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INTERNATIONAL REFERENCES IN PUBLIC PROCUREMENT

INTERNATIONAL REFERENCES IN PUBLIC PROCUREMENT. Parallel session – 1 ½ hour. TEXTS. Government Procurement Agreement (WTO) UNCITRAL Model Law EU Directives OECD/DAC methodology Working Group on Transparency of WTO NAFTA OECD Convention on combating bribery

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INTERNATIONAL REFERENCES IN PUBLIC PROCUREMENT

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  1. INTERNATIONAL REFERENCES IN PUBLIC PROCUREMENT Parallel session – 1 ½ hour Fiduciary Forum - JJ Verdeaux

  2. TEXTS • Government Procurement Agreement (WTO) • UNCITRAL Model Law • EU Directives • OECD/DAC methodology • Working Group on Transparency of WTO • NAFTA • OECD Convention on combating bribery • World Bank (& other MDBs) Guidelines Fiduciary Forum - JJ Verdeaux

  3. PRINCIPLES • TRANSPARENCY • NON-DISCRIMINATION (national treatment) • ECONOMY • EFFICIENCY • OPEN COMPETITION Fiduciary Forum - JJ Verdeaux

  4. Common provisions • Publicity (for bidding and award) • Minimum time limit for submission • No discrimination at the time of submission • Conditions attached to use of non competitive methods • Distinction between qualification and evaluation • Confidentiality of the evaluation process • Right of review: complaint mechanism for bidders Fiduciary Forum - JJ Verdeaux

  5. GPA WTO • Plurilateral (NOT multilateral) Agreement between 37 WTO countries (over 150 countries are members of WTO) • Treaty • Signed in 1994, renegotiated in 2007 • 10-12 Countries negotiating accession Fiduciary Forum - JJ Verdeaux

  6. GPA WTO Negotiating accession Albania Chinese Taipei Georgia Jordan Kyrgyz Republic Moldova Oman Panama Commitments to access Armenia China Croatia Mongolia Former Yugoslav Republic of Macedonia Saudi Arabia Observers Albania, Argentina, Armenia, Australia, Cameroon, Chile, China, Colombia, Croatia, Georgia, Jordan, the Kyrgyz Republic, Moldova, Mongolia, Oman, Panama, Sri Lanka, Chinese Taipei and Turkey. Three intergovernmental organizations, IMF, OECD and UNCTAD Fiduciary Forum - JJ Verdeaux

  7. GPA WTO Purpose: “Recognizing the need for an effective multilateral framework ……..regarding government procurement with a view to achieving greater liberalization and expansion of world trade …”; Fiduciary Forum - JJ Verdeaux

  8. GPA WTO provisions • No requirement for public bid opening • Late bid possible under specific circumstances “A procuring entity shall not penalize any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity” • Negotiations possible A Party may provide for its procuring entities to conduct negotiations: A procuring entity shall: (b) where negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders. Fiduciary Forum - JJ Verdeaux

  9. GPA WTO & EU Directives EU Directive 2004/18/EC Article 53 Contract award criteria The criteria on which the contracting authorities shall base the award of public contracts shall be either: • (a) when the award is made to the tender most economically advantageous…; or • (b) the lowest price only. GPA (2007) Article XV Treatment of Tenders and Contract Awards it shall award the contract to the supplier that … has submitted: (a) the most advantageous tender; or (b) where price is the sole criterion, the lowest price. Fiduciary Forum - JJ Verdeaux

  10. GPA WTO provisions Client Countries (1) BUT, GPA rules will apply to any national procurement system of a developing country joining the Agreement GPA is a Treaty whose rules do not apply to procurement financed by international aid assistance Article II – Scope This Agreement does not apply to: procurement conducted: (i) for the specific purpose of providing international assistance, including development aid; (iii) under the particular procedure or condition of an international organization, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Agreement. Fiduciary Forum - JJ Verdeaux

  11. GPA WTO provisions Client Countries (2) Distinction between “developing countries” and “least-developed countries” Transitional period when the country would be allowed to adopt one or several mitigating measure (price preferences) • Right to waive a specific obligation of GPA during a maximum period of: • 5 years for least developed countries • 3 years for other developing countries Fiduciary Forum - JJ Verdeaux

  12. Others WTO instruments • Negotiations including ALL WTO members on transparency in Government Procurement • GATS: WTO Agreement on services (with a component on procurement of services still under negotiation) Fiduciary Forum - JJ Verdeaux

  13. Fiduciary Forum - JJ Verdeaux

  14. EU procurement  EU DIRECTIVES (DG Market + DG Enlargement of the EC) DIRECTIVES (2004): - Directive 2004/17/EC (“utilities” Directive) - Directive 2004/18/EC (“classic Directive) • EU procurement legislation providing a legal framework (quite detailed) for 27 member states; • part of the “acquis communautaire” to be implemented by acceding countries (Turkey, FYROM); • guidance for all countries looking for accession Fiduciary Forum - JJ Verdeaux

  15. EU procurement European Development Fund • Countries ACP (Africa-Caribbean-Pacific) • ACP Treaty (between the EU & ACP countries) • Price preference for domestic bidders • Eligibility requirements based on nationality EU external aid (Budget) • Specific regional programs: ALA (Latin America-Asia), MED (Mediterranean Countries); • Financial Regulation of the EC: Budget approved by the Parliament • No price preferences • Competitive dialogue, Dynamic purchasing system Fiduciary Forum - JJ Verdeaux

  16. UNCITRAL Model Law • Procurement model law drafted for countries lacking procurement legal framework • Agreed in 1994 • It is NOT a Treaty but a Model • No binding provisions but recommendations • Drafted by an expert group and approved by UNCITRAL Committee Fiduciary Forum - JJ Verdeaux

  17. UNCITRAL provisions • Bid opening (art.33) All suppliers or contractors that have submitted tenders, or their representatives, shall be permitted by the procuring entity to be present at the opening of tenders. • Negotiations (art.35) No negotiations shall take place between the procuring entity and a supplier or contractor with respect to a tender submitted by the supplier or contractor. • Provisions for consultant services Fiduciary Forum - JJ Verdeaux

  18. UNCITRAL (coming) provisions • FRAMEWORK AGREEMENTS • E-PROCUREMENT Fiduciary Forum - JJ Verdeaux

  19. CLASSIFICATION NON-DISCRIMINATION TRANSPARENCY TRADE LIBERALIZATION GOUVERNANCE NAFTA Bank Guidelines EU Directives OECD convention Trade Agreements OECD/DAC methodology WTO GPA UNCITRAL Model Law WTO WGTGP Fiduciary Forum - JJ Verdeaux

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