenderResponsive Due Diligence in Supply Chains.” Research Report. BSR. https://www​.bsr​ .org​/en​/our​-insights​/report​-view​/making​-women​-workers​-count​-gender​-responsive​-due​ -diligence​-report. Bullock, Renee, Amos Gyau, Dagmar Mithoefer, and Marilyn Swisher. 2018. “Contracting and Gender Equity in Tanzania: Using a Value Chain Approach to Understand the Role of Gender in Organic Spice Certification.” Renewable Agriculture and Food Systems 33(1): 60–72. https://doi​.org​/10​.1017​/S1742170517000151. Business Fights Poverty. 2020a. “Gender Equality is Everyone’s Business. Engaging Men as Allies to Advance Gender Equality Across the Value Chain.” Full Report. Business Fights Poverty; in Collaboration With: AB InBev; CARE; VMware Women’s Leadership Innovation Lab, Stanford University. https://files​.ontraport​.com​/media​/php7EAeOe​ ?Expires​=1739306742​&Signa​​ture=​​dlug4​​J1sPU​​An7MY​​4fa5J​​702jq​​gGOcw​​JE8GL​​p4Ssa​​ JBbnW​​Xs​~fD​​qWclM​​EH5LD​​dLVol​​C5L1C​​ixStp​​HzELI​​LdL1t​​ucdfs​​AKmbZ​​VAZeU​​ ecvtL​​lXwnI​​PJbqj​​v sGlj​​C C5aY​​Jii8P​​G ​~ C​-L​​sbpo7​​yOcRG​​Q98bL​​J bXdt​​3gX7l​​qwigl​​ 5CUOt​​sIrie​​PGElj​​ci​-85​​OcHHd​​6AEau​​Z8lZY​​OmQof​​LiQ41​​wCaqS​​B3Dvr​​gCGeP​​ZH8vF​​ RFnd3​​LR1z5​​Wufjd​​q1​~ID​​O​-ITU​​IcWVm​​B6dlt​​RCGG~​​z6KLX​​ijfDc​​22UKQ​​6r2jx​​fhh73​​ H77TT​​AEzsq​​Nnwow​​AzOhB​​kshBT​​u6XII​​QTgIQ​​mIr6e​​YogVn​​1w__​&Key​-Pair​-Id​ =APK​AJVA​AMVW​6XQYWSTNA. ———. 2020b. “Gender Equality is Everyone’s Business. Engaging Men as Allies to Advance Gender Equality across the Value Chain.” Case Studies. Business Fights Poverty; in collaboration with: AB InBev; CARE; VMware Women’s Leadership Innovation Lab, Stanford University. https://files​.ontraport​.com​/media​/phpri5dbT​ ?Expires​=1739206398​&Signa​​ture=​​JNaLn​​fNfLd​​QOVo3​​MMyCu​​5nLtV​​pfd9X​​ID1s7​​

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G ender in International Procurement Work  63 ———. 2014d. “Donor Action on Women’s Employment in ASEAN Countries – Complement.” Helpdesk Research Report 1174. Helpdesk Research Report. Birmingham, UK: GSDRC, University of Birmingham. http://www​.gsdrc​.org​/docs​ /open​/hdq1174​.pdf. ———. 2018a. “Models of Gender-Sensitive Procurement Used by International Aid Entities.” K4D Helpdesk Report 298. Brighton, UK: Institute of Development Studies. https://opendocs​. ids​. ac​. uk​/opendocs​/bitstream​/handle​/123456789​/13827​/Gender​_ sensitive​_procuremt​.pdf. ———. 2018b. “Effectiveness of Aid Interventions to Strengthen Collective Action That Facilitate Women’s Political Empowerment - Executive Summary [Policy Brief].” K4D Brief - Executive Summary. Brighton, UK: Institute of Development Studies. https:// opendocs​.ids​.ac​.uk​/opendocs​/handle​/123456789​/14106. ———. 2018c. “Effectiveness of Donor Support to Women in Formal Political Leadership – Executive Summary [Policy Brief].” K4D Brief - Executive Summary. Brighton, UK: Institute of Development Studies. https://opendocs​.ids​.ac​.uk​/opendocs​/handle​ /123456789​/14107. ———. 2018d. “Effectiveness of Donor Support to Women in Formal Political Leadership – Narrative Review.” K4D Helpdesk Report. Brighton, UK: Institute of Development Studies. https://opendocs​.ids​.ac​.uk​/opendocs​/handle​/123456789​/14102. Combaz, Émilie, and Claire Mcloughlin. 2014. “Voice, Empowerment and Accountability.” Topic Guide. Birmingham, UK: GSDRC, University of Birmingham. http://www​.gsdrc​ .org​/docs​/open​/GSDRC​_VEA​_topic​_guide​.pdf. Cook, Rebecca J., ed. 2012. Human Rights of Women. National and International Perspectives. Human Rights of Women. Pennsylvania Studies in Human Rights. University of Pennsylvania Press. https://www​.degruyter​.com​/document​/doi​/10​.9783​ /9780812201666​/html. Coyle, Martin. 2017. “Corrupt World Bank Consultant Has Sparked Slew of European Criminal Probes.” MLex, LexisNexis, 26 July 2017. https://mlexmarketinsight​.com​/news​ -hub​/editors​-picks​/area​-of​-expertise​/anti​-bribery​-and​-corruption​/corrupt​-world​-bank​ -consultant​-has​-sparked​-slew​-of​-european​-criminal​-probes. Crawford-Garrett, Bryan, Clare Mbizule, Karin Wachter, and Brian Sage. 2016. “International – The Rise of Institutional Food Procurement: A Tool for Empowering Women or Furthering the Status Quo?” In Women in Agriculture Worldwide: Key Issues and Practical Approaches, edited by Amber J. Fletcher and Wendee Kubik, 189–206. https://www​.taylorfrancis​.com​/chapters​/international​-rise​-institutional​-food​ -procurement​-tool​-empowering​-women​-furthering​-status​-quo​-bryan​-crawford​-garrett​ -clare​-mbizule​-karin​/e​/10​.4324​/9781315546780​-25​?context​=ubx​&refId​​=7c3a​​b42d-​​ 4f0c-​​4727-​​90f6-​​79b03​​85e88​​11. Crenshaw, Kimberle. 1989. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum, No. 1, article 8: 139. Crichton, Jo, Huma Haider, Ellie Chowns, and Evie Browne. 2015. “Human Rights.” Topic Guide. Birmingham, UK: GSDRC, University of Birmingham. https://gsdrc​.org​/wp​ -content​/uploads​/2015​/07​/rights​.pdf. Dávid-Barrett, Elizabeth, Mihály Fazekas, Olli Hellmann, Lili Márk, and Ciara McCorley. 2020. “Controlling Corruption in Development Aid: New Evidence From ContractLevel Data.” Studies in Comparative International Development 55(4): 481–515. https:// doi​.org​/10​.1007​/s12116​-020​-09315​-4.

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Chapter 4

Growth Pattern in WomenOwned Construction Companies as Evidence of Vulnerability Abimbola Windapo 1

Introduction Traditionally,1it is said that a woman’s place is in the home. This common perception has led to women being employed in careers such as teaching, nursing, and as tailors. However, traditionally amongst the Masai women of Kenya, only women build houses. The traditional system in Botswana, according to Kalabuma (2001), shows that within each compound or homestead, women built houses for themselves and their husbands, children, and other dependents. However, in the field of formal employment, a significantly lower percentage of women are employed in technical and masculine workplaces such as mining and construction (Geertsema 2007). ‘Technical’ is taken to mean an area of work in which the people who are employed have unique and usually practical knowledge, especially of mechanical or scientific knowledge. These are mentally exerting workplaces. ‘Masculine’ workplaces are considered areas reserved for men. Male-dominated areas, due to the need for exertion, are typified by extreme working conditions. These are physically exerting workplaces – being male-dominated, a woman can feel unsafe, unprotected, or have physical limitations against her needs as a woman. According to Fineman (2008), the concept of vulnerability is sometimes used to define groups of fledgling or stigmatized subjects, and associated with victimhood, deprivation, dependency, or pathology. Fineman (2008) notes that vulnerability should be understood as arising from the embodiment of humans, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events (disease, epidemics, resistant viruses), whether accidental, intentional, or otherwise. Bodily vulnerability is enhanced by the realization that should the person succumb to illness or injury, there may be accompanying economic and institutional harms as a result of the disruption of existing relationships (Fineman 2008). The number of women enrolled to study construction sciences, and the number of contracting enterprises owned by women in South Africa can be said to be relatively low although women

1  ORCID: 0000-0002-3162-6546 

DOI:  10.4324/9781003371663-5

Vulnerability in Women-Owned Construction Companies  71

make up 51% of the population (StatsSA 2006). Statistics of the number of women employed in technical and masculine workplaces could not be readily obtained. Women historically have been recognized as a major group to contend within the area of service provision – hairdressers, tailors, teachers, and housekeepers. According to Boyd (2010), South African business has come to recognize that women must be consciously involved as economic participants, as decision-makers, as housing agents and contractors to build sustainable, viable settlements. Boyd observed that 16 years on from South Africa’s first democratic elections, the gender profile of South Africa’s construction industry is reflecting gradual transformation. Still, in a survey of registered contractors by gender conducted between 2016 and 2019, the Construction Industry Development Board finds (CIDB) finds that in South Africa, the percentage of women-owned companies is below 40% and relatively stable across all contractor Grades. It is particularly low (less than 30%) in companies listed in Grades 7–9, the highest rated and large construction companies in the Register of Contractors (CIDB Quarterly Monitor, Transformation 2019 Q4). More females are needed in the construction industry to encourage more inclusivity, address gender inequalities, and promote economic growth since in South Africa, the population is made up of 51% females (StatsSA 2006). Women are an untapped resource, and they can be trained to deliver a workforce capable of successfully working toward economic growth for South Africa. Also, more women must be successful in technical and masculine workplaces to transform the space into one that is pleasant and kind because as more women become successful in technical and predominantly male jobs, they transform the workplace by bringing in alternative relational and care concerns. According to Fineman (2008), the realization that no individual can avoid vulnerability entirely spurs people to look to societal institutions for assistance. Nyeck (2020) acknowledges the aversion to conversations about inputs in global public procurement reform and whether concerns about gender equality fit into government outsourcing schemes. Fineman (2008) notes that society can and does mediate, compensate, and lessen vulnerability through programs, institutions, and structures. The government of South Africa instituted the Broad-Based Black Economic Empowerment (BBBEE) Act to redress inequality, boost economic growth, and create a better life for all including access to construction opportunities for female-owned businesses (BBBEE 2003). However, although there are opportunities available for women through the South African government’s programs, institutions, and structures, there is limited knowledge of whether this has aided the founders of women-owned construction businesses in minimizing aspects of their vulnerability, procuring work, and developing large construction companies. This study, therefore, explores the growth pattern of three-women owned construction companies to understand their experience of vulnerability emanating from working in technical male-dominated workplaces. After that, options available to female entrepreneurs in the construction industry capable of minimizing aspects of vulnerability encountered in technical and male-dominated workplaces are explored.

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Methods of Construction Project Procurement Procurement is the process which creates, manages, and fulfils contracts. Procurement commences once a need for goods, services, works, or for a disposal of assets has been identified and it ends when the goods are received, the services or works are completed, or the asset is disposed of. According to Love et al. (1998), the terms ‘procurement systems’ and ‘contractual arrangements’ are usually used synonymously. Love et al. (1998) describes a procurement system as an organizational system that: assigns specific responsibilities and authorities to people and organizations; defines the relationships of the various elements in the implementation of a project; and determines the contractual relationship between the client and other parties at the design and construction stage. Project procurement describes the way the work is placed in the market and establishes the contractual basis that determines the nature of the relationship between parties to the project for the duration of their interaction. In other words, procurement seeks to determine the relationship between different aspects of a project and the way it is placed or not placed in the market. Harris et al. (2020) noted that the client or adviser/project leader would select the type of contract according to need or preference. Methods of project procurement identified by Masterman (2003) and Harris et al. (2020), which determines the contractual relationship between the client and other parties at the design and construction stage can be categorized as: Traditional (separated and cooperative); Design and Build (integrated and holistic); Management (management-oriented); and Discretionary methods. Conceptual Framework The conceptual framework for the study is shown in Figure 4.1. The study proposes in line with the theory of vulnerability advanced by Fineman (2008) that individuals are vulnerable to both internal and external forces including historical stereotypes, gender prejudice, nature, institutionalized biases, cultural, and ethnic prejudices. Nyeck (2020) notes that one should consider ‘gender reality’ not as a

Figure 4.1  Conceptual framework.

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catalog of impediments or personal failures, but from the perspective of a ‘vulnerable subject.’ The study advances that the level of vulnerability of individuals depends on the assets they have acquired (physical, human, and social), which helps them minimize aspects of their vulnerability and succeed. In the context of this study, the success of women entrepreneurs in the male-dominated construction industry is viewed in terms of founding a company, the amount of procurement/work opportunities secured, and a sustainable organizational development and growth. After entry into the technical workplace, the female is confronted with other challenges ranging from health and safety, a hostile work environment, male domination and behavioral tendencies, exertion and the power, competition, and promotion struggle. All these challenges impact women’s ability to start a company and make it viable. Asset Accumulation Three different types of assets that social organizations and institutions provide that help individuals overcome their vulnerabilities/maneuver past disadvantages, namely physical, human, and social assets are outlined in Table 4.1. According to Fineman (2008), institutions that provide physical assets are those that impart physical or material goods through the distribution of wealth and property. Tax and inheritance laws impact the distribution of physical assets and are part of this system that provide physical assets, but so also are banking rules and regulations, and credit policies. In South Africa, the Broad-Based Black Economic Empowerment (BBBEE) Act No. 53 of 2003 which was instituted to redress inequality, boost economic growth, and create a better life for all including access to construction opportunities for female-owned construction businesses can be classified as part of the system that provides physical assets. Fineman (2008) also notes that like physical assets, human assets also affect material well-being. Health and Table 4.1 Assets provided by social organizations and institutions that help reduce vulnerabilities. Assets

Description

Physical

Physical or material goods that determine our present quality of life and provide the material basis for the accumulation of additional resources – or resources that are more sustainable in the form of savings and investments. Human assets are innate or developed abilities to make the most of a given situation. It provides an individual level for the accumulation of human capital or ‘capabilities.’ Health, education, and employment systems are chief among assets in this category. Social assets are networks of relationships from which humans gain support and strength. These include the family and other cultural groupings and associations, political collectives – trade unions, political parties, the welfare state, and insurance.

Human

Social

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education are identified by Fineman as chief among assets in this category. For example, good early education may triumph over poverty when coupled with a supportive family and progressive social network. In addition to education and healthcare, Fineman also highlights employment systems as a means of acquiring human assets because they develop the human being, impart assets that allow participation in the market and, therefore, facilitate the accumulation of material resources that help bolster the individual’s resilience in the face of vulnerability. Finally, social assets are accumulated through political collectives in which individuals bolster their resilience by joining together to address vulnerabilities generated by the market (Fineman 2008). These collectives historically included trade unions and political parties; however, the welfare state and insurance are also offered as an alternative, often competing, means of protection against risk. Internal and External Forces that Impact the Vulnerable Subject The vulnerable subject approach embodies the fact that human reality encompasses a wide range of differing and interdependent abilities throughout a lifetime (Fineman 2008). The theory recognizes that individuals are anchored at each end of their lives by dependency and the absence of capacity because of disability or illness. Vulnerability theory further captures this present potential for individuals to become dependent based upon their persistent susceptibility to misfortune and catastrophe. Individuals are vulnerable to both internal and external forces. This article classifies the indicators of internal and external forces which make women vulnerable in the technical and male-dominated workplaces in terms of the environment, culture, and physiology. These forces that limit the entry and success, promotion and progression of women and the businesses they establish are shown in Table 4.2. Workplace harassment includes conflict, scheming, isolation, humiliation, and expulsion (the victim becomes the villain). Job stress involves harmful physical and emotional responses that occur when the requirements of the job do not match the capabilities, resources, or needs of the worker. The effects of stress include chronic fatigue, increased blood pressure and risk of stroke, increase in the danger of heart attacks, triggers, or behavior that contributes to death and disability, such as smoking, alcoholism, drug abuse, and overeating. Women have relatively lower metabolic energy when compared to men (Tarnopolsky 2000) which increases their vulnerability to ill health. According to Bradley (1998), the following types of power are sometimes used as barriers against promoting women in the workplace: Positional power (authority); physical power (physical strength) and symbolic power (dominance). Symbolic power – ability to impose one’s definitions, meanings and values and rules on a situation, to give one’s experience dominance. Distinguishing between the vertical forms of segregation is made with the concentration of men in the higher tiers and women in the lower tiers of any occupational pyramid. Though there is a seemingly

Vulnerability in Women-Owned Construction Companies  75 Table 4.2 Internal and external forces that women are vulnerable to in technical and masculine workplaces. Construct

Indicators

Gender prejudice

Women struggle to be accepted by their male counterparts even from university level. Historically tended to discourage women from mathematical and scientific careers. Heights; underground activities; activities that are open and exposed to the weather. High incidence of accidents and chronic injuries; high infection rates; violence; drug use; sexual and workplace harassment; bullying. Isolated work; repetitive work and manual work; dusty, noisy, dirty, muddy; walking long distances on uneven ground; lack of adequate sanitation facilities. Strong symbolic links to masculinity; aggression; competitiveness; risk-taking with unsafe work practices. Falls from heights or into ditches; mine roof or building collapse struck/hit by equipment or transport vehicles. HIV/AIDS; specific cancers; a modern debilitating condition such as job stress. Fear; low self-esteem – discrimination, exclusion, intolerance, ridiculed, disrespected, and not taken seriously. Physical exertion and exhaustion; pregnancy, childbirth and rearing; hormonal changes; feminism – lack of strength/energy. Positional power (authority); physical power (physical strength); symbolic power (dominance).

Cultural ethics Hostile and unnatural Dangerous Work conditions Male-dominated macho attitude/behavior Fatalities Susceptibility to diseases Emotional problems Physiological problems Power dynamics

non-discriminatory attitude towards women in wage and salaried occupations, they still face unique problems in the process of obtaining work as entrepreneurs/leaders of a company in all fields (the technical fields included) to effectively participate on equal grounds with their male colleagues. The few who venture into their own business tend to be found mainly in female-dominated service businesses and would manage these in ‘womanly’ ways (Chaganti 1986). It is only recently that women began to create inroads into male enclaves of work such as the construction industry. Furthermore, even though there are opportunities available for women through the government’s fiscal and economic policies to participate in construction such as the Broad-Based Black Economic Empowerment (BBBEE) in South Africa, there are certain critical challenges and social and institutional obstacles which are said to plague women in all fields including the ‘field’ of entrepreneurship (Chaganti 1986). These challenges also inhibit the participation of women in technical fields. Chaganti (1986) suggests that women’s success in technical fields is driven by the following behavioral traits/human assets – decisiveness and goal-orientation,

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and self-confidence. In that, women know what they want from life, and they can sense it before they achieve it. The clearer they can sense the goal and its outcomes, the more committed they become to doing the work required to achieve it. Other behavioral traits of successful women, according to Boyd (2010) are determination/commitment to the task at hand; dedication to service; ability to set ego aside and give 100% effort. Limited studies have investigated the vulnerability of women in the technical workspace such as the construction industry, the indicators of these vulnerabilities and the systems and institutions that have provided female entrepreneurs with the accumulated assets which they used in maneuvering past disadvantages and succeed. Research Methods Personal interview was the main instrument used in the empirical investigation of the growth pattern and assets accumulated by successful women construction companies, and the vulnerabilities they encountered. Variables around which a series of questions were developed included the internal and external forces that make the female construction business owners vulnerable in the technical and male-dominated workplace, identification of the asset conferring institutions which helped them accumulate physical, human, and social assets, and the growth pattern of their businesses. The population of the study consisted of female CEOs/ Directors of successful large construction companies listed between Grades 7–9 on the Construction Industry Development Board (CIDB) Register of Contractors in South Africa. A convenience sampling technique was used in identifying the participants. An interview protocol was used to carry out in-depth case studies and face-to-face interviews, while other information especially on the growth pattern of their businesses was obtained from trade organizations and the internet (e.g., SME 2016). The data collected were analyzed qualitatively, using content analysis. Answers were sought to the following questions: • • •

What are the internal and external forces that make female construction business owners vulnerable in the technical and male-dominated workspace? What asset conferring institutions aided the respondent in accumulating physical, human, and social assets that helped them in maneuvering past disadvantages/their vulnerabilities? What is the growth pattern of their company?

Findings and Discussion The findings obtained from the interviews and other documentation are presented in the following sections: Table 4.3 provides a summary of the background profile of the respondents. The female entrepreneurs had gained some experience in the construction industry before launching their business. The experience acquired ranged from human resources, tendering, financial management, construction operations, and

Vulnerability in Women-Owned Construction Companies  77 Table 4.3 Background profile of the respondents. Respondent Type of Company Code R1 R2 R3

Growth Path Ownership Years of Educational (from small to Experience Qualification large) *

General Building 27 months Civil Engineering 36 months Building and Civil N/A Engineering

Sole Sole Sole

30 28 24

Diploma Diploma Bachelor

*Growth path on the CIDB Register of Contractors after Registration N/A = Not available

plant management. The respondents did not have qualifications in technical fields, but were qualified in human resources management, accounting, and medicine. All the companies were founded (R2-1996, R3-1997 and R1-2002) after the new democracy established in South Africa in 1994. R1 is a general building company based in Pretoria, they have specialized in property development and facility management. They have successfully won and completed contracts with government agencies including the military. R2 is a civil engineering company located in Bloemfontein with specialization in civil construction plant hire. R3 is a general building and civil engineering company based in Johannesburg. R3 is a leading provider of social housing (90,000 units) in South Africa that has branched out into general building (railway stations to schools in excess of ZAR 3.5 billion/$234 million), property development on a limited and selective basis under the Turnkey Design and Construction approach, civil construction, water and electrical installation, as well as establishing a fully fledged academy. R3 has won and successfully completed projects for cities, provincial government departments, municipalities, and national departments. They do not entirely depend on public sector project procurement contracts and work to a limited extent with private sector clients. The findings suggest that the respondents were able to acquire human assets (skills and knowledge) – through education and experience – that assist them in overcoming challenges and running their construction business successfully. The founding owners do not possess professional qualifications, suggesting that this is not important in establishing a successful construction company or a beneficial human asset in mitigating their vulnerability. Data indicate that all the companies are in the stability/maturity stage of growth because the owners expressed contentment in their present level of growth and status, having no wish to grow further. The respondents described their company’s growth pattern as organic, steady, consistent, and gradual while acknowledging that the growth of their companies had surpassed their expectations at inception. Moving up the CIDB Register of Contractors (RoC) implies that the firm had been able to obtain sufficient and profitable jobs because turnover and largest contract by value (either public or private sector) completed in the last five years is a criterion used by the CIDB in its grading system. For example, as a company listed in

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Grade 8 on the CIDB RoC, R1 would have completed at least one single large construction project between the values of ZAR30 million/$2 million to ZAR90 million/$6 million, while the company financial statements must reflect net asset value in excess of ZAR13 million/$867,000 as well as a revenue of more than ZAR65 million/$4.34 million. As a Grade 7 company, R2 would have a revenue more than ZAR20 million/$1.34 million and assets value over ZAR4 million/$267,000. While R3 must have completed at least one single large construction project more than ZAR90 million/$6 million, their financial statements must reflect net asset values of more than ZAR40million/$2.67 million as well as a revenue figure of more than ZAR200 million/$13.34 million. Further, on its path to growth, the firm and individuals responsible for its establishment must have capitalized on their strengths, overcome their weaknesses, coped with threats to the survival of the company and taken advantage of opportunities. The next section considers the question of what internal and external forces made the female CEOs and their companies vulnerable. Factors That Made Female Construction Company Business Owners Vulnerable It emerged from the study that factors that made the female construction business owners vulnerable in the technical and male-dominated workplace comprise of the following: • • • • •

Difficulty in managing male personnel – artisans and professionals alike. Physiological problems. Pregnancy, household responsibilities, and childbearing which made the female CEOs more vulnerable or susceptible to sickness and absenteeism. The physical aspects of construction work which directly affected their health. For example, constant bending, lifting, standing, and other site accidents which cause serious health problems. The misconception that they are incapable of understanding technical issues and doing the work. Inability to work on projects outside their home base or to take part in training and retraining programs, especially where moving away from home is necessary. This affects company expansion and development.

There was consensus that the banks have problems in giving women money to fund their operations and negative perceptions that women cannot do construction work. According to R1 who started a successful Grade 9 construction business in 2002, ‘It is challenging for them (clients) to accept the fact that we (women) can do it (construction work).’ Furthermore, R1 noted that The nice thing I did was to bring my husband in because it would have been very different if I was here and he was somewhere else, and I was forever

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travelling, because I travel a lot. So, there would be lots of questions, I presume, although he understands. The findings were not aligned to those of earlier studies by Boyd (2010) and Chaganti (1986) who identified historical stereotypes of women as the weaker, less capable sex who lack leadership qualities, and gender prejudice. Also, institutionalized biases and labor market segregation, exclusion, the cultural ethics which discourage women from mathematical and scientific careers and the emotional problems of low-self-esteem and self-confidence were not supported. This may be because the South African government encourages women-owned businesses and is desirous of transforming the construction industry through female-friendly policies such as the Broad-Based Black Economic Empowerment (BBBEE) Act. This prefaces the next section. Systems and Institutions That Provided the Female Construction Company CEOs with Accumulated Assets These systems and institutions are considered under the physical, human, and social assets. Acquisition of Physical Assets The respondents indicated that the significant opportunity at the inception of their company was government spending on infrastructure delivery. In contrast to mature construction industry markets in developed countries, the growing construction industry in South Africa provides many opportunities for new firms. The female CEOs were able to win lucrative government contracts, access work opportunities and resources due to this fact. Also, the contribution the government of South Africa made to such opportunities was significant, and this has been especially true for historically disadvantaged individuals and firms. The interviewees for this study indicated that they had indeed taken advantage of such growth in the South African construction sector. According to R3, ‘the transformation efforts of various stakeholders, including government has seen more black businesswomen finding opportunities. Many government initiatives are now targeting women and youth.’ An analysis of the event history from the interviewees’ narrative revealed that the large government contracts on which the construction companies experienced significant milestones or turning points occurred in the years immediately preceding 2010 (the FIFA World Cup). Specifically, the companies (R1 and R2) upgraded from small to large organizations between 2005 and 2007 and reported having surpassed their growth expectations. Characteristically, these firms reportedly carved out small, and often profitable, niches. R3 carved out a lucrative niche in low-income housing through housing provision to replace shacks. To move up the CIDB Register of Contractors also implies that the contractors were able to achieve significant market penetration. It was observed that R1 and R2 moved

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from executing low-value government projects (less than R1m) to multi-million rand jobs within a few years of being listed on the CIDB Register of Contractors. It might be expected that government policies such as the Broad Based Black Economic Empowerment (BBBEE) preference score of 10% used in tender adjudication and the preference for Historical Disadvantaged Individuals (HDIs) have aided the market penetration of black and women-owned construction companies. The respondents view that there was no significant difference in market advantage bestowed by this policy on their market penetration. The government intervention seen to have aided the market penetration of the contractors in the construction industry is the CIDB legislation. The women-owned organizations procure jobs from public sector organizations and not from the private sector understandably because the government policies and the CIDB Register of Contractors mainly guide public sector procurement processes of which the national government’s is the fairest and open. R1 notes that ‘at least you can maneuver your way through government.’ The above analysis suggests that while favorable government policies (concerning BEE and HDI status) are essential to the creation of opportunities for construction firms entering the sector, other factors such as the capacities/capabilities embodied in the founder better known as the ‘Human Asset’ are required for contractors to be effective and efficient. Acquisition of Human Assets As mentioned earlier, the human capital of the founding female CEOs was acquired from their experience in the construction industry before starting their own business. They acquired experience in human resources, tendering, financial management, construction operations, and plant management. R3 found that investing in the building of a new medical center helped her acquire knowledge of the construction business. According to R1, ‘when I thought of starting a business, I thought the only business I can start is something that I actually know of, instead of being bed and breakfast. Moreover, I thought all I know is construction. So that is what I did.’ The study established that female founders’ human capital consists of skills and knowledge obtained through education and experience, and these include: • • •

Intuitiveness. They do not wait to be told what to do. They take calculated risks and make decisions in the best interest of the organization’s corporate goals. Sympathetic, accommodating, and concerned for those who work under them, changing the general perception of female managers as being unnecessarily difficult and wicked. Optimistic and fearless. High achievers who confront and conquer fear wherever it occurs. They understand that adversity is accompanied by an opportunity (every cloud has a silver lining). They are driven by a will to succeed, and they take responsibilities for their actions. However, they do not take unnecessary risks.

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• • • •

They are organized both at home and work. They are disciplined – especially financially. They do not buy expensive, unnecessary assets like cars. Tough, impartial, and trustworthy. They do things right the first time all the time. Persistence/unyielding/stubborn. Do not give up on an idea easily and are self-confident.

The findings are aligned to those of previous studies by Chaganti (1986), who established that decisiveness and goal-orientated women who know what they want from life and could sense it before achieving it, are successful in the technical workplace. The clearer they can sense the goal and its outcomes, the more committed they become to doing the work required to achieve it. Also, the findings support earlier research by Boyd (2010), who established that women who are determined, committed to the task at hand and dedicated to service are thriving. Acquisition of Social Assets The study found that two of the interviewees – R1 and R2 – had a supportive spouse and a parent who helped them in the establishment and running of their business. R2’s business was an offshoot of a family interest in the rentals and repairs of construction equipment. R1 revealed that she had made use of Design and Build and Joint Venture Alliances procurement strategies such as in their bid to win contracts/provide construction services to the government. They offered public sector clients services in which they would be the designers and constructors, saving the public sector client money and also effectively helping the company win the contract against other competitors. R1 notes that ‘the Joint Ventures helped our turnover, as there was no way we could have the money to put down as a guarantee.’ R1 is explicit in noting that Joint Venture Alliances had been used as a strategy to win contracts but not to access specialized technology or expertise. The use of Joint Venture procurement is a specific stipulation of the public sector project bid on large projects following the BBBEE procurement policy in South Africa to fulfil equity participation requirements and opportunities for Historically Disadvantaged Individuals (HDIs) to access large projects. The data suggest that the public sector joint venture procurement project bid stipulation provides an avenue to mitigate vulnerability aspects of female-owned businesses by providing access to project finance, specialized technology, and expertise. However, the data also suggest that the Joint Venture project procurement approach could impose vulnerability with the likelihood of the weaker female-owned company being dumped by the dominant partner upon completing the project. The vulnerable companies will have to mitigate this vulnerability that results from partnerships. R1 claims that her company has always gone into Joint Venture Alliance as an equal partner, regardless of the scale of the other partner organization.

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Otherwise, according to R1, ‘it is not worth venturing into JVs with large established contracting firms, who are out to use the small companies just to fulfil their equity participation requirements and dump them afterwards.’ Of the three companies investigated, only R3 had political connections and partnered with experienced leaders in the construction world as a strategy for winning public sector contracts. Furthermore, none of the founding owners are members of professional organizations, suggesting that this is not an essential social asset in overcoming vulnerabilities and establishing a successful construction company. The founding owners are members of a network that includes a spouse and a parent or a political organization, who updates them with information on change in the construction industry or standardization practices. This implies that female business owners in male-dominated industries do not have to be members of a social support network like professional organizations if they have support from family members or political affiliates to get the social assets required to maneuver aspects of their vulnerability. The construction industry in South Africa provides many opportunities for construction companies irrespective of ownership. The contribution of government to such opportunities is significant, and this has been especially true for firms owned by historically disadvantaged individuals, including women. Government policies such as the Broad-Based Black Economic Empowerment (BBBEE) Act preference score of 10% used in tender adjudication and the preference for Historical Disadvantaged Individuals (HDIs) in tender procurement is an example of policies put in place to help HDIs participate in the industry. This study indicated that CEOs of women-owned construction companies had indeed taken advantage of such growth in the South African construction sector. The growth paths of the women-owned firms were gradual. They met expectations, which is further evidence that women CEOs have benefited from government regulations that helped them in maneuvering past disadvantages to win contracts and supply construction services that in turn helped them accumulate physical assets needed to overcome their vulnerabilities and succeed. For example, it took R1’s General Building Construction company 33 months to upgrade three times from their initial registration grade to the highest grade on the CIDB Register of Contractors. In the Civil Engineering Division, the same trend was observed – it took R2’s company 36 months to upgrade three times to its present status. This finding that growth is correlated with policy change supports the idea that the policy environment of a responsible state matter, as Fineman (2008) shows it. That society can and does mediate, compensate, and lessen vulnerability through programs, institutions, and structures. This finding also aligns with the views expressed by Nyeck (2020) that societal institutions play a significant role in maintaining and extending inequality. The Joint Venture procurement approach, as stipulated by the BBBEE Act in South Africa can also extend inequality if the disadvantaged party in the venture fails to take precautionary measures.

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Conclusions and Recommendations The chapter explores the growth pattern of three women-owned construction companies to understand the vulnerability of the founders in the quest for the sustainable development of their businesses in technical and male-dominated workplaces. Vulnerability which inhibits the development and transformation of women-founded construction companies and how it is mitigated was examined. Mitigating vulnerability was shown to be an outcome of both company-initiated and government-led initiatives. It emerges that women CEOs are vulnerable in the construction industry because of a perceptual bias in South Africa. They are seen as unable to execute construction work, they find it difficult to manage male personnel (macho), they attributed negative physiological problems including difficulties to manage stress. Successful female leaders were able to maneuver past these disadvantages by acquiring physical, human, and social assets. The physical assets acquired were enabled by government-responsive policies, namely the BBBEE Act. Human assets acquired through education and experience helped the female CEOs develop behavioral traits such as decisiveness and goal-orientation, determination/ commitment, intuition, sympathy and concern for the workers, optimism when facing adverse situations, discipline, resolve, impartiality, trustworthiness, resilience, confidence, and flexibility. Their social capital was obtained through their relationship with spouses and parents who had experience in the construction industry. The success and growth pattern of the businesses established by the female entrepreneurs in this study show that women can mitigate aspects of their vulnerabilities and develop successful businesses in the construction industry especially when opportunities to win big construction contracts is provided through public policy. To address the vulnerability women face in the technical workplaces the study recommends that the state should put in place asset-conferring institutions and policies that help women-owned businesses to supply construction services and accumulate physical assets that they need to succeed in public procurement bids. For example, in South Africa, the use of the Construction Industry Development Board (CIDB) Register of Contractors and The Preferential Procurement Policy Framework Act (5 of 2000) should have requirements that state how the issues regarding HDIs, especially women-owned contracting organizations, will be catered for. The smallness of the sample size limits the generalizability of the findings. Further studies are required in this area to produce generalizable results. References Albertson Fineman, Martha. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale JL & Feminism 20 (2008): 1–23. Boyd, M. “Women in Building and Construction: A Gradual Transformation.” Women on Site, 2010. Bradley, Harriet. Gender and Power in the Workplace: Analyzing the Impact of Economic Change. Macmillan International Higher Education, 1998.

84  Abimbola Windapo Chaganti, Radha. “Management in Women-Owned Enterprises.” Journal of Small Business Management 24 (1986): 18–29. Construction Industry Development Board (CIDB). “Construction Monitor – Transformation, 2019 Q4.” Pretoria: Construction Industry Development Board, 2020. Geertsema, R. “Women in Working and Leadership Positions in the Construction Industry in South Africa.” Unpublished MSc Thesis of Tshwane University of Technology, South Africa, 2007. Government Gazette RSA Broad-Based Black Economic Empowerment Act, No. 53 of 2003, 2004. Harris, Frank, Ronald McCaffer, Andrew Baldwin, and Francis Edum-Fotwe. Modern Construction Management. New York: John Wiley & Sons, 2020. Kalabuma, Faustin. “Westernization of Gender Roles in House Construction in Botswana.” Third World Planning Review 23, no. 3 (2001): 301–322. Love, Peter, Martin Skitmore, and George Earl. “Selecting a Suitable Procurement Method for a Building Project.” Construction Management & Economics 16, no. 2 (1998): 221–233. Masterman, Jack. An Introduction to Building Procurement Systems. London: Routledge, 2003. Nyeck, S. N. “Gender Equality in Public Procurement.” In Global Encyclopaedia of Public Administration, Public Policy, and Governance, edited by A. Farazmand, 1–6. Switzerland: Springer Nature, 2020. SME. “How Dr Thandi Ndlovu Built One of SA’s Largest Female-Owned Construction Companies.” SME, 2016. https://bit​.ly​/3og6R8M. Accessed: May 2020. StatsSA. Mid-Year Population Estimates. South Africa: 2006. Tarnopolsky, Mark. “Gender Differences in Metabolism; Nutrition, and Supplements.” Journal of Science and Medicine in Sport, 3, no. 3 (2000): 287–298.

Chapter 5

Contracted Vulnerability? Job Quality, Service Quality, and Public Procurement of Services E.K. Sarter 1 and Orly Benjamin 2

Introduction Given1the2high importance of public procurement as a tool for safeguarding the availability of goods, works, and services on the one hand, and potential pitfalls and failures on the other hand, ‘when to purchase and how to manage and regulate purchasing’ (Potoski 2008: 558) has become a crucial question. Further, public procurement practices shape working conditions, qualifications of those employed in services, and therefore also job quality and service quality. This chapter focuses on the regulatory function of public procurement investigating its implications for job quality. We have a threefold aim. First, associating the vulnerability approach with the role of public services procurement in regulating job quality and service quality, we highlight the importance of working conditions and qualifications for mitigating vulnerability in public services delivery and for service users. Turning to the public procurement of services more specifically, we secondly sketch the interaction between public procurement practices, working conditions, and contract requirements regarding qualification. By targeting required levels of qualifications, we intend to shed light on the ways in which cost-related considerations in procurement might lower levels of the required qualifications harming service quality for users. Thirdly, we turn to the implementation of public procurement practices to examine the conditions that affect the safeguarding of minimum working conditions and required qualification levels. The conclusion summarizes the main points and highlights the contribution this chapter makes to academic knowledge and public procurement practice.

1  Assistant Professor, Institute for Employment Research, University of Warwick, UK. ORCID: 0000-0002-3658-7099. 2  Professor of Sociology and Anthropology, Bar-Ilan University, Israel. ORCID: 0000-0002-0307-9442.   This chapter is based on collaborative work undertaken during a Short-time Scientific Mission funded by the COST Action IS 1409 Gender and Health Impacts of Policies Extending Working Lives. We are grateful for the generous support.

DOI:  10.4324/9781003371663-6

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Public Procurement of Services and the Vulnerable Condition The vulnerability approach takes human nature as its starting point. Departing from the embodied nature of humanity, which makes individuals vulnerable to bodily harm, the vulnerability approach conceptualizes vulnerability as a conditio sine qua non of human existence. As an essential trait of the condicio humana, vulnerability is a condition that binds together human beings. Yet, while the existence of vulnerability is an essential part of every human’s existence, the extent to which vulnerability affects individuals is neither shared nor stable. The degree of individual vulnerability is shaped through personal networks and resources as well as through the state, which establishes structures, programs, and institutions that provide individuals with resources and assets to build resilience (Fineman 2015, 2008). Inequality thereby arises from the different degree to which vulnerability is mitigated. The acknowledgement of the inherent, embodied vulnerability of humans thereby also implies the inevitability of dependence on social networks and institutions. Conceptualizing the human existence as fundamentally shaped by vulnerability, social embeddedness, and dependence, the vulnerability approach replaces the prevalent (Western) concept of the autonomous and independent individual by an understanding that highlights social embeddedness and dependence as core features of humanity and quintessential tools for the mitigation of vulnerability (Fineman 2018, 2008). Based on the inevitability of dependence and the key role of networks and institutions, the vulnerability approach proposes a ‘collective responsibility for those relationships and institutions that dependence entails’ (Fineman n.d., p. 9). As will be shown in the following, public services are key institutions mitigating vulnerability and public procurement practices relating to services have broad implications for equality as these contracts interact with dimensions of equality, e.g., access to needed service, level of service accessible, equality between those employed by contracted out services and others in comparable jobs, in a multitude of ways. Public procurement practices shape services and thereby affect individuals in their capacity as users, whose vulnerability can be effectively mitigated depending on specific procurement strategies. Public Services, Public Procurement, and Equality As the last decades saw a growing marketization of services (Bode 2009; Kuhlmann and Boukaert 2016; Pollitt and Bouckaert 2011; Vincent-Jones 2006), public procurement has gained importance in securing the public availability of services even if levels of universal accessibility have decreased (Benjamin 2016). This trend has enhanced the vulnerability of employees operating procured services who are dependent on the procurement contract for their labor conditions. Many among these service and caring employees have encountered reduced job quality particularly in terms of intensification of work, job insecurity, deskilling, flattening wages and deprived working conditions (e.g., ibid., Dube and Kaplan 2010). With

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a growing importance of public contracts for the delivery of services, the possibility that the regulation of public procurement and its institutional practices may reduce employees’ vulnerability lends itself to examining this factor that shapes service delivery. Before turning to public procurement strategies and their impact, it is crucial to highlight that the impact that public services have on individuals and their ability to mitigate vulnerability depends on a range of factors. A key factor that impacts on the ability of services to mitigate vulnerability for service users is their availability and accessibility. Take the example of childcare services; these services are essential for opening up opportunities for employment for individuals with caring responsibility for small children without having to rely on the support of family members or friends. Childcare services thereby lessen individual dependence on social networks for those who have access to a support network of family members and/or friends to look after children and enable those without such a network to be in employment. By lessening the extend of dependency on the willingness of others to take on childcare, childcare services open (new) opportunities for generating income, which strengthen the ability to provide for oneself and one’s family. Therefore, childcare services are essential drivers for mitigating vulnerability for individuals with caring responsibilities, in the vast majority of working-class women who cannot fund paid help. The ability of childcare services to enable carers to take up employment thereby depends on their accessibility (including the costs and opening hours), their reliability, as well as their quality. Other services have divergent effects on different individuals (among others Dell’Olio et al. 2011; Himmelweit 2002) and can be essential drivers for mitigating vulnerability. Once such services are contracted out, public procurement practices are essential in shaping the availability and accessibility of services. Contracted services thereby manifest the role which procurement has for the mitigation of vulnerability. In addition to mitigating vulnerability by enabling access to services, public procurement practices mitigate vulnerability through shaping the working conditions and qualifications of those employed in services, which affects them and (potentially) impacts users. To fully understand the impact that the working conditions of employees have on users of services, it is important to acknowledge that the impossibility of an ex-ante control over services’ outcomes raises important challenges for public procurement practices (Sarter and Karamanidou 2019). Being intangible, invisible, and abstract, services are delivered while being produced and can, as a result, be neither pre-produced, stored, nor returned. Instead, it has been argued, contracting of services relies on ‘trust in a continuous, reliable performance level’ as it seeks to predict ‘future supplier performance based on past performance’ (Ancarani 2009: 193). Performance is thereby strongly dependent on working conditions and qualification standards. Particularly in soft, person-centered services, the service and the person delivering it cannot be separated as ‘the way in which the service suppliers act and how they treat the customers’ (Rönnenbäck 2012: 449) is of crucial importance for service delivery. As a result of the close linkage between the person delivering a service and the service itself, it comes as no surprise that

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deteriorating working conditions and increased workloads have been shown to have a major impact on the quality of services (Apostolou 2012; Benjamin 2016; Grimshaw et al. 2014). The working conditions of the staff delivering a service are evidently shaped by procurement contracts. Beyond the effect on employee vulnerability, the work environment impacts service quality as well, exposing service users to extended vulnerability. In addition to working conditions, qualifications and skills are essential prerequisites for delivering services that achieve their aims. Take the example of interpreting services in the context of asylum and international protection. Ensuring unhindered access to international protection depends on an adequate communication between the applicant and those processing their application. To enable this communication, interpreting services are essential for safeguarding ‘unimpeded access to the asylum procedure’ (UNHCR 2012: 2). At the same time, given the high stakes, it is essential that the interpretation of individual accounts is accurate and of high quality. To be able to deliver high-quality interpretation, interpreters need to possess a high level of awareness and linguistic and interpretative skills. However, despite the crucial importance of knowledge and skills for the safety of individuals, Sarter and Karamanidou (2019) pointed to a continuous neglect to set binding adequate standards for language and interpreting skills when procuring this essential service in Greece. More specifically, while linguistic and interpreting skills are essential prerequisites to provide interpreting services in the context of asylum, the Panhellenic Association of Professional Translators of Ionian University Graduates highlighted that the standard relating to language skills set by public agencies in their procurement procedures, i.e., a good knowledge of the Greek language as not adequate to ensure that the interpreters delivering the service command adequate linguistic skills to provide interpretation of adequate standards. If these requirements are reflected in the knowledge and skills of interpreters, the utilized procurement practice called into doubt whether a contract could ensure that the interpreters had the adequate linguistic knowledge and skills to provide interpretation of a sufficient standard (Sarter and Karamanidou 2019). As crucial regulatory tools, public procurement practices are essential factors that shape services standards. Taken together, the nature of services, most importantly the fact that services are produced as they are delivered, and the high importance of the person delivering it, their qualifications, skills, and behavior draw attention to the conditions under which services are delivered and the qualifications of the person delivering them as crucial safeguards for enabling service quality and a positive impact on the user. Both, required levels of qualifications in the contract and the working conditions which the contract defines affect the employment and opportunity structures of those employed in services. These aspects are crucial for mitigating vulnerability of employees as well as the lived experiences of those using the service. Public procurement practices in turn are central in shaping the availability of services as well as working conditions and qualification and service standards of those delivering these services and thereby the lives of employees and users. By using interpretation as an example, we demonstrated the potential held by public

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procurement for regulating working conditions and qualifications. Moreover, we showed how crucial it may be for determining the equality impact for employees and users and for shaping opportunity structures of those potentially employed in these services. Public Procurement, Qualifications, and Working Conditions Having established the crucial importance of public procurement practices for the extent to which services can mitigate individual vulnerability by shaping working conditions in public services, thereby affecting a) the working lives and the employment opportunities of those (potentially) employed in the services as well as b) the impact the services have on users, we will in the following turn to public procurement practices and their impact on wages, working conditions, and qualifications. Over the past decades, many countries have witnessed a trend towards an increasing marketization of services (Bode 2009; Kuhlmann and Boukaert 2016; Pollitt and Bouckaert 2011; Vincent-Jones 2006). Given the prominence of marketization, it comes as no surprise that the impact of this increased marketisation of services has received a vast amount of attention. Empirical studies have examined the impacts of marketization on working conditions with regards to a range of services, including but not limited to long-term elderly care (e.g., Charlesworth and Malone 2017; Lewis and West 2015), cleaning (e.g., Grimshaw et al. 2014), healthcare services and employment activation (e.g., Stecy-Hildebrandt et al. 2018; Bernhardt et al. 2016). Overall, these studies point to a negative impact on wages, working conditions, and qualifications. Marketization has been linked to a deterioration of wages, benefits and working conditions, increased job insecurity, and reduced job satisfaction (Dube and Kaplan 2010; Engstrom and Axelsson 2010; Flecker and Hermann 2011; Vrangbæk et al. 2015), adding to ‘the vulnerable position of workers employed in […] low-wage service segments’ (Grimshaw et al. 2014: 1). Competition-based contracting out has furthermore been argued to contribute to processes of de-skilling (Benjamin 2015; Bock Mullins and Moreno Saldivar 2015). With marketization affecting the public sector, a ‘major source of employment in areas associated with women’s employment’ (Rubery 2013: 44) characterized by relatively stable employment and opportunities to reconcile working life with caring responsibilities (Bock Mullins and Moreno Saldivar 2015: 171f), this development had a disproportionate impact on women (among others Corby 2011: 110). These developments have strong implications for the potential of marketized services to mitigate vulnerability. For employees, there is a deterioration of wages and working conditions, affecting their (working) lives, job satisfaction, opportunity structures, and their financial resources. In the middle and longer term, deteriorating working conditions and wages can affect the knowledge, skills, and qualifications of staff employed in the delivery of services. This can have further negative implications for the quality of services as a decline of wages and working

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conditions can affect the level of qualifications shared by the employees delivering the service and thereby contribute to processes of de-skilling and a downward spiral of qualification standards. In addition, the developments affect the users of services as decent working conditions are essential for delivering high quality services, the deterioration of working conditions affects the ability of a service to mitigate individual vulnerability of users. Given the high importance of the person delivering the service, deteriorating working conditions and higher workloads are furthermore likely to affect users of services as they impact the quality of services negatively, which also affects the extent to which services can mitigate individual vulnerability; if the quality of the service declines, so does their potential to mitigate vulnerability effectively. In addition to the impact on employees and users, worsening working conditions furthermore have a negative impact on the contracting authorities themselves. Keeping in mind that promoting equality is not only a moral (and legal) obligation but also an important aspect of effective policymaking and implementation (Himmelweit 2002), deteriorating working conditions, which may affect the quality of the services provided, calling into question the effectiveness of the service in achieving its aims. Against this background, the regulatory potential of public procurement has come into focus over the past decades. The past years have witnessed an increased ‘post-contractual reflexivity’ (Sack and Sarter 2016: 349–350), a rising awareness of the negative implications of marketization, which has elevated the understanding of public procurement’s regulatory potential. To understand the potential inherent to public procurement practices for acting as a tool for the regulation of working conditions and qualifications, it is essential to understand the role and importance of public bodies as (intermediate) consumers. Being intermediate consumers, contracting authorities are central agencies for regulating competition for a specific tender. They make decisions on what to buy, who can participate in bids, and lay down essential requirements and obligations, which may include non-economic aspects. Such requirements can include stipulations on wages and working conditions as well as qualification standards.3 Thereby, public authorities can also use public contracts as a tool for regulating working conditions and qualification standards of the staff employed in these services. In brief, public contracts are a way through which contracting authorities can couple their ‘procurement practices with their extended impact on employment relationships in supplier organizations’ (Grimshaw et al. 2014: 118). While requirements relating to wages, such as requirements relating to minimum wages, are not a new phenomenon (McCrudden 2007), a growing importance of public contracts as a tool for the regulation of labor has been reported over the past years (Holley 2014; Howe and Landau 2009; Ravenswood and Kaine 2015; Sack and Sarter 2018).

3  In this context, it is essential to recall that the legal framework may strongly limit the scope of such requirements.

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The Importance of the Price Underlying the negative impacts on wages and working conditions outlined above is an incentive to reduce costs to increase the chances of winning a contract and (if successful) maximize profits. When compared to the purchase of goods, where an important part of the production cost relates to raw materials, prefabricated parts and machines and their running costs, in the delivery of services, and particularly in person-centered services, personnel costs account for a substantial part of the overall costs of service delivery. At the same time, in contrast to the costs for other essentials such as utilities, personnel costs are easier to influence by companies. Attempts to reduce the costs of service delivery are therefore likely to involve an increased pressure on and a downgrading of wages and working conditions and increased workloads. If public procurement procedures attach a high importance to the price and instigate a price-driven competition, companies will try to lower their costs as much as possible to gain an advantage. If personnel costs account for a high percentage of overall operational costs and the competition for public contracts is strongly driven by the price, this sets incentives for labor cost-cutting and will most likely have a strong impact on wages, workloads, and working conditions in the delivery of the service. In contrast, in cases where personnel costs only amount to a small percentage of overall costs, structural incentives for labor cost-cutting are lower as changes in personnel costs have a lower overall impact on production and organizational costs. Cost reductions thereby also interact with another important feature, qualification levels, particularly if lowering wages and working conditions goes along with a willful trend to employ lesser qualified staff on lower pay. To illustrate this, take the example of Israel’s primary school vaccination service. Historically administered by registered school nurses, after being contracted out, contracts for this service were given to for-profit firms, who lowered the number of registered nurses employed and increased the nurse-to-pupil ratio from one to 1,500 to one to 10,000, leading to nurses being responsible for geographically bigger areas. At the same time, the administrative responsibilities of the nurses increased. The combination of additional travel requirements (which were compensated at a lower level than before), decreasing nurse-to-student rations, and growing administrative workloads, meant an important deterioration of working conditions and wages of nurses, which led to a high turnover of staff. Moreover, while previously staffed by qualified and certified nurses (higher earners), the contracts gave the new providers the opportunity to employ uncertified nurses (mainly nursing students) if they did not account for more than 75% of the workforce. Given the interrelatedness of wages, working conditions, and qualifications, requiring companies to uphold (minimum) standards is an important feature to mitigate the negative implications of a price-driven competition. In addition to including stipulations on compliance with minimum wages and requirements relating to qualifications of staff mentioned above, policymakers and contracting authorities have adopted different approaches to attempt to limit pressure on the price. The European Directive

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2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC for example includes the stipulation that ‘[C]ontracting authorities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services’ (Article 69.1). Following an examination, contracting authorities shall among other reasons reject the tender if ‘they have established that the tender is abnormally low because it does not comply with applicable obligations referred to in Article 18(2)’ (Article 69.1.3), which includes European and national social and labor law as well as collective agreements and international social and labor law provisions. In addition, studies have also pointed to the use of a minimum price in public procurement (Sarter and Karamanidou 2019). Additional Requirements In addition to mitigating the impact of a price-driven competition, dedicated measures to support employees have important implications for mitigating vulnerability and opening opportunities for those employed in the delivery of services. Take the example of childcare services, whose importance to mitigate vulnerability has been outlined at a general level above. In addition to childcare services accessible to the public, companies can provide specific services to their employees, thereby reducing (potential) employees’ dependency on private arrangements and publicly provided services. In contrast to the general provision of childcare service, services provided by companies can thereby reflect company-specific requirements, such as irregular working hours that would not be covered by ‘normal’ opening hours of general childcare facilities, whereby opening further employment opportunities for employees with caring responsibilities. In the context of an increasing attention paid to gender responsive public procurement, policymakers have placed obligations or opened opportunities for the inclusion of gender equality considerations in public procurement, which sometimes remain rather broad like the British Public Sector Equality Duty and sometimes include specific measures. For instance, in the German Federal State of Berlin, a subnational law, the Erste Verordnung zur Änderung der Verordnung über die Förderung von Frauen und die Vereinbarkeit von Beruf und Familie bei der Vergabe öffentlicher Aufträge (Frauenförderverordnung), requires companies that obtain public contracts to adopt a number of defined measures to promote equality, among which the provision of internal or external childcare services including outside of normal opening hours and opportunities for flexible and teleworking arrangements. Such measures, which create and/or facilitate employment opportunities can be important assets for mitigating dependency and vulnerability and thereby promoting equality. The Rise and Conditions of Action While public authorities hence have a range of opportunities to influence wages, working conditions, and qualifications in contracted services, their ability to make

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use of these opportunities is at the same time limited by a range of external and internal factors. The legal framework is an important factor that can provide an important impetus for using public procurement’s potential (Brammer and Walker 2011; McCrudden 2012). Thereby, the design of laws, most importantly whether they oblige or enable public bodies to include non-financial aspects and equality-related considerations more specifically has been argued to be of major importance (Sarter 2020). On the other hand, the legal framework also imposes limitations on contracting authorities’ scope for action. Take the example of European law and the related jurisdiction: Both explicitly highlight the admissibility of non-financial aspects, including but not limited to the inclusion of equality considerations and stipulations on abnormally low tenders. At the same time, they define clear limitations, particularly with regards to wage levels. For instance, as established by the European Court of Justice within the European Union context regulations relating to wage levels can only refer to universally binding wage levels. In addition to the legal framework, which determines requirements and shapes the scope for action, external pressure has been argued to be an important factor contributing to public procurement practices that seek to foster social goals and equality more specifically (Wright and Conley 2022). External pressure can originate from a wide range of actors that take an interest and can exert pressure, including but not limited to (potential) providers and their organizations, trade unions, civil society organizations that promote specific goals such as Fairtrade or equality, or the interests of service users. At the same time, the focus of external pressure can refer to different aspects of public procurement of services. Actors may object to marketization, competition-based delivery and the use of public procurement as a tool for safeguarding the availability of a specific service at a general level and may, for instance, argue for public delivery of the service. Accepting the basic premise of market-based delivery, external pressure can be exerted to support socially responsible public procurement practices, including but not limited to safeguarding wage levels, working conditions, and qualifications. Further to the legal framework, its design and external pressure, the market and its structure is an important external force that impacts contracting authorities’ ability to introduce requirements as the extent to which contracting authorities and providers are dependent upon each other enables or constraints public bodies’ ability to place obligations on service providers (Sarter and Karamanidou 2019). In a market where only a very limited number of service providers operate, local authorities have a lower ability to exert a regulatory function by laying obligations upon providers than in a market with a high number of competitors. To visualize this, consider two distinct situations. First, a situation where a public body requires an essential service, which can also be delivered outside of public contracts or does not form the core business of any company, and where only one company is able (and/or willing) to provide it. While the public body requires the service and can only get it from one company, the provider has other options to whom they can sell the service (or they may decide, if the service is not their core business and they

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deem the conditions unfavorably, to forfeit the delivery of the service altogether). As a result, the public authority is strongly dependent on the provider to safeguard the availability of the service, which places the (potential) service deliverer at a strategic advantage vis-à-vis the public authority (Grimshaw et al. 2005). By contrast, in cases of monopsonies, where the public body is the only buyer but a range of companies can deliver a service, the service providers are dependent on public authorities as the only buyers; in this situation, it is the service providers that are placed at a strategic disadvantage vis-à-vis the public authority. The extent of mutual dependency and the resulting strategic dis/advantages of public bodies and providers can have important implications for the regulatory potential of public contracts: In the case of a monopsony and a strong dependency on the side of the providers, public authorities can use their advantage to set strong obligations upon the provider. In contrast, if public authorities are dependent upon the provider to deliver the service but the provider is not dependent upon the public contract in question, they may decide to not engage in bidding, leaving the public body unable to satisfy the need for the service. Take for instance the case of interpreting services in the context of asylum in Greece, which are essential components for any functioning system of international protection. With only a very limited number of enterprises engaged in bidding for public contracts by the two major agencies procuring these services (First Registration and Identification Service and the Asylum Service) between July 2014 and July 2016, almost all public contracts were awarded to one enterprise. As the analysis of invitation for tenders highlighted, in reaction to an invitation for tenders that foresaw stipulations obliging companies to provide qualifying training, which were introduced at different points in time by each of the agencies, the agencies received no bids, so that the contract could not be awarded. Given the importance of the service, without which applications cannot be adequately processed, in each case, the respective agency thereafter issued new invitation for tenders, which did not include any obligation to provide training and which led to bids and subsequently the award of contracts (Sarter and Karamanidou 2019). In addition to these external features, several internal features influence the adoption of public procurement practices that aim to uphold working conditions and thereby contribute to mitigating vulnerability and promoting equality. While research on the implementation of stipulations relating to wages, working conditions, and equality remains rather scarce, it points to the importance of the understanding of the public authorities’ role and aims as a contracting authority (Sarter 2020) as well as existing knowledge and expertise (Brammer and Walker 2011; Grandia et al. 2013; Walker and Brammer 2009; for equality more specifically Sarter in this volume). The literature on the implementation of sustainable public procurement furthermore highlights a set of additional internal features that affect the successful implementation of sustainable public procurement, which it can be assumed also affect the implementation of stipulations relating to working conditions. These include most importantly organizational attitudes, including commitment of management, knowledge or expertise, and support from top management,

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incentive structures, and financial aspects such as the perceived viability of setting requirements (Brammer and Walker 2011; Grandia et al. 2013; Prier et al. 2016; Preuss 2009; Walker and Brammer 2009). With a particular focus on the strategic purchase of Fairtrade goods, it has furthermore been argued that resources required in the implementation affect the willingness to use certain criteria; more specifically, the option to include social considerations easily and quickly can positively affect the political and administrative willingness for implementing certain criteria (Sarter and Sack 2016). Conclusion The regulation of public procurement of services is essential for mitigating individual vulnerability and promoting equality, for both employees and users, by virtue of offering employment (opportunities), particularly for women, as well as offering contracted out healthcare, welfare, and education services, upon which women depend for their labor market participation. With an increasing marketization (Bode 2009; Kuhlmann and Boukaert 2016; Pollitt and Bouckaert 2011; Vincent-Jones 2006), public procurement practices are gaining increasing importance in shaping the design and accessibility of services as well as for regulating wages, working conditions, and qualification levels of those employed in their delivery (Dube and Kaplan 2010; Engstrom and Axelsson 2010; Flecker and Hermann 2011; Grimshaw et al. 2014: Vrangbæk et al. 2015). Therefore, controlling public procurement practices and the specific contract sections where labor relations issues are implied, is crucial in determining the extent to which public services can mitigate vulnerability for users and employees. Crucial for determining the extent to which services can mitigate vulnerability, as well for users as for employees, are wages, working conditions, and qualifications of staff. Wages, working conditions, and qualifications directly affect the opportunity structures of those employed (or potentially employed) in service delivery. At the same time, they are essential features that shape the quality of the service, particularly in personal services, which rely heavily on the relationship between the service deliverer and the user (Ancarani 2009; Benjamin 2016; Rönnenbäck 2012; Sarter and Karamanidou 2019). Against this background, this chapter examined the linkage between public procurement practices relating to the purchase of services and wages, working conditions, and qualifications. As the literature on marketization and the scarcer literature on public procurement practices highlights, marketization of services and competition-based procurement practices tend to have negative implications for wages, working conditions, and job satisfaction and have been linked to processes of de-skilling, often interlinked with a deterioration of wage levels. With a growing awareness of the negative implications of marketization and competition-based procurement, it has been argued, the regulatory potential of public procurement has gained growing attention as policymakers and public procurement professional increasingly use public procurement’s potential to act as a tool for regulating labor (Holley 2014; Howe & Landau 2009; Ravenswood and Kaine 2015; Sack and

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Sarter 2018). In addition, over the past few years, public procurement increasingly sets additional requirements, allowing more union involvement and its embedded impact on job quality (Simms 2017) that can promote equality by increasing opportunities and mitigating individual vulnerability. Focusing on the factors that influence the (successful) implementation of public procurement practices that safeguard wage standards, working conditions, and qualification levels, this chapter examined external and internal features that affect public procurement practices relating to services. The existence and design of a legal impetus and external pressure are important factors for the implementation of socially responsible public procurement. This chapter argued that the more dependent public bodies are on providers, the less likely they are to impose additional requirements, perceived as ‘burdens’ on bidders. In addition to external features, this chapter argues, aspects highlighted in the more general literature on sustainable and gender responsive public procurement, namely public professionals’ understanding of the public authorities’ role and aims as a contracting authority, organizational attitudes, commitment of and support from management as well as knowledge and expertise, existing incentive structures, the perceived viability, and the demand on resources (Brammer and Walker 2011; Grandia et al. 2013; Prier et al. 2016; Preuss 2009; Sarter 2020; Sarter and Sack 2016; Walker and Brammer 2009), can be assumed to also affect procurement practices relating to wages, working conditions, and qualifications. By shedding light on the importance public procurement practices have for upholding wages, working conditions and qualification levels in publicly procured services and the conditions that influence public procurement practices on this behalf, this chapter contributes to academic knowledge and public procurement practice. More specifically, it contributes to academic knowledge by first highlighting the importance of the conditions under which services are delivered not only for those employed in the services themselves but also for users and public bodies. In this way we highlight the potential of contracted vulnerability to become a recognized form of vulnerability generated institutionally by public procurement once the latter fails to maintain employees’ and service users’ protection. This chapter furthermore contributes to academic knowledge by drawing attention to and exploring a hitherto neglected field: The implications of seemingly neutral public procurement practices affecting wages, working conditions, and qualifications, and the importance of controlling contracts that determine them, for promoting equality. While research on wages, working conditions, and qualifications has highlighted gendered implications, research on gender responsive public procurement has displayed a strong focus on contractual obligations and additional requirements, neglecting the implications of seeming equality neutral provisions. Exploring the equality implications of public procurement practices in this area, this chapter invites further research in this field. In addition to its academic contribution, this chapter has important implications for practice as it first highlights the importance of working conditions for the outcomes delivered by services for employees, users, and public bodies. By outlining different aspects that affect the equality impact of publicly procured services,

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strategies to mitigate negative implications, and features that affect the successful implementation, it brings together essential knowledge for public procurement professionals, who we hope might find inspiration for future action. References Ancarani, A. (2009). Service sourcing. In: K. V. Thai (Ed.), International Handbook of Public Procurement. Boca Raton: Taylor & Francis, pp. 178–210. Apostolou, F. (2012). Interpreting services for immigrants: A new reality in Greece. The Interpreter’s Newsletter, 17: 213–222. Benjamin, O. (2015). Time is money: Deskilling caring work through time allocation in services procurement. Wagadu: A Journal of Transnational Women’s & Gender Studies, 13: 85–110. Benjamin, O. (2016). Gendering Israel’s Outsourcing: The Erasure of Employees’ Caring Skills. Cham: Palgrave Macmillan. Bernhardt, A., Batt, R., Houseman, S. N. and Appelbaum, E. (2016). Domestic outsourcing in the United States: A research agenda to assess trends and effects on job quality. The Center for Economic and Policy Research. https://cepr​.net​/report​/domestic​-outsurcing​ -in​-the​-us/. Bock Mullins, L. B. and Moreno Saldivar, K. M. (2015). Research associating gender and government privatization: Lessons from international literature. Wagadu, 13: 169–186. Bode, I. (2009). On the road to welfare markets: Institutional, organizational, and cultural dynamics of a new European Welfare State Settlement. In Jason L. Powell and Jon Hendricks (Eds.), The Welfare State in Post-Industrial Society: A Global Perspective. Heidelberg: Springer Science and Business Media, pp. 161–177. Brammer, S. and Walker, H. (2011). Sustainable procurement in the public sector: An international comparative study. International Journal of Operations & Production Management, 31(4): 452–476. Charlesworth, S. and Malone, J. (2017). Re-imagining decent work for home care workers in Australia. Labour & Industry: A Journal of the Social and Economic Relations of Work, 27(4): 284–301. Corby, S. (2011). Equality in the public sector: The sky darkens. In Working for the State: Employment Relations in the Public Services, 108–125. Dell’Olio, L., Ibeas, A. and Cecin, P. (2011). The quality of service desired by public transport users. Transport Policy, 18: 217–227. 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 Text with EEA relevance. Official Journal Law, 94: 65–242. Dube, A. and Kaplan, E. (2010). Does outsourcing reduce wages in the low-wage service occupations? Evidence from janitors and guards. Industrial and Labour Relations Review, 63(2): 287–306. Engström, A. K. and Axelsson, R. (2010). The double spiral of change – Experiences of privatization in a Swedish Hospital. International Journal of Health Planning and Management, 25(2): 156–168. Erste Verordnung zur Änderung der Verordnung über die Förderung von Frauen und die Vereinbarkeit von Beruf und Familie bei der Vergabe öffentlicher Aufträge

98  E.K. Sarter and Orly Benjamin (Frauenförderverordnung – FFV). https://www​.berlin​.de​/sen​/frauen/​_assets​/recht​/lgg​/ ffv​/pdfs​/ffv​_lesefassung​_neu​-bf​.pdf. Accessed 15 September 2020. Fineman, M. A. (n.d.). Universality, vulnerability, and collective responsibility. Unpublished manuscript for Les ateliers de l’éthique/The Ethics Forum. ———. (2008). The vulnerable subject: Anchoring equality in human condition. Yale Journal of Law and Feminism, 20(1): 8–40. ———. (2015). Equality and Difference – The Restrained State. Emory University School of Law, Legal Studies Research Paper Series, Research Paper No. 15-348. https://papers​ .ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=2591689. Accessed 30 May 2020. ———. (2018). Vulnerability and social justice. Valparaiso University Law Review, 53: 341–369. Corby, S. (2011). Equality in the public sector: The sky darkens. In Working for the State: Employment Relations in the Public Services, 108–125. Flecker, J. and Hermann, C. (2011). The liberalization of public services: Company reactions and consequences for employment and working conditions. Economic and Industrial Democracy, 32(3): 523–544. Grandia, J., Groeneveld, S., Kuipers, B. and Steijn, B. (2013). Sustainable procurement in practice: Explaining the degree of sustainable procurement from an organizational perspective. Rivista di politica economica, 2: 41–66. Grimshaw, D. (2005). Fragmenting work across organizational boundaries. In: M. Marchington, D. Grimshaw, J. Rubery, and H. Willmott (Eds.), Fragmenting Work: Blurring Organizational Boundaries and Disordering Hierarchies. Oxford University Press on Demand. Grimshaw, D, Cartwright, J., Keizer, A. and Rubery, J. (2014). Coming Clean: Contractual and Procurement Practices. Equality and Human rights Commission Research Report 96. https://www​.escholar​.manchester​.ac​.uk​/api​/datastream​?publicationPid​=uk​-ac​-man​ -scw​:239491​&datastreamId​=FULL​-TEXT​.PDF. Accessed 15 September 2020. Himmelweit, S. (2002). Making visible the hidden economy: The case for gender-impact analysis of economic policy. Feminist Economics, 8(1): 49–70. Holley, S. (2014). The monitoring and enforcement of labor standards when services are contracted out. Journal of Industrial Relations, 56(6): 672–690. Howe, J. and Landau, I. (2009). Using public procurement to promote better labor standards in Australia: A case study of responsive regulatory design. Journal of Industrial Relations, 51(4): 575–589. Kuhlmann, S. and Bouckaert, G. (2016). Local Public Sector Reforms in Times of Crisis: National Trajectories and International Comparisons. London: Palgrave Macmillan. Lewis, J. and West, A. (2014). Re-shaping social care services for older people in England: Policy development and the problem of achieving ‘good care’. Journal of Social Policy, 43(1): 1–18. McCrudden, C. (2007). Buying Social Justice. Equality, Government Procurement, & Legal Change. Oxford: Oxford University Press. ———. (2012). Procurement and fairness in the workplace. In: L. Dickens (Ed.), Making Employment Rights Effective: Issues of Enforcement and Compliance Oxford: Hart Publishing, pp. 87–114. Pollitt, C. and Bouckaert, G. (2011). Continuity and Change in Public Policy and Management. Edward Elgar Publishing. Potoski, M. (2008). State and local government procurement and the winter commission. Public Administration Review 68: S58–S69.

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Preuss, L. (2009). Addressing sustainable development through public procurement: The case of local government. Supply Chain Management: An International Journal, 14(3): 213–223. Prier, E., Schwerin, E. and McCue, C. (2016). Implementation of sustainable public procurement practices and policies: A sorting framework. Journal of Public Procurement, 16(3): 312–346. Ravenswood, K. and Kaine, S. (2015). The role of government in influencing labor conditions through the procurement of services: Some political challenges. Journal of Industrial Relations, 57(4): 544–562. Rönnenbäck, Å. (2012). Quality in the public procurement process. The TQM Journal, 24(5), 447–460. Rubery, J. (2013). Public sector adjustment and the threat to gender equality. In Public Sector Shock. Edward Elgar Publishing, pp. 43–83. Sack, D. and Sarter, E. K. (2016). Der Europäische Gerichtshof und die deutschen Bundesländer – Sozialpolitisierung und Rechtsunsicherheit im europäisierten Föderalismus. In: B. Rehder and I. Schneider (Eds.), Gerichtsverbünde, Grundrechte und Politikfelder in Europa. Baden-Baden: Nomos, pp. 343–366. ———. (2018). Collective bargaining, minimum wages, and public procurement in Germany: Regulatory adjustments to the neo-liberal drift of a coordinated market economy. Journal of Industrial Relations, 60(5): 669–690. Sarter, E. K. (2020). The development and implementation of gender equality considerations in public procurement in Germany. Feminist Economics, 26(3): 66–89. Sarter, E. K. and Karamanidou, L. (2019). Quality, qualifications, and the market: Procuring interpretation services in the context of the ‘refugee crisis’. Social Policy & Administration, 53(3): 493–507. Sarter, E. K. and Sack, D. (2016). “Von Märkten, Konsum und einer besseren Welt. Nachhaltigkeit und Fairtrade im öffentlichen Sektor.” In: K. Jantke, F. Lottermoser, J. Reinhardt, D. Rothe, and J. Stöver (Eds.), Nachhaltiger Konsum. Institutionen, Instrumente, Initiativen. Baden-Baden: Nomos, pp. 379–394. Simms, M. (2017). Unions and job quality in the UK: Extending interest representation within regulation institutions. Work and Occupations, 44(1): 47–67. Stecy-Hildebrandt, N., Fuller, S. and Burns, A. (2019). ‘Bad’ jobs in a ‘Good’ sector: Examining the employment outcomes of temporary work in the Canadian public sector. Work, Employment and Society, 33(4): 560–579. UNHCR. (2012). Contribution to the dialogue on migration and asylum. http://www​ .unhcr​.gr​/fileadmin​/Greece​/News​/2012​/positions​/2012​_Migration__​_Asylum​_EN​.pdf. Accessed 23 October 2017. Vincent-Jones, P. (2006). The New Public Contracting: Regulation, Responsiveness, Relationality. Oxford: Oxford University Press. Vrangbæk, Karsten, Ole Helby Petersen and Ulf Hjelmar. 2015. Is contracting out good or bad for employees? A review of international experience. Review of Personnel Administration, 35(1): 2–23. Walker, Helen and Stephen, Brammer. 2009. Sustainable procurement in the United Kingdom public sector. Supply Chain Management: An International Journal, 14(2): 128–137. Wright, T. and Conley, H. (2020). Advancing gender equality in the construction sector through public procurement: Making effective use of responsive regulation. Economic and Industrial Democracy, 41(4): 975–996.

Chapter 6

The Case for Gender-Responsive Public Procurement in Botswana Emmanuel Botlhale 1

Introduction Given the1correlational link between public procurement and macroeconomic outcomes such as women’s economic empowerment (International Trade Centre 2014), there is an imperative need to reconfigure the architecture of public procurement regimes through gender-responsive procurement. Studies have unambiguously demonstrated that women-owned businesses that secure government contracts usually grow and mature and, resultantly, contribute to varied macroeconomic outcomes such as increased female employment and leadership and improved livelihoods of women and women’s economic empowerment (European Institute for Gender Equality 2020a; Rimmer 2017; UN 2014). Women’s economic empowerment confers many benefits, chiefly, economic growth and development (Chin 2017). Economic growth and development have eluded the developing world, particularly sub-Saharan Africa, partly because women suffer economic apartheid (e.g., see Hakura et al. 2016). Mostly, they are excluded from economic activities such as public procurement. The foregoing is also true in Botswana. While Botswana avows to women’s economic empowerment through public procurement instruments, these do not go far because they are not gender-responsive. That is, they do not result in gender-responsive [or gender-smart] public procurement. The result is that women do not equally participate in public procurement, therefore, leading to women’s economic disempowerment. Economically disempowered women are disproportionately poor. The overarching aim of this chapter is to discuss how gender-responsive public procurement can be used as a women’s economic empowerment tool in Botswana given their economic vulnerability. By learning from the best gender-responsive public procurement practices in the subregion and beyond, the government can cause public procurement to be genderresponsive. By so doing, Botswana may reach the UN Sustainable Development

1  Professor of Public Administration in the Department of Political and Administrative Studies at the University of Botswana. ORCID: 0000-0001-5107-2985.

DOI:  10.4324/9781003371663-7

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Goal (SDG) no. 5, the achievement of gender equality and empowerment of all women and girls. Background To provide expository clarity, a few key operational terms must be defined. First, procurement is also known as purchasing, buying, contract management, supply management, or supply chain management. One of the difficulties in defining the term ‘procurement is that it does not deal with a single action or process’ (CIPA 2006). Procurement covers the complete range of decisions and actions from the identification of a need for a public good or service through to its disposal or cessation (CIPA 2006). Procurement ‘can be defined as the acquisition of goods or services’ and this involves two parties with ‘different objectives who interact in a given market segment’ (Kerzner 2006, 805). There are six emerging areas of emphasis in today’s procurement practices in terms of (1) strategic procurement; (2) global sourcing; (3) supplier relationship; (4) sustainability; (5) public procurement; (6) procurement in the services sector (Hong and Kwon 2012). In this chapter, we are concerned with public procurement. Public procurement refers to the purchase by governments and state-owned enterprises of goods, services, and works (OECD 2020). Raymond (2008) suggests four key principles in public procurement practices: (i) value for money, (ii) ethics, (iii) competition and transparency, and (iv) accountability. Public procurement serves both economic and social purposes such as women’s empowerment. Many principles and recommendations undergird global public procurement such as the New EU Public Procurement Directives, OECD/DAC’s Joint Venture on Procurement (JVP), OECD Recommendation on Public Procurement and UNCITRAL Model Law on Procurement of Goods, Construction and Services. To further exemplify, the OECD Recommendation on Public Procurement builds upon the foundational principles of the 2008 OECD Recommendation on Enhancing Integrity in Public Procurement (OECD 2015). It has 12 recommendations, including gender-mainstreaming, governance, and leadership. Gender-mainstreaming involves assessing the different implications of public policies on both men and women. Consequently, commitment to gendermainstreaming is one of the most effective ways that governments can support and promote gender equality (OECD 2015). Mainstreaming gender in public procurement entails enacting policy and practices that are gender-responsive. Similar instruments have been developed in the developing world. In Africa, after the international conference on reforms of public procurement in Africa that was held in Abidjan in 1998, there has been a development of regional directives on public procurement (AfDB 2009). Having provided a thumbnail sketch on public procurement, it is apt to define gender-responsive procurement as it pertains to the public sector. Genderresponsive procurement is the selection of services, goods, and civil works that considers their impact on gender equality and women’s empowerment (UN Women 2020a). Gender-responsive procurement is implemented by governments

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(federal, state/national, and local) and by the private sector doing business with governments (UN Women 2020a) and international multilateral financial institutions. Regarding the latter, ‘few international entities working in international development, humanitarian aid, or similar sectors, are systematically implementing gender-sensitive procurement (GSP) in their own operations’ (Combaz 2018, 2). Gender-sensitive procurement is one cardinal way to advance gender equality and women’s rights in local, national and global economies (HLP-WEE 2017). Public procurement is a powerful tool for promoting socioeconomic objectives because it operates at the intersection of the government’s regulatory and buying powers (HLP-WEE 2017). Thus, it is notable that public procurement accounts for 10 to 15 and more than 30 per cent of the gross domestic product (GDP) in developed and developing countries, but women-owned businesses receive only an estimated 1 per cent of the total annual spent (HLP-WEE 2017). Clearly, womenowned businesses, defined by UN Women as legal entities in any field that is more than 51 per cent-owned, managed and controlled by one or more women (UN Women 2020a), are not getting a fair deal from public procurement. Thus, interventions such as gender-responsive procurement can go a long way in ensuring that women-owned businesses’ share in public procurement significantly improves. In addition to the UN Secretary-General’s High-Level Panel on Women’s Economic Empowerment (HLP-WEE 2017), other works on gender and public procurement stress the reforming and economic potential of gender-responsive public procurement. Some examples are Chin (2017); European Institute for Gender Equality (2020a), International Trade Centre (2014), Kiwekete and Doorgapersad (2017), McCrudden (2004), Nyeck (2015, 2017), Nyeck and Benjamin (2014); Rimmer (2017), UN (2014), UN Kenya (2019); and UN Women (2019). Furthermore, the European Institute for Gender Equality (2020a) finds that ‘basic principles governing public procurement contracts require that they should always be awarded in observance of the principles of equality and non-discrimination, transparency, competition and a flat-rate basis.’ It further argues, Public procurement has a great potential to promote gender equality. Whenever possible, it is important to incorporate gender equality in the subject of the contract itself. This will allow the incorporation of gender equality clauses requiring gender technical competence to the awarding entities, as well as the inclusion of gender criteria for the evaluation of the submitted proposals and for further implementation. In a cognate vein and specific to sub-Saharan Africa, Nyeck’s (2015) work is the first comparative study of gendered dynamics in national procurement legislations covering 16 sub-Saharan African countries from 1995 to 2014. Overall, Nyeck decries the disordered adoption of gender in public procurement laws. In the bestcase scenario, gender-responsive public procurement can engender gender equality and women empowerment through preferentially engaging women-owned businesses. Yet, despite the many contributions women-owned businesses have made

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to economic growth and development around the world, their full potential has yet to be realized in public procurement (Chin 2017, xii). Among the challenges noted are market entry barriers of financial and non-financial nature that women-owned businesses face (Chin 2017). While there are varied solutions to entry, genderresponsive public procurement is vital. The case for gender-responsive public procurement is more deserving in Africa as next explained. The Case for Gender-Responsive Public Procurement in Africa Studies make the argument that there is a correlation between gender-responsive public procurement and enhanced gender equality and women empowerment (Chin 2017; European Institute for Gender Equality 2020a; International Trade Centre 2014; Kiwekete and Doorgapersad 2017; McCrudden 2004; Nyeck 2015, 2017; Nyeck and Benjamin 2014; Rimmer 2017; and UN 2014). Thus, given deep pockets of gender inequality and women’s disempowerment in Africa, a case is made for gender-responsive public procurement to enhance gender equality and women’s economic empowerment. Gender equality ‘refers to the equal rights, responsibilities and opportunities of women and men and girls and boys’ (UN Women 2020b). Equality does not mean that women and men will become the same but that women’s and men’s rights, responsibilities and opportunities, will not depend on whether they are born male or female (UN Women 2020b). Gender equality on the African continent is the subject of many works, conferences, and summits. The latest such summit was the Global Gender Summit 2019 (25–27 November) themed ‘Unpacking constraints to gender equality.’ Amongst many observations, delegates affirmed an all-familiar truism; one of the greatest threats to Africa’s future is gender inequality. In a related vein, McKinsey Global Institute (2019) echoes the same sentiments. Although some countries have made tremendous progress towards gender parity in some areas, overall, the gap between men and women in Africa in both society and employment remains high (McKinsey Global Institute 2019) As per the McKinsey report of 2019, Africa’s gender parity score (GPS) was 0.58, indicating high gender inequality and this was the same score in 2015. This empirical finding means that, overall, Africa is maintaining a status quo at 0.58 on the gender parity scale (1 being the perfect score). Gender equality and women’s empowerment are mutually reinforcing goals (William and Flora Hewlett Foundation 2017). Gender equality is a necessary foundation for empowerment (William and Flora Hewlett Foundation 2017). Thus, gender inequality leads to women’s disempowerment. There are three kinds of empowerment: (i) economic; (ii) social, and (iii) political (Eyben 2011; Herbert 2014). This chapter is concerned with variant (i); economic empowerment. A woman is economically empowered when she has both the ability to succeed and advance economically and the power to make and act on economic decisions (ICRW 2011, 4). Women’s economic empowerment is widely recognized by governments, international development institutions, and businesses globally as

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essential for human progress, thriving economies, and business success (William and Flora Hewlett Foundation 2017). Economic empowerment is composed of two interrelated components: (1) economic advancement and (2) power and agency (ICRW 2011). So, given poor gender parity scores in Africa and country specifics and uniqueness, women empowerment is a challenge better approached through specific case studies. The Basis for Gender-Responsive Public Procurement in Botswana Botswana, like all countries in the sub-Saharan African sub-region, has deep pockets of gender inequality (Botlhale 2020). Botswana is a signatory to many gender equality-affirming instruments such as the Convention on the Elimination of all forms of Discrimination against Women in 1986 and being a party to the Beijing Platform of Action, and regional ones, for example signing the SADC Declaration on Gender (1997) and Revised SADC Protocol on Gender and Development (2017). In addition, it adopted the National Gender Policy in 2015. Despite the foregoing actions, the causes for gender equality and its cognate, women empowerment, are yet to be actualized. This situation is manifest in gender equalitymeasuring instruments such as the United Nations Gender Inequality Index (see UNDP 2017); Global Gender Gap indices (measures of gender-based disparities); Africa’s Gender Parity Score and Botswana Gender Scorecard Review. Cognate gender equality measuring instruments are the African Union Commission Gender scorecard, African Development Bank’s Gender Equality Index and SADC Gender Barometer. A discussion of some of the foregoing gender equality measuring instruments next follows. The Gender Parity Score (GPS) measures the distance from parity. The Gender Parity Score weights each indicator equally and calculates an aggregate measure at the country level of how close women are to gender parity (McKinsey Global Institute 2019). A GPS of 1.00 indicates parity; a GPS of 0.95, for example, indicates that a country has 5 per cent to go before attaining parity. For most indicators, low inequality is defined as being within 5 per cent of parity, medium between 5 and 25 per cent, high between 25 and 50 per cent, and extremely high as greater than 50 per cent from parity (McKinsey Global Institute 2019). As per the McKinsey’s Africa’s gender parity score report (2019), Botswana’s overall GPS was 0.59. This placed the country at position 23 out of 34 surveyed countries. This means that the country has a remaining gender parity gap of 0.41. The World Economic Forum has a similar instrument called the Global Gender Gap index. Since 2006, the Global Gender Gap Index has been measuring the extent of genderbased gaps among four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment) and tracking progress towards closing these gaps over time (World Economic Forum 2020). In 2020, the World Economic Forum ranked Botswana 73/153 with a gender gap index score of 0.709. Thus, it had closed 71 per cent of its gender gap.

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It is notable that regarding economic participation and opportunity, the score was 0.779. Finally, between 2006 and 2020, there was an improvement of 0.019 (0.709–0.69), or 2.75 per cent in the gender gap index score. Regarding economic participation and opportunity, there was an improvement of 0.086 (0.779–0.693), or 12.4 per cent. To improve the gender gap and women empowerment, these statistics must be improved, especially, through the vehicle of gender-responsive public procurement. Botswana’s Human Development Index (HDI) value for 2019 was 0.735 and this put the country in the high human development category (UNDP 2020). It is notable that between 1990 and 2019, Botswana’s HDI value increased from 0.573 to 0.735, an increase of 28.3 per cent (UNDP 2020). Prima facie, the foregoing statistics are very impressive because they demonstrate remarkable developmental achievements. Botswana’s gross national income per capita increased by about 85.4 per cent between 1990 and 2019 (UNDP 2020). However, the statistics do not tell the whole and/or full story because they are not inequality-adjusted through the Inequality-adjusted Human Development Index (IHDI). The 2010 Human Development Report introduced the IHDI, which considers inequality in all three dimensions of the HDI by ‘discounting’ each dimension’s average value according to its level of inequality (UNDP 2020). The three dimensions of the HDI are: (i) health (measured by female and male life expectancy at birth); (ii) education (measured by female and male expected years of schooling for children and mean years for adults aged 25 years and older); and (iii) command over economic resources (measured by female and male estimated gross national income per capita). Due to a lack of relevant data, the IHDI was not calculated for Botswana during the 2019 survey period. However, based on past computations that showed a significant divergence between the HDI and IHDI, it can be plausibly asserted that due to existing gender inequality in the distribution of developmental outcomes, the IHDI was lower than the HDI in 2019. In 2016, HDI vs IHDI was 0.698 vs 0.433; a loss of 37.9 per cent due to inequality in the distribution of the HDI dimension indices (UNDP 2016). Within the Human Development Report, Gender Development Index (GDI) and Gender Inequality Index (GII) are embedded. The GDI measures gender inequalities in achievement in three basic dimensions of human development: health (measured by female and male life expectancy at birth), education (measured by female and male expected years of schooling for children and mean years for adults aged 25 years and older) and command over economic resources (measured by female and male estimated gross national income per capita (UNDP 2016). The GDI, based on the sex-disaggregated Human Development Index, is defined as a ratio of the female to the male HDI. The GII reflects gender-based inequalities in three dimensions: Reproductive health, empowerment, and economic activity (UNDP 2016). Regarding the GDI during the 2019 survey period, the female HDI value for Botswana was 0.734 in contrast with 0.735 for males, resulting in a GDI value of 0.998 (UNDP 2020). Concerning the GII during the 2019 survey period, Botswana had a GII value of 0.465, ranking it 116 out of 162 countries in the

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2019 index (UNDP 2020). In Botswana, 10.8 per cent of parliamentary seats are held by women, and 89.6 per cent of adult women have reached at least a secondary level of education compared to 90.9 per cent of their male counterparts (UNDP 2020, 5). Lastly, female participation in the labor market was 65.4 per cent compared to 76.9 for men during the 2019 survey period. Therefore, both the GDI and GII during the 2019 survey period, and before then, bespeak deep pockets of unequal human development which phenomenon is largely, and almost solely, a consequence of gender inequality. From what precedes, it is apparent that gender equality and women empowerment are a problem in Botswana. The same picture emerges in cognate gender equality-measuring instruments such as the Botswana Gender Scorecard Review, African Union Commission Gender scorecard, African Development Bank’s Gender Equality Index, and SADC Gender Barometer. This situation calls for interventions such as gender-responsive public procurement. The Regulatory Framework for Public Procurement in Botswana Botswana's public procurement system is centered on the Public Procurement and Asset Disposal Board (PPADB), whose mission is ‘to lead the effective implementation of a devolved, efficient, cost-effective and transparent public procurement and asset disposal system through an appropriate regulatory environment’ (Kumar and Caborn 2013, 25). PPADB is a parastatal organization, operating under the Ministry of Finance and Economic Development (PPADB 2020). The primary mandate of PPADB is to adjudicate and award tenders for central government and any other institutions specified under the Act for the delivery of works, services, and supplies. The Board is also responsible for the registration and discipline of contractors who do business with the government. It supports capacity building on procurement and asset disposal, and monitors adherence to the Act and provides advice (PPADB 2020). The enabling statute is the Public Procurement and Asset Disposal Board (PPADB) Act. This is an Act to establish the Public Procurement and Asset Disposal Board and its committees and provide for the procurement of works, supplies, and services, for the disposal of public assets and related matters (Republic of Botswana 2011). The Act was assented to on 7 August 2001 and the date of commencement was 2 July 2002. The provisions of the Act apply to all entities of the central government which are involved in public procurement or the disposal of public assets, whether they are located abroad or within Botswana, land boards; all parastatals; statutory organizations; and local authorities. This is done in accordance with provisions of section 8 of the PPADB Act except where exempted by the Minister by notice published in the Government Gazette. The provisions of the Act cover the procurement or disposal of all assets acquired by any means; the procurement of all works, services, supplies, or any combination thereof, however classified; the disposal of serviceable and unserviceable physical properties and land; and items acquired through works.

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The functions and powers of the PPADB are outlined in sections 26 to 57. The functions and powers of the Board are detailed in section 26. Unless otherwise provided for in this Act or any other enactment, the Board shall ensure that all public procurement and asset disposal entities, in making their decisions, consider the principles of, (a) An open, competitive economy and changing external obligations in relation, generally to trade and specifically to procurement, which dynamically impact on a continual basis on domestic procurement policy and practice. (b) Standardization of procurement items in the interest of cost reduction, ease of maintenance and technological effectiveness. (c) Aggregation of procurement and disposal activities and items that are common to procuring or disposing entities in order to benefit from economies of scale. (d) Competition among contractors by using the most efficient and competitive methods of procurement or disposal to achieve the best value for money. (e) Fair and equitable treatment of all contractors in the interest of efficiency and the maintenance of a level playing field. (f) Accountability and transparency in the management of public procurement and in the disposal of public assets to promote ownership of the system and minimize challenges thereto. (g) Integrity, fairness of and public confidence in, the procurement and disposal process (PPADB 2020). Devolution of Public Procurement and Asset Disposal Management is covered in sections 61–65. This is actualized through the establishment of Ministerial Procurement and Asset Disposal Committees, Special Procurement and Asset Disposal Procurement Committees, and District Procurement and Asset Disposal Committees. Reserved and Preferential Treatment is covered in sections 66–76. Some of the items covered under these sections are: economic and social objectives and procurement (sec. 66); empowerment of citizen contractors (67); process for preferential schemes (68); and certification of eligibility (69); eligibility for preference (70); reserved schemes (71); and procurement preferences and reservation schemes (72). It is notable that Reserved and Preferential Treatment (ss 66–76) does not explicitly mention gender-responsive public procurement. The only procurement preferences and reservation schemes referred to relate to citizen contractors (or bidders). Thus, the PPADB Act is gender-neutral, or appropriately put, gender-blind. That is, it treats all sex sub-groups, male (men and boys) and female (women and the girl child), equally. That is, it puts them on the same legal pedestal and expects them to compete equally in the public procurement process. Hence, the PPADB Act, like other laws in Botswana, wrongly assumes that the equality of opportunities (treating everyone equally) will lead to an equality of outcomes (everyone finishing at the same time). This is a mistaken view as equal opportunities do not always lead to equal outcomes (Moberly 2018, World Bank

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2006). Achievement of equality in the broader, more results-oriented, redistributive sense, based on the insight that equality of opportunity and equal treatment may not be enough to redress the historical oppression and disadvantage of women (European Institute for Gender Equality 2020b). Thus given women’s vulnerability as understood in the works of Fineman (2008, 2015, 2017), Nyeck (2020) etc., there is a need to address vulnerability through, amongst others, gender procurement to ensure equal outcomes. In a way, doing so will be in accord with the ethic of the equality of outcomes. Citizen Economic Empowerment, Privatization, and the Absence of Gender-Responsive Public Procurement in Botswana It is notable that the case for gender-responsive public procurement is premised on the divergence between equality of opportunities (treating everyone equally) and equality of outcomes (everyone finishing at the same time). Gender responsiveness ‘refers to outcomes that reflect an understanding of gender roles and inequalities and which make an effort to encourage equal participation and equal and fair distribution of benefits’ (UNDP 2015, 7). Gender responsiveness is accomplished through gender analysis and gender inclusiveness (UNDP 2015). Being genderresponsive means that rather than only identify gender issues or work under the ‘do not do harm’ principle, a process will substantially help to overcome historical gender biases – to ‘do better,’ so to speak – for women to truly engage and benefit from these actions (IUCN 2020). In addition, gender-responsive planned actions should integrate measures for promoting gender equality and women’s empowerment, foster women’s inclusion, and provide equal opportunities for women and men to derive social and economic benefits (IUCN 2020). Thus, gender-responsiveness means going beyond acknowledging gender gaps and really doing something about the discrepancies (IUCN 2020). In this regard, gender-responsive public procurement should be understood in reference to the foregoing framework. A review of the regulatory framework for public procurement in Botswana as manifest in the PPADB Act (2011) only leads to one conclusion: There is no provision for gender-responsive public procurement. What the Act provides for is the equality of opportunities. This is apparent in the Reserved and Preferential Treatment that is covered in sections 66–76 of the Act. As per these sections, preference is accorded to citizen contractors (these being men and women). Thus, this is unlike gender-responsive public procurement acts in Ethiopia, Kenya, and South Africa where governments have mandated set-asides for women-owned businesses. The PPADB Act addresses itself to citizen contractors without regard to gender dimensions. In a related vein, under the Economic Diversification Drive, a program aimed to diversify the economic and export base of the country into sectors that will continue to grow long after diamonds have depleted, there is a provision for local preference. By way of a Presidential Directive, the government directed that the central government, local authorities, and parastatal organizations must purchase

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locally produced goods and services from locally based manufacturers and service providers (Republic of Botswana 2008). The original directive was supplanted by another one in 2014; Cab 34(b) 2014. It directed the central government, local authorities, and parastatal organizations to purchase locally produced goods and services from locally based manufacturers and service providers and agricultural producers as contained in Annex I of the Economic Diversification Drive (EDD) Revised Guidelines through Preference Margins Based on Turnover Thresholds (Republic of Botswana 2015). This is subject to the following: That the goods and services are competitively priced and meet tender requirements and specifications. In this regard, procuring entities can only procure goods and services listed under Annex I subject to approval from the Public Procurement and Asset Disposal Board (PPADB), Ministerial Tender Committees, and Local Authorities Procurement and Asset Disposal Committees. Notably, the Economic Diversification Drive (EDD) does not entail gender-responsive procurement; it only addresses citizen reservation. Citizen reservation under the EDD is provided for under the following: (i) local contractors (works contracts or construction-related projects); (ii) local service providers (e.g., printing and publishing; catering services, cleaning services, various consultancies, engineering services, funeral parlors, etc.,) and (iii) local manufacturers (textile and apparel, stationery, chemicals, food, wooden/steel furniture, and upholstery). Similarly, there are various local procurement schemes whose principal focus is gender-neutral citizen empowerment disregarding gender-responsive public procurement. Examples are: Local Procurement Program (1976), Reserved Sectors Policy (1982), Local Procurement Scheme (1997), and Citizen Economic Empowerment Policy (2012). First, there was the Local Preference Scheme (1976) followed by the Local Procurement Scheme in 1997, Reserved Sectors Policy in 1982, and Selibe Phikwe Regional Development Program (1988). The Local Procurement Scheme (LPS), which replaced the Local Procurement Program, is intended to reserve 20 per cent of public procurement for purchases from citizenowned small- and medium-scale firms that qualify under the program. The applicable (cumulative) Preference Margins are as follows: Women (3 per cent), youth (3 per cent), people living with disabilities (3 per cent), rural setting (3 per cent), and employment-creating projects (3 per cent) (PPADB 2019). The Citizen Economic Empowerment Policy (CEEP) was adopted in August 2012 (Republic of Botswana 2012). According to the CEEP, Citizen Economic Empowerment is a set of interrelated interventions aimed at strengthening the ability of citizens to own, managing and controlling resources, and the flexibility to exercise options which will enable Botswana to generate income and wealth through a sustainable, resilient and diversified economy (Republic of Botswana 2012). Regarding the use of the budget as an empowerment tool, the CEEP states, The Policy proposes the use of the national budget as an empowerment tool. Since the Public Procurement and Asset Disposal Board (PPADB) is already decentralizing procurement to Ministries and Local Authorities, there is need

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to strengthen the capacity of these entities to manage and monitor their budgetary allocations and sourcing of goods and services. More flexibility and discretion in procurement will allow government institutions to do business at all levels with service providers including local communities and, therefore, promoting citizen entrepreneurs. Government will continue to decentralize payment systems to further reduce the time taken to pay creditors. (Republic of Botswana 2012, 9–10) Citizen reservation under the CEEP covers works, services, and supplies. Under works, reservation is actualized in two ways: (i) citizen consultants; and (ii) citizen contractors. Under citizen consultants, the services covered are building construction up to 150 million Botswana Pula (US $12.71 million); civil works up to 53.62 million Botswana Pula (US $4.07 million); electrical and mechanical up to 4.8 million Botswana Pula (US$ .0.41 million); water engineering up to 24 million Botswana Pula (US$ 2.03 million); and water exploration up to 1.2 million Botswana Pula (US$ 0.10 million) (PPADB 2019). Regarding citizen contractors, the works are grades OC to B (all disciplines reserved); building construction up to 7.2 million Botswana Pula (US$ 0.61 million); civil works up to 20 million Botswana Pula (US$ 1.69 million); electrical and mechanical up to 960,000 Botswana Pula (US$ 81356.41); water engineering up to 800,000 Botswana Pula (US$ 67,797.01); roads ancillary works (all grades) and fencing [all grades] (Republic of Botswana 2012). Under services, reservation for citizen consultants covers information technology consultancy up to 3 million Botswana Pula (US$ 0.25 million); accountancy up to 1.2 million Botswana Pula (US$ 0.10 million); and other consultancies up to 720,000 Botswana Pula [US$ 61,020]. Under supplies, reservation for citizen contractors covers information technology supplies up to 3 million Botswana Pula (US$ 0.25 million); citizen-owned companies up to 10 million Botswana Pula (US$ 0.85 million); manufacturing essential and vital medicines; manufacturing non-essential medicines (supplying essential and vital medicines and laboratory reagents, supplies and medical equipment; and supplying non-essential medicines provided they are not manufactured in Botswana and nonessential laboratory reagents and supplies and minor medical equipment and consumables/accessories provided that they are not manufactured in Botswana. Lastly, parliament discussed the Citizen Economic Empowerment bill in July 2020 and it is yet to be passed into law at a subsequent sitting. Like the Citizen Economic Empowerment Policy that it intends to replace, the bill does not explicitly spell out how citizen empowerment will be gender-mainstreamed, through for instance gender-responsive public procurement, to benefit women who are traditionally disenfranchised. Therefore, the gender silence in the proposed act means that women will be passive and bemused spectators of citizen economic empowerment. Simultaneously, there is the Reserved Sectors Policy (1982, as amended). The policy is meant to promote citizen participation in the economy by reserving certain economic activities for them only. Lastly, elements of citizen reservation are found in the Local Authorities Procurement and Asset Disposal Act (2009). This

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is an Act to provide for the appointment of procuring and disposal committees in local authorities, the establishment of a Competent Authority to monitor procurement processes locally to provide for the procurement of works, supplies and services, for the disposal of public assets and related matters (Republic of Botswana 2009). Section 37 provides for the empowerment of citizen contractors. In part, it states that ‘in order to promote the empowerment of citizen contractors (a) citizen contractors shall, in relation to their respective classification, be treated fairly and equitably in respect of all procurement and disposal activities.’ It is deducible from the foregoing that local preference programs such as the Local Procurement Program (1976), Reserved Sectors Policy (1982), Local Procurement Scheme (1997), Economic Diversification Drive (2010), and Citizen Economic Empowerment Policy (2012) are just that, local preference programs. That is, they are not gender-responsive public procurement instruments. Genderresponsive public procurement, if mentioned at all, is in cursory and non-explanatory terms as manifest in the Local Procurement Scheme (LPS)’s applicable (cumulative) Preference Margins: Women (3 per cent), youth (3 per cent), people living with disabilities (3 per cent), rural setting (3 per cent), and employmentcreating projects (3 per cent) (PPADB 2019). As previously argued, these local preference programs create a situation of equality of opportunities excepting the 3 per cent preference margin for women-owned businesses as provided under the Local Procurement Scheme. It is very telling that even under the Privatization Policy (Republic of Botswana 2000), gender-responsive public procurement is not provided for because the policy is not gender-mainstreamed (Botlhale 2014). Yet, every single aspect of reservation and preferential schemes above-outlined impacts the lives of women as consumers and producers of public goods. The Privatization Policy is a product of extensive nationwide consultations by a Task Force that prepared the policy’s draft White Paper in 1998 (PEEPA 2020). To actualize the Privatization Policy for Botswana of 2000, the government approved the first Privatization Master Plan in 2005 (PEEPA 2005). The purpose of the Privatization Master Plan I was to provide a framework and guidelines for increasing private sector participation in the economy. This was followed by the Privatization Master Plan II, 2012–17 (PEEPA 2011) and this is the Plan that is guiding the privatization process today. Privatization is based on some of these objectives: Promoting competition, improving efficiency, and increasing productivity of enterprises; increasing direct citizen participation in the ownership of national assets; and accelerating the rate of economic growth by stimulating entrepreneurship and investment (Republic of Botswana 2000, 8). Instructively, the Policy states that one of the founding principles is that ‘privatization will be conducted for the benefit of all, not for the privileged few’ (Republic of Botswana 2000, 9). In addition, the Policy addresses issues of Citizen Economic Empowerment. Unfortunately, the Policy is not gender-mainstreamed (Botlhale 2014), therefore, it does not state how women, a traditionally disenfranchised constituency, will benefit from outsourced public works, goods, and services. Like other policies, the Privatization Policy does not provide for gender-responsive public procurement. This gender silence

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in policy is troubling given the finding by others that privatization has increased vulnerability especially when social responsibility vacates the public sphere and collective solidarities (Fineman et al. 2017). Making the Case for Gender-Responsive Public Procurement in Botswana The case for gender-responsive public procurement in Botswana is mainly based on one metric, poverty statistics. Poverty statistics are compiled using information obtained from household income and expenditure surveys (Statistics Botswana 2016). Poverty statistics data include poverty income inequality, consumption patterns, sources of income, proportion and distribution of persons living below the poverty datum line, poverty profiles, and distribution of per capita consumption. In 2015/16, Statistics Botswana conducted the Botswana Multi-Topic Household Survey (BMTHS) which combined labor and poverty modules. The results show a decrease in the national poverty incidence from 19.3 per cent in 2009/10 to 16.3 per cent in 2015/16. The decrease in poverty incidence [30.6 per cent (2002/03), 19.3 per cent (2009/10) and 16.3 per cent (2015/16)] shows a downward trend between the period 2002/03 and 2015/16. Other reports confirm this trend. For example, according to World Bank (2020), poverty rates were 57.50 per cent in 2009, a 9.2 per cent decline from 2002; 66.70 per cent in 2002, a 9.3 per cent decline from 1993; and 76 per cent in 1993, a 5.6 per cent decline from 1985. Like in many subSaharan African countries, there is feminized poverty in Botswana (Botlhale 2011, 2014; Malope 2005; Siphambe 2003; Statistics Botswana 2013, 2016). To illustrate, as per the 2015/16 Botswana Multi-Topic Household Survey (BMTHS), there is a higher percentage of female-headed poor households than those that are maleheaded. Nationally, 55 per cent of poor households are female-headed while 45 per cent are male-headed, indicating that poverty incidence is higher among femaleheaded households (Statistics Botswana 2016, 3). In a recent study by Lekobane (2020), the multidimensionally poor are deprived in 47.4 per cent of all indicators studied. The results estimated multidimensional poverty incidence at 46.2 per cent. Thus, this figure is higher than the estimated monetary estimate of 16.3 per cent and has gender implications. These statistics signify feminized poverty and women disempowerment. Therefore, women face vulnerability, chiefly, in the form of poverty, hence, there is a need to alleviate, if not eradicate, poverty in all its forms. Poverty is multidimensional, that is, it manifests in many and different forms (Walker 2015). Due to its multidimensionality, poverty is measured using composite tools such as the Multidimensional Poverty Index (MPI). Multidimensionality also means that there are many and varied ways to deal with poverty. This chapter argues that one of the principal ways to fight multidimensional poverty which disproportionately affects women (UNDP 2019) is through deliberate affirmative action, such as gender-responsive public procurement policies and practices. It should be noted that the argument here is not that gender-responsive public procurement is a sufficient condition for ending feminized poverty in Botswana. If anything,

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it is a necessary condition. In this regard, there must be a multidimensional approach to the eradication of poverty. Thus, there is a need to amend procurement laws such as the PPADB Act to provide for gender-responsive public procurement. As it is, the PPADB Act is top-heavy on citizen economic empowerment and only tangentially talks about gender-responsive public procurement as manifest in Preference Margins. In addition, local preference programs be they the Reserved Sectors Policy (1982), Local Procurement Scheme (1997), Economic Diversification Drive (2010) and Citizen Economic Empowerment Policy (2012) need to be amended so that they explicitly talk to gender-responsive public procurement. Just like the PPADB Act, they mention Preference Margins for women-owned businesses, but it is notable that Preference Margins for women-owned businesses are not tantamount to gender-responsive public procurement, as Nyeck has argued that supply-focused responses split women’s allegiance and impede holistic public procurement reform (Nyeck 2015). In terms of benchmarking and peer learning, Botswana can learn from established practices such as Australia, Chile, Ethiopia, Jamaica (Kirton 2012), Kenya, Uganda, South Africa (Doorgapersad and Kinoti 2015), South Korea, and the USA. For example, Ethiopia, in collaboration with UN Women, revised the public procurement proclamation to become more gender-responsive (Tamiru 2014). It is expected that with provisions on gender-responsive procurement law, Ethiopia’s female-owned enterprises and businesses would be able to compete and win more tenders contributing to their economic participation (Tamiru 2014). Regarding Kenya, efforts to promote the participation of women in public procurement was inaugurated during the second Medium Term Plan (2013–17) (see Republic of Kenya 2013). In this regard, UN Women, under its Women’s Economic Empowerment (WEE) program, is closely working with key government agencies such as the Public Procurement Oversight Authority, the Women Enterprise Fund, and the Kenya Institute of Supplies Management, to realize the goal of genderresponsive procurement. In a related token, Botswana’s Privatization Policy must be amended so that it explicitly addresses issues of gender-responsive public procurement. As it is, the Policy is manifestly top-heavy on gender-blind citizen economic empowerment. Finally, in terms of developing a Gender-Responsive Assessment Framework, the country does not have to reinvent the wheel because such instruments are already in place. An example is the WHO Gender-Responsive Assessment Scale. The Scale consists of six levels: Level 1 (Gender-unequal); Level 2: (Gender-blind); Level 3 (Gender-sensitive); Level 4 (Gender-specific); Level 5 (Gender-transformative, which includes strategies to foster progressive changes in power relationships between women and men) (WHO 2011). The Department of Gender Affairs, under the Ministry of Nationality, Immigration and Gender Affairs, should be tasked with overseeing the implementation of the Gender-Responsive Assessment Framework. Thus, public procuring entities should lay before the Department of Gender Affairs reports of their gender-responsive public procurement initiatives. Finally, the consolidated report should be laid before a parliamentary select committee that deals with gender issues.

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Conclusion Vulnerability is a fact of life in all regions of the world, particularly, in the subSaharan African sub-region. Gender vulnerability is due to deep-seated pockets of patriarchy which result in entrenched gender inequality. The most pervasive effect of gender inequality is feminized poverty and women disempowerment. As a result, women suffer from diseases of poverty such as TB, malaria, HIV and AIDS, and ubiquitous malnutrition. Diseases of poverty disproportionately exact mortality, fatality, and morbidity on women. This vulnerability has galvanized governments to respond in a variety of ways such as ratification of gender equality-affirming international instruments such as the Convention on the Elimination of All Forms of Discrimination against Women (1979) and Optional Protocol to the Convention (1999), ratification of gender equality-affirming regional instruments such as AU Gender Policy and promulgation of national laws (e.g., Gender Policy in Botswana). Cognate initiatives include gender-responsive public procurement initiatives. Botswana has done all the foregoing but gender-responsive public procurement initiatives. Given demonstrated evidence that gender-responsive public procurement initiatives positively correlate with gender equality and women empowerment, the case for gender-responsive public procurement in Botswana is readily saleable. Gender-responsive public procurement will entail gender-mainstreaming the PPADB Act and citizen empowerment schemes such as Reserved Sectors Policy (1982), Local Procurement Scheme (1997), Economic Diversification Drive (2010) and Citizen Economic Empowerment Policy (2012). Finally, given that the adverse effects of COVID-19 will disproportionately impact women as producers and users of publicly procured goods, works, and services, gender-responsive public procurement is critical in strategic sectors such as health and emergency relief. Therefore, gender-responsive public procurement will very favorably circumstance the government of Botswana to fulfil its SDG 5 obligations (achieve gender equality and empower all women and girls) and its obligations under the African Union’s Strategy on Gender Equality and Women’s Empowerment (2018–28). References AfDB (African Development Bank). 2009. High-Level Forum Adopts Tunis Declaration on Public Procurement Reforms in Africa. http://www​.afdb​.org​/en​/news​-and​-events​/article​ /high​-level​-forum​-adopts​-Tunis​-declaration​-on​-public​-procurement​-reforms​-in​-africa. Accessed 18 June 2020. Botlhale, EK. 2011. Gender budgeting; the case for Botswana. Development Southern Africa, 28(1): 61–74. ———. 2014. The case for gender mainstreaming Botswana’s privatization process. Development Southern Africa, 31(6): 812–825. ———. 2020. Gender equality in Botswana: An unfulfilled agenda. International Journal of Gender Studies in Developing Societies, 4(3): 361–374. Chin, C. 2017. The Power of Procurement: How to Source From Women-Owned Businesses (Corporate Guide to Gender-Responsive Procurement). New York: UN Women.

G ender Responsiveness in Botswana  115 CIPA [Australia]. 2006. The Definition of Procurement. https://www​.cips​.org​/Documents​/ CIPSAWhitePapers​/2006​/Definition​_of​_Procurement​.pdf. Accessed 18 June 2020. Combaz, E. 2018. Models of Gender-Sensitive Procurement Used by International Aid Entities (K4D Helpdesk Report). Brighton, UK: Institute of Development Studies. Doorgapersad, SV and Kinoti, A. 2015. Gender-based public procurement practices in Kenya and South Africa. African Journal of Public Affairs, 8(3): 96–109. European Institute for Gender Equality. 2020a. Gender Procurement. https://eige​.europa​ .eu​/gender​-mainstreaming​/methods​-tools​/gender​-procurement. Accessed 18 June 2020. ———. 2020b. Equality of Outcome. https://eige​.europa​.eu​/thesaurus​/terms​/1108. Accessed 15 October 2020. Eyben, R. 2011. Supporting Pathways of Women’s Empowerment: A Brief Guide for International Development Organizations. Brighton: IDS. Fineman, AM, Mattsson, T and Andersson, U. 2017. Privatization, Vulnerability, and Social Responsibility; a Comparative Perspective. London: Routledge. Fineman, MA. 2008. The vulnerable subject: Anchoring equality in the human condition. Yale Journal of Law and Feminism, 20(1): 1–23. ———. 2015. Equality and Difference - The Restrained State (Legal Studies Research Paper Series, Research Paper No. 15-348). http://ssrn​.com​/abstract​=2591689. Accessed 20 July 2020. ———. 2017. Vulnerability and inevitable inequality. Oslo Law Review, 4(3): 133–149. Hakura, D, Hussain, M, Newiak, M, Thakoor, V and Yang, F. 2016. Inequality, Gender Gaps and Economic Growth: Comparative Evidence for Sub-Saharan Africa. Washington, DC: IMF. Herbert, S. 2014. Links Between Women’s Empowerment (Or Lack of) and Outbreaks of Violent Conflict. Birmingham: GSDRC. HLP-WEE (UN Secretary General’s High-Level Panel on Women’s Economic Empowerment [HLP-WEE]). 2017. Driver 6 Toolkit; How to Improve Public Sector Practices in Employment and Procurement. http://hlp​-wee​.unwomen​.org/-​/media​/hlp​ %20wee​/attachments​/reports​-toolkits​/hlp​-wee​-toolkit​-driver​-6​-en​.pdf​?la​=en. Accessed 18 June 2020. Hong, P and Kwon, He-B. 2012. Strategic procurement: A review and prospect. International Journal of Procurement Management, 5(4): 452–469. ICRW (International Center for Research on Women). 2011. Understanding and Measuring Women’s Economic Empowerment Definition, Framework and Indicators. Washington, DC: ICRW. International Trade Centre. 2014. Empowering Women Through Public Procurement. Geneva, Switzerland: ITC. IUCN. 2020. Stop Being So Sensitive! The Shift From Gender-Sensitive to GenderResponsive Action. https://gen​dera​nden​vironment​.org​/2015​/08​/stop​-being​-so​-sensitive​ -the​-shift​-from​-gender​-sensitive​-to​-gender​-responsive​-action/. Accessed 20 June 2020. Kerzner, H. 2006. Project Management; a Systems Approach to Planning, Scheduling and Controlling. Hoboken, NJ: John Wiley & Sons. Kirton, MR. 2012. Gender, Trade and Public Procurement Policy: Kenya, Australia, Jamaica. London: The Commonwealth. Kiwekete, AK and Doorgapersad, SV. 2017. Gender based e-procurement within the city of Johannesburg Metropolitan Municipality. International Journal of e-Business and e-Government Studies, 9(1): 9–23.

116  Emmanuel Botlhale Kumar, RA and Caborn, E. 2013. The regulatory framework for public procurement in Botswana. In: G. Quinot and S. Arrowsmith (Eds.), Public Procurement Regulation in Africa. Cambridge, England: Cambridge University Press, pp. 25–45. Lekobane, KR. 2020. Leaving No One Behind: An Individual-Level Approach to Measuring Multidimensional Poverty in Botswana (IDS Working Paper 539). Brighton: Institute of Development Studies. Malope, OG. 2005. Women and Poverty in Botswana. MA Thesis, University of Botswana, Gaborone. McCrudden, C. 2004, Using public procurement to achieve social outcomes. Natural Resources Forum, 28: 257–267. McKinsey Global Institute. 2019. The Power of Parity: Advancing Women’s Equality in Africa. San Francisco: McKinsey Global Institute. Moberly, T. 2018. Men Outnumber Women Three to One in Some Specialties. https://doi​.org​ /10​.1136​/bmj​.k4098. Accessed 20 June 2020. Nyeck, SN. 2015. (Out) bidding women: Public procurement reform diffusion and gender equality in Africa. Wagadu: A Journal of Transnational Women’s and Gender Studies, 13: 13–54. ———. 2017. Why Does Gender Equality Matter to Public Procurement? An African Perspective. March 14. http://www​.hrprocurementlab​.org​/blog​/why​-does​-gender​ -equalitymatter​-to​-public​-procurement​-an​-african​-perspective/. Accessed 18 June 2020. ———. 2020. Gender equality in public procurement. In: A. Farazmand (Ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance. https://doi​.org​ /10​.1007​/978​-3​-319​-31816​-5​_1598​-1. Nyeck, SN and Benjamin, O. 2014. Women, Gender and Government Outsourcing in Comparative Perspectives. New York: Cortland Center for Gender and Intercultural Studies. OECD (Organization for Economic Co-operation and Development). 2015. Recommendations on Public Procurement. Paris: OECD. ———. 2020. Public Procurement. https://www​.oecd​.org​/governance​/public​-procurement/. Accessed 18 June 2020. PEEPA (Public Enterprises Evaluation & Privatization Agency). 2005. Privatization Master Plan I. Gaborone: Government Printer. ———. 2011. Privatization Master Plan II. Gaborone: Government Printer. ———. 2020. About PEEPA. www​.peepa​.co​.bw​/aboutpeepa​.html. Accessed 1 April 2020. PPADB (Public Procurement and Asset Disposal Board). 2019. Guidelines for Application of Empowerment Schemes. Gaborone: Government Printing and Publishing. ———. 2020. PPADB. http://www​.ppadb​.co​.bw/. Accessed 18 June 2020. Raymond, J. 2008. Benchmarking in public procurement. Benchmarking: An International Journal, 15(6): 782–793. Republic of Botswana. 2000. Privatization Policy for Botswana. Gaborone: Ministry of Finance and Development Planning. ———. 2008. Botswana Excellence; the Strategy for Economic Diversification and Sustainable Growth. Gaborone: Government Printing and Publishing. ———. 2009. Local Authorities Procurement and Asset Disposal Act. Gaborone: Government Printing and Publishing. ———. 2011. Public Procurement and Asset Disposal Board (PPADB) Act. Gaborone: Government Printing and Publishing.

G ender Responsiveness in Botswana  117 ———. 2012. Citizen Economic Empowerment Policy. Gaborone: Government Printing and Publishing. ———. 2015. Economic Diversification Drive (EDD) Revised Guidelines Through Preference Margins Based on Turnover Thresholds. Gaborone: Government Printing and Publishing. Republic of Kenya. 2013. Second Medium Term Plan, 2013–2017; Transforming Kenya: Pathway to Devolution, Socio-Economic Development, Equity and National Unity. Nairobi: The Presidency. Rimmer, HS (Ed.). 2017. Gender-Smart Procurement; Policies for Driving Change (Research paper). London: Chatham House/The Royal Institute of International Affairs. Siphambe, HK. 2003. Dimensions and measures to reduce poverty in Botswana. Pula: Botswana Journal of African Studies, 17(2): 19–25 Statistics Botswana. 2013. 2009/10 Botswana Core Welfare Indicators Survey (BCWIS). Gaborone: Government Printing and Publishing. ———. 2016. 2015/16 Botswana Multi Topic Household Survey. Gaborone: Government Printing and Publishing. Tamiru, M. 2014. Gender-Responsive Public Procurement in Ethiopia. https://www​ .empowerwomen​.org​/en​/community​/discussions​/2014​/4​/gender​-responsive​-public​ -procurement​-in​-ethiopia. Accessed 22 June 2020. UN Kenya. 2019. Thriving Through Gender-Responsive Public Procurement. https://www​ .genderinkenya​.org​/news​/thriving​-through​-gender​-responsive​-public​-procurement/. Accessed 14 August 2019. UN Women. 2019. Gender-Responsive Procurement. http://www​.unwomen​.org​/en​/about​ -us​/procurement​/gender​-res​pons​ivep​rocu​rement. Accessed 14 August 2019. ———. 2020a. Gender-Responsive Procurement. https://www​.unwomen​.org​/en​/about​-us​/ procurement​/gender​-responsive​-procurement. Accessed 18 June 2020. ———. 2020b. Gender Equality Glossary. https://trainingcentre​.unwomen​.org​/mod​/ glossary​/view​.php​?id​=36​&mode​=letter​&hook​=G​&sortkey=​&sortorder. Accessed 8 March 2018. UN (United Nations). 2014. Empowering Women Through Public Procurement. New York, NY: UN. UNDP (United Nations Development Program). 2015. Gender Responsive National Communications Toolkit. Washington, DC: UNDP. ———. 2016. Human Development Report 2016; Human Development for Everyone Briefing Note for Countries on the 2016 Human Development Report. http://hdr​.undp​ .org​/sites​/all​/themes​/hdr​_theme​/country​-notes​/BWA​.pdf. Accessed 8 March 2017. ———. 2017. Gender Inequality Index (GII). http://hdr​.undp​.org​/en​/content​/gender​ -inequality​-index​-gii. Accessed 11 March 2018. ———. 2019. Global Multidimensional Poverty Index 2019; Illuminating Inequalities. Washington, DC: UNDP. ———. 2020. Human Development Report 2020; The Next Frontier: Human Development and the Anthropocene (Briefing Note for Countries on the 2020 Human Development Report - Botswana). http://hdr​.undp​.org​/sites​/all​/themes​/hdr​_theme​/country​-notes​/BWA​ .pdf. Accessed 8 March 2021. Walker, R. 2015. Multidimensional Poverty (GSDRC Professional Development Reading Pack No. 22). Birmingham, UK: University of Birmingham. WHO (World Health Organization). 2011. Gender Mainstreaming for Health Managers: A Practical Approach; Facilitators’ Guide (Participants’ Notes). Geneva: WHO.

118  Emmanuel Botlhale William and Flora Hewlett Foundation. 2017. Women’s Economic Empowerment in SubSaharan Africa; Recommendations for Business Action. https://www​.bsr​.org​/reports​/ BSR​_Womens​_Empowerment​_Africa​_Main​_Report​.pdf. Accessed 18 June 2020. World Bank. 2006. World Development Report 2006: Equity and Development. Washington, DC: World Bank. ———. 2020. Botswana Poverty Rate, 1985–2020. https://www​.macrotrends​.net​/countries​ /BWA​/botswana​/poverty​-rate. Accessed 22 June 2020. World Economic Forum. 2020. The Global Gender Gap Report 2020. Cologny/Geneva: World Economic Forum.

Chapter 7

Gender-Responsiveness of Public Procurement and Tendering Policies in Kenya Gedion Onyango 1 and Marygoretty Akinyi Otieno 2

Introduction With democratisation, public1sector2reforms in Africa are founded on the public need to address the question of equality in the way the state operates and how it relates to social groups in society. This has mainly involved ensuring implementation of principles of representation, responsibility, responsiveness, and accountability in public administration and management (Rosenbloom 1983; V. Ostrom 2008; Onyango 2020). In response to the recent concerns with enhancing representative bureaucracy or democratic administration in Kenya, this chapter deals with questions around how policymakers can effectively measure bureaucratic responsiveness in the context of public contracting through a gendered analysis. Our approach explores the values of bureaucratic representation within the government systems vis-à-vis the gender responsiveness (or generally equality) within the gender vulnerability approaches and context. This allows us to understand how women are integrated into bureaucratic decisionmaking such as in contracting out government services, works, and goods (Newman 2002; Karanja et al. 2014; Nyeck 2015; Rimmer 2017). We consider the terms ‘bureaucratic representativeness’ and ‘responsiveness’ as critical value parameters of public administration because they put attention on who makes decisions and about who gets what and why. Hence, the values of representation and responsiveness are cognizant and descriptive of politics of resource distribution and power relations between groups inside and outside government agencies. They are also important in positioning different users in public service delivery or defining parameters of vulnerability when it comes to government choices and actions (or public policy). This approach further allows the scrutiny of the relationship between the decision-makers and the tender-seekers to understand the degree of bureaucratic representativeness and responsiveness of the public procurement regime. In general, therefore, we come from a belief that public

1  Lecturer of Public Policy and Administration at the Department of Political Science and Public Administration, University of Nairobi, Kenya. ORCID: 0000-0003-4984-2906. 2  Lecturer at African Women’s Studies Centre, University of Nairobi, Kenya. ORCID: 0000-0001-6807-4522.

DOI:  10.4324/9781003371663-8

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procurement, like all other bureaucratic activities, is not independent of underlying unequal power relations, networks, and politics including corresponding repressive and oppressive ideologies and philosophies that legitimize them (Schwartzman 2006). According to feminist institutionalism where we can also hinge vulnerability theory, these bureaucratic activities and processes are also patterned by the underlying social norms (culture), and are reinforced and reproduced across time and in different contexts of policymaking in public administration. Underlying tensions and inequalities, therefore, naturally characterize the nature of the bureaucracy despite modernization efforts as entailed in different generations of reforms that often aim at improving bureaucratic responsiveness and representation (including gender-responsiveness and representation). Still, these tensions do not simply disappear by adopting, for example, a managerial approach to the public sector whether this is done through privatization, marketization, or outsourcing of public works, goods, and services to private actors as is the norm in modern procurement processes. Furthermore, these reforms are considerably genderless because their abstractions of concepts like welfare justice or even equality either are not as specific to women as to all other vulnerable groups or they have not resulted in adequate mechanisms and norms that could substantively address underlying vulnerabilities. More especially, those vulnerabilities place women unfairly when it comes to economic and political activities in the political system. Thus, gender images in public administration (Stivers 2002) portray a public realm which is dominated by masculine culture, a site of power struggle and negotiations that either naturally subordinates women and their interests to those of men or is generally genderless to the prevailing inequalities between men and women and/or other vulnerable groups (Stivers 2000). To put this into context, this chapter discusses the experiences of women bidding for public contracts in Kenya. It examines common patterns in the allocation of tenders between men and women applicants. Our evidence points to prevailing deficits between the underlying bureaucratic norms and practices, on the one hand, and idealistic values of public administration of representation, responsiveness, and accountability on the other hand, as concerns the positions and capacities of women in the public procurement regime in Kenya. As such, we particularly demonstrate the degree to which structural inequalities in Kenya negatively affect competitiveness, thereby, limiting access and capacity of women that further results in the latter withdrawing from the bidding process. This is more especially when tendering works and goods require initial high investment to meet the selection criterion. Therefore, we argue that to discern and design apposite policies for engendering public procurement regime in Kenya to ensure equal access between men and women, there is a need to revisit the applicability of equality as ordered by the prevailing legislation, processes, and structures that, alternatively, have also done little to address underlying conditions, which are mostly analogous to elements of patriarchy and cultural beliefs that conventionally favors men against women (Amadi 2015; Kennedy, et al., 2020). In consequence, we argue that vulnerability-informed rather than equality-based policies provide a rather more refined framework for measuring the degree to which

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the existing procurement processes are gender-responsive when it comes to granting access and priory to women entrepreneurs or businesses in public procurement in Kenya. We build on Martha Fineman’s concept of vulnerability (cf. Fineman 2008, 2014) and Nyeck’s (2020) application to public procurement analysis, to i) explore the underlying forces of inequality, which are rather vaguely touched or untouched by existing legal frameworks in procurement processes, and ii) recommend ways to enhance gender-responsiveness of tendering processes in public administration and the prevailing challenges. Our empirical analysis is based on documentary analysis of statutory reports, interviews with women who had previously applied for tenders, and tender officials, including board members in different government agencies at the national and subnational levels of public tendering in Kenya. This chapter is organized as follows. The next section deals with a theoretical exposition that links institutional designs to matters of equality and vulnerability. This is intended to put into context Fineman’s concept of vulnerability in public administration and attendant procurement regime. The consecutive section presents the review of procurement in Kenya with specific attention to the evolution of the procurement regime in the country. This is followed by sections on methodology, data presentation, and discussions. The chapter concludes by highlighting and making suggestions on the key points of discussion. Engendering State Institutions: Bureaucratic Representativeness vs. Gender-Responsiveness In response to imbalances in bureaucratic gender-representation, two main streams of the feminist theory emerged in public administration in the mid-1970s in the United States, namely, descriptive and conceptual theories. They first pay attention to the status of women in public leadership and employment in the government in terms of their numbers, occupation, or positions, their integration opportunities and power (Guy 1993). Thus, strategies aimed at increasing women representation in decision-making were thought to be realizable through affirmative action to resolve numerical deficits and job discrimination between men and women (Eyde 1973). Bureaucratic under-representation was evident in and influenced by ‘career patterns, personal characteristics, the impact of domestic responsibilities on individual’s ability to cope with work demands, mentoring, sexual harassment, and management style preferences and behaviors’ (Stivers 2000, 32). The vulnerable position of women noted in the prevailing political culture and attitudes was thought to be reversible ‘through a process of significant change and reform [to achieve] more equitable balance between the numbers of female and male managers in state agencies’ (Guy 1993, 211). However, descriptive theories paid more attention to matters of accessibility and a little attention to underlying gender-biases that sustain the vulnerability of women. Concerning women, the descriptive theory could be said to lead to a gender-sensitive stance in public administration without too much attention to the underlying forces of suppression and vulnerability of women.

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Conversely, conceptual theories investigate underlying gender perspectives that produce inequality between men and women. These theories believe that simply adding women or providing access to women is hardly sufficient if underlying gender-biases are left intact. These theories, therefore, question existing approaches, strategies, and assumptions. It is assumed that ‘mainstream organizational analysis works from within a paradigm in which the reigning means-ends mode of rationality, though purportedly universal-neutral, is in actuality culturally masculine’ (Stivers 2000, 32). Most importantly, the bureaucracy here is seen as a society in miniature. In this way, to view public institutions as ‘outside’ society, including patterns of gender relations it produces, will naturally mislead resource allocation, and defeat the pursuit of an equal society. It is within this conceptual perspective that we argue for attention to vulnerability-informed instead of equality-informed policies that may serve relatively better in mapping the landscape of opportunities and accessibility by women in public procurement. Thus, (in)equality in this chapter is analogous to descriptive characteristics of public administration and how these tend to order corresponding gender-relations in public contracting. Gender-responsive procurement has become a critical component of public sector reforms today, especially, through gender-smart procurement initiatives. Even though it is yet to be internationally defined, gender-smart procurement seeks to prioritize positive outcomes for gender equality by enabling the purchase of gender-sensitive goods and services. According to UN-Women, gender-responsive procurement refers to ‘the selection of goods, civil works or services that take into account their impact on gender equality and women’s empowerment.’3 A focus on the gender-responsive implies a focus on glass ceilings that underscore a move from gender-sensitive policies, that merely identifies gender issues, to planned actions that ‘integrate measures for promoting gender equality and women’s empowerment, foster women’s inclusion and provide equal opportunities for women and men to derive social and economic benefits’ (Gender and Environment Resources Center 2015, also see Rimmer 2017). In gender-responsiveness, ‘women’s and men’s concerns and experiences equally become fundamental elements in the design, implementation, and monitoring and evaluation of [public procurement] policies’ (Gender and Environment Resource Center 2015). This involves changing norms, attitudes, and creating networks that may enhance equal access between men and women in public contracting. Gender-responsiveness is important because it aims at addressing structural and normative constraints of equal access that often tend to favor masculinity. That is, gender as social relations ‘dictates that biological males should adopt masculine traits [i.e., aggression, violence, loyalty, etc.], whereas biological females are expected to adopt feminine traits [that] can be physical, mental, or behavioral’ (Kennedy, et al. 2020, 3). These masculine characteristics and beliefs in public

3  UN Women (no date), ‘Gender Responsive Procurement,’ http://www​.unwomen​.org​/en​/about​-us​/ procurement​/gender​-res​pons​ivep​rocu​rement​#sthash​.Cn5hy74e​.dpuf.

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leadership (i.e., men are better leaders than women) put pressure on women in public spaces to overcome the tag of ‘incompetency,’ thereby, resulting in unequal treatment in most forms of public participation. Besides, these structures and norms provide leverage for men to exercise power and allocate economic advantages (Stivers 2002; Awaah et al., 2021; Guy 2016). Therefore, despite efforts to create structures and policies that would promote values for equal rights and freedom through representative bureaucracy or democratic administration (Meier 1975; V. Ostrom 2008), more is still needed to engender underlying norms that order marketization principles, namely, public tendering or outsourcing (Nyeck 2015). That is, as a masculine space of power, bureaucracy needs to be transformed to move from promoting rather gender-neutral values and principles to becoming not only gender-sensitive but also gender-responsive. More especially, public procurement as a public administration reform strategy for public service delivery needs gender-responsive initiatives to deal with issues of inequality and/or under-representation associated with the patriarchal nature of public administration. In short, intellectual and theoretical streams behind public procurement or contracting out, including legislative and legal frameworks in Kenya insufficiently conceptualize bureaucratic representation and barely deal with underlying gender gaps that animate the public procurement process (Kirton 2013). The central issue in this regard lies in the structuration and normative operations of government institutions. For instance, ‘[g]endered experiences of women as managers are deeply embedded in social role perceptions that ascribe leadership and managerial roles to men and those that demonstrate masculine traits’ (Kennedy, et al. 2020, 5). The mental orientation at workplaces (i.e., institutional culture) naturally assigns social expectations and behaviors to men and women alternatively creating an environment that is largely gender-blind, leading to institutionalized masculinity. For example, in most organizational settings in Kenya, it would not be surprising that during informal sessions such as in get-together activities or in parties both women and men will expect albeit younger women to serve men and undertake all other ‘kitchen’-related tasks on behalf of their men colleagues, if at all, such tasks are at hand. This implies how taken-for-granted gender roles and expectations at home (i.e., the private realms and communal setups) easily spill over into economic and political structures, including inside the environments of public and private bureaucracies. The theory of representative bureaucracy hardly deals with such attendant consequences of this state-of-affairs, which are deeply embroiled in cultural norms and shapes corresponding policy actions and processes. While demonstrating this interplay between representative bureaucratic structures and the complex value systems that surround the bureaucracy and organizational outputs for the minorities and non-minorities in the United States, for example, Meier, Wrinkle, and Polinard contend that ‘[r]esearch on representative bureaucracy has failed to deal with whether or not representative bureaucracies produce minority gains at the expense of non-minorities’ (1999, 1025). ‘Minority’ here connotes an abstract definition of a social group based on racial or ethnic

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backgrounds and this is rightly so insofar as the representativeness of public administration is concerned in the context of the United States. Still, values entailed in the representativeness of the bureaucracy, especially as patterned by prevailing socioeconomic factors, are unclear and vague in linking different secondary variables that are often used to measure representativeness (Meier, et al. 1999). Notwithstanding this reality, the theory and practice of bureaucratic representation (equality) is often inward-looking and more concerned with the demographic representation of public sector employees. That said, even if there are more women administrators than men in a particular department, their numerical strength may not necessarily correspond to representation and gender-responsiveness in decision-making processes during the procurement process. In most cases, women administrators are either not directly involved in procurement decisions or if they are, the majority of competent applicants may be men. In general, however, this trend is patterned by the fact that public administrative processes and operations in the contracting out or outsourcing of public service have hardly enhanced equality among different social groups, particularly, between men and women concerning the accessibility of these services (Nyeck 2015). Indeed, this has been the subject of discussion among feminist public administration scholars who have boldly advocated for gendersensitive analyses of bureaucratic representation (Stivers 2002). Even so, these feminist-oriented administrative theories focus more on women in public administration as employees and less on how women interact with the bureaucracy or women as end-users in contract bidding. While this chapter’s empirical analysis is concerned more with the latter phenomenon, it also partially draws implications on how the role of women as decision-makers or bureaucrats, may determine the gender-responsiveness of the procurement process in public administration. More Attention to Vulnerability than Equality for a GenderResponsive Bureaucracy Feminist political theorists argue that public administration reinforces prevailing gender images in society and naturally gives men economic and political power over women (Stivers 2002; Schwartzman 2006). In this way, underlying philosophical abstractions for discerning and ordering state reforms and processes for achieving equality values and principles remain problematic. This, in turn, perpetuates rather than eliminates suppressive forces and oppressive structures of gender inequality and domination (Schwartzman 2006). Furthermore, equality and ultimately, the laws and structures meant to enhance it are founded on broader definitions of the very groups whose interests, rights, and accessibility are supposed to be elevated and protected. Fineman defines equality as a mandate for formalized equal treatment; it operates as a nondiscrimination ideal. This ideal minimizes existing structural disadvantages and thus impedes

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a more substantive approach to equality, which would recognize and accommodate differences and consider outcome as well as [a] treatment. (2014, 100–101) However, in this manner of definition, equality does little to address underlying normative and structural components of administration, whether concerning the administration of justice or regarding the generic operations of the state. Differently put, like rights and freedom doctrines as found in the constitution, equality may and ofttimes is limited in practice and may not work in all situations of discrimination or injustice (Schwartzman 2006; Fineman 2014). Indeed, equality as an ideology of nondiscrimination ‘concedes that differences exist but seeks relentlessly to minimize or ignore the implications of such differences, [thereby, making] it difficult to use [the] law as a remedy for many situations and circumstances’ (Fineman 2014,101). As such, equality specifically ignores underlying circumstances, mainly socioeconomic and political inequality between groups. More specifically, Fineman contends that the formal model of equality is problematic as it is ‘reduced to the sameness of treatment or a prohibition on discrimination, [and] has proven an inadequate tool to resist or upset persistent forms of subordination and domination’ (Fineman 2008, 3). In this way, the state’s ability is restrained to affirmatively address gender gaps emanating from social, economic, political, and structural inequalities. Moreover, equality does little in articulating personal characteristics that can be used to discriminate individuals such as gender or race that ofttimes are linked to underlying social, economic, political, and structural inequalities. These also animate the formal and informal environments of public institutions. That is, ‘[f]ormal equality leaves undisturbed and may even serve to validate existing institutional arrangements that privilege some and disadvantage others’ (Fineman 2008,3). Within market principles as in the procurement processes, the gap between the privileged and underprivileged may become exacerbated predisposing the latter, the majority of whom are women, to unbalanced competitive environments attendant to unequal power relations, patriarchal rationalities, or norms and networks. Conversely, the vulnerability framework moves from the mere pronunciation of equality to stamp out discrimination or narrow the gender gap between men and women by questioning and recognizing that the existing economic and political models of public administration reforms fail to address underlying issues that perpetually harm one group over another (Nyeck 2020). According to Fineman (2008), Vulnerability initially should be understood as arising from our embodiment, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional or otherwise. Individuals can attempt to lessen the risk or mitigate the impact of such events, but they cannot eliminate their possibility. (p.9)

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Therefore, since men and women or individuals for that matter, are positioned differently economically, politically, and socially, including within different institutional relationships there are natural unequal magnitudes of vulnerabilities at different levels and even between different groups (Fineman 2008). And because the state is a representative of unequal distribution of power between different groups in the society (Schwartzman 2006), the less powerful are more vulnerable than others who variedly have access to power, the capacity – both financial and decisional – and related abilities to influence decisions and have the uncontrolled effort or capacity to bargain the contract or guard themselves against underlying causes of vulnerability. Yet, since no one is perfectly immune from vulnerability, contends Martha Fineman, there is a need ‘to look to societal institutions for assistance. Of course, society cannot eradicate our vulnerability either [although it] can and does mediate, compensate, and lessen our vulnerability through programs, institutions, and structures’ (Fineman 2008,10). Still, the societal norms and culture can be the source of the underlying causes of vulnerability as they order institutional logics of operation and relationships (Onyango 2017). Therefore, vulnerability is important in several ways when it comes to public procurement (Nyeck 2020). First, it pays attention to personal and/or group characteristics. This means that a policy strategy will be responsive to addressing limits that these characteristics have on accessibility, control, and capacity or the ability of an individual or groups to effectively participate in public processes such as in procurement. Therefore, as equality is attentive to non-discrimination, vulnerability goes further by looking into affirmative ways to address issues that may limit the capacity and accessibility to effective bidding on government contracts. That is, ‘as a heuristic device, vulnerability affords critical examination of the hidden assumptions about capability and its presumed reforming trajectories in public procurement policies and practices’ (Nyeck 2020,5). Second, a focus on vulnerability transcends problems of control that cause normative and structural dependence of women on men. As Nyeck (2020) puts it, a vulnerability framework is an invitation to think, legislate, and implement a relational approach to gender equality in public procurement [based on] a mutual and intercontextual recognition of the inexhaustibility of possible harm as not just a shared, universal, and [the] human condition, but more pointedly as an institutional one also. (p.5) In other words, unlike equality that is non-discriminative and assumes autonomy based on the doctrines of individual or groups rights and freedoms, vulnerability unveils underlying forces of dependence that may disenfranchise women on acquisition and control over productive resources such as land that may be needed to competitively win a government contract. For instance, in the case of a contract to supply farm produce or in seeking collateral for a bank loan to build investment capital that would qualify an applicant to be awarded a government contract. This

Tendering Gender Policies in Kenya  127 Table 7.1 Implications of equality and vulnerability of the engendering tendering process. Control

Accessibility

Capacity/ability

Gender Implications

Equality Autonomy Non-discriminative Competitive Genderless Vulnerability Dependency Affirmative action Empowerment Gender-responsive Source: Authors

shows that prevailing socioeconomic and political dynamics within an interplay between equality and vulnerability framework are important in discerning procurement processes, the nature of women’s businesses, and the degree of financing available to women entrepreneurs. The table below summarizes the implications that equality and vulnerability frameworks have in engendering gender-responsive policies in public procurement. ​ In line with the proceeding sections, we now pay attention to the degree of control, accessibility, and capacity/ability as variables that determine how women and men are empowered in the government tendering processes or how they relate with public institutions when it comes to the bidding of public contracts in Kenya. The Public Procurement Regime in Kenya: Mapping Women vs. Men Entrepreneurs In comparison to their male counterparts, female entrepreneurs have been able to access only about 1% of public procurement contracts globally (ITC 2014). This low percentage has negative consequences for inclusive economic growth and has retarded efforts to promote gender equality and female empowerment (ChiloaneTsoka 2013b; ITC 2014). According to Stevenson and St-Onge (2005), female entrepreneurs have small businesses with limited capital investment, low growth potential, and low profitability relative to male entrepreneurs. These challenges have rendered female-owned businesses less competitive than male-owned ones. Like anywhere else in the world, the patriarchal state in Kenya has traditionally predisposed women to discrimination. More reliance on customary than on civil law on access, capacity, and control of productive resources such as land, for example, may also mean that when legislation is adopted it is most likely to be ineffective. That is, the relationship between the state and society is predominated by informalism based on norms and cultures that transfer societal traditions and power relations between genders to the state. These norms and traditions animate institutional logics in public administration (Onyango 2017). Still, Kenyan women have managed to consistently improve their capacity as entrepreneurs despite dominating small-scale businesses. However, women entrepreneurs are yet to be as competitive as men despite preferential public procurement policies (Amadi 2015; Chiloane-Tsoka 2013a). In Kenya, only 1.4% of annual procurement contracts are sourced from special interest groups comprising women, youth, and People with Disability (PWD) (Njeri and Getuno 2016); this was, however, increased to 30%

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through the government affirmative action to achieve the intended objective of enabling the youth, persons with disabilities, and women access to of all government procurement opportunities in Kenya (Mwangi et al., 2022). The limited access to public procurement by women entrepreneurs has serious consequences for inclusive economic growth and has continued to stall efforts to promote gender equality and the empowerment of women (Chiloane-Tsoka 2013a; ITC 2014). According to Stevenson and St-Onge (2005), women entrepreneurs, relative to men entrepreneurs, have small businesses with limited capital investment, low growth potential, and low profitability. Six million women in Kenya are entrepreneurs (Karanja, Mwangi and Nyakarimi 2014). Starting a microenterprise in Kenya has become easier because it is considered a successful model that women can use to take themselves and their families out of poverty and powerlessness (Lock and Smith 2016). However, women entrepreneurs in Kenya are still more vulnerable than men. They are faced with barriers analogues to underlying socioeconomic and structural inequalities to expand their enterprises. This has negatively impacted women’s potential to boost the socioeconomic growth of their enterprises (Karanja et al. 2014; Lock and Smith 2016). Despite some groundbreaking legislation, gender equality initiatives have underperformed in public procurement in Kenya as commonly reported across Africa (Nyeck 2020). The government of Kenya issued a directive in 2013 that 30% of public procurement be reserved for businesses owned by women, youth, and PWD to enhance their access to economic opportunities (Amadi 2015). Njeri and Getuno (2016) discuss improvements in youth access to government procurement opportunities in the judiciary of Kenya between 2011 and 2015. In their study, Njeri and Gatuno observe that though the term ‘youth’ comprises young men and women, the data were not disaggregated. Even so, this study focused on the perspectives of judiciary employees, not the youth entrepreneurs themselves to understand the degree of their vulnerability when it comes to accessibility, control, and capacity as entrepreneurs. Despite the resources invested by government agencies, nonprofit organizations, the United Nations, and the private sector regarding preferential procurement policy implementation, there has been inadequate research to evaluate the progress of this policy on women’s economic empowerment from the perspectives of the women who won public procurement contracts. One exception is Amadi (2015) who, focusing on the privatization of the telecommunication sector in Kenya, discovered that the policy did not empower female entrepreneurs. That is, empowerment as the pursuit of power-oriented goals that are personally meaningful while taking into consideration self-efficacy, knowledge, competence, action, and impact on individuals (Cattaneo and Chapman 2010), is a gap in public procurement implementation in Kenya. The Procurement Act in Kenya Kenyan procurement regulation is outlined in The Public Procurement and Disposal Act No.3 of 2005. The Act seeks to establish procedures for procurement and public

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the disposal of unserviceable, obsolete, or surplus stores and equipment. Services are included here though not explicitly stated (Amadi 2015). The objectives of the Act include maximization of economy and efficiency, competition and fair treatment of competitors, transparent and accountable standards in procedures, the promotion of local industry with a focus on economic development. The Act also creates the Public Procurement Oversight Authority (PPOA) which is entrusted with monitoring the public procurement system, advising entities, training professionals, disseminating procurement-related information, and initiating policy and amendments to the Act that are of relevance to its objectives (Amadi 2015). The head of the PPOA is the Director-General who acts as its Chief Executive Officer and has comprehensive authority. The individual in this position executes management decisions relating to the PPOA and has a role in dispute settlement. The PPOA is further enhanced by two supplementary boards, the Public Procurement Oversight Advisory Board (PPOAB) and a Review Board (Amadi 2015). Engendering Gender-Responsive Policies in Kenyan Public Procurement? The Act contains special provisions about how public procurement activities are to be conducted. Subsection 4 of Section 39 stipulates that ‘the preferences and reservations shall apply to, candidates such as disadvantaged groups, micro, small and medium enterprises; works, services and goods or any combination thereof; identified regions; and such other categories as may be prescribed.’ With a male to female ratio of 1:1, (i.e., half the population) gender must be specifically noted for preferences, otherwise challenges specific to women entrepreneurs often fail to receive due attention. As explicit evidence on gender integration on the two levels of government procurement is lacking, it is still assumed that women face exclusion from the procurement process. According to (Vyas-Doorgapersad and Kinoti 2015), several measures were added to the Kenyan constitution of 2010 to promote gender equality; for example, Article 27(8) states that no more than two-thirds of members of the same gender shall be elected or appointed for public positions at the national level. A similar requirement at the county level is contained in Article 197, which states that no more than two-thirds of any elected national assembly, senate, county assembly, and executive members, will be of the same gender. Article 227 of the Kenya Constitution mandates the public procurement of goods and services to be ‘fair, equitable, transparent, competitive and cost-effective’ following the protection and the advancement of groups or persons previously disadvantaged by unfair competition or discrimination against women. In 2011, the government enacted the Public Procurement and Disposal Regulations (PPDR), which contains provisions for the inclusion of disadvantaged groups, enterprises owned by women as well as youth and persons with disabilities (inclusive of women). In 2013, the PPDR was amended by reserving 30% of government procurement of goods, services, and works for enterprises owned by these three groups. In line 4 Article 2 of the Regulations and Article 27 of the

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Constitution on equality and freedom from discrimination (Constitution of Kenya 2010; PPRA 2020) and the National Treasury Public Procurement Directorate, under the AGPO program that works to ensure fair equitable, transparent, and costeffective public procurement of goods and services in Kenya. However, reserving 30% of government procurement opportunities to enterprises owned by women, youth, and persons with disabilities to promote economic empowerment has achieved little. As of 2019, female entrepreneurs continued to be outpaced by their male counterparts (Rukaya 2019). The lack of policy evaluation and genderless data aggregation on woman entrepreneurship limits the ability to assess the progress and identify obstacles. It is worth noting that since the enactment of the PPDR in 2013 and the amendments establishing special groups, access to 30% of public procurement contracts has been slow mainly because of limited access to loans and credit, along with complex bidding and government registration requirements. That is, masculine characteristics i.e., aggression and toughly poised negotiations, in particular, were stated by those interviewed as some of the characteristics that women felt that they needed to have to become competitive in public tendering. Consequently, women were more confident to participate in tendering processes that concerned ‘women-related businesses’ and which were of less interest to men besides being less paying. These opportunities are low weight supplies of works involving primarily the supply of vegetables, cereals, and other ‘kitchen’related tenders. Women especially in the rural areas also suffer from issues related to low selfesteem. That is to say, attitudinal and cognitive-related barriers regarding how women feel about their capabilities and possibilities of access as compared to men matter. In particular, a respondent linked this to the traditional lack of control and the bestowal of women’s rights, mostly wives, including their decisions to conduct businesses, to their husbands or male partners. For example, when it comes to land-related contracts or tenders, a respondent stated that a woman is likely to be asked to be accompanied by the spouse or a male relative, mainly, an in-law in the absence of the husband to legalize the land acquisition contract. Thus, when it comes to public contracting, women tend to be hesitant or lie back and let men compete for the tenders, especially, the huge or sizeable-tenders. Therefore, despite the AGPO (Access to Government Procurement Opportunities) program, there are still challenges in enhancing female entrepreneurs’ access to public procurement contracts in Kenya. And a need to address underlying social and economic inequalities that create glass-ceilings, thereby, making women more vulnerable by creating an environment that enables the expansion of female-owned businesses and that improves their well-being that of their communities. As a policy implication, this finding demonstrates that women as end-users in the public procurement structure are hindered by some historical and structural factors, especially, the perceived position of a woman or behavior i.e., a woman should not be aggressive as commonly perceived or required in the pursuit of government tenders. Therefore, there is a need to redesign the equality approach that assumes that men and women can effectively compete for government tenders, notwithstanding, their control over

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modes of production, levels of education and cultural views on what a woman can and cannot do. The Access to Government Procurement Opportunities (AGPO) Program The access to AGPO program is founded on the 2010 Constitution of Kenya Article 227 on the equitable, transparent, and cost-effective public procurement of goods and services, and Article 55 on affirmative action and the Public Procurement and Asset Disposal Act, 2015. Through the 30% rule and as of February 2019, the AGPO program has registered 101,834 businesses in total 41,668 owned by women, 55,537 by youth4, and 4,629 by persons with disabilities (AGPO 2019). The National Treasury of Kenya reported the total number of contracts awarded to youth, women, and PWD from 2013 to early 2019 was 106,096 and this figure amounts to a minimum of 117 billion Kenyan shillings (approximately $ 1 billion U.S.). However, it is important to note that additional procurements exist that may have not been formally reported to the treasury. Examination of the historically awarded tenders to the marginalized recipients demonstrates that among these underserved entrepreneurs, the majority of tenders are earned through state corporations and ministry procurements. Particularly, the steadiest growth in tenders tends to be awarded by state corporations. Even so, a closer look into the internal affairs of how tendering decisions are reached inside public institutions, demonstrate that a few women decision-makers who sit in the tendering committees of these institutions, face unique challenges that relate largely to their positions as women. According to a respondent, she had to develop a ‘good case’ to defend her position against the position taken by her men colleagues. According to her, most board members who happened to be men felt that she was inexperienced in areas of construction where men are assumed to be more knowledgeable than women. She emphasized that this is more likely to happen when it comes to male-dominated areas of the economy. And even in situations where a woman is the only expert or architect in the room like it was in her case on matters of construction, she is rarely taken seriously. That is, men colleagues still believed that they had more practical knowledge to make key decisions on construction tenders despite her technical opinions as to the architect. Thus, socially constructed gender roles pervade institutional logics on businesses and shape how women should engage in public administration in Kenya. Gender-based biases then naturally situate the bureaucratic environment for public contracts to inadequate access and control by women because of the underlying attitudes on women’s capacity and behavior. Also, other underlying institutional barriers in public contracting experienced by persisting in Kenya. For instance, comparing the total value of tenders awarded

4  According to Article 260 of Kenya's 2010 Constitution a Youth is defined as a person aged between eighteen (18) years and thirty four (34) years.

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to women, youths and PWDs from the fiscal year 2017 to 2018 only 5.3% of the procurement value was sourced from these three special groups. (Njeri and Getuno 2016; KIPPRA 2018) In 2017 annual procurement spending is estimated at 480 billion Kenyan shillings or approximately $4.6 billion. Obtaining gender-disaggregated data for youth and PWD presented difficulty to determine the exact procurement value sourced from women entrepreneurs. Although the PPDR and AGPO have been viewed as positive moves, the eligibility criteria of business registration, tax compliance, and 70% ownership required by the AGPO have made it challenging for most target groups, approximately 80%, to gain procurement opportunities. Given these challenges, Kenya took initiatives to increase financing availability to these disadvantaged groups. Specifically, the government put in place the Women Enterprise Fund (WEF), Youth Enterprise Fund (YEF) and Local Purchase Order (LPO) financing under the National Development Funds for Persons with disabilities. These funding modalities enable the disadvantaged groups and women to obtain loans for the supply of goods and services under AGPO. From 2013 to March 2019, WEF disbursed 100,403,869 Ksh to 568 preferential groups consisting of 307 women (USD 531,868.47), 212 youth (USD 40,530), and 40 PWDs (USD 6,686) (Women Enterprise Fund 2019). Moreover, the red tape surrounding the AGPO certificate renewal process, the 45-day turnaround time, and the relatively new digitization of the process are among the major administrative burdens or challenges in accessing WEF. Through LPO Financing, 105 PWD-owned businesses received funds since its inception in 2017 amounting to USD 287.84. It is important to note that only 22 of the 105 recipients were female, which demonstrates that female PWDs were not accessing the funds. Beyond the PWDs’ limited awareness of LPO financing, there is a lack of clear guidelines and procedures governing the allocation, payment, default of financed loans and non-compliance by some procuring entities that opt to pay applicants directly rather than through the NCPWD. Since the enactment of the PPDR of 2013, there has been no direct study to determine its effectiveness in promoting women’s economic empowerment through government contracts. This could explain why some recommended harmonization of the national constitution with privatization and enforcement of the PPDR to improve women’s active participation in the key sectors (Amadi 2015). Yet, it is imperative to determine the impact of the PPDR on women’s economic empowerment. Given the paucity of data in this area and the estimated national procurement spending of 30% of the 1.6 trillion Ksh 2017 Kenyan national budget (Njeri and Getuno 2016; KIPPRA 2018), investment in data collection is key for this fund to boost the entrepreneurship development and socio-economic empowerment of women. Conclusion Through an examination of gender policies and contracting processes in Kenya, this chapter argued for more attention to conditions of vulnerability to enhance the gender-responsiveness of public bureaucracy given the underlying conditions and

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ideologies that cause inequalities between men and women. Based on the Kenyan government’s 2013 directive reserving the 30% of public procurement contracts to businesses owned by women, youth, and PWD, this chapter demonstrated underlying conditions of vulnerability such as lack of control, cultural barriers, and ideologies that cause unbalanced competition for government contracts between men and women. Consequently, the latter only benefit from contracts considered ‘feminine’ that require less capital or attract little competition from men such as the supply of vegetable, cereals, and other ‘kitchen’-related merchandise. Thus, despite the progress made through the above-mentioned legislations, there is still a need to improve the policies, regulations, and programs that should aim at supporting the informal sector dominated by women, the acceleration of human development and female empowerment. Most importantly, there is a need for public sensitization and empowerment of women on barriers arising from cultural stigmatization and lack of knowledge that foster low self-esteem and withdrawal by women from competitive government tenders. Still, it is demonstrated in this chapter that underlying cultural or social and economic imbalances may prevail over policy initiatives against gender-based discrimination. The enhancement of gender-responsive bureaucratic representation, structures and norms in public administration, should further address the causes of vulnerability that emanate from these underlying variables. The pervading discrimination and inequalities despite seemingly apposite gender-responsive policies may otherwise take time to achieve increased accessibility, capacity and control by women, including the youth and PWDs. The case of Kenya also demonstrates that even though affirmative action may ultimately increase representation and gender responsiveness in the public bureaucracy, implementation remains a complex process that integrates institutional, cultural, political, and economic parameters. Even under conditions of political goodwill against gender discrimination in public procurement, these parameters may lead to unintended consequences that are more likely to discount the development of a gender-responsive bureaucratic process. In short, attention on underlying cultural, economic, political, and social inequalities should also come with strategies for countering underlying implementation threats and/or blind spots for embedding gender-responsive legislation and policies in public administration such as that in Kenya.

References Amadi, Henry. “Emerging procurement laws and women’s empowerment: Assessing the costs and benefits of the privatization of the telecommunications sector in Kenya.” Wagadu: A Journal of Transnational Women’s & Gender Studies 14 (2015). Awaah, Fred, Peter A. Okebukola, Aderonke Ebisin, Deborah Agbanimu, Esther Oluwafunmilayo Peter, Oluseyi Abike Ajayi, Olasunkanmi Adio Gbeleyi et al. “Influence of gender and career interest on African university students’ perceived difficult concepts in the study of public administration.” Teaching Public Administration 39, no. 2 (2021): 227–245.

134  Gedion Onyango and Marygoretty Akinyi Otieno Basil, Dan, and Judy Kaaria, “Resolving the Paradox of Land Tenure for Rural Women in Kenya.” The Kenya Institute for Public Policy Research and Analysis (KIPPRA), 2020. Cattaneo, Lauren Bennett, and Aliya R. Chapman. “The process of empowerment: A model for use in research and practice.” American Psychologist 65, no. 7 (2010): 646. Chiloane-Tsoka, Evelyn. “An investigation into the financial barriers facing women entrepreneurs operating in SMMEs in Tshwane, South Africa.” Journal of Economic and Financial Sciences 6, no. 2 (2013b): 347–358. Chiloane-Tsoka, G. E. “How effective affirmative tender procurements assist women entrepreneurs operating in small business in South Africa.” Gender and Behaviour 11, no. 1 (2013a): 5135–5145. Constitution of Kenya. “Article 27 on equality and freedom from discrimination (2010).” http://www​.kenyalaw​.org/. Eyde, Lorraine D. “The status of women in state and local government.” Public Personnel Management 2, no. 3 (1973): 205–211. Fineman, Martha Albertson. “Equality and difference: The restrained state.” Alabama Law Review 66 (2014): 609. ———. “The vulnerable subject: Anchoring equality in the human condition.” Yale JL & Feminism 20 (2008): 1. Gender and Environment Resource Center. 2015. Stop Being So Sensitive! The Shift From Gender-Sensitive to Gender-Responsive Action. https://gen​dera​nden​vironment​.org​/2015​/08​ /stop​-being​-so​-sensitive​-the​-shift​-from​-gender​-sensitive​-to​-gender​-responsive​-action/. Guy, Mary E. Women and Men of the States: Public Administrators and the State Level: Public Administrators and the State Level. Armonk, NY: M.E. Sharpe, 2016. Guy-Sheftall, Beverly. “A Black feminist perspective on transforming the academy.” Theorizing Black Feminisms: The Visionary Pragmatism of Black Women (1993): 77. ITC. “Empowering Women through Public Procurement.” International Trade Centre (ITC), Geneva, 2014. Karanja, John, Anthony Mwangi, and Samuel Nyakarimi. “Analysis of factors influencing access to credit services by women entrepreneurs in Kenya.” Research Journal of Finance and Accounting 5, no. 11 (2014). Kennedy, Alexis R., Sebawit G. Bishu, and Nuri Heckler. “Feminism, masculinity, and active representation: A gender analysis of representative bureaucracy.” Administration & Society 52, no. 7 (2020): 1101–1130. Kirton, Raymond Mark. 2013. Gender, Trade and Public Procurement Policy: Kenya, India, Australia and Jamaica. London: The Commonwealth Secretariat. Lock, Rachel, and Helen Lawton Smith. “The impact of female entrepreneurship on economic growth in Kenya.” International Journal of Gender and Entrepreneurship 8, no. 1 (2016): 90–96. Meier, Kenneth J., Robert D. Wrinkle, and Jerry L. Polinard. “Representative bureaucracy and distributional equity: Addressing the hard question.” The Journal of Politics 61, no. 4 (1999): 1025–1039. Meier, Kenneth John. “Representative bureaucracy: An empirical analysis.” The American Political Science Review 69, no. 2 (1975): 526–542. Mwangi, Justa, Wilson Muna, and Gitile Naituli. “Gender stereotypes and corruption in devolved systems of government: Evidence from local governments in Kenya.” In Norms, Gender and Corruption. Edward Elgar Publishing, 2022, pp. 139–158.

Tendering Gender Policies in Kenya  135 Newman, Janet. “Theme: Gender, the professions and public management: Changing governance, changing equality? New labor, modernization and public services.” Public Money and Management 22, no. 1 (2002): 7–14. Njeri, Waitwika Caroline, and Pamela Getuno. “Determinants for youth access to government procurement opportunities in Kenya: A case of judiciary.” International Journal of Innovative Social Sciences & Humanities Research 4, no. 3 (2016): 31–49. Nyeck, S. N. “Gender equality in public procurement.” In: Farazmand, Ali (Ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance. Switzerland AG: Springer Nature, 2020. ———. “Two (out) bidding women: Public procurement reform diffusion and gender equality in Africa.” Wagadu: A Journal of Transnational Women’s and Gender Studies 14 (2015): 13. Onyango, Gedion. “Collectivism and reporting of organizational wrongdoing in public organizations: The case of county administration in Kenya.” International Review of Sociology 27, no. 2 (2017): 353–372. ———. “Legislative oversight and policy-reforms in “unsettled” political contexts of public administration.” International Journal of Public Administration 43, no. 3 (2020): 213–228. Ostrom, Vincent. The Intellectual Crisis in American Public Administration. Alabama: University of Alabama Press, 2008 [1973]. PPRA. “Public procurement and assents disposable act, 2020.” Republic of Kenya. Republic of Kenya. Access to Government Procurement Opportunities. About AGPO. 2013. http://agpo​.go​.ke/. ———. Access to Government Procurement Opportunities. AGPO Secretariat. Nairobi, Kenya: National Treasury, 2019. Rimmer, Susan H. Gender-Smart Procurement: Policies for Driving Change. Chatham House, 21 December 2017. Rosenbloom, David H. “Public administrative theory and the separation of powers.” Public Administration Review (1983): 219–227. Rukaya, Mohammed. Progress on the Economic Empowerment of Female Entrepreneurs in Kenya’s 30% Preferential Public Procurement Policy. 2019. https://scholarworks​ .waldenu​.edu​/cgi​/viewcontent​.cgi​?article​=8834​&context​=dissertations. Schwartzman, Lisa H. Challenging Liberalism: Feminism as Political Critique. University Park: Penn State Press, 2006. Stevenson, Lois, and Annette St-Onge. Support for Growth-oriented Women Entrepreneurs in Kenya. International labour organization, Geneva, 2005. Stivers, Camilla. “Feminist theory of public administration.” In: Shafritz, Jay M. (Ed.), Defining Public Administration. Boulder, CO: Westview Press, 2000, pp. 30–35. ———. Gender Images in Public Administration: Legitimacy and the Administrative State. Thousand Oaks, CA: Sage Publications, 2002. Vyas-Doorgapersad, Shikha, and Abel Kinoti. Gender-Based Public Procurement Practices in Kenya and South Africa. 2015. https://lea​ders​hipa​ndde​velo​pmentorg​.files​.wordpress​ .com​/2016​/12​/vyas​-doorgapersad​-kinoti​_2015​.pdf. Women Enterprise Fund. “Annual Report and Financial Statements for the Financial Year Ended June 30, 2019.” Republic of Kenya.

Chapter 8

Policy Perspectives on Engendering Public Procurement in Africa The Case of Rwanda and South Africa Angelita Kithatu-Kiwekete 1 and Shikha Vyas-Doorgapersad 2

Introduction Literature1on2public procurement places the onus on government to meet internal needs for works, goods, and services as well as address external goals in society (Glas et al. 2017; McCue et al. 2015). There is also the distinction in how different levels of government perceive the realization of external strategic goals: On the one hand, centralized procurement agencies prioritize political goals and are influenced by the strategic objectives such as innovation, transparency, promotion of competition, and social responsibility (Glas et al. 2017; Hawkins et al. 2014). Decentralized procurement agencies, on the other hand, value non-political goals such as cost efficiency (Patrucco et al. 2017). In Africa, research on public procurement ranges from issues related to specific sectors such as infrastructure, the overall government experience of procurement, the challenges of public procurement reform (Toeba 2018; Manu et al. 2018; Ambaw and Telgen 2017), as well as the utility of e-procurement practices (Anthony 2018; Adjei-Bamfo et al. 2019). Some scholars suggest that using procurement policies to address external strategic goals for public procurement such as economic equity and social economic development is not effective because very often these policies are not evaluated (Nicholas and Fruhmann 2014). However, in South Africa, preferential procurement policies are coming under scrutiny as a means to evaluate the impact of public procurement in society (Ambe and Badenhorst-Weiss 2012; De la Harpe 2016; von Broembson 2016). Going further, evaluating policies assists is opportune in determining the outcome and impact of national policies and laws on the ideals of gender equality and the empowerment of women in society. It is in this evaluative niche that this chapter positions itself. There are several reasons for studying gender mainstreaming in the realm of public procurement.

1  Independent Researcher and Part-time Lecturer, University of Witwatersrand, Johannesburg, South Africa. ORCID: 0000-0001-5769-9965 2  Professor in the School of Public Management, Governance and Public Policy, University of Johannesburg, South Africa. ORCID 0000-0002-8146-344X

DOI:  10.4324/9781003371663-9

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First, gender mainstreaming is a meta-instrument that will vary according to the specifics of its application. It is important to study these variations because while the context of implementation has a great impact on the outcomes of equality policies, it is seldom considered (Callerstig 2014, 53). The policy context and instruments can give important information about the feasibility of different equality strategies in different settings. Second, public procurement is increasingly important as an area that governments use to realize equality objectives. Nevertheless, the application of gender equality objectives through public procurement remains underdeveloped and under-researched (Callerstig 2014, 53). The chapter utilizes a qualitative analytic lens to explore gender equality in public procurement practices in South Africa and Rwanda to ‘emphasize the careful and detailed description of social practice’ (Nyikadzino and Vyas-Doorgapersad 2020, 235). The chapter compiles information from literature review on concepts such as gender, gender equality, public procurement, and e-procurement. A review of national legislative frameworks, policy documents, strategies, country-specific academic articles on gender and procurement processes are the basis for the analysis. Situating the Role of Government within the Vulnerability Theory The vulnerability theory argues for a more inclusive approach that considers the vulnerability of citizens as a ‘universal inevitable aspect of the human condition’ in society to be considered to ‘be at the heart of our concept of social and state responsibility’ (Fineman 2008, 8) Vulnerability as a concept lays stake to the claim that all people are ‘vulnerable and dependent on relationships and institutions’ and that a shared vulnerability positions for a larger role of the state. A responsive state in turn accepts a greater responsibility in passing laws and providing measures for citizens to build resilience against vulnerability (Rich 2018). Thus, the presence of a ‘universal and constant vulnerability’ (Fineman 2008, 10) in society in inescapable. Kohn goes further to propose the use of ‘vulnerable based policies’ to allow the state to intervene and meaningfully respond in building resilience using ‘policies that target people based on their vulnerability to a particular threat or problem’ (Kohn 2014, 23). The theory implies a notion of embedded vulnerability that is particularly relevant to developing countries implementing policies and public restructuring efforts to address social, economic as well as gender inequalities in society. Previously, developing countries including those in Africa adopted measures to reduce state intervention. These efforts to open the economy and boost economic growth were largely driven by Structural Adjustment Programs (SAPs) put forward by the Bretton Woods’ institutions (World Bank and the IMF) as a conditionalities on development aid. Instead, reducing state intervention in key sectors in the economy led to negative effects of the socioeconomic well-being of citizens (Moyo 2009). As a result, the fragile emerging economies were left exposed to a global system that limited the participation of citizens in government procurement processes. In recent times,

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many African states have embraced constitutionalism and the rule of law which has reinforced the recognition of women as a vulnerable group in society. This acknowledgement is also reflected in the adoption of gender-sensitive policies for public procurement that are intended to enhance the participation of women as service providers as well the mandate for gendered representation as decision-makers on matters that relate to public procurement. Using a vulnerability lens to examine procurement policies in African states is therefore opportune. We turn our attention to the other concepts that frame this chapter: Gender, public procurement, and related concepts. Gender and Related Concepts During the early 1970s some women organizations began to campaign regarding the rights of women, laying the foundations of a global feminist movement. A key demand of the feminist movement has been and continues to be women’s exercise of their full and active citizenship, which they consider was denied to them because of not being recognized as equals at the moment of the definition and construction of citizenship in the eighteenth century. Since then, the women’s movement and feminist movement have denounced this exclusion, ‘calling for equal citizenship for women’ (Vyas-Doogapersad and Lukamba 2011, 91). Against the notion of feminism, gender, refers to the roles and responsibilities of men and women that are created in families, societies, and cultures. The concept of gender then includes the expectations held about the characteristics, aptitudes, and likely behaviors of both women and men (femininity and masculinity)’ (in Nhlapo 2020, 47) However, when the gender is differentiated based on sex, it is usually considered as gender discrimination and requires a healthy and understandable relationship between men and women. Gender equality simply means that women and men have equal conditions for realizing their full human rights and for contributing to, and benefiting from, economic, social, cultural and political development. Gender equality is therefore the equal valuing by society of the similarities and the differences of men and women and the roles they play (Verloo 2001, in Bangani 2019, 26) Equality is different from equity in that it is ‘a process of being fair to men and women. To ensure fairness, measures must often be put in place to compensate for the historical and social disadvantages that prevent women and men from operating on a level playing field’ (Verloo 2000, 24). Gender responsiveness refers to outcomes that reflect an understanding of gender roles and inequalities and which try to encourage equal participation and equal and fair distribution of benefits. Gender responsiveness is accomplished through gender analysis and gender inclusiveness

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(Nelson 2015, 7). Gender mainstreaming is a process rather than a goal. Efforts to integrate gender into existing institutions of the mainstream have little value for their own sake. When mainstreaming gender concerns, the aim should be to achieve gender equality and improve the relevance of development agendas. Such an approach shows that the costs of women’s marginalization and gender inequalities are born by all (United Nations Educational, Scientific and Cultural Organization [UNESCO] 2013, 3). Women’s empowerment is a process of personal and social change through which they gain power, meaningful choices, and control over their lives (Decuyper 2005; O’Neil, Domingo, and Valters 2014). Public Procurement Government responsibility to citizens, particularly, in providing needed works, goods, and services is pertinent to achieving the public purpose. Providing goods and services is necessary for sustaining and protecting life and property. Bureaucracy, which is a critical arm of government, remains the viable machinery for providing such needed works, goods, and services to various segments of the population either directly or indirectly. And public procurement which entails various means and processes of acquiring works, goods, and services including administration, execution, and evaluation has become such a critical functional element in the day-to-day management of peoples’ affairs (Agbodzakey and Upshaw 2018, 41). Since the 1990s, public administration has been transformed into a neoliberal public management model where what is new is overreliance on market forces to solve public problems. More explicitly, New Public Management (NPM) ‘implies competition through marketisation, either with internal markets in the public sector or contracting out to the private sector. This stands in contrast to the uniform provision of public services in a traditional public administration’ (Lapuente and Van De Walle, 2020, 464). Gender Mainstreaming in Public Procurement Public procurement has a great potential to promote gender equality. Whenever possible, it is important to incorporate gender equality in the subject of the contract itself. This allows the incorporation of gender equality clauses that require a gender technical competence in the awarding entities, as well as the inclusion of gender criteria for the evaluation of the submitted proposals and for further implementation (European Institute of Gender Equality (EIGE) 2020, 1). Furthermore, the introduction of the gender dimension in the public budgets, public procurement contracts and subsidies is a ‘way of taking gender mainstreaming to the practical level’ (Decuyper 2005, 1). There are two areas where gender dimension can be incorporated for procurement purposes. A first way is ‘in which subsidies can promote the equality of women and men, is of course the attribution of a part of the available grants to projects or organizations that work specifically on equal opportunities and the fight against inequalities’ (Decuyper 2005, 3). The second way is ‘the integration of the gender dimension in all (relevant) subsidies. The ideal

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situation is the one that combines these two methods’ (Decuyper 2005, 3). The UN Women as an international entity endorses gender-responsive public procurement to promote gender equality and emphasizes that, ‘gender-responsive procurement is the selection of services, goods and civil works that considers their impact on gender equality and women’s empowerment’ (UN Women 2020, 1). Research in Kenya, India, Australia, and Jamaica shows that, ‘gender is important for public procurement policy because it can ensure equitable access and provide benefits from diversifying the supply chain’ (Kirton 2013, 10). Increasing the opportunities for more economic agents, particularly small and medium-sized enterprises (SMEs), to engage in the delivery of goods and services can result in improved outcomes for the alleviation of poverty and increasing gender equality, given that women-owned businesses are included who tend to be ‘disproportionately located in this sub-sector of the economy’ (Kirton 2013, 10). This chapter explores gender aspects in procurement using South Africa and Rwanda. Gender Mainstreaming in Public Procurement in Africa Nyeck (2015) shows that the consideration of gender-inclusive approach in procurement processes was discussed at international level via Beijing+5’s strategic objectives, whereby the inclusion of women was considered as follows: •

•

•

‘'Review, formulate, if necessary, and implement policies, including business, commercial and contract law and government regulations, to ensure they do not discriminate against micro, small, and medium-scale enterprises owned by women in the rural and urban areas’ (Nyeck 2015, 1545). ‘Ensure that women’s priorities are included in public investment programs for economic infrastructure, such as water sanitation, electrification and energy conservation, transport and road construction; promote greater involvement of women beneficiaries at the project planning and implementation stages to ensure access to jobs and contracts’ (Nyeck 2015, 1546). ‘Adopt policies and establish mechanisms to grant contracts on non-discriminatory basis.’ (Nyeck 2015, 1546).

Cited in the Beijing+10 report were factors that negatively impacted women’s lives such as change in labor practices that favored casual forms of employment through outsourcing, the commercialization of agriculture and the increasing privatization of resources and services (Nyeck 2017, 3). The scenario of patriarchy ‘demands transformation and change through public service and financial reforms (and consequently public procurement)’ (Vyas-Doorgapersad and Kinoti 2015, 99). One such NPM approach is ‘contracting out,’ also known as ‘outsourcing’ that ‘is a part of public sector reform strategy wherein government engages a private entity to provide a service within a set of specific conditions’ (Maurya 2018, 281). In this scenario, the state holds economic benefits (Vyas-Doorgapersad 2011, 240). These NPM initiatives underpinned the discussions around the transformed role of government

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incorporating economic development issues, cost reduction and cost-effective service delivery, mixed-market economy, and market-related products, and marketbased innovative solutions in public sector delivery (Vyas-Doorgapersad and Kinoti 2015, 99). The Case of South Africa Moving away from its apartheid history meant that South Africa had to create a new legislative framework founded on substantive equality for all persons. This legislative framework is rooted in the country’s constitutional principles of equality. It is trite in South Africa that the s217 of the constitution requires that national legislation be enacted to ensure that public procurement provides for categories of preference in the allocation of contracts as well as the ‘protection or the advancement of persons’ who have been ‘disadvantaged by unfair discrimination’ due to the economic disparities entrenched by apartheid. The contestation for economic redress that drives the agenda for economic transformation in South Africa provides the leverage for enhancing gender equality (Commission on Gender Equality, (CGE) 2019, 4). The result is an evolving dynamic legal framework for procurement that governs all state agencies and spheres of government. Legislation that recognizes the need to include previously excluded groups, such as all categories of women, offers the opportunity to promote gender inclusiveness through procurement. The procurement reform processes that started in 1995 were embedded in the following statutory frameworks. The Section 217(2) of the Constitution of the Republic of South Africa, 1996 states that, ‘procurement policy may provide for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination’ (Republic of South Africa [RSA] 1996); Section 76(4) (C) of the Public Finance Management Act No. 1 of 1999 (PFMA) emphasizes the determination of a framework for an ‘appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective’ (RSA 1999). Section 112 of the Municipal Financial Management Act No. 56 of 2003 (MFMA) further stipulates, ‘the regulatory framework for municipal supply chain management must be fair, equitable, transparent, competitive and cost-effective’ (RSA 2003). In terms of gender inclusion, laws such as the Preferential Procurement Policy Framework Act (PPPFA) No. 5 of 2000 PPPFA and the Broad Based Black Economic Empowerment (BBBEE) Act, of 2003 with its corresponding Codes of Good Practice, stipulate a preferential point system that encourages the use of women-owned enterprises to benefit from preferential procurement of all state organs (CGE 2019, 4–5). Section 2(1) of the PPPFA prescribes that ‘an organ of state must determine its preferential procurement policy and implement it within a framework’ (RSA 2000)

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where ‘the specific goals may include contracting with persons, or categories of persons, historically disadvantaged by unfair discrimination based on race, gender or disability’ (PPPFA 2000 Section 2 (d) (i)). The BBBEE Act of 2003 defines broad-based black economic empowerment as ‘the economic empowerment of all black people including women, workers, youth, people with disabilities and people living in rural areas; (RSA 2003). Section 2 (d) emphasizes that the objectives of this Act are to facilitate broad-based black economic empowerment ‘by increasing the extent to which black women own and manage existing and new enterprises, and increasing their access to economic activities, infrastructure and skills training’ (RSA 2003). In 2015, national treasury implemented a centralized and computerized system to electronically manage all service providers available to procure for government for the three tiers of government, state departments, agencies, and entities through the Office of the Chief Procurement Officer (Kithatu-Kiwekete and VyasDoorgapersad 2017, 13). E-procurement makes the process more transparent and enhances accountability. This online platform utilizes the e-procurement value chain that comprises e-informing, e-tendering, e-auctioning, vendor management, purchase order integration, e-invoicing, e-payment, and contract management. These e-procurement phases should adhere to the supply chain processes through which government purchases goods and services. The recent introduction of e-procurement is therefore of particular importance to gender mainstreaming. In the metropolitan areas, women entrepreneurs have often been isolated from municipal procurement particularly in the larger contracts. It then becomes important for the larger municipalities to ensure that the local supply chain management processes particularly the electronic platforms for sourcing service providers facilitate access for women-led businesses to participate (Kithatu-Kiwekete and VyasDoorgapersad 2017, 13). In commemoration of Women’s Day in South Africa, 2020, the President Mr. Cyril Ramaphosa stated, This government will support women-owned businesses as part of its commitment to ensure gender equality in Africa’s most advanced economy. We are going to drive women’s economic inclusion through public procurement. We have set the target of ensuring that at least 40% of goods and services procured by public entities are sourced from women-owned businesses. We are going to scale up support for women-owned SMMEs (small, medium and micro-sized enterprises) and for women who work in the informal sector or are unemployed. This will include engagement with the financial sector to make financial services accessible and affordable for women (Isilow 2020) However, there are challenges witnessed in the implementation of public procurement processes that may hamper the vision set by the President. Public procurement in South Africa is managed and regulated by through a supply chain management process that is prescribed by the national treasury. However, despite

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the employment of SCM as a strategic tool, public procurement in South Africa still faces enormous predicaments (Ambe and Badenhorst-Weiss (2012, 249). These include, lack of proper knowledge, skills and capacity; non-compliance with SCM policy and regulations; inadequate planning and the linking of demand to the budget; accountability, fraud and corruption; inadequate monitoring and evaluation of SCM; unethical behavior; too much decentralization of the procurement system; and ineffectiveness of the black economic empowerment (BEE) policy. Furthermore, policies at the municipal are not engendered despite the evidence of gender policies that call for gender mainstreaming (Kithatu-Kiwekete and VyasDoorgapersad 2017). Challenges are not only visible in the institutional processes, but in the lack of compliance of legislative and regulatory frameworks as well. The 2018 Commission for Gender Equality’s survey of government departments (CGE)3 indicates a failing at gender-responsive procurement and generally shows a lack of understanding of these critical transformation provisions. The CGE’s report tabled in Parliament in June 2020 revealed that most of the departments surveyed failed to integrate gender as a main component in their procurement practices (Dullah Omar Institute 2020, 1). The CGE surveyed the departments of health, rural development and land reform, basic education, and social development (Dullah Omar Institute 2020, 1). This situation is echoed in the 2018/19 CGE’s report on Gender Transformation on Procurement which states: ‘Departments failed to specifically and practically apply the provisions of the PPPFA and BBBEE to expedite and reach gender equality’ (CGE 2019, 44). The Case of Rwanda Previously, ‘public procurement in Rwanda was governed by the Law on Public Procurement no. 12/2007 of 29/03/2007 and ministerial order no. 001/08/10/ MIN of 16/01/2008 to oversee procurement regulations and standard bidding documents. The Law on Public Procurement no. 12/2007 of 29/03/2007 replaced the Presidential Order no. 28/01 of 19/07/2004 now used to manage public procurement procedures’ (Republic of Rwanda (RoR) 2010, 1). The Law on Public Procurement applies to procurement conducted by central government authorities, local government authorities, public institutions, commissions, government projects, parastatals, agencies, or specialized institutions (RoR) 2010, 1). Public Procurement law, 2007, Article 41 stipulates, ‘local preference not exceeding

3  The CGE is a constitutional organ (Chapter 9 institution) that is tasked with monitoring and reporting on government programs and activities (including public procurement) with respect to promoting gender equality and the empowerment of women (Republic of South Africa, 1996).

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10% may be granted to companies registered in Rwanda or to Rwandan nationals and bidders in regional economic integration bodies’ (Nyeck 2015, 6). Though, ‘the margin of preference is ten percent and still, there is no clear language about women’ (Nyeck 2015, 41). There have been additional laws promulgated that are aimed at enhancing the efficacy Rwanda’s public procurement process. Presently, public procurement in Rwanda is managed by the Rwanda Public Procurement Authority (RPPA henceforth RPPA) which is established by the Law No. 25/2011 of 30/06/2011, and is mandated to perform functions which include ensuring organization, analysis, and supervision in public procurement matters; advising the government and all public procurement organs on the policies and strategies in matters related to the organization of public procurement; controlling activities of awarding public contracts and their execution; collect and disseminate on a regular basis information on public procurement; as well as sensitizing the public on matters related to public procurement (RPPA 2020). RPPA works to promote values of transparency, competition, economy, efficiency, fairness, and accountability. New legislation has been adopted to govern public procurement is the Law No.62/2018 of 25/08/2018 Governing Public Procurement Law (henceforth, PPL) that came into force on September 7, 2018 (RoR 2018). The PPL prescribes how the entire public procurement process is conducted including the use of e-procurement (World Bank 2020a). In 2016, Rwanda launched an e-procurement system, UMUCYO, to manage the public procurement process including the publications of tender opportunities, electronic submission and opening of bids which became operational in 2018 (World Bank 2020b). The benefits of transparency, expediency, and efficiency have been touted by the government (World Bank 2020a). There are no explicit clauses that call for using procurement to enhance the participation of women as entrepreneurs and service providers of the state which hinders the collection of gender disaggregated data on public procurement. However, Rwanda’s constitution ascribes ‘equality of all Rwandans and between men and women which is affirmed by women occupying 30% of positions in decision-making organs’ (Republic of Rwanda [RoR] 2003). The Independent Review Panel, which must also reflect gendered representation of 30% of its members, is tasked with organizing reviews at the national level on any appeals raised at any stage in the procurement process (Republic of Rwanda [RoR] 2018). It must be noted that Rwanda’s national gender policy that serves as a guide for embedding gender equality into development priorities and sectoral programs but does not prescribe the activities on how to engender public procurement (Republic of Rwanda [RoR] 2010). This means that besides the constitutional provisions for critical mass representation in decision-making, little else can be used as basis for promote the representation women-led businesses as service providers. Rwanda aspires to be a part of the Fourth Industrial Revolution by incorporating ICT initiatives in the procurement processes. This was witnessed during the launched during the Women Vendors Exhibition and Forum (WVEF) at the Fifth Senior Executive Roundtable on Sourcing from Women Vendors, held in

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Kigali, Rwanda, 15-17 September, 2014, ITC’s new initiative aims to increase the amount of public procurement contracts awarded to women-owned businesses (WOBs) (International Trade Centre (ITC) 2020, 1) Arancha González, ITC’s Executive Director, said at the launch of the initiative that ‘transparency, increased access to information, standardized templates, sufficient time for preparation or pre-qualification of women-owned businesses – these are all measures that could help ensure that more women are encouraged to submit procurement bids’ (ITC 2020, 1). In Rwanda, there is limited gender differentiated data available on government contractors. This oversight suggests that policymakers are unlikely to know the extent to which women entrepreneurs, many of whom own or run small or mediumsized businesses, are able to successfully win government contracts. As such, the requirements of reaching equality of opportunity in the pursuit of procurement contracts is unidentified and large potential in terms of improved outcomes for equitable and sustainable economic and social growth may remain untapped (UN Rwanda 2017, 3). To achieve gender-inclusiveness in procurement processes, UN Women and New Faces New Voices Rwanda on 15 November 2019 launched the Women in Procurement Report: A Study on Gender-Responsive Public Procurement in Rwanda (UN Women Africa 2019, 1). The study reveals that out of the 332 won tenders selected for this study between 2016 and 2019, women-owned businesses won only 43 tenders which represents 13 per cent of the selected tenders. In monetary value, the total value of tenders won by women owned businesses represent 5% of the total value of the selected tenders. Moreover, women-owned businesses mainly won soft tenders such as supply of services, refreshments, event management, and supply of office furniture, while men-owned businesses dominated in big tenders such as constructions and supply of agricultural inputs (UN Women Africa 2019, 2). The study points to several barriers and challenges that hinder womenowned businesses to participate in public tenders. These include, the lack of financial, social, and human capital, hefty bid security and long experience especially for start-ups, limited knowledge about procurement processes, exposure to sexual advances by some procurement officers as a precondition for awarding contracts as well as limited access to market information and ICT (UN Women Africa 2019, 2). The State of Gender and Public Procurement From the cases presented above, policies have been adopted which can be utilized to engender public procurement. This discussion uses a vulnerability lens to point to areas for improvement for the two countries to build women’s resilience in participating in public procurement. In the case of Rwanda, constitutional provisions for equality, a 30% critical mass gender representation and a national gender policy set the tone for engendering government programs as well as procurement processes. Rwanda has been an early adapter to technology and passed relevant public

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procurement laws, setting up the RPPA and an electronic procurement system to enhance the efficacy and transparency of public procurement. These are gains which can facilitate gender mainstreaming in public procurement if only relevant polices make provisions for gender equality. However, despite the constitutional gender commitments women-owned businesses are still not able break into traditional male dominated sectors like construction. Few female entrepreneurs can secure large contracts through public provisioning and tend to remain marginalized in the soft tenders. South Africa, on the other hand, has a commendable constitutional and legal framework for public procurement that promotes gender equality and the empowerment of women including women entrepreneurs venturing to provide works, goods, and services to government. Public finance management laws and policies at the national, provincial, and local (municipalities) spheres compel the state to procure in a manner that is fair, equitable, transparent, and competitive. Government must also ensure preferential procurement benefits women-led businesses. Nonetheless, the country’s CGE reports on the inability of women-led businesses to reach minimum thresholds for representation, noting gaps on implementation that needs to be addressed. Thus, these cases show that the existence of gender-sensitive public procurement policies is not a sole guarantor that more women-led businesses will benefit from public procurement. These findings reinforce what literature on gender states asserts that more than formal equality is required to promote the economic empowerment of women entrepreneurs. Rather if the two countries are deliberate and intentional on increasing the resilience of women entrepreneurs to benefit through public procurement, additional measures are needed to address the varied challenges and gendered constraints that women-led businesses face. It is imperative that substantive equality is achieved and providing additional gendered measures and implementation policies to realize this will go a long way in building resilience. Conclusion Based on the literature and document review, this chapter offered policy recommendations for improvement in African countries (in general) and South Africa and Rwanda (in particular). It is suggested that at the political level, appropriate gender dimensions need to be included in procurement laws. At policy level, gender-disaggregated data need to be collected to assess the extent of gender exclusion in procurement processes, hence policy options need to fill the gap bringing gender-inclusiveness in gender-based public procurement policies. At bureaucratic level, gender division of work needs to be considered by appointing women in decision-making portfolios in procurement boards. At institutional level, public service departments need to abide to gender-based procurement practices; monitoring and evaluating such policies is imperative to ensure compliance. Additionally, workshops need to be organized to guide women regarding public procurement processes, tender requirements, and bidding procedures. It is also important that training workshops be organized to digitally train women on e-procurement systems

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and processes. Lastly, at the personal level, women do take advantage of these workshops to make themselves ready to compete in public procurement contracts. References Adjei-Bamfo, P., Maloreh-Nyamekye, T. and Ahenkan, A. “The Role of e-Government in Sustainable Public Procurement in Developing Countries: A Systematic Literature Review.” Resources, Conservation and Recycling, 142 (2019): 189–203. Agbodzakey, J. K. and Upshaw, J. “Public Procurement and Associated Relevant Elements for a Habitable Public Domain.” Journal of Economics and Sustainable Development 9, no. 24 (2018): 41–57. Andrea, S., Patrucco, Luzzini, Davide, Ronchi, Stefano, Essig, Michael, Amann Markus, and Andreas, H. Glas. “Designing a Public Procurement Strategy: Lessons From Local Governments.” Public Management and Money (May 2017): 269–276. Angelita, K. Kithatu-Kiwekete and Vyas-Doorgapersad, Shikha. “Gender Based E-Procurement Within the City of Johannesburg Metropolitan Municipality.” International Journal of eBusiness and eGovernment Studies 9, no. 1 (2017): 9–23. Anthony, Allison. “The Use of E-Procurement in South African Public Procurement Law: Challenges and Prospects.” Law Democracy and Development 22 (2018): 39–47. Bangani, A. C. Factors Influencing the Implementation of the Strategic Framework for Gender Equality Within the South African Public Service. Unpublished Master Dissertation. Johannesburg: University of Johannesburg, 2019. Baynesagn, Ambaw, and Telgen, Ian. “The Practice of Performance-Based Contracting In Developing Countries’ Public Procurement: The Case of Ethiopia.” Journal of Public Procurement 17, no. 3 (2017): 402–431. Callerstig, A. C. “Can Public Procurement be an Instrument for Policy Learning in Gender Mainstreaming?” Scandinavian Journal of Public Administration 18, no. 4 (2014): 51–71. Clifford, P. McCue, Prier, Eric, and Swanson, David. “Five Dilemmas of Public Procurement.” Journal of Public Procurement 15, no. 2 (2015): 177–207. Commission on Gender Equality. Gender Transformation on Procurement 2018/19. Report. Pretoria: CGE, 2019. De la Harpe, Stephen. “Substantive and Objective Criteria in Preferential Public Procurement: The Case of the 2011 Regulations in South Africa.” In Public Procurement: Reform and Governance in Africa, edited by Sybille Nyeck, 97–130. New York: Palgrave Macmillan, 2016. Decuyper, J. The Introduction of the Gender Dimension in the Public Budgets, Public Procurement Contracts and Subsidies. Position Paper. 2005. https://www​.oecd​.org​/ mena​/governance​/43088104​.pdf. Dullah Omar Institute. Best Price or Best Practice? - How Government Fails at Gender Responsive Procurement. 2020. https://dullahomarinstitute​.org​.za/ European Institute of Gender Equality. Gender Procurement. Lithuania: EIGE, 2020. Fineman, Martha A. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale Journal of Law & Feminism 20, no. 1 (2008). Glas, A. H., Schaupp, M., and Essig, M. “An Organizational Perspective on the Implementation of Strategic Goals in Public Procurement.” Journal of Public Procurement 17, no. 4 (2017): 572–605. https://doi​.org​/10​.1108​/JOPP​-17​-04​-2017​-B004.

148  Angelita Kithatu-Kiwekete and Shikha Vyas-Doorgapersad Hawkins, T.G., Nissen, M.E. and Rendon, R.G. “Leveraging Strategic Sourcing and Knowledge Management to Improve the Acquisition of Knowledge-based Services.” Journal of Public Procurement 14, no. 2 (2014): 215–251. Intahare, E. Ambe and Badenhorst-Weiss, Johanna, A. “Procurement Challenges in the South African Public Sector.” Journal of Transport and Supply Management 6, no. 1 (2012): 242–261. International Trade Centre. Empowering Women Through Public Procurement: Tracking Commitments. 2020. https://www​.intracen​.org​/itc​/projects​/women​-and​-trade​/public​ -procurement/ Isilow, H. South Africa Vows to Empower Women to Ensure Equality. Çankaya Ankara: Anadolu Agency, 2020. Kirton, Mark. Gender, Trade and Public Procurement Policy: Kenya, India, Australia, Jamaica. London: The Commonwealth Secretariat, 2013. Kohn, Nina A. “Vulnerability Theory and the Role of Government.” Yale Journal of Law and Feminism 26, no. 1 (2014): 2–27. Lapuente, V. and Van De Walle, S. “The Effects of New Public Management on the Quality of Public Services.” Governance 33 (2020): 461–475. Maurya, D. “Contracting Out: Making It Work.” Policy Design and Practice 1, no. 4 (2018): 281–297. https://doi​.org​/10​.1080​/25741292​.2018​.1552107. Moyo, Dambisa. Dead Aid: Why Aid is Not Working and How There is Another Way for Africa. New York: Farrar, Straus and Giroux, 2009. Nelson, G. Gender Responsive National Communications Toolkit. India: UNDP, 2015. Nhlapo, T. M. S. Human Resource Development Strategy for Gender Equality Within the Department of Correctional Services. Unpublished PhD Thesis. Johannesburg: University of Johannesburg, 2020. Nicholas, Caroline and Fruhmann, Michael. “Small and Medium-Sized Enterprises Policies in Public Procurement: Time for a Rethink?” Journal of Public Procurement 14, no. 3 (2014): 328–360. Nyeck, Sybille N. “Gender Equality in Public Procurement.” In Farazmand, A. (Ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance. Springer, 2020. ———. (Out)Bidding Women: Public Procurement Reform Diffusion and Gender Equality in Africa (December 1, 2015). http://dx​.doi​.org​/10​.2139​/ssrn​.2736031. ———. Why Does Gender Equality Matter to Public Procurement? An African Perspective, 2017. https://www​.hrprocurementlab​.org/ Nyikadzino, T. and Vyas-Doorgapersad, S. “The Devolution of Governmental Powers and Responsibilities in Post-Independent Zimbabwe.” African Renaissance 17, no. 1 (2020): 233–251. O’Neil, T., Domingo, P. and Valters, C.Progress on Women’s Empowerment: From Technical Fixes to Political Action. 2014. https://www​.odi​.org​/sites​/odi​.org​.uk​/files​/odi​ -assets​/publications​-opinion​-files​/9282​.pdf. Patrick, Manu, Mahamadu, Abdul-Majeed, Booth, Colin, Olomolaiye, Paul, Ibrahim Ahmed, and Akinwale, Coker. Assessment of Procurement Capacity Challenges Inhibiting Public Infrastructure Procurement: A Nigerian Inquiry. Research Report for Urbanization Research Nigeria Program Funded by DFID, 2018. Republic of Rwanda (RoR). National Gender Policy, 2010. ———.N° 62/2018 of 25/08/2018: Law Governing Public Procurement, 2018. ———. O.G.n° Special of 2003: The Constitution of the Republic of Rwanda, 2003.

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Republic of South Africa. Broad Based Black Economic Empowerment Act No. 53 of 2003. Pretoria: Government Printer. ———. Constitution of the Republic of South Africa. Act No. 106 of 1996. Pretoria: Government Printer. ———. Local Government: Municipal Finance Management Act No. 53 of 2003. Pretoria: Government Printer. ———. Preferential Procurement Policy Framework Act No. 5 of 2000. Pretoria: Government Printer. ———. Public Finance Management Act No 1 of 1999. Pretoria: Government Printer. Rich, Phillip. “What Can We Learn from Vulnerability Theory?” (2018). Honors Projects. 352. https://scholarworks​.bgsu​.edu​/honorsprojects​/352 Rwanda Public Procurement Authority (RPPA). Rwanda Public Procurement Authority: Core Functions. n.d. Timothy, G. Hawkins, Nissen, Mark, E. and Rendon Rene, G. “Leveraging Strategic Sourcing and Knowledge Management to Improve the Acquisition of Knowledge-Based Services.” Journal of Public Procurement 14, no. 2 (2014): 215–251. Toeba, Thato. “Corruption in Public Procurement in Lesotho.” Law and Development Review 11, no. 2 (2018): 397–431. UN Rwanda. National Individual Consultancy on Gender Responsive Procurement Policies. Kigali: UN Rwanda, 2017. UN Women. Fourth Conference on Women Beijing Declaration. New York: United Nations, 2015. ———. Gender-Responsive Procurement. New York: UN Women, 2020. UN Women Africa. New Report Calls for Deliberate and Bold Measures to Enhance Gender Responsive Procurement in Rwanda. Rwanda: UN Women, 2019. United Nations Educational, Scientific and Cultural Organization (UNESCO). Gender Equality: Heritage and Creativity. Paris: UNESCO, 2003. Verloo, M. Another Velvet Revolution? Gender Mainstreaming and the Politics of Implementation, 2001. Von Broebsen, Marlese. “Procurement Policy Subversions in Contracts Between South African Retailers and Suppliers.” In Nyeck, Sybille (Ed.), Public Procurement: Reform and Governance in Africa. New York: Palgrave Macmillan, 2016, pp. 77–96. Vyas-Doorgapersad, Shikha. “Paradigm Shift From New Public Administration to New Public Management: Theory and Practice in Africa.” TD: The Journal for Transdisciplinary Research in Southern Africa 7, no. 2 (2011): 235–250. Vyas-Doorgapersad, Shikha and Kinoti, A. “Gender-Based Public Procurement Practices in Kenya and South Africa.” African Journal of Public Affairs 8, no. 3 (2015): 96–109. Vyas-Doorgapersad, Shikha and Lukamba, T. M. “Political Participation and the Status of Women in the Democratic Republic of Congo (1960–2010): A Critical Historical Reflection.” New Contree 62 (2011): 91–110. World Bank. Case Study From the Global Report: Rwanda Pioneering e-Procurement in Africa. 2020b. http://documents1​.worldbank​.org​/curated​/en​/833041539871513644​ /122290272​_201811348025153​/additional​/131020​-WP​-P163620​-Wor​ldBa​nkGl​obal​ Report​-PUBLIC​.pdf. ———. Rwanda: Assessment of the Public Procurement System. Report. 2020a. https:// openknowledge​. worldbank​. org​/ bitstream​/ handle​/ 10986​/ 33977​/ Main​- Report​. pdf​ ?sequence​=1​&isAllowed​=y.

Chapter 9

Vulnerability in Higher Education The Case of Managerialism in Cleaning Services Procurement in Israel Orly Benjamin 1

Introduction The coalition for direct employment,1struggling against the application of public procurement regulation onto employment relations in diverse services, was established in Israel in 2007 by Orna Amos, a social worker committed to a ‘bottom-up’ social change. It was established during a protest wave against precarious employment. The latter is enhanced by practices of mediated employment incorporated into the routinized operation of the Israeli State through the 1992 legislation of the compulsory tender law (Rubinstein et al. 2008; Benjamin 2014). Namely, the law that represents the insertion of the 1979 GATT public procurement code into the Israeli legislation system. The 1992 legislation is a locally adjusted translation of the 1979 GATT public procurement code that later evolved into the WTO 1994 Agreement of Government Procurement (GPA). The 1992 legislation requires the introduction of potential international competition through a well-advertised Request for Bids (henceforth RFBs) for each service procured by an Israeli governmental agency. The unionization of cleaning service employees at Ben-Gurion University was fought for over a lengthy period and garnered the support and collaboration of faculty members, students, and activists. It became the source of inspiration for the establishment of the coalition for direct employment whose objective was to improve work conditions for cleaning service employees by resisting the procurement procedure of contracting out the cleaning service. The coalition for direct employment campaigned hard for direct employment at the university. Direct employment means that public procurement is not applied for cleaning services and each cleaning service employee is employed by the university as any other administrative employee. Employees then enjoy the same protection as full-time university hires including the administrative employees’ collective agreement which raises the quality of the cleaning jobs so that they become stable. Campaigning for direct employment has been a response to the public procurement of cleaning

1  Professor of Sociology and Anthropology Bar-Ilan University, Israel. ORCID: 0000-0002-0307-9442.

DOI:  10.4324/9781003371663-10

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services around the globe (Knotter 2017), underlining the vulnerability of employees in the type of jobs created through public procurement. Namely, contracted out, precarious, low-quality jobs (Benjamin and Nisim 2015). The campaigns led by the direct employment coalition motivated the Israel Federation of Unions (Histadrut) to see the protection of cleaning service employees as central to its agenda. The Federation of Unions therefore engaged in negotiation with the government for the extension of the collective agreement through increasing the minimum wage for cleaning service employees, and, most importantly, reached an agreement with the government in 2015. This agreement improved working conditions, primarily the level of income for cleaning service employees, but it didn’t change the basic fact of a low-quality insecure job which the coalition for direct employment fought against. Direct employment was not achieved for the cleaning service employees in higher education but for cleaning service employees in hospitals only. This achievement of the Federation of Unions (Histadrut) was considered an exceptional and unprecedent political step where all cleaning service employees in hospitals were contracted back in and directly employed by government-owned hospitals. ‘Contracting back in’ (Hefetz and Warner 2004) is a term used to describe the phenomenon whereby the government or a public agency or organization directly employs the workers providing the service. In the case of cleaning service employees, contracting back in means that competitive outsourcing is cancelled, and employees are far less vulnerable than they would be while employed by contractors. However, while hospitals’ employees became less vulnerable in this way with payment ladders, promotion and flex-security (where an alternative job is located for those who can no longer do the physically demanding work), higher education employees were not included, thereby rendering work in their contracted-out cleaning services more unstable. As the Israeli government did not include higher education institutions in the agreement, the steady resistance had mixed results with several Human Resources offices insisting on continuing public procurement of cleaning services. Yet, some higher education (HE) institutions however, decided to respond to the main demand of the coalition for direct employment and opted for contracting back in (Benjamin 2019). Cleaning service employees at Haifa University and several other general colleges and teachers’ training colleges, now directly hire cleaning service employees. When human resource managers of the institutions that contracted back in describe this achievement (Reshef and Egozy 2019), they highlight the effect of the direct employment (without a mediating contractor) on improved levels of organizational diversity: The cleaning service employees are mostly women of ethno-national stigmatized groups. But the effect of direct employment goes beyond organizational diversity and inclusion. Contracting back in has been significant in improving job quality for women through both extrinsic dimension such as working conditions and intrinsic dimensions such as pride, commitment, and a sense of belonging. Such significant improvement in job quality may become accessible to women once transition to direct employment occurs in HE institutions led by female presidents. Here, I examine this possible development as a case

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of mitigated vulnerability that is institutionally generated to enhance and exploit socially embedded vulnerability of cleaning service employees. I propose to examine this case of mitigated vulnerability through the prism of intersectional solidarity: Was it formed by female presidents to bridge over distinct social locations and mitigate gender vulnerability? Namely, is it possible that female presidents use their institutional privileged power position to support underprivileged vulnerable women. Under the condition of state generated vulnerability, for instance, in the case of public procurement, individual vulnerability cannot be mitigated by the state that ignores its responsibility. Instead, vulnerability may be mitigated indirectly by the state which establishes structures, programs, and institutions that provide individuals with resources and assets to build resilience (Fineman 2008, 2015). If female presidents can be found to use such public resources for mitigating gender vulnerability, intersectional solidarity may be reflected. As Fineman (2015, 2008) argues, for those suffering most of the vulnerability (possible as well as real), dependencies, which are at the heart of the human condition, become even more crucial signifying their need of actors shouldering the responsibility which the state refutes. The case of procurement of cleaning services is one in which the state refutes its responsibility towards vulnerable cleaning employees, calling for the privileged, to shoulder responsibility for their vulnerability and mitigate it. I propose in this chapter, a conceptualization of female presidents, otherwise investigated as symbols of organizational diversity, as entering a power struggle between two managerial rationalities. A managerial rationality that adheres to competition and financialization, and a socially responsible managerial rationality, namely, management based on commitment to protect vulnerable employees assuming their entitlement to the protection of their dignity, whether they state acts on its responsibility or not. The managerial rationality adopted by women once they are promoted into power positions has received little attention neglecting the possibility that managerial rationality serves as the higher order of meaning, values, norms, and/or rules that frame how individuals make sense of the world around them and consequently know how to act. One aspect of this higher order is the commitment to employees’ vulnerability which is sometimes assumed but, often, it is not committed to. Further, neglecting the crucial role of managerial rationality consists of neglecting the possibility that managerial rationality guides decision-making on how to treat the rights of vulnerable women employed in cleaning services either by shouldering extensive protection or by exploiting the leeway to ignore routine violations of their rights. To deal with this lacuna, I raise the following questions: Firstly, what managerial rationality do women bring when they reach the highest echelon of higher education institutions? Secondly, how does their managerial rationality inform their ability to shoulder responsibility for vulnerable employees which the state had refuted? To answer these questions empirically, I used two methods: Face-to-face interviews with six women presidents of HE institutions (out of ten women currently serving as HE presidents in Israel), and secondary analysis of existing materials about the struggle of cleaning

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service employees in HE institutions. All participants had direct or indirect knowledge of the persistent struggle of students and faculty members calling on the state to shoulder its responsibility for vulnerable cleaning workers and were involved in the negotiation of organizational resolutions. Struggles for the Contracting Back In of Cleaning Services Until 2007 public universities and other public sector organizations acted in ways manifesting the State refusal to shoulder its responsibility for vulnerable employees. They intensified employees’ vulnerability through the state approved practice of ‘loss tenders,’ namely, contracting the lowest bid over RFBs despite prices which do not cover employees’ minimum income and rights for benefits. At the time, contestants cleaning corporations who participated in the RFB but lost the contract could file a notice of appeal if they perceived the award decision to be unjustified. Such an appeal was filed in 2006 and the story appeared in an interview with a maintenance manager in his account of the complexity of operating the procurement of cleaning services at the time. He was interviewed as part of a study published elsewhere (Benjamin et al. 2017) in which we aimed at understanding how public sector organizations fulfil their duty to ensure the legality of their cleaning contractors’ employment practices. In December 2006, the procurement department at one of the universities received a letter from the lawyer of The Association of Cleaning Firms (TACF). To further the association’s objective of limiting illegal employment of cleaning service workers, the letter presented a comparison between the hourly payment offered in the tender bid by one of its member companies and the hourly payment in the winning bid. The member company’s rate was higher. ‘The letter said that the member company rate,’ explains the interviewed manager, ‘insists on a high professional level that guards the sector’s general labor code based on a commitment to standards ISO9001-20000 and to excellence.’ ‘We had to explain,’ continues the interviewee, ‘that our price includes all salary expenses: compulsory social benefits, transportation expenses and the costs of the collective contract in the field as well as the cost of the cleaning materials and the necessary equipment.’ Our response letter explained ‘that we aim at avoiding competition based on price alone.’ The Association of Cleaning Firms’ letter sought to nullify the tender award unsuccessfully. Nevertheless, the winning firm was forced to justify its prices. The maintenance manager described the struggle led by a business association against the common practice of loss tenders accepted then in public agencies in Israel. Namely, bidders used to win contracts based on offered prices that could not cover workers’ rights. The competition over university cleaning, demonstrates how competition between cleaning subcontractors, particularly within an institutional context of encouraging loss tenders, enhances employees’ vulnerability. While the member company held on to a code of conduct, which includes a specific reference to workers’ rights, the winning company did not have a code of conduct. Since 2007 the Ministry of Finance made the practice wining tenders based on

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loss tenders a lot more difficult. But it is important to remember the level of vulnerability to which cleaning service employees used to be exposed to when collusion over underpayment of cleaning service employees was the norm (Benjamin and Nisim 2015). Even more important is the history of loss tenders and the way they embolden cleaning service corporations to define corporate gains as underpayment of cleaning workers. Employees’ resistance and struggle were inevitable to improve the protection of workers’ rights after 2007. Successful Resistance at Ben-Gurion University – Unionization Simms (2017) reviews the literature that shows how unions seek to improve job quality. Following Bryson, Barth, and Dale-Olsen (2013), Simms presents qualitative evidence pointing to the fact that where union representation exists, some aspects of job quality are outcomes of collective bargain between the unions and the employers. Thus, the case in which continuous struggle achieves the goal of setting up a representative union is documented and needs more probing into the vulnerability dynamics it uncovers leading to success. The struggle led by the coalition for direct employment, indeed was raising and giving momentum to Koach La’Ovdim (Power to the Workers), a union that previously sought to promote the active unionization of organizational cleaning service employees at Ben-Gurion University. According to Preminger (2018a) cleaning service employees’ resistance at BenGurion University involved three entities: a large established union (the Histadrut), a non-union Coalition for Direct Employment, which recruited a small new union (Koach Laovdim) in its efforts to obtain a concrete employment relationship directly with the university. The three organizations worked in different ways toward the same broad goal. Preminger (2018a) further explains that the initiative to act came from the students and the faculty who had discussed subcontracted labor in a seminar in 2005. Some joined the rights organization Tzach (Hebrew acronym for ‘social justice’) and began pressuring the university to demand that the subcontractor pays the cleaners a better wage and social benefits. As the campaign progressed, other groups and organizations joined, forming what became known as the Coalition for Direct Employment. Preminger (2018a) interviewed Orna Amos and cited her paper with Baharav (2012) to describe the process of struggling for labor practice reform: At first, those involved in the initiative did not intend to unionize the cleaners, and communication with the cleaners was limited. Moreover, some cleaners were wary of talking to student volunteers involved in the initial campaign for fear that the Histadrut would hear of it and they would be fired. By 2007, the campus demonstrations and the media attention that they attracted appeared to have had an effect, and the university insisted that the subcontractors increase the cleaners’ wages, but one subcontractor said he could not meet the new wage demands and would fire the 100 workers he employed. This led to a

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spontaneous one-day strike.5 Under the Coalition’s tutelage, a temporary workers’ committee was set up, and some basic demands formulated, including the demand for direct employment with the university, which the university rejected. However, it did agree to increase its payment to the subcontractor to cover the wage increase, to keep the cleaners on throughout the year, to appoint a complaints commissioner and to supervise payslips. The cleaners who had been given notice were reinstated. Cleaning service employees’ resistance at Ben-Gurion University significantly improved job quality for the employees in diverse ways. As scholars have shown, improvement is an effect of unionizing (Simms 2017). However, direct employment was not achieved at Ben-Gurion University regardless of enormous efforts, skills and diverse tactics exerted by the coalition for direct employment, Koach LaÓvdim union, and the rights organization Tzach. The persistent pressures encountered the Ben-Gurion’s management fierce insistence on the principle of cost-focused managerial rationality. It could not be circumvented and showed no sway in its power position even though it lost its legitimacy within the circle of the university faculty members and students. The president, Prof’ Rivka Carmi, a feminist, highly committed to the promotion of women in the academia didn’t see the cleaning service employees as part of the category she was responsible for, regardless of their gender, class, and ethno-national belonging. Nevertheless, Preminger (2018b) offers a perspective according to which, from the workers’ point of view, the struggle was successful, increasing voice and participation in the workplace, increasing public awareness of the ills of subcontracted labor, and subsequently leading to two industry-wide agreements which significantly (albeit imperfectly) improved employment terms for subcontracted workers in general. The three successful cases below benefited from the struggle at Ben-Gurion, even if indirectly. Successful Resistance and Contracting Back In Managerial rationality, aiming at reducing the costs of cleaning services, is dominant logic in higher education and agencies that deliver welfare benefits in Israel. However, as these organizations are publicly funded, the cost of the cleaning contract cannot be lower than a set minimum. This has been the case since 2007. The practice of lowering cost through loss tenders which was common prior to 2007, became more difficult once the government’s upgraded its minimum wage requirements, which hasn’t happened following the regulation on procuring unit responsibility (Benjamin et al., 2015). Nevertheless, within the cost-focused managerial rationality, contracting out the cleaning work still requires a more efficient form of management. This is primarily because of the understanding that cleaning involves a range of issues that require expert knowledge of the cleaning contractors. Against the persistent vulnerability of employees in contracted out cleaning service, attempts to reduce such vulnerability through organized resistance, become important. Particularly when they demonstrate an impact and promotion of improvement.

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I now turn to describe the transition process in several public institutions which positively responded to cleaning employees’ resistance in one northern city in Israel, Haifa. The first process of admitting cleaning employees to direct employment took place in a hospital as part of government regulatory decision that cleaning work should be contracted back in and employees should be hired directly; the second process of shouldering direct employment of cleaning employees took place in two higher education institutions, a university and a college, where the contracting back in is the management initiative. Both HE cases indicate that employees’ resistance in cleaning becomes effective when powerful forces stand by it and support it at an institutional level (Nisim and Benjamin 2010). Unionization cannot really change job quality for cleaning service employees unless the managerial rationality transforms. Contracting Back In at Haifa University Between 2003 and 2017 students, lecturers and activists supported cleaning service employees’ resistance in four higher education institutions in Israel: Ben-Gurion University, Hebrew University, Tel Aviv University, and Haifa University The split between the two managerial rationality principles was observed. On the one hand, administrators at the universities insisted on the cost-reduction, and on the other hand faculty members and students insisted on the protecting vulnerable employees. At Tel Aviv University the struggle was the most persistent with a continuous collaboration of faculty members and employees within the framework of the coalition for direct employment. However, Tel Aviv University’s CEO, in his meeting with the activists, insisted on the cost-reduction managerial rationality stating that the cleaning service employees will never be directly employed in his institution because he did not see cleaning as a core occupation in higher education. There were several achievements to these continuous and persistent struggles and contracting back in and direct employment of cleaning service employees eventually to place at Haifa University but not at other universities. Cleaning service employees’ resistance at the university of Haifa persisted over a lengthy period supported by the coalition for direct employment campaign that activated the students’ unions in several universities during 2017. In addition to the campaign, a special organization called SELA (Students for the Workers), was created and supported by the Union Federation (Histadrut). Several faculty members supported the students struggle, primarily advising them on how to approach those in power position at the university. Particularly important was Professor Ayelet Ben Yshai, chair of the English literature department, who became a mentor for the students who led the struggle. In addition to ongoing demonstrations, they have repeatedly conducted conversations and discussions with the management board of the university, insisting on their position as clients. As customers who are entitled to have a say and refuse to study at an institution that encouraged the exploitation of cleaning service employees. This consumer voice became part of several other developments.

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Beginning October 2016, Professor Ron Rubin, an international relations scholar with deep commitment to social history, became the President of Haifa University. From his first public self-introduction speeches he emphasized his dual vision of Haifa University as both a leading research-oriented university and an institution committed to its social role in the community. During the first years of his presidency he had developed, together with the chair of the university managing board, Mooly Eden, a visionary plan for the university that would reinforce the university economic standing by increased public access to its teaching. Moreover, as someone who completed his Ph.D. at Berkeley during the 1970s and continued his close relationship with Harvard University, he was exposed to the intense struggle of Justice for Janitors (JFJ) and the achievements that this struggle had in higher education institutions in the US, including struggles at Harvard University. Among other public statement he said: One of the most important objectives of the Haifa University is to introduce new social categories into the Israeli middle classes. We felt that this cannot be right only for our students and that we must convey this important social message to our employees as well. From this point of view, he could hear the cleaning service employees’ struggle as one in with students’ preferences as clients. In this context the president led a decision-making process toward contracting cleaning back in. The Chair of the board of the university supported this line of action and stated: ‘The university of Haifa was never the Ivory tower that would be disconnected from society and this step proves that we are committed not only to research and excellent researchers but to social values as well.’ With these words he practically introduced the alternative principle to managerial rationality – that of treating employees as human, workers whose dignity deserves protection. On March 2018 the Vice President of the university and the CEO instructed the Haifa University HR department of their decision to employ cleaning service employees as university workers. It was decided that this change in policy would be effective starting October 1, 2018. Haifa University’s process of admitting cleaning employees to direct employment involved 68 full cleaning positions and 11 hourly paid jobs. On top of transferring employees to direct employment, more employees were recruited. However, the Haifa team faced criticism: HR managers and administrators from all other universities criticized the decision, advising going back to the contracting out practices. The HR team had to deal with legal complexities related to the contractors and some of the employees who could not be transferred to direct employment because of legislation against the employment of family relatives in the same organization. They had to recruit potential reliable employees. For the university, it was a first real encounter with the realities of the ethno​-nati​onal-​racia​l-cit​izens​hip-i​mmigr​ation​ diversity embodied cleaning employees represent. These are mostly migrants arriving to Israel from among the Arab-Palestinian citizens of Israel, Ethiopia, and former Soviet Union communities

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who also experience gaps in language and culture. Thus, commitment to improving the lives of the cleaning service workers required the employment of translators throughout the recruitment process including signing the contract, as well as training and preparation of a suitable information booklets. For instance, the health and safety regulations were translated into three languages: Arabic, Russian, and Amharic. Training programs were developed to facilitate multiculturalism in the assimilation process explaining legal rights and procedures and sexual harassment laws to the newly recruited cleaning staff. A training day for employees enhancing familiarity with the university was also conducted in addition to safety trainings. Courses in Hebrew and training in employment conditions were also planned. Contracting Back In at Oranim College The struggle and resistance for direct employment in the higher education system was also successful in several teachers’ colleges. Here I describe the case of one of them. Oranim is a small college located outside Haifa. It has the structure of a kibbutz and historical roots in serving kibbutz members of all ages, intellectual and ideological development. Its president announced her decision to contract cleaning back in right at her first board meeting as president in November 2015, five months after the Union Federation and Finance Ministry agreement. The agreement didn’t include higher education institutions but socially oriented managerial rationality led the president to positively respond to the ongoing protest. She stated: ‘Oranim will aspire to stop its contracts with cleaning contractors and will transfer its cleaning service employees into direct employment by the college so that they become integrated in it. All legal, operational and budget aspect are currently examined.’ At the heart of her statement, stands the recognition that contracting out of cleaning work exacerbate the vulnerability of cleaning employees and that it is morally wrong to await state response to the vulnerability that is institutionally created by state law and policy practices. The statement clarifies the understanding of the state as prioritizing contractors’ profit over standing its responsibility to employees’ vulnerability. The president’ attitude was widely embraced by most faculty which was reflected already in September 2015 when plans were made to promote civil action in the area. The president’s initiative was particularly supported by a civil action unit in charge of promoting the recognition of diversity and equality within the college community. It aspires to enhance awareness to issues of diversity and the vulnerability of employees from diverse ethno-national minorities, at the college itself and encourage civil action in these directions among students, faculty members, employees, and the management. One of the important activities initiated by the civil action unit was a project inviting cleaning service employees to academic studying. Volunteer lecturers (over 50) gave classes and the management funded cleaning service employees’ time. These studies were part of a project named Employed and Studying in Oranim. In January 2018, when the cleaning contract ended, the transition to direct

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employment took place. The team manager became an Oranim employee together with the cleaning staff. There were quite a few cases of dropouts and currently 12 employees are directly employed in a full-time position and 16 positions are part-time. Cleaning was then operated by fewer employees than in the contractor’s time and some relation with the contractor were maintained for emergencies. Despite significant improvement in job quality, turnover was as high as it was during the contracting out times. The need to recruit led to increased number of employees by 16% because of the workload created in the process. However, the cost of cleaning detergents decreased by 25,000 shekels per annuum. Three Feminist Narratives of Socially Responsible Treatment of Cleaning Service Employees The first narrative is told by Rina Bloch, president of a teaching training college. Throughout her interview she explains how determined she is to strengthen the academic performance of the college. She speaks in high feminist language when it comes to sexual harassment; in socially responsible ways when it comes to various community projects; in labor rights-informed language when it comes to her negotiation with the unions on the campus particularly the recent adjacent lecturers’ union. The latter also informs her approach to the issue of cleaning, but she supports in the contracting out of cleaning work. Q: Does the issue of direct employment for cleaning service employees emerged at your institution? A: Look, it did, of course it does. Let’s separate between issues related to the academic staff and administrative issues. For instance, all our cleaning operation. Our cleaning operation is not based on direct employment. We have a subcontractor with whom we work for many years. We know him. We control him. We control every aspect of his relationship with his employees. Q: Really? How does that work? A: His daughters study at our college. We actively check and make sure that he pays precisely what is due. All that they are legally entitled to. We simply do not want to employ them and make them employees of our institutions. But we do care and control what happens with them. You see, cleaning involves quite a few employees… Q: And what about all the demonstrations and strike that were organized in other HE institutions? Did you have any of that here? A: No. We had nothing of that here. It didn’t get here. I believe it’s because we are really obliged to good labor conditions. Q: How do you do that? How does that work if I may ask? A: We have a huge controlling system. We routinely examine these things. We work with the same subcontractor for many years, so we have trust relations with him as well. So, the struggle didn’t get here and I believe it’s because our cleaning service employees did not complain. I think it’s because they didn’t see themselves as exploited. It often comes on as the expression of

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frustration and dissatisfaction of workers themselves. But this didn’t happen. I do not think that and HE institutes can have direct employment for all issues. Primarily because of economic reasons. It would require huge financial commitments. Even if you would say that financially the expense is similar, there are still the situations in which you need to fire someone – it’s a big and cumbersome story – anything to do with firing employees is a lot easy if you have a subcontractor you are working with. Nothing can be done. Sometime changes are necessary. With the academic staff it’s a different story. The struggle between the two principles of managerial rationality is clearly resolved in favor of the competition principle. The belief that workers’ rights are kept by the subcontractor, that they are well supervised, legitimizes the competition informed practice. Echoing those holding on to managerial rationality, Rina Bloch explicitly identifies with two principles: Aiming at lowering cost and strengthening management power to fire employees (sometime called managerial flexibility). She too protests the difficulty to fire those who benefit of employment stability. Rina Bloch is all for workers’ rights but not as an aspect of socially responsible management, but rather as part of following appropriate formalities. Ana Neuman, the president of an academic college tells a second narrative. She wrote her Ph.D. dissertation on a feminist topic and sees herself as a feminist scholar. She is very determined to make an impact: transform the college so that her ideas get to shape the future of education. She presents herself as someone who devoted a lot of energies to issues of sexual harassment and as someone who has always been committed to equality, diversity, and inclusion. On the topic of cleaning, Ana Neuman was very committed and saw it as a mission. Q: How do you see your role on the issue of direct employment for cleaning workers? A: I was one of first presidents who completely cancelled the contracting out of cleaning services at an HE institution. At the time, the chair of our board of directors raised it as something he saw as important for workers’ dignity. What I believe was unique in our case is that it wasn’t a students’ struggle as it was elsewhere in other HE institutes, but rather something that faculty members raised. And I really supported that. To begin with, our CEO opposed the idea, but we all pressured him from the faculty members to the board chair. So, the order of things was that first we had a decision of the board and then the CEO had to accept and follow it. Q: So, what was your role in the process? A: As I said, it wasn’t my initiative. The CEO was new in his position and didn’t quite have the power position of someone who is older at his position. And, so the minute, the Chair of our board raised it in response to the faculty members call, I saw it as an opportunity and began push it. My role was, in fact, to keep it on the agenda and make sure that the CEO doesn’t forget about it. I continuously used the fact that I had the board decision and that we really

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need to follow board decisions… so it took two years. I kept nagging him, repeatedly reminding him of the decision. What really helped was the pressure that faculty members presented. Their struggle to promote direct employment throughout the period, was important. And it was really important to me too. Q: Why? In what way?   I had this vision… Several faculty members from the adult education department came up with this vision that we should allow cleaning service employees, all of them older women who didn’t have an opportunity to acquire education, to get the chance to learn here while working here. And the class began operating, even before the direct employment was formally introduced. Over a year we really had a fantastic experience there. And we had true relationships formed: between faculty members and cleaning service employees. And I got into a friendship with the worker who cleaned our offices, and she began studying on the special class which our team had developed for the cleaning employees. All this seemed to me like the right set of values to be promoted. And on top of everything else, once we began practice direct employment, dealing with all the problems around it, we sat an example for other colleges as well… Q: And what were your difficulties with this project? A: Well, you have to remember that we still depend on state budgeting so we had to do quite a bit of explanation but I kept saying that the risk in our case was minor as we are a small college and we only employ 30 to 40 cleaning workers so in a way it was like a calculated risk. And it worked well. Q: Is that related in any way to the fact that you are a woman president? A: Possibly, I’m trying to think… But, yes, all our girls, all the faculty members who encouraged me to follow this route are women, and there was a lot of solidarity, a lot of identification with the cleaners… you know… how the work they are doing is really sacred and how the places they are coming from are really the most difficult possible and how they cannot succeed on their own resources and they have to be supported by women like us… and I had an immediate connection with them, they were charming and described very harsh life experiences… The principle of socially responsible managerial rationality is emphasized quite clearly in this second narrative. The employees are seen as friends, as entitled to studying, and as deserving protecting of their dignity. It is important to see that such socially responsible managerial decision-making took place under the condition of clear support from the chair of the board; a support that helped defeat the objection of the CEO. The third narrative is told by Lara Riklis the president of a teachers’ education college who is very proud of the special atmosphere in the college. An atmosphere of warmth, commitment to the community and inter-personal friendships. She uses the notion of ‘humanism’ to describe what’s important to her as the leader of a teachers’ training college and she seems quite confident in her description of her

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contributions toward enhanced ‘humanism’ in the type of the projects which the college promotes and encourages. A similar spirit is manifested in her understanding the contracting back in of cleaning work. Q: So, was the issue of cleaning workers raised by struggles in your college? A: Yes. It was raised. Not just raised, this was a big discussion around here. We still contract our half of the employees… but let me start differently. About ten years ago, perhaps less, we had an intense discussion with the students’ union. They firmly protested against the contracting out of the cleaning. As part of the negotiation we decided to go for contracting back in. We employed all of them – gardening, cleaning, all, as equal college employees. I don’t want to tell you what a failure we had with this step. Both expensive and ineffective in its outcomes. Q: What do you mean ineffective? A: Well, the college was not clean! It was dirty! That’s the answer. Q: Dirtier than before? A: Yes. We didn’t manage to hold the operation. To date, the gardening employees are all directly employed, the cleaning service employees are split. The daytime employees, all Palestinians living in Israel, are directly employed. The nighttime employees are employed by a subcontractor. The reason for the withdrawal is that we just couldn’t get the place clean enough. The campus was… well we’re still not there yet cleaning wise… Q: Is it because of supervision issues? A: But we do make sure that the subcontractor is fair, pays all workers’ entitlements, but it’s only for the nightshift. So, ours is a half and half solution. Q: What was your role in the process? How were you involved? A: I was very strongly involved. It was really a together thing. I supported it. We doubled the expense on cleaning, but when you double the expense and you recruit a supervisor and it’s still dirty, you need to think again, you need to work for a better trade off. One that makes more sense. So, our nighttime subcontractor is an honest and professional one. That’s what I have to say. But basically, we hardly have any employees that are contracted out, certainly not in any jobs that are not cleaning. Q: Which of your important values was expressed in your way of taking care of that? A: With the cleaning it is really important to me to stay involved, to follow up. I’m involved on all levels. I don’t believe in an educational institute where the toilets are not cleaned. I can’t accept that at 4pm you can no longer use the toilet…, this is unthinkable from my point of view. It may seem minor, outside curriculum issues etc., but I’m involved in everything. I define myself as a doing manager. I do. I see. I’m out there. I see myself as someone who gives a lifeline to whoever I can give a lifeline. A socially responsible managerial rationality, which the narrator is quite proud of generally in the interview, is quite fragile when it comes to workers’ rights. It

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had developed to include the contracting back in of cleaning work, as a response to students’ struggle. However, this couldn’t be maintained for long as the pressures for effective management that saves on costs and insists on value for money questioned the extent to which contracting back in proved acceptable. Once the narrator concluded that it didn’t, she was fast to return, partially though, to contracting out. It is important to see the ambivalence is reflected here: On the one hand, the willingness to protect workers’ rights is obvious. On the other hand, the protection of workers’ rights cannot justify compromise of outcomes. Importantly, it emerges from the analysis that Lara Riklis is unsatisfied with the situation and that her ambivalent narrative hints toward the possibility for a near future return to contracting out more thoroughly. Conclusion Under the condition of state refusal to shoulder its responsibility to vulnerable employees, I criticize vulnerability theory (Fineman 2008, 2015) for ignoring vulnerability that is exacerbated by state action in the form of the compulsory procurement law and the policy practices legitimizing cleaning contractors’ violations of labor law. The principle of vulnerability theory, suggested by Fineman, according to which a shift from formal equality to substantive equality is required, remains unaddressed in the policy context of procurement. In contradistinction, state actors hold on to their indifference towards employees’ vulnerability regardless of persistent social protest calling on the state to recognize its active part in the exploitation of its most vulnerable citizens. Against the conditions which I have discussed in this chapter, we can see how dependency of vulnerable employees develops and turns to privileged actors to shoulder responsibility for them. The category of privileged actors which I have examined here, female presidents of HE colleges, demonstrated a potential of the privileged to mitigate gender vulnerability of cleaning employees by ways of intersectional solidarity. However, my analysis showed, that the institutional hegemonic managerial rationality, mostly prevents the possibility that female presidents of colleges would direct their influence to reduce the vulnerability of cleaning service employees. I can thus conclude that in the context of public procurement of cleaning employees, employees’ vulnerability is mostly left unmitigated. The ongoing discussion on the social organization of cleaning work, among other service and care occupations, contrasts two principles of managerial rationality. A managerial rationality that adheres to competition and financialization; and a socially responsible managerial rationality based on commitment to employees as entitled to protection of their dignity. The power relations between these two principles are formed in myriad ways by both shareholders and stakeholders. Here I focused on the power pendulum as managed in the context of a persistent struggle for the contracting back in and direct employment of cleaning service employees, emphasizing the possibility that women president of higher education institutions would use the struggle as an opportunity to manifest their socially responsible managerial rationality.

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In the context of the Israeli struggle for contracting back in in higher education, the six interviews with female presidents indicated that a socially responsible managerial rationality informs decision-making. This finding is consistent with earlier findings suggesting that women presidents of HE institutions reinforce socially responsible management (SetÓ-Pamies 2015). However, the possibility that adhering to a socially responsible principle of managerial rationality would be translated into ‘intersectional solidarity’ where privileged women would engage in making the effort to protect under-privileged cleaning workers, was not validated. Rather, managerial power held by women also practically reproduce cleaning service employees’ vulnerability in the university procurement practice. While the six interviewees reflected firm feminist attitudes when speaking on topics such as sexual harassment, dialogical management, and inter-personal dignity (which they often presented as aspects of their feminine management), they did not frame the issue of cleaning workers as part of their feminism. Nevertheless, Ana Neuman, the second interviewee, did portray the process as feminist and manifested intersectional solidary in describing the relationship formed between herself, other faculty members, and the cleaning staff the college employed. Even if the study reported here is limited in focusing on the topic of cleaning in one country alone, future research would have to examine the possibility that unionization in addition to its contribution to job quality, is able to pave way to intersectional solidarity.

References Amos, O. and Baharav, T. (2012). ‘The Organizing of the Cleaners at Ben-Gurion University of the Negev as a Case Study of Coping With Multi-Dimensional Institutional Oppression’, in D. Mishori and A. Maor (eds), Precarious Employment: Systematic Exclusion and Exploitation in the Labor Market (Ramat Gan: The Social-Economic Academy and Achva Press), pp. 113–128 (in Hebrew). Benjamin, O. (2014). The Narratives of New Public Management in an International and Israeli Perspective and the Gendered Political Economy of Care Work; A Special Issue on Care: Work, Relations, Regimes. Soziale Welt, Sonderband 20: 253–268. BadenBaden: Nomos-Verlag. ———. (2019). The Struggle for Direct Employment in Israel: Success and Chances. The Study of Organizations and Human Resource Management Quarterly 4(2): 6–25. Benjamin, O., and Nisim, S. (2015). The Illegal as Normative: Employment Practices of Cleaning Companies in Israel as Shaped by Subcontractors’ Organizational Networks. Business & Society 54(5): 676–700. Benjamin, O., Nisim, S., and Segev, G. (2015). Corporate Social Responsibility as Shaped by managers’ role dissonance: Cleaning Services Procurement in Israel. Journal of Business Ethics 130(1): 209–221. Bryson, A., Barth, E., and Dale-Olsen, H. (2013). The Effects of Organizational Change on Worker Well-Being and the Moderating Role of Trade Unions. ILR Review 66(4): 989–1011. Fineman, M. A. (2008). The Vulnerable Subject: Anchoring Equality in Human Condition. Yale Journal of Law and Feminism 20(1): 8–40.

Vulnerability in Higher Education  165 ———. (2015). Equality and Difference – The Restrained State. Emory University School of Law, Legal Studies Research Paper Series, Research Paper 15–348. https://papers​.ssrn​ .com​/sol3​/papers​.cfm​?abstract​_id​=2591689 (Accessed 30 May 2020). Hefetz, A., and Warner, M. (2004). Privatization and Its Reverse: Explaining the Dynamics of the Government Contracting Process. Journal of Public Administration Research and Theory 14(2): 171–190. Nisim, S., and Benjamin, O. (2010). The Speech of Services Procurement: The Negotiated Order of Commodification and Dehumanization of Cleaning Service Employees. Human Organization 69(3): 221–232. Preminger, J. (2018a). Creating a Multilayered Representational ‘Package’ for Subcontracted Workers: The Case of Cleaners at Ben‐Gurion University. Industrial Relations Journal 49(1): 34–49. ———.. (2018b). Labor in Israel: Beyond Nationalism and Neoliberalism. Cornell University Press. Reshef, A., and Egozi, L. (2019). On the Direct Employment Project and Human Resources Management at the University: An Interview With Sara Tsezna on Her Retirement. The Study of Organizations and Human Resources Management 19(1): 85–92 (in Hebrew). Rubinstein, D., Benjamin, O., and Golan, E. (2008). ‘The Main Road: Structural Empowerment of the Working Poor in the Context of Government Procurement Culture’, in M. Ejzenstadt and G. Mundlak (eds), Trial, The Law, Society and Culture Series (Tel-Aviv University: The Buchman Faculty of Law. Tel-Aviv: Nevo Publishers), pp. 159–194 (Hebrew). Setó‐Pamies, D. (2015). The Relationship Between Women Directors and Corporate Social Responsibility. Corporate Social Responsibility and Environmental Management 22(6): 334–345. Simms, M. (2017). Unions and Job Quality in the UK: Extending Interest Representation Within Regulation Institutions. Work and Occupations 44(1): 47–67.

Chapter 10

The Paradox of Equity in Public Procurement Policies A Vulnerability Analysis of Jordan Wa’ed Alshoubaki 1

Introduction The governmental1transformation from traditional public administration to the marketization approach is aimed at improving the public sector’s effectiveness and efficiency based on Hood’s principles of New Public Management. This practical and intellectual revolution has occurred through various instruments that facilitate the use of a businesslike, semi-market strategy to provide public services such as privatization the contracting out of jobs.2 In essence, contracting out has been a major principle in New Public Management since the mid-1990s in each plausible governmental function.3 This process enables policymakers to overcome the problems of slow and weak public sector management, reduce government size, and transform public organizations into smart purchasers.4 As an important aspect of contracting out, public procurement policy requires a radical change of tools to correspond with the inevitable change in the government’s role. However, the key principles of contracting out require that public procurement focus on economy and efficiency and formulate a regulatory policy that establishes specific norms and obligations that must be considered, such as transparency, accountability, and equality among tenders. In this context, it is significant to address public procurement attributes to gender equality in Jordan and its role in women’s economic participation and sense of equity in Jordan. Gender inequality in public procurement and other areas is not limited to a specific state. The United Nations defines gender equality as opportunities that reduce gaps and disparities between women and men and maintain fairness between 1  Assistant Professor of Public Administration, College of Business, University of Jordan. ORCID: 0000-0002-2864-5930. 2  E.H. Klijn, Public Management and Governance: a comparison of two paradigms to deal with modern complex problems In D. Levi Faur (ed) The handbook of governance, (Oxford: Oxford University Press: 201–214, 2012). 3  Donald F Kettle, Sharing Power: Public Governance and Private Markets (Washington, DC: Brookings Institution, 1993). 4  H. G. Frederickson, K. B., Smith, Larimer, C. W., and M.J. Licari, The public administration theory primer (Boulder, CO: Westview Press, 2012).

DOI:  10.4324/9781003371663-11

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them.5 Therefore, there is a global movement directed toward women’s inclusion in the supply side and support for women-led and women-owned businesses through quotas and legal requirements.6 Public procurement policies promote a wide range of social and economic objectives, such as upholding regional development, creating job opportunities, opening new investment paths to small businesses and young entrepreneurs, and enhancing equal opportunities between government and private sectors in terms of monopsony goods.7 In this way, governments strive to utilize the social outcomes of public procurement. This transcends existing jurisprudence and identical treatment to achieve social equity and corresponds with vulnerability approach. In other words, a government amends its public procurement policy as a societal tool to redistribute resources and prospects among social groups regardless of their economic power and social labeling. Against this background, the revolution in the public sector has spread worldwide. In some developing countries, such reforms have become a prerequisite on the part of international organizations to ensure market involvement, efficient government, and reduced corruption.8 Jordan, an upper-middle-income developing country, is in West Asia and features distinctive gender inequality. In the 2018 Global Gender Gap Report (GGGR), Jordan ranked 138 out of 149 countries in terms of economic participation and opportunity, educational attainment, health and survival, and political empowerment. It has implemented several structural reforms to encourage the liberalization of the economy through privatization, contracting out, and outsourcing.9 Jordan’s public procurement practices are based on its 1986 Government By-Work Regulation No. 71 and its 1993 Supplies Regulation No. 32. The most recent public procurement is the 2019 Public Procurement System, which aims to digitalize public procurement procedures; facilitate access to information; and consolidate procurement processes in all procuring entities for works, goods, and services.10 The Council of Europe’s Group described gender mainstreaming as ‘the (re) organization, improvement, development and evaluation of policy processes, so

 5  Keric Chin, The power of procurement: how to source from women-owned businesses: corporate guide to gender-responsive procurement. (2017): 1–89. Retrieved from https://www​.unwomen​.org​/ en​/digital​-library​/publications​/2017​/3​/the​-power​-of​-procurement.  6  S.N. Nyeck, ‘Gender Equality in Public Procurement’ In: Farazmand A. (eds) Global Encyclopedia of Public Administration, Public Policy, and Governance. (Springer, Cham, 2020) https://doi​.org​/10​ .1007​/978​-3​-319​-31816​-5​_1598​-1.  7  E.K Sarter, ‘The Development and Implementation of Gender Equality Considerations in Public Procurement in Germany,’ Feminist Economics, (2020): 1-24 DOI: 10.1080/13545701.2020.1718731.  8  Guy Peters, The politics of bureaucracy: An introduction to comparative public administration. (6th edition, London: Routledge, 2010).  9  OECD, Compact for Economic Governance Stocktaking Report: Jordan, 2018: 1–116. 10  OCED, Mechanism for complaints and disputes relating to public procurement in Jordan. (2020): Retrieved from https://www​.oecd​.org​/mena​/governance​/40426698​.pdf.

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that a gender equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making.’11 The application of vulnerability theory premises in this chapter facilitates an understanding of how the consequences of societal resource distribution affect one group positively at the expense of and to the exclusion of others.12 The universality conceptualization of vulnerability makes it applicable to various forms of fragility, overcoming the boundaries of a one-state dilemma.13 Vulnerability theory thus encourages a state to reconsider its legislation to increase the capacity of vulnerable subjects. In addition, S. N. Nyeck asserted that the vulnerability framework facilitates the implementation of gender-sensitive public procurement policies.14 The vulnerable subject not only accomplish the universality of defining a human being, but it is essential to accomplish social cohesion and reciprocity in which scheme that a state has to upkeep the social institutions operate fairly.15 Regarding the need for a genuine paradigm shift in promoting gender-sensitive legislation in Jordan, particularly in public procurement, vulnerability theory calls for the enlargement of the government’s role in correcting susceptibility repercussions through the state’s structure and its legal and political instruments. This chapter leverages vulnerability theory to understand women and public procurement policies in Jordanian. This analysis involves qualitative document analysis of constitutional provisions and laws, namely the 1986 Government By-Work Regulation No. 71; the 1993 Supplies Regulation No. 32; the 2019 Government Procurement System; government documents and reports; and reports from international organizations such as the UNDP, UN Women, and the World Bank. Combining interpretations of the secondary material with theoretical scrutiny facilitates an examination of the current circumstances surrounding this issue and illuminates the potential policy dynamics of gender inequity. This chapter is organized into three sections. The first section provides a brief overview of the vulnerability theory and its connection to gender. The second section discusses public procurement policy in Jordan. Finally, this chapter concludes by illuminating, for the benefit of policymakers, the fact that public procurement is a powerful government instrument for making improvements and achieving prosperity by including all social groups.

11  The Council of Europe, Gender mainstreaming: conceptual framework, methodology, and presentation of good practices – final report of activities of the Group of Specialists on Mainstreaming (EG-S-MS) (2004). p. 12. 12  Martha Fineman, “The vulnerable subject: Anchoring equality in the human condition.” Yale Journal of Law and Feminism 20 no.1(2008): 1–23. 13  Ibid. 14  S.N. Nyeck, Gender Equality in Public Procurement. In: Farazmand A. (eds) Global Encyclopedia of Public Administration, Public Policy, and Governance. (Springer, Cham, 2020) https://doi​.org​/10​ .1007​/978​-3​-319​-31816​-5​_1598​-1. 15  Fineman, Martha Albertson. “Vulnerability and Inevitable Inequality.” Oslo Law Review 1, no. 03 (2017): 133–49. https://doi​.org​/10​.18261​/issn​.2387​-3299​-2017​-03​-02.

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Vulnerability Theory in Gender Mainstreaming Analysis Vulnerability theory, which arose from legal theory, was introduced by Martha Fineman to criticize formal equality and call for a larger, more interventionist state to reduce inequality. In essence, Fineman’s analysis has two foundations. First, the formal equality of the liberal model is limiting because it posts that all people are equal in nature and must be treated the same.16 Second, the vulnerability concept encompasses universal and constant human conditions that are largely impacted by social institutions.17 She argued that ‘a vulnerability approach calls the attention to the way power and privileges are conferred through the operation of societal institutions and relationships.’18 The core notion of vulnerability theory is that everyone is jeopardized by natural crises, manufactured crises, armed and civil conflicts, illness, and weaknesses related to the sociopolitical reality. It holds that individuals are dependent in nature and lack the capacity to address their jeopardy on their own. Therefore, public institutions play a pivotal role in mitigating vulnerability through the establishment of substantive equality by creating equitable opportunities for susceptible groups.19 Fineman (2019) asserted the significance of developing a collective responsibility in a way that acknowledges the social justice through legal construction of just social institutions and relationships.20 Vulnerability theory asserts that the restraining role of the state exacerbates inequality among society members, and the doctrine of governmental non-intervention reinforces social stratification. A state must intervene to address the potential harm, adversity, fragility, and inequality because people – the vulnerable subjects – cannot correct such problems individually. Thus, public institutions must allocate their efforts to increase people’s capacity to overcome their vulnerabilities.21 Furthermore, vulnerability theory postulates that formal equality cannot address the prevailing inequality in societies and genuinely solve the dilemma of unfairness. Fineman claimed that the state must address the unfair distribution of resources, goods, services, income, opportunities, and disadvantages, which is usually accomplished through the state’s policies by pursuing the principle of fairness rather than that of sameness principle. Clearly, vulnerability theory is aimed at reducing inequality through government enlargement, which is the contrary to the

16  Martha Fineman, "The vulnerable subject: Anchoring equality in the human condition". Yale Journal of Law and Feminism 20 no.1(2008): 1–23. 17  Ibid. 18  Martha Fineman, ‘Equality and Difference – The Restrained State,’ Emory Legal Studies Research Paper No. 15-348, (2015) Available at http://dx​.doi​.org​/10​.2139​/ssrn​.2591689. 19  Martha Fineman, "The vulnerable subject: Anchoring equality in the human condition". Yale Journal of Law and Feminism 20 no.1(2008): 1–23. 20  Fineman, Martha Albertson. ‘Vulnerability and Social Justice.’ SSRN Electronic Journal, 2019. https://doi​.org​/10​.2139​/ssrn​.3352825 21  Martha Fineman, ’Equality and Difference – The Restrained State,’ Emory Legal Studies Research Paper No. 15-348, (2015) Available at http://dx​.doi​.org​/10​.2139​/ssrn​.2591689.

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concepts of marketization reform and the hollow state, as most libertarians believe that government should be permitted to shrivel because it causes inequality. Women worldwide are susceptible to various forms of adversity and misfortune resulting from gender discrimination, including poverty, unequal payment, lack of political representation and participation, poor economic participation, harassment, sexual abuse and violence, and trafficking.22 Thus, vulnerability theory provides a better understanding of the gender inequality in Jordanian public procurement policy. Gender inequality in developing countries is embedded in the sociocultural and economic environment. However, women aim to improve their situations in terms of public policies and endeavor to institutionalize their rights worldwide. For example, the establishment of the first UN World Conference on Women in Mexico City was followed by the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as the development of global organizations for women’s affairs, such as UN Women, and the issuance of the World Development Report on Gender Equality and Development.23 The public policy arena in developing countries involves gender-neutral policies that affect women and men, such as environmental policies, or other types of policies that frame relations between men and women, such as education, health, income, resources, and freedom from exploitation.24 In keeping with the emphasis on gender equality in Jordan, in investigations of economic vulnerability, gender gap indicators demonstrate the presence of vulnerability in Jordan in spite of existing constitutional provisions that establish equality among Jordanians. Specifically, the Jordanian Constitution maintains the equality of all Jordanians regardless of ethnicity or religion: ‘Jordanians shall be equal before the law with no discrimination between them in rights and duties even if they differ in race, language or religion.’25 At the international level, Jordan is a state party of CEDAW, and it ratified the Equal Remuneration Convention of 1951 and the Discrimination (Employment and Occupation) Convention of 1958. However, Jordanian legislation does not reflect the content of these conventions or implement new policies in a way that ensures women’s rights and development and reduces gender inequality. Legally speaking, Jordanian women face discriminatory legislation and difficulties in access to justice.26 Indeed, Jordan’s economic structure has potentially affected the economic vulnerability of Jordanian women. For example, employment practices in Jordan negatively affect the economic activities of Jordanian women and their participation

22  G. A. Haugen and V. Boutros, The locust effect: Why the end of poverty requires the end of violence. (New York, NY: Oxford University Press, 2015. 23  P. J. Burnell, L. Rakner, and V. Randall, Politics in the developing world. (Oxford, UK: Oxford University Press, 2017. 24  G. Waylen, Engendering transitions: Women's mobilization, institutions, and gender outcomes. (Oxford, UK: Oxford University Press, 2007). 25  The Constitution of Jordan, 1952, Article 6(1). 26  OECD, Compact for Economic Governance Stocktaking Report: Jordan, 2018: 1-116.

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in labor market. Although women’s enrollment rates at universities exceed those of men, women’s participation in Jordan’s labor market is the worst in the world.27 Jordanian women work in the public sector, but their participation in the private sector was only 18% in 2017,28 and the percentage of women on executive boards in Jordan was only 3.4% in 2015.29 Moreover, unemployment among women is around 23.34%, compared to 17.7% among men.30 Thus, when considering the vulnerability of Jordanian women, Jordan has not achieved idiosyncratic progress in gender equality. The Gender Inequality Index (GII) reveals that Jordan had a recorded value of 0.469 and ranked 113 out of 162 countries in 2018.31 The vulnerable conditions of Jordanian women also derive from social conditions that create additional barriers, such as the lack of local support for women from their society and families, social norms regarding women’s priorities and household responsibilities, and the preference of working from home with crafted work.32 According to Jordan Department of Statistics of 2018, Jordanian women’s economic activities concentrate on education (41.5%), human health and social work activities (15.2%), and public administration (14.2%).33 Furthermore, the United Nations for Development Program (UNDP), is of the view that Jordan must work to ensure equal opportunities for all citizens and cultivate education and job involvement to reduce social and economic jeopardy.34 Consequently, the concept of the vulnerable subject illuminates the condition of Jordanian women in public procurement policies. Public Procurement Policies in Jordan and Gender Vulnerability The Jordanian government embarked on a series of actions to enhance efficiency and transparency, including privatization, public–private partnerships, and contracting out. The public procurement policy was synchronized with these economic liberalization reforms to reduce the size of government and fight corruption. Jordan’s government implemented its most recent public procurement policy,

27  Ibid. 28  Jordan Department of statistics, 2018. 29  OECD, Compact for Economic Governance Stocktaking Report: Jordan, 2018: 1–116. 30  World Bank, Jordan Overview, (2020). Retrieved from https://www​.worldbank​.org​/en​/country​/jordan​/overview. 31  UNDP, UNDP launches Human Development Report, tackles a new generation of inequalities, December 10, 2019, Retrieved from https://www​.jo​.undp​.org​/content​/jordan​/en​/home​/presscenter​/ pressreleases​/2019​/undp​-launches​-human​-development​-report-​-tackles​-a​-new​-generation​.html. 32  OECD, Compact for Economic Governance Stocktaking Report: Jordan, 2018: 1–116. 33  Jordan Department of Statistics, Percentage Distribution of Jordanian Females by Economic Activity for Year 2018. 34  UNDP, UNDP launches Human Development Report, tackles a new generation of inequalities, December 10, 2019, Retrieved from https://www​.jo​.undp​.org​/content​/jordan​/en​/home​/presscenter​/ pressreleases​/2019​/undp​-launches​-human​-development​-report-​-tackles​-a​-new​-generation​.html.

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the 2019 Public Procurement System, as a component of the 2018–22 Jordan Economic Growth Stimulation Plan. It aims to combine all purchase systems in Jordan and merges the joint Procurement Department for Medical Supplies and the General Supplies Department into Governmental Procurement Department.35 The 2019 Public Procurement System focuses on e-procurement for tenders and facilitating transparent purchasing processes.36 E-procurement controls spending and tracks the stages of such purchasing processes, including bidder and tender submissions, the signing of contracts with suppliers, receipt of goods and services, and bill payment.37 Public procurements encompass works such as construction projects, including building, demolishing, exploration, reconstruction, and all related operations. Technical services involve conducting architectural and engineering studies for public works and engineering projects, as well as implementing and supervising these projects and using laboratory and field checks. Moreover, public procurement includes consultation services through the provision of intellectual and intangible services such as training, editing, programming, and software development. Finally, other supplies include medicine, medical supplies, medical equipment, raw materials, and utilities.38 These services can be purchased using the following methods: limited bidding solicitation, two-stage tendering, requests for offers, single-source procurement, and direct execution by the employer.39 Public procurement policy governance is directed by the Public Bidding Department, which is administratively connected to the Ministry of Public Works and Housing, the agency responsible for managing the procedures for offering and referring work bids and technical services, following up on contractor classifications, qualifying consultants, managing operations that guarantee efficient and transparent government procurement.40 At the same level, the Government Procurement Department is connected directly with the Ministry of Finance and shapes the general policy for managing supplies and the means for implementing this policy. Purchases of necessary supplies by departments in accordance with the provisions of the supplies system are enforced. In addition, it keeps common supplies and surplus supplies with any department and stores them in central warehouses for distribution to the departments according to need, or exchanges them.41 For the most part, the structure of the public procurement process branches out

35  Jordan Times, Government Procurement Department launched Under Comprehensive Reform Umbrella (Nov. 19, 2019). 36  The 2019 Public Procurement. 37  The 2019 public procurement. 38  The 2019 public procurement. 39  The 2019 public procurement system: Article 26. 40  Government Tendering Department, “Guide of tasks and duties for directorates, units and departments for the year 2017” Amman, Jordan. 41  The 2019 Public Procurement: Article 65: C. The 2019 Public Procurement.

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into two committees.42 The supplies and services that government units need must be purchased through the local purchasing committee for supplies and services at a cost of no more than $56,418.20,43 and supplies and services procured from the main purchasing committee must cost no more than $705,227.50.44 Works and technical services purchases are completed through the specialized central procurement committee, local purchase committee, governorate purchase committee, and special purchase committee.45 These committees aim to accomplish the specialization, monitoring, and control of spending rationalization. Gender Mainstream Analysis The general aim of Jordan’s public procurement system is to facilitate environmental protection through activities such as purchasing energy-saving supplies and works, using renewable energy, reducing waste, and increasing recycling. Furthermore, public procurement policies encourage local economies by prioritizing the national products and the inclusion of small and medium businesses. The transformation toward e-procurement processes is intended to increase transparency, saving costs, and improve accountability.46 Jordanian government documents reveal the government’s role in fostering women’s economic empowerment, but its public procurement policies do not consider participation based on gender to reduce the gender gap and address women’s lack of participation in the Jordanian market. This is a cause for concern regarding women’s inclusion in the Jordanian market and poses questions about their presence on the supply-side of public procurement. Statistically speaking, a gender disparity exists between women and men in terms of economic activities and economic empowerment. For example, in 2018, the gender gap in the economic activity rate was 41%, and the unemployment gender gap of unemployment was around −10.3%.47 To provide an understanding of the economic empowerment disparities, Jordan Department of Statistics has documented the inequality between women and men based on ownership and economic power. While Jordan men own about 48% and women 17% of land, the gap is even wider when areas of lands are considered (67.2% for men and 10.6% for women). Regarding the total value of loans from commercial banks, men receive 79.7% and women 18.5% only. With these statistics, the idea of the vulnerable subjects is given an economic face and reveals the lack of economic opportunities for women.48

42  The 2019 Public Procurement: Article 75. 43  The 2019 Public Procurement: Article 76. 44  The 2019 Public Procurement: Article 77 A. 45  The 2019 Public Procurement: Article78. 46  The 2019 Public Procurement: Article 8. 47  Jordan Department of Statistics, Employment and Unemployment Survey 2018. 48  Jordan Department of Statistics, Jordan Economic Empowerment 2018.

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The analysis of the Jordanian public procurement policies indicates that national policies have undergone several amendments and reforms. The latest reform emphasizes the activation of e-procurement procedures to enhance transparency and monitoring. It also focuses on encouraging national production, environmental sustainability, and energy savings. Notably, the 2019 Public Procurement System does not support women-owned business and women-led enterprises through legal mandates and quotas. Moreover, the vulnerability of Jordanian women is evident in the 2018 unemployment gender gap, which was −10%, whereas the gender gap for receiving personal loans was −36.3%.49 According to the government’s official records, the total number of women in debt in Jordan was around 13,000, thousands of whom face prison sentences due to their inability to pay. Most of these loans were intended to support their families or to finance small projects that were unable to make profits due to the women’s lack of economic and legal knowledge and a lack of governmental support for these projects.50 Therefore, the Jordanian government must intervene to correct this problem and reduce the Jordanians’ vulnerability through a genuine paradigm shift in the legal approach with an emphasis on women’s vulnerability. Freeman and Minow argue that the vulnerable subject is a focal point in establishing public procurement policy reforms to achieve gender equality.51 The exclusion of Jordanian women from the market negatively impacts the economy and women’s welfare. Therefore, the International Trade Centre affirms the role of public procurement policy in stimulating the entrepreneurial activities by womenowned business.52 Vyas-Doorgapersad and Kinoti also note that public procurement is an important tool for realizing equality and recognizing the relationship between gender and public procurement practices is imperative to achieving sustainable economic development in a country.53 The necessity of achieving gender equality in public procurement policy makes Fineman’s (2008) argument relevant in any discussion about government intervention in minimizing vulnerability through institutional work and public policies. From this perspective, public procurement policy is redistributive in that it aims to reallocate resources and opportunities among vulnerable groups.54 Arrowsmith

49  Jordan Department of statistics 2018. 50  Tareq Dewany Women in Debt in Jordan are between imprisonment and marginalization. The Independent Arabia. August 13, 2019. 51  Jody Freeman, Jody and Martha Minow. Government by Contract: Outsourcing and American Democracy. (Cambridge, MA: Harvard University Press, 2009). 52  International Trade Centre, Empowering Women Through Public Procurement. Geneva: International Trade Centre (2014) https://bit​.ly​/39OOZKr. 53  S. Vyas-Doorgapersad, and A Kinoti, ‘Gender-based Public Procurement Practices in Kenya and South Africa’ African Journal of Public Affairs 8 no. 3 (2015): 1–14. 54  H. Hartnell, ‘Public Procurement and the Fight against Gender Discrimination in the United States.’ Paper Presented at the 7th Congress of the European Women Lawyers’ Association (EWLA), Zürich, Switzerland (2007).

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emphasizes that public procurement policy is horizontal, accomplishes economic and social outcomes, and goes beyond adherence to legal requirements.55 In Jordan, public procurement policy must be formulated to accomplish social goals that enhance the equal opportunities for men and women and take significant steps toward advancing the economic inclusion and representation of women. The juxtaposition of Jordanian women’s inclusion in public procurement policies with women’s experiences in other states’ experiences proves the diversity of public procurement strategies and goals. Some experiences can be classified as non-discriminatory, equitable, and inclusive, whereas others are less equitable and do not consider women’s inclusion the market or their representation in governmental purchases. For instance, Kenya’s public procurement policies do not focus on women’s participation, and women continue to face barriers in terms of access to information to about public procurement, tenders, and trading.56 The researchers consider gender inequality a genuine social, economic, and political problem, along with other vulnerabilities such as refugee camps, human trafficking, prostitution, and AIDS/HIV.57 Therefore, Kenya considers gender equality its main path toward development, and it is examining the advancement of opportunities for small- and medium-sized enterprises to deliver goods and services and facilitating women’s access to the market and supply-side engagement to alleviate poverty and enhance women’s empowerment.58 Similarly, S. N. Nyeck argued that sub-Saharan African governments do not account for gender in contractual agreements between suppliers and the government as a purchaser, and she asserted that reform is crucial because social obstacles and a lack of harmonization in legal schemes prevent women from functioning effectively as suppliers.59 The OECD and the Tunisian government implemented a comprehensive public procurement reform model that is a component of the Good Governance and Anti-Corruption in Tunisia project.60 This reform is aimed at improving the welfare of Tunisians and enhancing their stability and confidence in the government.61 An analysis of the Tunisian public procurement reform found that the policy introduced e-procurement to facilitate operations and improve transparency. Significantly, the e-procurement policy reform focuses on the inclusion of

55  Sue Arrowsmith, "Horizontal policies in public procurement: a taxonomy", Journal of Public Procurement 10, no. 2, (2010): 149-186. 56  S. Vyas-Doorgapersad, and A Kinoti, “Gender-based Public Procurement Practices in Kenya and South Africa” African Journal of Public Affairs 8 no. 3 (2015): 1–14. 57  Ibid. 58  Ibid. 59  S. N. Nyeck, “(Out)Bidding Women: Public Procurement Reform, Policy Diffusion and Gender Equality in Africa.” WAGADU: A Transnational Journal of Gender and Women’s Issues (2015)14: 55–83. 60  OECD, Improving the E-procurement Environment in Tunisia: Supporting vulnerable groups in gaining better access to TUNEPS, Paris (2020): 1-32 61  Ibid.

176  Wa’ed Alshoubaki

vulnerable groups, such as small and medium enterprises, young entrepreneurs, women-owned business, artisans, and small businesses in marginalized and rural areas. Focusing on these groups develops the economy, decreases poverty, reduces the gender gap, and increases equity among groups by creating more opportunities and improving engagement at all levels. Public procurement plays a significant role in reconstruction and economic rehabilitation through its influence on the national economy and infrastructure. For example, Iraq has employed government procurement as part of its program to reconstruct public governance since the Iraq invasion and the fall of the Saddam Hussein regime.62 The core focus of public procurement in Iraq is based on the OECD principles of fighting corruption through transparency, good management, and control.63 According to Public Procurement Law N° 87 of 2004 and regulation N° 1 of the 2008 Governmental Contracts Implementation, the institutionalization of the procurement process and identification of the responsibilities of the Office of Government Contract Policy and Ministry of Planning and Development Cooperation can lead to open competition, transparent procurement cycles, and treatment of potential suppliers on a fair and equitable basis. It can also facilitate the reconstruction and encouragement of foreign investment. Moreover, the reforms of the government of Iraq aim to achieve inclusiveness for all of Iraq’s population such as the Kurdish people. To this end, Article 9 (a) states that all contracts shall be written in Arabic, Kurdish, and English.64 Similarly, public procurement in Egypt emphasizes transparency and public access as well as the quality of supplies.65 It is noteworthy that Egyptian Public Procurement regulation 89 of 1998 encourages national bidders over foreign bidders through a 15% price advantage. Egypt has maintained the same goal since it instituted reforms, and with the adoption of Law 5 in 2015, it provides priority to Egyptian manufactured products. This amendment also provides for the establishment of electronic public procurement through official government websites for tender and contracting. These websites publicize related information (Article 9). Equality between men and women in public procurement is a global demand for the advancement of women that supports their independence. States are diverse in their positions on gender equality in public procurement and compliance with these considerations, but public procurement reform can be justified in the presence of gender mainstreaming. In the case of Jordan in particular, the lack of equitable support for women in public procurement policies necessitates Jordanian government intervention to correct socioeconomic problems and provide remedies to women as

62  OECD. Improving Transparency within Government Procurement Procedures in Iraq, 2010: 1-144. 63  Ibid. 64  Norri, M. A guide to contracting with the Iraqi government, construction of supply contract, 2013. 65  Ghoneim, Ahmad, The Egyptian Public Procurement System: Main Features, 2017, FEM42-02 Research Paper

T he Paradox of Equity  177

vulnerable subjects through legal and institutional procedures that account for the gender gap and the social and economic barriers that prevent Jordanian women’s empowerment. Conclusion and Remarks Public procurement policy is a social and economic instrument aimed at achieving a balance between purchasing formula of inputs and outputs; however, concerns arise when reviewing gender equality on the supply side. In essence, public procurement policies not only enable governments to stabilize markets, influence the unemployment rate, and improve work conditions, but also assist policymakers in empowering women and strengthening their participation in the market through quotas for their enterprises and a high degree of engagement in public–private operations. However, the lack of political support for women and their poor political and economic participation in Jordan make their inclusion in public procurement procedures poor and less effective. Additionally, modest mandates for women’s rights result in a lack of gender-responsive public procurement policies. This is not limited to one state but varies in density as shown with key political and economic indicators and gender gap analyses in Jordan. Public procurement policy transcends the notion of regulatory policies that identify purchase ceilings, contracting out conditions, and nondiscrimination rules to create a more redistributive policy that considers the vulnerability of susceptible and disadvantaged groups. The coupling of vulnerability and gender equality magnifies the utilization of gender mainstreaming analyses in public procurement to study the corpus of the national laws and policies and identify the gender gap in these policies at all levels and stages. Through its public procurement policies, the government of Jordan aims to accomplish efficient governmental operations while maintaining a transparent and accountable government. The Jordanian government has demonstrated its commitment to active electronic governance through the digitalization of tender and bidding on its official websites. The last amendment on public procurement encourages national investment and projects in renewable energy and environmental protection. However, current policies on public procurement poorly represent different genders. They do not provide economic empowerment and capacity building through support for businesses owned by women, and they do not facilitate the access by women to suppliers for governmental projects. Indeed, Fineman criticized the inaction policy of a state and the minimalist state and she called for the expansion of the government’s role to make the modern political subjects more inclusive and responsive to universal human conditions.66 Thus, it is important to

66  Fineman, Martha Albertson. Injury in the Unresponsive State: Writing the Vulnerable Subject into Neo-Liberal Legal Culture. In A. Bloom, D. Engel, & M. McCann (Eds.), Injury and Injustice: The Cultural Politics of Harm and Redress (Cambridge Studies in Law and Society, pp. 50–75). Cambridge: Cambridge University Press. 2018. doi:10.1017/9781108332934.003.

178  Wa’ed Alshoubaki

reconsider the economic participation of Jordanian women and to formulate related legal instruments to ensure equal economic participation. In considering the vulnerability of women in Jordanian public procurement policies, the government must apply corrective actions to sincerely empower women in the economy and involve them in the supply side. It should reformulate its public policies by applying gender lenses and establishing the constitutional provisions for equal rights and equal opportunities for women and men. Moreover, the Jordanian government must foster social inclusion and eliminate the barriers and traditional mindsets that oppose women’s political and economic participation. Nurturing of women-owned small and medium businesses and increasing women’s economic and legal knowledge will facilitate their access to governmental information regarding tendering and bidding. Finally, the government must adopt group-based redistribution and economic quotas for women’s projects by reserving a specific portion of purchasing for such projects to ensure equality between men and women and achieve true equity.67 References Arrowsmith, Sue. “EC Regime on Public Procurement.” In International Handbook of Public Procurement, edited by Khi V. Thai, 251–290. Boca Raton: CRC Press, 2009. ———. “Horizontal Policies in Public Procurement: A Taxonomy.” Journal of Public Procurement 10, no. 2 (2010): 149–186. Burnell, P. J., Rakner, L., and Randall, V. Politics in the Developing World. Oxford, UK: Oxford University Press, 2017. Callerstig, A. C. “Can Public Procurement be an Instrument for Policy Learning in Gender Mainstreaming?” Scandinavian Journal of Public Administration 18, no. 4 (2014): 51–71. Chin, Keric. “The Power of Procurement: How to Source From Women-Owned Businesses: Corporate Guide to Gender-Responsive Procurement.” 2017, pp. 1–89. https://www​ .unwomen​.org​/en​/digital​-library​/publications​/2017​/3​/the​-power​-of​-procurement. Department of Government Tendering. Guide of Tasks and Duties for Directorates, Units and Departments for the Year 2017. Amman, Jordan. Fineman, Martha. “Equality and Difference - The Restrained State.” Emory Legal Studies Research Paper No. 15-348, 2015. http://dx​.doi​.org​/10​.2139​/ssrn​.2591689. ———. “Injury in the Unresponsive State: Writing the Vulnerable Subject into NeoLiberal Legal Culture.” In Injury and Injustice: The Cultural Politics of Harm and Redress, edited by A. Bloom, D. Engel, and M. McCann, 50–75. Cambridge: Cambridge University Press, 2018. ———. “The Vulnerable Subject: Anchoring Equality in the Human Condition.” Yale Journal of Law and Feminism 20, no. 1 (2008): 1–23. ———. “Vulnerability and Inevitable Inequality.” Oslo Law Review 1, no. 3 (2017): 133– 149. https://doi​.org​/10​.18261​/issn​.2387​-3299​-2017​-03​-02.

67  Deborah Stone, Policy Paradox: The art of political decision making. 3rd edition. New York: W.W Norton and Company (2012).

T he Paradox of Equity  179 ———. “Vulnerability and Social Justice.” SSRN Electronic Journal, 2019. https://doi​.org​ /10​.2139​/ssrn​.3352825. Frederickson, H. G., Smith, K. B., Larimer, C. W., and Licari, M. J. The Public Administration Theory Primer. Boulder, CO: Westview Press, 2012. Ghoneim, A. The Egyptian Public Procurement System: Main Features. FEM42-02 Research Paper, 2017. Hartnell, H. “Public Procurement and the Fight Against Gender Discrimination in the United States.” Paper Presented at the 7th Congress of the European Women Lawyers’ Association (EWLA), Zürich, Switzerland, 2007. Haugen, G. A., and Boutros, V. The Locust Effect: Why the End of Poverty Requires the End of Violence. New York, NY: Oxford University Press, 2015. International Trade Centre. Empowering Women Through Public Procurement. Geneva: International Trade Centre, 2014. https://bit​.ly​/39OOZKr. Jody Freeman, Jody, and Minow, M. Government by Contract: Outsourcing and American Democracy. Cambridge, MA: Harvard University Press, 2009. Jordan Department of Statistics. “Employment and Unemployment Survey 2018.” Jordan Times. Government Procurement Department Launched Under Comprehensive Reform Umbrella (November 19, 2019). Kettle, Donald F. Sharing Power: Public Governance and Private Markets. Washington, DC: Brookings Institution, 1993. Klijn, E. H. “Public Management and Governance: A Comparison of Two Paradigms to Deal With Modern Complex Problems.” In The Handbook of Governance, edited by D. Levi Faur, 201–214. Oxford: Oxford University Press, 2012. Medina-Arnáiz, T. “Integrating Gender Equality in Public Procurement: The Spanish Case.” Journal of Public Procurement 10, no. 4 (2010): 541–563. https://doi​.org​/10​.1108​/JOPP​ -10​-04​-2010​-B003. Norri, M. “A Guide to Contracting With the Iraqi Government, Construction of Supply Contract.” 2013. https://www​.tamimi​.com​/law​-update​-articles​/a​-guide​-to​-contracting​ -with​-the​-iraqi​-government​-construction​-supply​-contracts/. Nyeck, S. N. “Gender Equality in Public Procurement.” In Global Encyclopedia of Public Administration, Public Policy, and Governance, edited by A. Farazmand. Springer, 2020. https://doi​.org​/10​.1007​/978​-3​-319​-31816​-5​_1598​-1. ———. “(Out)Bidding Women: Public Procurement Reform, Policy Diffusion and Gender Equality in Africa.” WAGADU: A Transnational Journal of Gender and Women’s Issues 14 (2015): 55–83. OECD. Compact for Economic Governance Stocktaking Report: Jordan, 2018: 1–116. ———. Improving the E-Procurement Environment in Tunisia: Supporting Vulnerable Groups in Gaining Better Access to TUNEPS. Paris, 2020: 1–32. ———. Improving Transparency Within Government Procurement Procedures in Iraq, 2010: 1–144. ———. Mechanism for Complaints and Disputes Relating to Public Procurement in Jordan, 2020. Peters, Guy. The Politics of Bureaucracy: An Introduction to Comparative Public Administration. 6th ed. London: Routledge, 2010. Sarter, E. K. “The Development and Implementation of Gender Equality Considerations in Public Procurement in Germany.” Feminist Economics (2020): 1–24. http://dx​.doi​.org​ /10​.1080​/13545701​.2020​.1718731.

180  Wa’ed Alshoubaki Sarter, Eva Katharina, Sack, Detlef, and Fuchs, Sebastian. “Public Procurement as Social Policy? An Introduction to Social Criteria in Public Procurement in Germany.” Working Paper Series Comparative Governance, no. 1, August 2014. Stone, Deborah. Policy Paradox: The Art of Political Decision Making. 3rd ed. New York: W.W Norton and Company, 2012. Tareq Dewany Women in Debt in Jordan Are Between Imprisonment and Marginalization. The Independent Arabia. August 13, 2019. The Constitution of Jordan, 1952, Article 6(1). The Council of Europe, Gender Mainstreaming: Conceptual Framework, Methodology, and Presentation of Good Practices - Final Report of Activities of the Group of Specialists on Mainstreaming (EG-S-MS), 2004. UNDP. UNDP Launches Human Development Report, Tackles A New Generation Of Inequalities. December 10, 2019. Vyas-Doorgapersad, S. and Kinoti, A. “Gender-Based Public Procurement Practices in Kenya and South Africa.” African Journal of Public Affairs 8, no. 3 (2015): 1–14. Waylen, G. Engendering Transitions: Women’s Mobilization, Institutions, and Gender Outcomes. Oxford, UK: Oxford University Press, 2007. World Bank. Jordan Overview, 2020. https://www​.worldbank​.org​/en​/country​/jordan​/ overview. World Economic Forum. The Global Gender Gap Report 2018, 2018, 1–367.

Index

A

Accountability 10, 35, 37, 40, 58, 62, 101, 107, 119, 120, 143, 144, 166, 173 Advocacy 1, 7, 44–45, 53–54, 65 Affirmative Action, justification of, 1, 4–6, 9, 34, 37–39, 44, 49, 53, 57, 112, 121, 125–128, 131, 133–134. Africa 3, 4, 5, 10, 15, 16, 42, 65, 102, 105, 106, 107, 109, 112, 114, 115, 116, 126, 128, 129, 133, 134, 136, 164, 166, 167, 171 African Union, Strategy on Gender Equality and Women’s Empowerment x, 104–106, 114 African Development Bank’s Gender Equality Index x, 104–106, 117, 171 Agreement on government procurement (WTO’s) 150 Agriculture 61–63, 140 Assessment, of responsiveness 20, 23, 55, 66, 68, 113, 148–149 Asset accumulated 2, 3, 8, 9, 13, 16–19, 23, 29, 40, 51, 60, 72–74, 76, 78, 79, 80–83, 86, 92, 97, 106–107, 112, 152 Association of Cleaning Firms 153 Asylum services 88, 94, 99 Australia 27, 60, 66, 98, 113, 115, 113, 115, 134, 140 Autonomy 16, 51, 60, 126–127

B

Bank, loans x, 29, 31, 36, 42–43, 47, 49, 63, 66, 68, 73, 78, 104, 106, 107, 112, 114, 118, 126, 130, 132, 137, 144, 149, 168, 171, 173–174, 180 Black, businesswomen, x, 8–9, 15, 26, 59, 60, 62–63, 71, 73, 75, 79–80, 82, 84, 141–143, 148

Bids, request for, lowest, xi, 35, 83, 90, 94, 144, 145, 150, 172 Bidding documents, solicitation documents 48, 143, 172 Botswana (Republic of) viii, x, 9, 70, 100–101, 103–118 Broad-Based Black Economic Empowerment x, 79–84, 148 Budget, fiscal policies vii–viii, ix, 23, 27, 35, 57–58, 62, 75, 109–110, 114, 132, 139, 143, 147, 158, 161 Bureaucracy, representation 9, 27–28, 119, 121–124, 132, 134, 139, 167, 179

C

Capability 2–3, 126 CEDAW, UN Convention on the Elimination of All forms of Discrimination Against Women x, 1, 7, 170 Childcare 87, 92 Circular economy 55, 68 Civil engineering 48, 77, 82, 109–110, 172 Civil society, citizen empowerment x, vii, 14, 57, 67, 82, 93, 107–111, 113–114, 117, 122, 127, 139, 169 Co-dependence 5 Cognitive barriers 130 Collective and individual responsibility 2–3, 8, 16, 31, 49–51, 59, 87, 97, 112, 115, 136–137, 139, 153, 158, 163–165, 169 Competition 19, 48, 73, 89, 90, 91, 93, 95, 101, 102, 107, 129, 133, 136, 139, 144, 150, 152–153, 160, 163, 176 Construction industry, women in, companies, procurement, vii, x, 7–9, 14–20, 28, 35, 39, 43, 52, 69, 71– 73, 75–84, 94, 101, 109–110, 120–122,



182 Index 130–131, 138, 140, 145–146, 153, 164, 169, 172, 176, 179 Contract, award, design, subject of, 5, 35, 94, 106, 126, 131, 139, 144–145, 147–148, 153 Contractors, register 71, 76, 79–80, 82–83, 91, 131, 144–146, 148, 168–170, 178, 180 Consumer side 3, 5, 53, 57, 90, 111, 156 Contracting out, authority, also see outsourcing 1–4, 7–8, 10–11, 56, 5871, 97, 116, 120, 123–124, 140, 151, 167, 174, 179 Contracting back in 151, 153, 155–158, 163–164 Constitution, mandates 8, 9, 31, 36–38, 40–42, 106, 108, 124–125, 129–134, 138, 141–146, 148, 174, 177–178, 180 Cost-effective 106, 129–131, 141 Covid-19 42, 65, 69, 114 Corporation 6, 33, 38, 40, 47, 53, 65, 102, 131, 139, 153–154 Corruption, state capture 3, 4, 7–8, 29–33, 35–36, 38–42, 53–54, 56, 59, 63–64, 68–69, 143, 149, 167, 172, 175–176

D

Data, qualitative, quantitative, gender disaggregated 9, 11, 13, 20, 22, 43, 48–49, 59–60, 62–63, 69, 76, 77, 81, 98, 105, 112, 121, 128, 130, 132, 144–146 Decision-making 121, 124, 144, 146, 152, 161, 164 Democracy 2, 8, 11, 28, 34–37, 69, 77, 97, 147, 174, 179 Dependence, structural, also see co-dependence 16, 35, 45, 60, 86, 126, 176 Digitization 54, 132 Disability xi, 31, 37, 45, 54, 58, 60, 74, 127, 142 Disadvantage x, 6, 15, 31–32, 36–37, 50, 52, 73, 76, 79, 81–83, 94, 108, 124, 125, 129, 132, 138, 141–142, 169, 177 Discrimination x, 1, 15, 17, 26, 36–38, 42, 47–48, 51, 54, 63, 75, 102, 104, 114, 121, 124–127, 129–130, 133–134, 138, 141–142, 170, 174, 177, 179 Discourse 1, 4–8, 41 District procurement 107 Diversification/Diversity x, 60, 67, 108– 109, 111, 113–114, 116–117, 151–152, 157–158, 160, 175

E

Economic, vulnerability, empowerment, growth, parameters vii, x, 1–3, 6, 8–11, 13, 16–19, 26–28, 33, 37–42, 44, 47–48, 51–55, 57–62, 64–71, 73, 75, 79–80, 82, 84, 90, 92, 97–98, 100–130, 135–148, 166, 167, 170–180 Efficiency 3, 5–7, 47, 48, 107, 111, 129, 136, 144, 166, 171 Elites 33 Engendering, policy 120–121, 127, 129, 136–137, 139, 141, 143, 145, 147, 149, 170, 180 Entrepreneur, founding owner, 2, 67, 73, 75, 77, 80, 82, 111, 130, 133 Environmental rights 14, 37, 39, 55–56, 60, 165, 170, 174 Equality, treatment of, critique of, substantive, models of, -based policy 3–6, 8–9, 10-179 Equity paradox 47, 166–167, 169, 171, 173, 175, 177–180 Ethics, relational 32, 66, 75, 79, 97, 101, 164 Ethiopia (People’s Democratic Republic of) 69, 108, 113, 117, 147, 157 Evaluation, submitted proposals 102, 116, 122, 130, 136, 139, 143, 167 Exemptions 106

F

Fairness, unfair discrimination 10, 27, 30, 33, 98, 107, 138, 144, 166, 169 Female president 151–152, 161–164 Feminist, economics, approaches, legal theory 2, 10–11, 26–27, 45, 60, 62–63, 66, 68, 98, 120–121, 124, 135, 138, 155, 159–160, 164, 167, 179 Financing 66, 127, 132

G

Gender, equality, -based consensus, blind policies, mainstreaming, parity score, responsive, procurement, transformative, smart procurement, constructed role, commission on, gender-based violence x, 1, 3, 6, 10, 26, 34, 44, 46, 50, 53, 63, 69, 71, 75, 85, 97, 101, 107, 108, 112, 120, 123, 127, 131, 132, 145, 147, 152, 167, 169, 170, 178, 179, 180

Index  Global Gender Gap index x, 8, 104, 167, 170, 176, 180 Governance, self, mechanism of, harmonization of vii, viii, ix, 3, 8, 11, 26–27, 29, 34–37, 39, 42, 47, 53, 61, 65–68, 84, 101, 116, 134, 136, 147–149, 166–172, 176–180 Government, decentralization 143 Green procurement 37, 57, 65, 68 Group characteristic 122, 125–126, 130, 138

H

Harassment, sexual, workplace 51, 74, 121, 158–160, 164, 170 Harmonization 3, 47, 132, 175 Higher education ix, 9, 74, 84, 150–153, 155–159, 161, 163, 165 HIV 75, 114, 175 Human, condition, lifecyle, rights, resources viii, 1, 3–11, 26, 27, 30, 40–42, 45, 48–49, 51–53, 61, 64, 70, 75, 83, 85–98, 112–113, 115, 120, 126, 132–134, 137–138, 140, 145, 150–152, 158–159, 163–164, 168–169, 171, 177–178

I

Identity 5, 9, 16, 26, 47, 60 Ideology, shifting, dominant frames 47, 125 Implementation 4, 7, 12–14, 18, 20, 25–29, 35, 37–41, 44, 46–49, 72, 85, 90, 94–98, 101–102, 113, 119, 122, 126, 128, 133, 137, 140, 141–142, 146–147, 149, 167–168, 170–172, 175–176, 179 International organizations / system viii, 3, 8, 43, 44, 45–59, 64, 115, 134, 164, 167, 170 Individual, also see autonomy 16, 51, 60, 126, 127 Indicators 1, 74–76, 104–112, 115, 117, 170, 177 Inequality, structural x, 3–4, 7–8, 14–17, 38, 40, 41, 51–52, 58–59, 64–65, 71, 82, 86, 103–106, 114–115, 117, 121–122, 124–125, 166–117, 173, 175, 178 Incentives 8, 14, 68, 91, 95–96 Inclusion/exclusion, 6–7, 9, 13, 17, 23, 37, 48, 51–52, 59, 62, 64–65, 67, 79, 92–93, 102, 108, 122, 129, 138–142, 151, 160, 167–168, 173, 175, 177–178

183

Informal sector, informalism 52, 54–55, 65, 123, 125, 133, 142 In-house procurement, 8 Intersectional(ity), solidarity 16, 26, 45, 55, 59 Interest group, 127 Israel viii, 9, 85, 91, 97, 150–153, 155, 157, 162, 164–165

J

Jamaica 66, 113, 115, 134, 140 Jordan (Hashemite Kingdom of) ix, 166, 167, 168, 170–180 Joint-venture alliances x, 9, 51, 81–82, 101, 172

K

Kenya (Republic of), Public Procurement and Asset Disposal Act vii, x, 5, 8, 29–31, 33–42, 60, 65–66, 69–70, 102, 108, 113, 115, 117, 119–123, 125, 127–140, 149, 174–175, 180 Knowledge, dialogical, dissemination, transfer, exchange, creation, unilateral, participatory, technical vii, 7, 12–14, 18–26, 42, 44– 45, 51–52, 62, 68–71, 77, 80, 85–86, 88–89, 94, 96–97, 128, 131, 133, 138, 143, 145, 149, 155, 169, 174.

L

Labor, law, minimum wage, condition, subcontracted, 4, 9, 13, 27, 43, 52, 54–55, 86, 91–92, 95, 98, 106, 112, 140, 154–155, 159, 163, 165, 171 Lean in approach 50 Liberalization 3, 97, 167, 171 Liberalism, laissez-faire, liberal subject 31–33, 38, 41, 64, 135, 165 Linkages vii Local, council, government, product, authorities 21, 23, 27, 34, 44, 66, 93, 98, 102, 106, 108–111, 113–114, 116, 129, 132, 134, 142, 150, 171

M

Managerialism, managerial promotion, rationality 2, 14, 48, 120, 123, 150, 152, 155, 156–158, 160–161, 162–164 Management, environmental, vii–viii, x, 2, 4, 7, 26–28, 39, 43, 62, 66–67, 69, 72,

184 Index 76–77, 80, 84–85, 94–98, 101, 107, 113, 115, 119, 121, 134–136, 139, 141–142, 146–149, 152, 152, 155–156, 158, 160, 163–166, 176, 179 Manufacturing 110 Market, failure, economies 3, 7–9, 27, 32, 32, 35, 38–39, 43, 48, 52–53, 55–57, 60, 62–63, 74, 95, 97–99, 101, 103, 125, 145, 171, 179 Measurement 1, 65, Monitoring 4, 6–7, 10, 28, 98, 122, 129, 143, 173–174 Negotiation 151, 153, 159 Neoliberal, agenda, discrepancies 3–5, 8, 31–32, 37–41, 64, 139, 165

implementation, market-based, plans, policy, principles, professionals, programs, schemes, reform, works, goods and services, instruments, budget 1–20, 29, 38, 41, 50–90, 102–150, 165–180 Public administration viii–ix, 3, 5, 11–12, 27, 37, 42, 67, 84, 98–99, 116, 119, 121–122, 124–125, 127, 131, 133–135, 139, 147–149, 165, 168, 171, 178–179 Public leadership 9–10, 34, 63, 65, 69, 79, 84, 100, 121, 123, 135 Public-private partnership, mission, ownership 4, 7, 66 Public spending 5, 43, 45, 57, 79, 98, 132, 172–173 Purchasing 14, 18–21, 85, 101, 172–173, 177

O

Q

N

Outsourcing 1–4, 7–8, 10–11, 56, 58, 71, 97, 116, 120, 123–124, 140, 151 Operations 3, 26, 44, 46, 66, 68, 66, 76, 78, 80, 97, 102, 124–125, 172, 175, 177 Organizing, also see activism 2, 5, 10, 144, 164, 167, 174, 179

P

Parity, also see gender parity scores x, 17, 38, 41, 103–104, 116, 173 Patriarchy 120, 140 Policy responses 3, 8, 29–30, 42, 60, 74, 113 Political economy viii, 1, 27, 32–33, 45, 53–55, 61, 64–65, 67, 98, 164, 167, 178 Power, relations 23, 34–35, 39–40, 43–45, 47–48, 50–51, 53–54, 58–60, 62–65, 68– 69, 71, 73–75, 79–80, 82, 84, 100–128, 132–133, 135–136, 139–148, 152–155, 160, 163–164, 166–169, 173–179 Preferential, schemes, margins of, xi, 7, 30, 35, 38, 83, 102, 107–108, 111, 127–128, 132, 132, 135–136, 141, 147, 148 Price 35, 52, 91–92, 109, 147, 153, 176 Privatization 2, 57–58, 60, 61, 97, 108, 111–116, 120, 128, 132, 140, 165–167, 171 Protection 34, 36–37, 58, 60, 74, 88, 94, 96, 129, 141, 150–152, 154, 157, 163, 173, 177 Protest 150, 158, 160, 162–163 Public Procurement, design, framework, gender-responsive, gender-responsible,

Qualifications 9, 77, 85, 87–93, 95–96, 99, 145 Quotas 17, 53, 167, 174, 177–178

R

Recommendations 44, 58–59, 83, 101, 116, 118 Reform, strategy 1–11, 27, 48, 57, 67, 71, 98, 101, 102, 113–114, 116, 120, 121, 123, 124–126, 134–136, 140–143, 147–149, 154, 167, 170–179 Regional economic integration 44 Regulation x, 2, 7–8, 13–14, 18–19, 22, 26, 28, 33, 53, 69, 73, 82, 87, 90, 93, 95, 99, 116, 128–129, 133, 140, 143, 147, 150, 158, 158, 165, 167–168, 176 Representative institutions 1, 52, 119, 121, 123–124, 126, 154 Reserved schemes, citizen 70, 107–114, 128 Resilience responsive, socially produced 32–33, 35, 39–41, 60, 62, 66, 74, 83, 86, 137, 139, 143, 145–147, 149, 152 Resistance, international campaign Resources, acquisition, extraction, public, responsibility, allocation Risk 14–15, 31, 40, 50–54, 68, 74–75, 80, 125, 161 Running cost 91

S

SADC, Protocol on Gender and Development xi, 104, 106

Index  Scarcity 2, 3 Services, marketized, delivery 2, 7, 17, 29, 39, 79, 85, 87 91 94, 119, 140, 141 Shareholders 11, 14, 23–25, 52–53, 79, 163 Skills, also see qualifications 77, 80, 88, 89, 97, 142–143, 155 Small Business xi, 5, 11, 52, 58, 66, 77, 79, 82–84, 127–128, 134, 140, 142, 145, 167, 173–174, 176, 178 Social, activism, justice, provisioning, change, relationships / institutions I, ix, 2–3, 7–11, 26–27, 30–36, 40–43, 48, 58–59, 93, 98, 120, 125, 141, 146, 154, 157, 177–179 South Africa, Republic of vii–ix, 4, 7–11, 68–79, 81, 83–84, 108, 113– 115, 134–137, 140–147, 149, 174–175, 180 Stakeholder 11, 14, 22–25, 28, 52–53, 79, 163 Start-up 146 Stigma 31, 36, 42, 70 133, 151 Strategy 64, 67, 81–82, 114, 116, 123, 126, 140, 147–148, 166. Subjectivity, legal and political Sufficiency 9, 33, 77, 88, 112, 122 Suppliers 2, 4, 9, 29, 32, 35–36, 38–41, 48, 51–52, 57, 87, 90, 101, 149, 172, 175–177 Supply chain management 9, 26–29, 42, 52, 61, 101, 140–141 Sustainable, development goals, procurement viii, xi, 9, 18, 26–28, 34, 37, 55, 61, 64–66, 68, 71, 73, 83, 94, 96–98, 100, 109, 116, 145, 147

T

Taxation 36, 57, 60, 73, 132, 175, 178 Technical competence 7–8, 18–19, 53–54, 57, 69–71, 73–78, 81, 83, 102, 131, 139, 148, 172–173 Technology 81, 84, 110, 145 Tender(ing), process 27, 35–36, 38–39, 54, 57, 76, 80, 82, 90, 92–94, 106, 109, 113, 119–121, 123, 125, 127, 129–131, 133–135, 142, 144, 145–146, 150, 153–155, 166, 172, 175–178 Trade, global/norms, neoliberal 3–5, 8, 31–32, 37–39, 41, 64, 139, 165

185

Transparency 30, 33–34, 37, 56, 64, 68, 101–102, 107, 136, 144–146, 166, 171, 174, 176, 179

U

Unionization 150, 154, 155, 156, 164 United Nations Fourth Conference on the Status of Women 1, 104, 140, 149 University, Ben Gurion, Haifa, Hebrew, Tel Aviv, cleaning services, also see higher education vii–vii, ix, 1–2, 7–8, 10–12, 26–32, 40, 42, 60–67, 75, 88, 97–98, 99–100, 116, 119, 135–136, 147–148, 150–151, 153–158, 165–166, 170, 174, 177, 178–180

V

Values, maximization, also see democracy, low, 7, 8, 15, 23, 33–37, 39, 56, 74, 78, 119–120, 123–124, 144, 152, 157, 161–162 Voluntary arrangements 33, 39, 47, 49 Vulnerability, institutional, informed, contracted 1–10, 30, 40–41, 47, 56, 70, 72, 87, 97, 133, 152, 177 Vulnerability theory, critical, universal, embeddedness, embodiment, spectrum, vii–viii, 2–11, 30–74, 120, 137, 148, 163, 165, 166, 168–170, 179.

W

Water management 30, 55, 77, 110, 140 Waste 7, 57, 173 Welfare 2, 12–13, 26, 33, 73–74, 95, 97, 117, 120, 155, 174, 175 Women, entrepreneur, -owned business, -led business, economic empowerment Women’s rights ix, 170 Workers, work condition, job quality, power to, xi, 52–53, 61, 64, 66–67, 83, 89, 142, 151, 153–158, 160, 161–164, 165 Workplace, masculine, male-dominated, wages 70–78, 82–83, 131 Works, locally sourced 109, 111, 150 (UN) women xi, 43, 49, 62, 69, 106, 122, 140, 147, 180

Z

Zero-sum game 47