BRAZIL AND THE WTO GOVERNMENT PROCUREMENT AGREEMENT CHALLENGES FOR GPA-ACCEDING NATIONS GEORGE WASHINGTON UNIVERSITY LAW SCHOOL COLLOQUIUM 4 November 2014,

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Presentation transcript:

BRAZIL AND THE WTO GOVERNMENT PROCUREMENT AGREEMENT CHALLENGES FOR GPA-ACCEDING NATIONS GEORGE WASHINGTON UNIVERSITY LAW SCHOOL COLLOQUIUM 4 November 2014, Washington, DC, United States

 Why to join the GPA now  Key challenges  Flexibilities  Summery TOPICS

WHY TO JOIN THE GPA NOW? 3 Highest market access opportunities ever (US$ 1.7 trillion in procurement opportunities per year) Likeness that coverage will expanded significantly in near futureGPA was recently revised (numerous flexibilities) Many countries do not discriminate against foreign companies but do not get the same treatment in return Joining the GPA is a logical and natural step for countries in the process of reforming domestic public procurement law "Stamp of approval" indicating that domestic law is consisted with international best practice

HOW TO BECOME A GPA PARTY? 4 Ensure conformity of national public procurement legislation with GPA obligations GPA „only“ lays down common ground rules Procedural provisions of the procurement process (non-discrimination, transparency) Provisions regarding remedies (domestic review) Agree with existing GPA members on coverage offer Which procuring entities are obliged to tender which kinds of procurements in accordance with the GPA?

HOW TO BECOME A GPA PARTY? 5 Ensure conformity of national public procurement legislation with GPA obligations NOT negotiable Agree with existing GPA members on coverage offer Coverage offer needs to be negotiated in a series of (bilateral) consultations

KEY CHALLENGES 6 Political will / commitment Understand your industry / expectations of industry Understand the negotiation process

KEY CHALLENGES 7 Proof that national procurement legislation is GPA compliant Preparing replies to the so-called ‘checklist of issues’ Legal gap analysis by an independent institution (i.e., independent from the acceding country) ? Armenia  SIGMA report Montenegro  EU screening report

KEY CHALLENGES 8 Negotiating coverage Understand the negotiation process Understand the respective GPA party’s coverage commitments Some GPA parties might want more than they are offering in return Set up a coherent negotiation strategy differentiating between the various GPA parties (e.g., the United States, the European Union, Japan, etc) Decide early on your approach as to coverage but keep flexible

KEY CHALLENGES 9 Negotiating coverage Everything is negotiable but GPA parties have certain expectations Monetary thresholds Coverage of sub-central level Coverage of state-owned-enterprises and utility companies Scope/number of exceptions to coverage

FLEXIBILITIES 10 Transition period Offset Price preference Initially higher thresholds Phasing-in entities

SUMMARY 11 GPA membership has many advantages Accession to the GPA unlikely to be easier in the future GPA accession is an ongoing process  important to get the ball rolling

SCHNITZER Rechtsanwalts GmbH Johannes S. Schnitzer T: +43 (1) E: W: schnitzer-law.com CONTACT 12 Chambers Europe (2014) recommends Johannes S. Schnitzer as "leading individual" in public procurement/PPP The Legal 500 (2014) recommends SCHNITZER LAW as "leading firm" in public procurement Who's Who Legal (2014) recommends Johannes S. Schnitzer as "foremost legal practitioner" in public procurement