Government Procurement Agreement Research Articles

Reciprocity as Security: Reconsidering Third Country Access to European Critical Infrastructure Procurement

EU public procurement law provides different options for preventing geopolitically undesirable dependency on third country suppliers in critical infrastructure. Their effectiveness solely depends, however, on the willingness of national authorities to use those. Recently, the EU therefore adopted the International Procurement Instrument (IPI) Regulation, within the sphere of the Common Commercial Policy (CCP), to condition the access to public contracts for third country entities on reciprocity. This article explores the security dimension of this issue. After generally considering the role of sovereignty as a limit to international trade, the article specifies the security risks which may arise in a public procurement context and sets out the legal options for Member States to address those. The article then discusses how security intrinsically shapes CCP instruments and how the new regulation could indicate a shift in the EU’s role, from facilitating legal options for Member States, towards the Commission itself restricting the market access for certain third countries. Although such bans ought to be based on a lack of reciprocity rather than security, in times of weaponized dependencies the security dimension is undeniable. When considering interdependence as a stabilizing force in international relations, reciprocity itself has in fact become a security objective. EU law, Public Procurement, National Security, Critical Infrastructure, Common Commercial Policy, International Procurement Instrument, Economic Interdependence, Sovereignty, World Trade Organization, Government Procurement Agreement

The EU 2022 International Procurement Regulation Enters in to Force Reciprocity

After ten years in the making, in 2022, the European Union adopted an International Procurement Instrument (IPI). This article examines how the 2022 IPI seeks to regulate the access of third-country economic operators, goods and services to the Union’s public procurement markets, as well as how it intends to support negotiations on access of Union economic operators, goods and services to the public procurement markets of third countries. After setting out the background to the IPI proposal, the article identifies the main features in terms of its’ scope and coverage, procedures and obligations. The article then highlights key changes in design since the IPI was originally proposed in 2012 and again in the 2016 Amended Proposal. The article assesses the potential of the IPI to meet its’ objectives without provoking retaliation or challenges from its’ trading partners or placing an undue burden on the EU procurement process and businesses. It concludes that the 2022 IPI is better suited as a political tool for encouraging negotiations than as an effective economic instrument to create a level playing field in government procurement markets. EU International Procurement Instrument (IPI), government procurement, EU trade policy, reciprocity, WTO Government Procurement Agreement (WTO GPA), WTO Article III.8 (a), protectionism

The Growing Thicket of Multi-layered Procurement Liberalization Between WTO GPA Parties, as Evidenced in Post-Brexit UK

The World Trade Organisation (WTO) Government Procurement Agreement (GPA) has created the most comprehensive plurilateral system for procurement-related trade liberalization. However, there has been a proliferation of free trade agreements (FTAs) regulating public procurement liberalization, including between GPA parties. Such FTAs seek to bypass or go beyond the GPA on a bilateral basis, or with a more limited plurilateral remit. Such FTAs tend to follow a ‘GPA+’ approach to provide incremental trade liberalization based on the substantive provisions of the GPA. However, there is a trend of substantive divergence between the GPA regulatory baseline and the FTA regulation of crucial issues, such as the national treatment obligation or access to remedies. This is also true of FTAs involving the European Union (EU) or, recently, its former Member State, the UK. This creates a situation of potential conflict of treaty norms that has so far received limited attention. This article focuses on the resolution of conflicts between GPA and FTA substantive provisions under the 1969 Vienna Convention on the Law of Treaties (VCLT), using the UK’s post-Brexit FTAs as a case study. It argues for a rationalization of the system by extending the use of incorporation by reference of the GPA in FTAs involving GPA parties. World Trade Organisation, Government Procurement Agreement, Free Trade Agreements, public procurement, national treatment, access to remedies, conflict of treaty norms, Vienna Convention on the Law of Treaties, interpretation, variable geometry

The role of the World Trade Organization in achieving the interests of developing countries “Egypt Case”

The principles of the World Trade Organization (WTO) included a set of exceptions to help developing countries to speed up the process of their economic development. Therefore, the research problem focused on the extent to which developing countries benefit from these exceptions, and by applying it to the Egyptian case. The researchers used the threshold regression model to measure this benefit based on the data of the World Bank. The research concluded that most of the exports of developing countries, including Egypt, are raw materials that Industrial countries seek to innovate alternatives for them and thus do not benefit the optimum benefit from the export subsidy exception, just as the developing countries opened up to the world and entered the competition market without being qualified enough to compete. Although the WTO allowed the protection of nascent and emerging national industries in a manner that does not contradict the foundations adopted in its 1994 WTO agreement, the developing countries did not achieve the maximum benefit because they did not have the conditions for competition in the global market, and some developing countries also accepted to sign the Government Procurement Agreement Because of the political pressures that achieve the interests of the developed countries that have interests. The research recommended the need to request re-negotiations to try to extend the transitional period to allow the advancement of emerging and nascent industries in developing countries, and the importance of accelerating the upgrading of the industries of developing countries in order to be eligible to enter the global competition, in addition to the need to maintain the value of commodity and service exports and the added value in manufacturing. And the net inflows of foreign direct investment in Egypt at levels lower than the threshold in order to promote economic growth in Egypt.

ПРИСОЕДИНЕНИЕ К СГЗ ВТО В СВЕТЕ РЕФОРМ В СФЕРЕ ГОСУДАРСТВЕННЫХ ЗАКУПОК

The article focuses on highlighting the extent to which the World Trade Organization Government Procurement Agreement (WTO GPA) accession contributes to reforming the public procurement (PP) sector and whether the GPA accession is an outcome of the inte

Global Administrative Governance: Liberalization of Government Procurement in Third World Countries

Globalization and the rise of global governance are transforming the structure of International law. From the perspective of the classical, interstate consent-based international law, global governance may still appear merely as a quantitative increase in international legal instruments. On the other hand, some requirement for adoption international law is needed, particularly through a classic scheme for binding force of international law into national legal system. Classic method means that such agreement which is concluded by states. One of the interstate consent based international law is Government Procurement Agreement (GPA) which legally binding agreement in the WTO focusing on the subject of government procurement. Since GPA is a multilateral treaty administered by a Committee on Government Procurement, which includes the WTO Members that are parties to the GPA, and thus have rights and obligations under the Agreement. In fact, the majority of member state, particularly most developing countries are not party the GPA, so there is no legal obligation to observe all the provision of GPA. It seems to be a great obstacle for developing countries to adopt the GPA provisions by several reasons In sum, global administrative governance takes some roles to reform some legal frame works in developing countries. A great contribution produced some positive legal reforms in term of the achievement of competitive and transparent government procurement.

The Exclusion of Third-Country Suppliers from EU Public Procurement Procedures:

As a matter of principle, suppliers and goods originating in the European Economic Area, in parties to the WTO’s Government Procurement Agreement, or to a bilateral agreement concluded with the EU, are protected against any forms of discrimination based on the grounds of nationality, similar to those coming from the EU. Suppliers originating in other countries, falling outside the scope of Article 25 of Directive 2014/24, cannot, however, be guaranteed the same form of protection. The access of the latter to procurement procedures in the EU may hence be blocked, but this essentially is a prerogative of each national government and of each contracting authority. On the other hand, confronted with an assault by Chinese companies which have managed to capture a dangerously big share of the EU public procurement market, the Commission started an active campaign on several fronts. More recently, the Commission decided to make a substantial effort in convincing Member States to come forward with concrete measures by which to restrict in an effective manner the access of third-country and, in particular, Chinese, suppliers to the EU procurement market. In response, the Romanian Government adopted in April 2021 a new set of laws providing for the automatic exclusion from the award procedures of all suppliers residing in one of the countries listed therein. Beyond its immediate economic effect, this measure could create some serious blockages in the market with unimaginable consequences, especially in times of crisis such as the recent Covid-19 pandemic. Keywords: China; third-country bidders; Romania

Accession to the WTO’s Government Procurement Agreement:

Accession to the WTO’s Government Procurement Agreement:

Asean is in the Movement of Combating Corruption: Should New - Generation Ftas Be a Promising Forum for Anti-Corruption Enforcement of Asean in International Business?

Abstract For a long time, corruption has been a shrilling concern for ASEAN member states for the reason of being one of the primary causes restricting the integration of these nations into international trade and efforts at globalization. In fact, over the last few years, ASEAN has undertaken a myriad of policies and improved the regional legal framework to combat corruption such as the signing of UNCAC and new free trade agreements and the establishment of the ASEAN Economic Community. Notwithstanding this, according to the statistics of global organizations, the levels of anti-corruption in ASEAN countries, except Singapore and Brunei, are relatively low. This mainly derives from the fact that the national legal framework in each of the member states has not satisfied fully when the political regime lacks democracy, governmental authority is insufficiently impartial and the awareness of citizens about corruption is still moderate. Simultaneously, the international agreements to which ASEAN member states signed are only the model for domestic enforcement mechanisms, and seem to be silent on international enforcement of anti-corruption. To date, the WTO is known as a global agency for international business, to which all ASEAN countries have acceded. Under the WTO, there is no official mechanism for enforcement of anti-corruption; nevertheless, this organization acknowledges, encourages and states indirectly this issue via transparency, accountability or governance in their agreements (Government Procurement Agreement and Trade Facilitation Agreement). Under the Doha negotiation round, WTO member states failed to gain consensus to dismantle tariffs, resulting in the emergence of a myriad of bilateral and regional trade agreements out of the scope of the WTO. These have gradually developed to be so-called new-generation free trade agreements in the hope of mitigating the traditional trade barriers as well as lessening non-tariff ones, such as governance and transparency. The recent development of new-generation FTAs between ASEAN and/or ASEAN member(s) and the external trading partners that pay high attention to anti-corruption issues, i.e., EU, Australia, Canada, Japan, US, may create a promising forum for anti-corruption enforcement of ASEAN in international business in the future. This article will elaborate on all aforementioned issues before a reasonable conclusion is delivered.

Introducing public procurement tenders as part of corporate communications: a typological analysis based on CSR reporting indicators

PurposeCorporations have to increasingly include corporate social responsibility (CSR) communication by responding to public procurement tenders because of the recently revised Government Procurement Agreement (GPA) concluded by the World Trade Organization (WTO). The authors argue that procurement tenders are to be seen as part of corporate communications, particularly when aligned with CSR reporting and performance indicators as proposed by the Global Reporting Initiative (GRI). The recently published ISO 20400 on sustainable procurement lacks a clear usage indication of sustainability indicators (SIs). This paper aims to close this gap.Design/methodology/approachThe paper performs a typological analysis of sustainability indicators in a sample of 665 currently used SIs. Furthermore, the paper conceptualizes a SIs selector for Sustainable Public Procurement (SPP) which is based on the typological analysis and acknowledges recent developments in the evolution of SIs.FindingsThe SIs typology results in three indicator types. The typology leads to the conceptualization of SI’s selector for sustainable public procurement. It enables professionals to build indicators for SPP considering the context of sustainability with impact valuations and allows scholars to advance research on measurement and decision-making.Originality/valueTo the authors’ best knowledge, this is the first introduction of procurement tender processes as part of corporate communications. Furthermore, the derived typology contributes an overview of existing SIs used in CSR communication. The paper contributes a self-responsible and pragmatic approach to CSR theory as private business self-regulation and a definition of SIs for corporate communications.

Briefing: Brexit and UK construction law: past, present and future

The UK left the EU on 31 January 2020, widely referred to as ‘Brexit’. However, the country is currently in the transition period and remains a participant in the EU customs union and single market, with the majority of EU law continuing to be applicable. Furthermore, the UK government’s aim is a trade and economic partnership and free trade agreement with the EU. Therefore, knowledge of the EU’s development, institutions and sources of law remains relevant to civil engineers. The EU–UK political declaration incorporates provisions significant to the UK and EU construction industries, including workers’ rights, environmental protection, ending the freedom of movement of people between the EU and the UK, integrated supply chains and the intention of the UK to accede to the World Trade Organization government procurement agreement. This briefing outlines the expansion of the EU and the UK’s joining the EU. The EU’s institutions, sources of law, former supremacy of European Community law and the Brexit process are explained, along with the terms ‘EU customs union and single market’ and ‘free trade agreement’.

What Influences Adoption of Green Award Criteria in a Public Contract? An Empirical Analysis of 2018 European Public Procurement Contract Award Notices

Green public procurement (GPP) is a policy tool aiming to achieve environmental protection and resource reservation via public procurement. After decades of adaptation, what promotes and hinders its uptake in public contracting remains difficult to discern. This research explores factors that influence the adoption of green award criteria, covering features of procurement procedures, purchasers, tenderers, and the business sectors through empirical analysis of Probit regression combined with a fixed term method. The data is contract award notices (CAN) from 33 countries in Europe in 2018. Our findings suggest that framework agreements, the medical products sector, the health and social services sector, and the business services sector are negatively correlated with whether a contract is green. On the other hand, the contract value, Government Procurement Agreement (GPA)coverage, joint procurement, competitive dialogue, negotiation with competition (with a call for competition), restricted procedure, transport equipment sector, and food sector can positively correlate with green contracts, or these factors increase the possibility of a contract being green. Explicit explanations on these relations are provided. This research identifies factors relating with and influencing the application of green award criteria in public contracts, which would inform public sectors on efficient resources allocation in terms of increasing green public procurement performance.

China’s Accession to Government Procurement Agreement under the Trump Administration’s Trade Policy

China committed to initiate the accession to Government Procurement Agreement when it entered the WTO as a compromise to the requirements made by GPA parties, mostly the developed western countries such as the United States. China started its official attempt to join the GPA on December 28, 2007 by submitting the first offer to the GPA Commission. Six revised offer were then submitted during the past years. The position of the United States and China in international trade changed dramatically since then. This article finds that Trump Administration’s attitude toward China’s accession to GPA is mixed and the US government might impede China’s accession with the analysis on the current American foreign trade policy and the latest development in government procurement in the US’s related international agreements and domestic laws. However, this accession process can only be delayed but not terminated even if the standpoint of the US is proved to be negative due to the theoretical and technical analysis on GPA. Effective and significant measures will be taken by Chinese government since the president Xi Jinping made the statement to accelerate the accession to GPA in Boao Forum in early 2018.

How Government Procurement Measures Can Affect Trade

A number of countries used discriminatory government procurement policies as part of stimulus packages designed to alleviate the effects of the global economic crisis. This article collates and updates the evidence related to the size of procurement markets, the level of home bias they exhibit, and the effectiveness of multilateral and bilateral procurement agreements in reducing that bias. The share of procurement in GDP has been increasing gradually since 1995 with clear spikes during 2000–2002 and 2008–2010, the latter in response to the global economic crisis. The analysis presents evidence of domestic bias in government procurement markets, bias which has been increasing over recent years. The analysis in this article suggests that the results of international efforts to address home bias in government procurement have been mixed to date. The World Trade Organization’s Government Procurement Agreement (GPA) is found to reduce discrimination in procurement markets, although available – but limited – evidence does not indicate a significant effect for bilateral agreements. The evidence suggests liberalization of investment barriers undertaken in parallel with trade agreements increases the ability of those agreements to reduce discrimination. This suggests that countries negotiating procurement agreements could also benefit from negotiating investment agreements in parallel.

WTO 체재 개혁과 한국의 다자통상정책 방향 (Reshaping the Multilateral Trade Policy for Korea)

WTO 체재 개혁과 한국의 다자통상정책 방향 (Reshaping the Multilateral Trade Policy for Korea)

Regulating public procurement in Brazil, India, and China: Toward the regulatory‐developmental state

AbstractSince the 1990s, emerging economies such as Brazil, India, and China have adopted transparency‐enhancing public procurement regulations in line with international norms. Yet they have hesitated to join the World Trade Organization's legally binding Government Procurement Agreement (GPA). Based on the Special Issue framework, this article scrutinizes the underlying domestic and international determinants, and how they influence emerging countries’ positions in two overlapping international procurement regimes. In particular, reform‐oriented state actors, societal pressure, and lesson‐drawing from international templates have induced a strengthening of domestic procurement institutions and turned emerging countries into “promoters” of the international transparency regime. Conversely, the rising powers have remained, to varying degrees, reluctant “spoilers” of the GPA‐based market access regime in order to keep policy space and use procurement for domestic development objectives. The article suggests that this regulatory‐developmental layering of rule‐based governance and interventionist ambitions characterizes the variegated regulatory state in emerging countries.

Can the WTO Bring More Teeth to the Global Anticorruption Agenda?

In 1997, the Lima Declaration against Corruption made the first institutional cry to the World Trade Organization (WTO) to address the issue of corruption in international trade. In fact, international trade bears critical vulnerabilities to corruption, particularly concerning Customs interactions with private stakeholders and government procurement procedures. Corruption, in turn, hinders economic development, increases the cost of trading goods and services, and undermines the main objectives of the WTO. This article shows that, since 2012, the WTO has increasingly adopted a more clear-cut approach to this problem and finally took an open stand regarding the relationship of anticorruption measures and trade in its dispute settlement system. The revised text of the Government Procurement Agreement, the Trade Facilitation Agreement, and recent WTO cases like Colombia – Textile, illustrate some of the anticorruption principles, tools, and rulings within WTO context. Considering that anticorruption laws and WTO trade rules are mutually supportive and together contribute to a more effective fight against corruption, this article argues for the incorporation of the anticorruption mandates and values within the WTO through soft law initiatives. The actions suggested herein will bring more teeth to the global anticorruption agenda and reaffirm the importance of trade liberalization.

Does the WTO Government Procurement Agreement Deliver What It Promises?

AbstractWe examine the impact of the World Trade Organization (WTO) Government Procurement Agreement (GPA) on government procurement practices in the European Union (EU). We analyse empirically whether the WTO GPA is effective in promoting non-discriminatory, open, transparent, competitive, and cost-effective government procurement. To study this question, we use a unique data set recently released by the EU, covering more than three million tenders conducted in the European Economic Area, Switzerland, and Macedonia during the years 2006–2016. We find that the WTO GPA promotes competition by increasing the probability of awarding a contract to a foreign firm. In addition, the WTO GPA significantly lowers corruption risk by decreasing the number of contracts with single bidders, and by decreasing total number of wins by a single firm. Finally, the WTO GPA fosters cost-effective public procurement by lowering the probability that the procurement price is higher than estimated cost.

Comment on “The Future of East Asia’s Trade: A Call for Better Globalization”

Comment on “The Future of East Asia’s Trade: A Call for Better Globalization”

Legal Issues of Economic Disintegration: Government Procurement and BREXIT

This article examines some of the European Union (EU) and World Trade Organization (WTO) legal issues that emerge for the United Kingdom’s (UK) public procurement law and policies following Brexit. It analyses the consequences and sequencing of international negotiations that must now take place since the UK triggered Article 50(2) of the Treaty on the European Union (TEU). Once the UK revokes the European Communities Act 1972, it will no longer be obligated to follow either the Treaty on the Functioning of the European Union (TFEU) or the EU Procurement Directives. Nor will the UK be subject to the commitments the EU has signed up to on behalf of the UK in the WTO Government Procurement Agreement (GPA) and in its Regional Trade Agreements (RTAs). After examining the legal issues concerned with sequencing, the article moves on to assess the domestic, centrifugal forces that will also impact the UK’s public procurement law post-Brexit. Under the Devolution Settlement of 1998, the competence for public procurement was devolved down to the regions of Scotland, Northern Ireland, England and Wales. The article postulates that the legal issues of disintegration that have surfaced under Brexit could potentially fragment a coherent UK wide procurement policy, competition and value for money internally; as well as externally towards the WTO GPA, the EU and other regional procurement agreements. The article puts forward a competition approach to address some of the potentially negative consequences of Brexit undermining value for money, transparency and integration in the UK’s lucrative markets for government procurement. It concludes with the limited hope that the legal and economic issues and challenges resulting from the UK’s referendum on membership of the EU will be a salutatory lesson for all other nations.