The Benefits of Setting the Ground Rules and Regulating Contracting practices/Benefices De la Fixation De Regles De Base et De Pratiques Reglementees Pour la Passation De contrats/Beneficios Derivados del Establecimiento De Normas Fundamentales Y De la Regulacion De Las Practicas De Contratacion

Article excerpt

Introduction

In recent years, there has been considerable development of contracting almost everywhere in the health sector. Although a large body of experience on contracting has been documented, the results have often been promising but also occasionally limited, not so much because of the contracting approach itself, but on account of its inappropriate or untimely use.

Contracting is often seen as a tool that the various health actors use in an ad hoc manner to solve specific problems, without always considering how it fits into the overall working of the health system.

In this article, we provide an overview of the context in which contracting has developed before considering it a tool whose use is regulated. Several means of carrying out such a regulation are then described. Subsequently, we examine the requirements for these tools to be successful, restricting ourselves to analyses of experiences that have been published and to our own empirical observations.

Context in which contracting has developed

Increased use of contracting has been part of the evolution of health systems and of the relationships between the various actors in such systems. As a result, the position and role of these actors have evolved considerably, and the changes outlined below may be identified.

Role of the state

The definition of the role of the state that was called into question by analyses which concluded that privatization was the remedy for the state's inability to manage is increasingly giving way to a vision in which the state's role is to steer public interest rather than to provide and finance services. (1) The health sector is no exception to this widespread trend, which proposes that the state should focus on its stewardship function and, as is suggested by the World health report 2000, (2) "row less and steer more." There is nothing new about this ongoing examination of the state's stewardship function, which is defined as a "function of a government responsible for the welfare of the population, and concerned about the trust and legitimacy with which its activities are viewed by the citizenry"; it was addressed by Jean-Jacques Rousseau in the 18th century, then by Max Weber at the beginning of the 20th century, before being taken up by the Public Choice School in the United States. (3)

This vision reflects substantial challenges to the practices and techniques of public management. In the view of some analysts of government, (4,5) we now stand at the watershed dividing two periods: that of the "commanding government," which is coming to an end, and the dawn of the period of "government by partnership." The commanding government, which is constituted and acts by virtue of the impersonal and coercive general rule of law, seems to be increasingly less suited to the environment of modern societies, with their inherent complexities. The current crisis of "governability" has exposed the inefficacy of the state and of its conventional legal regulatory mechanisms. No doubt, laws, decrees and regulations and their application by an authoritarian bureaucratic organization were suited to a certain period in history. Nowadays, however, the results produced by this form of governance are less satisfactory; and it is more through necessity and pragmatism rather than ideology that new forms of public management have developed. "Government by partnership" is characteristic of a state that no longer commands from the top down, but which negotiates with its societal environment. Consequently, modern law should assign an increasingly important place to "law by regulation" or "negotiated law" (6) (flexible, reflexive, reactive), and no longer aspire to regulate everything but rather provide frameworks for negotiation. The new style of government is that of government by delegation and through the coordination of interlinked networks. (7,8) A modern administration thus becomes a cooperative one which generalizes the practice of negotiating as a day-to-day form of action. …