Session 6 : SCOPE AND COVERAGE OF  GOVERNMENT PROCUREMENT RULES
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Session 6 : SCOPE AND COVERAGE OF GOVERNMENT PROCUREMENT RULES 14-17 January 2003, Dar es Salaam Vesile Kulaçoglu, WTO Secretariat. Scope and coverage General concept a main building block of instruments Discussion in WGTGP including S&D Definition of ‘government procurement’

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Session 6 : SCOPE AND COVERAGE OF GOVERNMENT PROCUREMENT RULES

14-17 January 2003, Dar es Salaam

Vesile Kulaçoglu, WTO Secretariat


Scope and coverage RULES

  • General concept

    a main building block of instruments

  • Discussion in WGTGP including S&D

    Definition of ‘government procurement’

  • General concept

  • Discussion in WGTGP


Coverage of commitments
Coverage of commitments RULES

Who is doing the procuring?

What is being procured ?

What types of transactions are covered?


Scope of government procurement and coverage of commitments under legislative instruments
SCOPE OF GOVERNMENT PROCUREMENT AND COVERAGE OF COMMITMENTS UNDER LEGISLATIVE INSTRUMENTS

  • ENTITY COVERAGE

  • SECTOR COVERAGE

  • SIZE OF PROCUREMENT (THRESHOLDS)

  • TRANSACTIONS TO BE COVERED

  • EXCEPTIONS


Example of the gpa basic structure
Example of the GPA -Basic Structure UNDER LEGISLATIVE INSTRUMENTS

  • Text of the Agreement: rules in Article I-XXIV

  • GPA Parties’ Schedules

    Appendix I on coverage (Annexes 1 to 5 and General Notes)

    Appendices II to IV on the media used for publications


Coverage in the guidelines of the mdbs and the uncitral model law
Coverage in the Guidelines of the MDBs and the UNCITRAL Model Law

Guidelines of MDBs

  • Most public sector activities (except defense) to the extent that they are funded by the MDB concerned

  • All goods, works, equipment, and services, including consulting services, and BOT/concessions

  • Obligations of the Borrower derive from a Loan Agreement (LA), which covers procurement under the Project


Uncitral model law
UNCITRAL Model Law Model Law

  • Scope of application is as specified in the law (art 1)

  • Usually national defense and national security may be excluded

  • Exclusions from coverage are to be specified in the law

  • BOT/Concession in principle not excluded. Subsequently, a Legislative Guide on Privately Financed Infrastructure Projects was adopted, complementing the Model Law


Entity coverage levels of government entities who is doing the procuring
ENTITY COVERAGE - LEVELS OF GOVERNMENT ENTITIES Model Law(who is doing the procuring?)

  • CENTRAL GOVERNMENT LEVEL

  • SUB-CENTRAL GOVERNMENT LEVEL

  • OTHER PUBLIC ENTITIES OR ENTREPRISES


Gpa example coverage in appendix i
GPA Example -Coverage in Appendix I Model Law

  • Entity Annexes

    Annex 1 - Central Government bodies (above 200,000 SDR)

    Annex 2 - Sub-central Government bodies (above 400,000 SDR)

    Annex 3 - Other public entities and enterprises (above 400,000 SDR)

    • Services Annexes

      Annex 4 – Services (above 400,000 SDR)

      Annex 5 - Construction services (above 5 million SDR)

  • General Notes


Who is doing the procuring gpa example
Who is doing the procuring? Model Law(GPA Example)

Entity lists:

  • Annex 1 - Central Government bodies

  • Annex 2 - Sub-central Government bodies

  • Annex 3 - Other public entities and enterprises


Questions raised in the wto working group under item i
Questions raised in the WTO Working Group under item I Model Law

  • Whether transparency rules should apply to procurements by all or only some government entities (levels of entities)


Questions raised in the wto working group under item i contn d
Questions raised in the WTO Working Group under item I (contn’d)

  • Whether procurement of services as well as of goods should be covered (sectors)

  • Whether only procurement contracts above a certain threshold value should be covered (size)


Gpa example what is being procured
GPA Example -What is being procured? (contn’d)

  • All goods (no particular list)

  • Services listed in Annex 4

  • Construction services listed in Annex 5


Questions raised under in the wto working group under item i cont d
Questions raised under in the WTO Working Group under item I (cont’d)

  • What type of transactions should be covered (concessions and BOT contracts)

  • what provisions should be made for exceptions (general, S&D)

  • other matters (only procurement open to competition)


What types of transactions are covered
What types of transactions are covered? (cont’d)

Any contractual means including:

  • Purchase

  • Lease

  • Rental

  • Hire purchase, with or without option to buy

  • BOT contracts and concessions


Procurement of bot concessions
Procurement of BOT Concessions (cont’d)

  • Issue is specifically addressed in MDB Guidelines

  • WB Guidelines provide for competitive bidding (Open or Limited) with PQ and/or one or two-stage bidding process

  • If competitive bidding has not been used for selection of concessionaire, then it must be used for procurement of goods and services financed by the WB


Exceptions from coverage
EXCEPTIONS FROM COVERAGE (cont’d)

General exception clauses in GATT Articles XX and XXI and in GPA Article XXI :

  • NATIONAL SECURITY

  • HEALTH AND SAFETY

  • OTHER


Issues raised in wto working group under item i contn d
Issues raised in WTO Working Group under item I (contn’d) (cont’d)

Definition of

‘government procurement’

a general definition

or

reference to GATT and GATS ?


Existing definitions in gatt and gats
Existing definitions in GATT and GATS (cont’d)

GATT Article III:8(a)

….. shall not apply to laws regulations and requirements governing the procurement by agencies of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial resale

GATT Article XVII:2

…..shall not apply to imports of products for immediate and ultimate consumption in governmental use …

GATS Article III:2

…..shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial resale


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