1. Fiduciary Forum - JJ Verdeaux1 INTERNATIONAL REFERENCES IN PUBLIC PROCUREMENT Parallel session – 1 ½ hour

2. Fiduciary Forum - JJ Verdeaux2 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

3. Fiduciary Forum - JJ Verdeaux3 PRINCIPLES TRANSPARENCY NON-DISCRIMINATION (national treatment) ECONOMY EFFICIENCY OPEN COMPETITION

4. Fiduciary Forum - JJ Verdeaux4 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

5. Fiduciary Forum - JJ Verdeaux5 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

6. Fiduciary Forum - JJ Verdeaux6 GPA WTO Albania Armenia Negotiating accession Commitments to access GeorgiaJordan Kyrgyz RepublicMoldovaOmanPanama Chinese Taipei ChinaCroatia Former Yugoslav Republic of Macedonia Mongolia 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

7. Fiduciary Forum - JJ Verdeaux7 Purpose: “Recognizing the need for an effective multilateral framework ……..regarding government procurement with a view to achieving greater liberalization and expansion of world trade …”; GPA WTO

8. Fiduciary Forum - JJ Verdeaux8 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.

9. Fiduciary Forum - JJ Verdeaux9 GPA WTO & EU Directives 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. 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.

10. Fiduciary Forum - JJ Verdeaux10 Client Countries (1) GPA WTO provisions 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. BUT, GPA rules will apply to any national procurement system of a developing country joining the Agreement

11. Fiduciary Forum - JJ Verdeaux11 Client Countries (2) GPA WTO provisions 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

12. Fiduciary Forum - JJ Verdeaux12 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)

13. Fiduciary Forum - JJ Verdeaux13

14. Fiduciary Forum - JJ Verdeaux14 EU procurement  EU DIRECTIVES 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 (DG Market + DG Enlargement of the EC)

15. Fiduciary Forum - JJ Verdeaux15 EU procurement  EU external aid (Budget)  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 - 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

16. Fiduciary Forum - JJ Verdeaux16 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

17. Fiduciary Forum - JJ Verdeaux17 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

18. Fiduciary Forum - JJ Verdeaux18 FRAMEWORK AGREEMENTS E-PROCUREMENT UNCITRAL (coming) provisions

19. Fiduciary Forum - JJ Verdeaux19 CLASSIFICATION TRANSPARENCY NON- DISCRIMINATION GOUVERNANCE TRADE LIBERALIZATION Bank Guidelines OECD convention OECD/DAC methodology UNCITRAL Model Law NAFTA EU Directives Trade Agreements WTO GPA WTO WGTGP