We sat down for a Q&A with Johannes Schnitzer, McKinsey’s managing counsel, Global Public Sector, and Christopher Yukins, professor and co-director of the United States’ leading public procurement law program at George Washington University Law School, and dove into their perspectives on why it is so important to continuously professionalize in-house procurement lawyers. For good measure, we also touched on how they met, why Johannes recently cooked Moroccan Kefta, why Professor Yukins has been the most important sponsor in Johannes’s professional career, and why mentoring the next generation of procurement leaders leads to personal satisfaction.
How did you meet, and how did you keep in touch?
Johannes Schnitzer: In my early career, I was an associate at a law firm and submitted an academic paper on international agreements governing public procurement for a leading government contract conference, and Professor Yukins just so happened to be the peer reviewer. He did a terrific job providing feedback, as my piece ended up winning the best paper award when there were more than 100 submissions—this was in 2010, when I presented my paper in Seoul, South Korea, so a long time ago. Chris then assisted in making it possible for me to work as a foreign attorney out of one of the top government contract law firms in the United States in their DC offices. After that, we remained in touch. Along with publishing and giving lectures, we collaborated on a variety of procurement capacity-building initiatives sponsored by various international development agencies that assisted sovereign nations in updating their domestic public procurement laws to reflect global best practices. Chris has also presented at internal McKinsey Legal gatherings. I also frequently seek Chris’s personal counsel. For instance, I asked him if joining McKinsey would be a good idea. Throughout the entirety of my professional career, Chris has been an absolutely incredible mentor and sponsor. I owe him a lot.
Professor Yukins: My relationship with Johannes—and with many of my students at George Washington University and other institutions—is shaped by my experience in practice. Like many Washington lawyers, I have experience in both the public and private sectors, and I have a good working understanding of the practical aspects of public procurement systems. That working understanding of the market—what legal realist Karl Llewellyn called “situation sense”—makes it much easier to work with professionals across borders, and to offer pragmatic legal solutions for common problems.
As an extension of our work together on various projects, including the UNCITRAL model law on public procurement, we created a curriculum on integrity in public procurement for a prestigious international academy and wrote a widely cited guidebook on the subject for the United Nations. Johannes was the author, and I served as editor. As we are both vice chairs of the International Public Procurement Committee, Public Contract Law Section of the ABA, I have invited Johannes to join numerous ABA and George Washington University Law programs on emerging public procurement topics.
What part do you play in your job?
Professor Yukins: I teach six courses at George Washington University Law School, both live and online, to law and nonlaw [primarily midcareer procurement professionals] students, and I supervise masters and doctoral students. I also serve as a visiting professor and lecturer at various institutions, including the Université Paris Nanterre, the United Nations ILO-International Training Center [Turin, Italy], and the International Anti-Corruption Academy [Austria]; my international teaching is also often done online. There are several lessons buried here. First is that public procurement is globalizing very rapidly, and that it is very easy to teach across borders because public procurement systems face common problems, with remarkably similar solutions. Second is that because higher education in the US is so much more expensive than it is in most other countries, professors who are committed to building global capacity will “reach around” the US structure and teach abroad. Finally, online education, which gets better and simpler to use every year, has been an essential part of “breaking down boundaries” both inside countries and around the world; this past year at George Washington University Law, I taught students from Bahrain to California. The field of public procurement is growing very rapidly, although there are still serious shortages—in Cook County, Illinois, for example, where Chicago is located, there is reportedly only one procurement lawyer in government in a county that, were it a state, would rank in the middle of US states by population. This is remarkable because, by comparison, any US federal agency has many procurement attorneys, and the Defense Department has hundreds.
Johannes Schnitzer: The number of lawyers at McKinsey has more than doubled to 300 since I started working here four years ago, and the number of lawyers in the public sector has increased even more. “Enhanced client service,” “protecting our firm,” and “deepening relationships with our internal clients by providing strategic thought partnership” are the three pillars upon which we base our client service. This is crucial while navigating the public sector, where risks, in my opinion, aren’t diminishing and call for a proactive approach to management through various mitigation procedures.
My position has changed over time. It initially concentrated on helping to build the team, capacity building, and, obviously, a lot of support regarding the public tenders McKinsey is participating in. As time went on, I moved more into a mentoring/coaching/coordination role with the possibility that high-priority legal questions can always be escalated to me. This now truly allows me to help McKinsey’s global practice group for the public sector work through the most challenging problems as a strategic thought partner. Additionally, I make sure that the entire department takes advantage of the team’s expertise in the public sector by sharing case studies, creating instructions, checklists, trainings, etcetera.
Why is professionalizing public procurement so essential?
Professor Yukins: Because of its economic and societal importance. Public procurement is arguably the world’s largest vertical marketplace, as public sector organizations around the globe purchase more than $9.5 trillion worth of goods, services, and construction services annually. Additionally, it is a central tool for achieving socioeconomic and environmental goals and—as the recent past and present demonstrate—a crucial strategic driver for economic recovery and inclusive, sustainable growth. The complication is that, because the government is spending taxpayer money, the government has a fiduciary duty to ensure that purchases are made in a fair, competitive, and transparent manner. As a result, highly formal tendering procedures and highly complex legal frameworks have basically become the norm. Put differently, while private and public supply chain issues are similar, they are also indelibly different because of the unique risks and pressures in the public sphere, and the unique laws [and norms] which shape public procurement reflect that difference. In addition, in many nations there are separate laws for the purchase of utilities and other requirements for acquisitions in the defense sector. The US Federal Acquisition Regulation alone is over 2,000 pages long—and that doesn’t include the agency supplements. On top of that, governments frequently provide directives, policy notes, and explanatory notes. And case law is produced by public procurement review bodies—in many jurisdictions, hundreds of cases annually. All of this has produced a level of complexity that is challenging for both public purchasers and private vendors to navigate. You can easily get lost.
Johannes Schnitzer: Engaging with clients in the public sector is quite different from dealing with clients in the private sector, from the perspective of a private contractor. The main reason for this is because public procurement is a highly regulated process with the risk of exclusion and debarment where, essentially, the client in the public sector sets the ground rules. Importantly, this means that a private company must typically work with the public sector client’s templates instead of using their own internal terms and conditions as well as understand the tender process, including the selection criteria for contractors; technical specifications; and the contractual terms and conditions that govern the engagement.
To examine and comprehend all this information and develop a bid strategy for a certain opportunity, a bespoke approach is almost always needed. For this case-by-case analysis, in-house counsel must consider a wide range of legal issues, including sanctions and export control, data privacy, digital and analytics, anticorruption, foreign-influence laws, and many others, depending on the client, region, and nature of the work. Public procurement is obviously always at the core. Furthermore, it is not unusual for public tenders to not allow contract negotiations, so private bidders often invest a lot of time and energy in the proposal stage, even if they know they won’t win every public tender. Local knowledge is vital too, because many government institutions are obligated to or want to work in their local language. This local input is also crucial when taking into account more general risk factors that affect reputation and perception.
What does it genuinely mean, then, to upskill procurement lawyers?
Professor Yukins: The Organisation for Economic Co-operation and Development, earlier this year, published a review of current initiatives and challenges regarding professionalizing the public procurement workforce. It is an interesting paper, as it highlights the importance of developing a professionalization strategy, competency model, certification framework, and capacity-building systems, as well as setting up incentive mechanisms and promoting collaborative approaches with knowledge centers. But as with other initiatives in this area, such as the European Competency Framework for Public Buyers [ProcurCompEU] laid out by the European Commission in 2020, or the Defense Acquisition University in the United States, with an annual budget approaching $200 million, those initiatives typically concentrate only on the public buyer’s side, that is, those involved in the procurement of goods, services, and works, as well as auditors and officials in charge of reviewing public procurement cases. On the other hand, this is understandable because such institutions are on the “buyer’s side,” but it soon becomes clear that the opposite side of the procurement process—since there can be no buying without any selling—also needs professionalization. The more thoroughly providers comprehend a government acquisition’s requirements and a tender’s procedural specifics, the better for the government—especially because the government and its largest vendors often share reputational capital.
Johannes Schnitzer: Absolutely. Additionally, those individuals working for companies offering goods and services to public entities must possess the education, training, experience, and qualifications appropriate to their degree of responsibility. This is especially true for the legal workforce, given how legalistic procurement has recently become. Even a small mistake in a proposal can result in the exclusion from the opportunity, and certain types of misconduct can even result in yearlong bans from bidding on public contracts. In-house counsel with expertise in public procurement can make a difference.
Professor Yukins: Our curriculum at George Washington University Law School, which has evolved over the government procurement law program’s 60 years, reflects the complexity that Johannes describes. The first tier is an overview course, which only Juris Doctor [and some foreign LLM] students can take. This course, taught by my colleague Joshua Schwartz, bridges between a traditional case-based approach [the norm in US law schools] and a more regulation-based understanding of procurement law. The second tier holds our “core” courses, one on contract formation and one on contract administration. [The US system is somewhat unique in having special rules for contract administration as well; many countries simply rely on normal commercial rules when a government has a dispute with a contractor.] These “core” courses are infused with policy and organizational theory, so that our students—many of whom are from abroad, or will work in foreign procurement markets—can apply the lessons learned in systems outside the US federal government. While procurement’s overarching principles, what my colleague Steven Schooner calls the “desiderata,” are important, what’s also critical is that the students understand the special market dynamics that generate unique public procurement rules and norms. Once they gain that “situation sense,” students are better able to bridge between different public and private perspectives, and between working as outside counsel or in-house, in this strikingly idiosyncratic vertical market.
How can in-house counsel for procurement advance their skills?
Professor Yukins: It sounds counterintuitive, but perhaps the best way to advance as private counsel is to engage in public work. My work with Johannes over the years reflects that we worked together on various United Nations initiatives, and we continue to be involved with the ABA on various initiatives to improve public procurement systems. Assessing others’ perspectives on public policy issues forces professionals to think critically, which is probably the most important skill one can gain. And engaging on public issues forces lawyers, and other professionals, to understand how and why a public procurement system works, and makes them better advocates and citizens.
Johannes Schnitzer: We have put a particular focus on hiring contract professionals with experience in the public sector. This might be attorneys who specialize in public procurement, former government officials but also contract professionals who used to work in other in-house legal departments with a focus area on government contracting. Additionally, their education continues to progress at a rapid pace once they join McKinsey. The department has a particularly strong focus on trainings to keep our colleagues current with the latest developments and best practices. With respect to contract professionals specializing in the public sector, we developed our own onboarding curriculum and established regular global forums to discuss actual case studies so that folks can share lessons learned. Taking on early responsibility is key: we’ve hired top lawyers and contract professionals, so we expect them to perform and bring their best to every situation. And legal upskilling is essential to guaranteeing top-tier legal advice with respect to various legal areas. We accomplish this through internal and external trainings, but more significantly, by sharing and discussing real-life scenarios and how they were handled in a particular jurisdiction with a positive problem-solving mindset. Therefore, in-house procurement counsel must be specialists in their area of law, including keeping up with legal advancements. But in my opinion, this is not sufficient. In-house procurement counsel must participate in decision making early on and have a seat at the table in order to be a strategic thought partner to the business side.
In-house work in this area is much more than gatekeeping; it requires being curious, engaging, and multifaceted. You must first understand what a specific tender or engagement is about and how the tender process functions, for example, is it a “take-it-or-leave-it” tender or is negotiation possible; what are the eligibility and award criteria; will there be an immediate contract or later call-offs under a framework, etcetera. In addition, one needs to understand the suggested team setup to help structure the bidding entity, the scope of work to help assess liability risks, and the overall risk context including the likelihood of bid protests from aggrieved bidders or other form of litigation. An excellent procurement counsel will frequently simply go above and beyond at every opportunity to give the business side a complete picture, including options, so that it can make an informed decision. And to do this, it usually takes a lot of effort and the mindset of contributing to the solution or, to put it another way, a distinct client-service orientation.
What additional ingredients are required to create a top-notch in-house legal team for public procurement?
Johannes Schnitzer: Besides having excellent lawyers in any legal department, it is also crucial to put in place the right structure/operating model. Scaling up the group of dedicated public sector lawyers at McKinsey came with quite a few challenges; this is why we had to look into several organizational models. We considered different approaches around reporting lines—solid lines versus dotted lines—and finally found an organizational design which allows the individual team members to be embedded in both their respective region and the Global Public Sector legal team. This was an interesting exercise, and I was fortunate being able to tap into McKinsey’s knowledge on how best to organize global teams.
It becomes clear that you both enjoy working in a multinational setting. What about this is so satisfying?
Professor Yukins: Working across borders is like a multidimensional chess game, but much noisier: it means understanding culture, politics, organizations, and economics all at once, while teaching and advocating in a way that makes sense to people with very different experiences and sensibilities but typically very common goals.
Johannes Schnitzer: It’s a huge advantage to be able to think “internationally” in a global role. Having traveled the world, attended university in five different countries, and worked for international companies were not disadvantages. And what this means is that you need to see different cultures and ways of working as an opportunity—you need to embrace diversity. What remains key is to communicate effectively across different cultures, which requires a nuanced approach. Whereas communication in some cultures is typically direct and explicit, applying the same communication style in other cultures might be damaging; there might be instances where it is crucial that meaning is embedded in the way the message is presented. You need to be aware of this and adapt accordingly.
What is so great about McKinsey Legal is that everyone is different, but we accept and actually encourage colleagues to bring their own style. This is part of the secret sauce: there is a sense of belonging. The team I am guiding is particularly effective since it is so diverse. Globally dispersed nationals from around 15 different nations, each with a diverse educational background and culture but the same objective. It’s wonderful to watch team members from various regions of the world working together to solve problems and observing how much they can each learn from the other. It’s a genuinely global team that offers our clients the finest. This is amazing, isn’t it?
During the pandemic, and still now when colleagues partly work from home, we understand that colleagues might be feeling disconnected and stressed. This is why we doubled down on new opportunities for collaboration and for employees to embark on projects that tap into their passions. On top of many department-wide initiatives, we recently kicked off a series of connectivity events pairing team members from different regions of the Global Public Sector legal team. For instance, I was asked to team up with a colleague based in Africa sharing local recipes, and I prepared Moroccan Kefta: delicious meatballs in a rich tomato sauce that made our house smell like a spice market.
Chris, you are a professor at George Washington University with dozens of publications to your credit. You also serve as a visiting professor in other nations and a lecturer at other universities across the world. Additionally, you are actively engaged in numerous capacity-building initiatives in the field of public procurement. You are counsel at a law firm and an active member of the ABA. Above all, you have mentored numerous members of the “international public procurement expert inner circle” without ever having asked for anything in return. Why the selflessness?
Professor Yukins: I credit my father, who worked on building eye clinics, and treating patients, around the world throughout his professional career. My wife has spent her adult lifetime improving education for children, both here and abroad. That tradition has carried down to our son, who works on LGBTQ+ advocacy as a counselor, and our daughter, who teaches anticorruption strategies worldwide as a government attorney. I wouldn’t call it selflessness so much as engagement, something which is a privilege and never a burden.
Comments and opinions expressed by interviewees are their own and do not represent or reflect the opinions, policies, or positions of McKinsey & Company or have its endorsement.