The Legal and Social Construction of Value in Government Procurement Markets
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1111/jols.12211 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 1, MARCH 2020
ISSN: 0263-323X, pp. 29–59
The Legal and Social Construction of Value in Government
Procurement Markets
Richard Craven∗
The Public Services (Social Value) Act 2012 introduces a social value
duty. It requires public authorities in England and Wales that are
carrying out procurement activities to ‘consider’ how such activities
might ‘improve … economic, social and environmental well-being’. This
article analyses qualitative, empirical data on how the social value duty
has been interpreted and applied across local government in England.
Although only a weak legal duty, this law has made a notable impact
on practice. The article explains the changes brought about in practice
under the social value duty and seeks to understand why these changes
have occurred. It does so by recognizing local government procurement
markets, as well as local government organizations themselves, as
strategic action fields. In these fields, there are competing visions for
social value. It is through conversations between actors that a common
meaning comes to be attached to the law.
INTRODUCTION
The 2008 financial crisis was a crisis about value(s):1the value of
collateralized debt obligations, but also the values of capitalism. In 2009,
in the wake of the crisis, the British Prime Minister declared, ‘Markets need
∗School of Law, University of Sheffield, Bartolomé House, Winter Street,
Sheffield, S3 7ND, England
richard.craven@sheffield.ac.uk
I am grateful to the British Academy and Leverhulme Trust for providing small grant
funding (SG142414). I would also like to thank Cosmo Graham for commenting on a
draft of the article.
1 Unsurprisingly, the theme generates much literature: B. Skeggs, ‘Values beyond
Value?Is Anything beyond the Logic of Capital?’ (2013) 65 The Brit. J. of Sociology
1; M. Mazzucato, The Value of Everything: Making and Taking in the Global
Economy (2018).
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
what they cannot generate themselves; … markets need morals’.2Against this
backdrop, in 2010, the Conservative–Liberal government was formed. This
government, alongside a programme of austerity, attempted to cultivate David
Cameron’s ‘Big Society’.3Here, we examine one aspect of the legislation
underpinning the Big Society: the social value duty, found in the Public
Services (Social Value) Act 2012.4The duty attracts significant interest
from policymakers and practitioners, due, in the main, to connections made
between lowestprice, competitive tendering, and recent procurement scandals
– notably, the collapse of the government contractor Carillion in 2018.5Forthe
present government, returning to state provision is not an option; the policy
response is a reinforced commitment behind social value: public services
must be delivered ‘with values at their heart, where … wider social benefits
matter and are recognised’.6As part of its civil society strategy,7in 2019, the
government consulted on strengthening and extending social value.8
This article’s focus is the regulation of local government procurement in
England. By studying procurement, we see government activeas a buyer in the
marketplace, and, in essence, a clash between two fundamental institutions,
government and the market, each of which is associated with a distinct
system of values. From a market perspective, government is not economically
rational, as, say, a private corporation – guided by the profit motive –
might be. For local government, because of its democratic, political set-up,
non-commercial (economically irrational) values are inevitably embedded in
2 G. Brown (2009), Labour Party Congress, quoted in B. Amable, ‘Morals and Politics
in the Ideology of Neo-Liberalism’ (2011) 9 Socio-Economic Rev.3, at 12.
3 Conservative Party,Invitation to Join the Government of Britain (2010) 35.
4 Public Services (Social Value) Act 2012, s. 1; L. Floyd, ‘The Elephant in the Room:
The Public Services (Social Value) Act 2012’ (2013) 129 Law Q.Rev. 180.
5 A cursory internet search reveals a multitude of commentary. See for instance:
A. Henriques, ‘Social Value: A Sustainability Buzzword without a Meaning?’
Guardian, 22 July 2014 <https://www.theguardian.com/sustainable-business/social-
value-impact-buzzword-sustainability>; D. Ebanks, ‘Is Measuring Social Value the
Key to Better Public Sector Commissioning?’ Guardian, 17 February 2015 <https:
//theguardian.com/society/2015/feb/17/measuring-social-value-public- sector-
contracts>; M. Pears, ‘Delivering More Social Value’ Local Government Lawyer,19
May 2017 <https://localgovernmentlawyer.co.uk/procurement- and-contracts/308-
procurement-features/34634-delivering-more- social-value>; P. Masonbrook,
‘Social Value Is Not Something We Can Afford to Ignore’ Building.co.uk,11
September 2019 <https://www.building.co.uk/communities/social-value-is-not-
something-we-can-afford- to-ignore/5101577.article>.
6 D. Lidington (25 June 2018), Reform.
7 Cabinet Office, Civil Society Strategy: Building a Future that Works for Everyone
(2018).
8 Cabinet Off ice, Social Value in Government Procurement: A Consultation on
How Government Should Take Account of Social Value in the Award of Central
Government Contracts (2019).
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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