1 WTO/WORLD BANK REGIONAL WORKSHOP ON PROCUREMENT REFORMS AND TRANSPARENCY IN PUBLIC PROCUREMENT Dar es Salaam, Tanzania January 2003 Session 6 - Work of the WTO Working Group on Transparency in Government Procurement by Kodjo Osei-Lah WTO Secretariat

2 Presentation focus q Twelve Elements of a Possible Transparency Agreement q Focus of this presentation: Items II – VII, IX m Aspects of Principles of Transparency and the work of the Working Group (WG) on elements of a future agreement on transparency in government procurement

3 List of Elements Covered – Items II – VII & IX Item IIProcurement Methods Item IIIPublication of Information on National Legislation and Procedures Item IVInformation on Procurement Opportunities, Tendering and Qualification Procedures Item VTime Periods Item VITransparency of Decisions on Qualification Item VIITransparency of Decisions on Contract Awards Item IXOther Matters Related to Transparency

4 Item II: Procurement Methods

5 Item II: Procurement Methods q Three broad categories generally identified: m Public or open tendering m Selective tendering m Limited tendering, e.g. direct contracting, single source procurement q Transparency principles in relation to selection of procurement method: m Transparency in choice of appropriate method m Transparency in use of less transparent methods, e.g. limited tendering

6 Procurement Methods - 2 q Issues raised: m Flexibility in use of different procurement methods m Limited tendering: whether conditions of use fall within or outside the scope of a TGP Agreement m Suggestions for post-award publication of information on limited tendering when used m Administrative burden/cost

7 Item III: Publication of Information on National Legislation and Procedures

8 Extant publication requirements q GATT 1994 Article X; GATS Article III: m Laws, regulations, judicial decisions, administrative rulings q GPA Article XIX: m Relevant laws, regulations, judicial decisions, administrative rulings, and procedures on government procurement q National practices: m National constitutions, procurement laws, regulations, various horizontal laws & guidelines

9 WG Discussions q Two main issues: m Type of information m Mode of provision q Type of Information: What should be provided? m Publication/public accessibility of relevant laws & regulations m Other laws/instruments, e.g: ◆ specific procurement laws, ◆ relevant administrative rulings ◆ policy guidance ◆ judicial decisions m Changes or amendments to the above m Issues raised: publication obligations onerous and costly

10 How information should be made available q Requirement is for accessibility; information can be printed, electronic or both q Publication of information m In national language; WTO language optional q Levying of fees - views expressed m To be non-discriminatory and m Limited to cost of publication m Consideration also to be given to cost of creation (of information), and recovery thereof in fees q Cost impact and administrative burden on developing countries

11 Enquiry Points q Existing instruments requiring establishment of national enquiry point for information m GATS Art III:4, IV:2, IV:3 m GPA Art V:11 q Should a TGP agreement have provisions on establishment of enquiry points? m Purpose: provision of info on national legislation, etc m Case of decentralised procurement systems

12 Item IV: Information on Procurement Opportunities, Tendering and Qualification Procedures

13 Main Issues and Approaches in WG q Main issues m Prior availability of information m Sufficiency of information q Approaches raised in WG discussions m What should be the content of information? m Nature of provisions in an agreement on prior information that should be provided: ◆ stipulated list of minimum requirements? ◆ illustrative list of prior information? ◆ general guiding principles only?

14 Approaches, contd; Making Information Available q Approaches, contd m Possible minimum content of information m National preferences ◆ outside scope of a future transparency agreement ◆ nevertheless, relevant prior information to be provided q Making information available m Through publication, or m Publishing via an accessible source m Media: printed or electronic or both

15 Selective & Limited Tendering q Case of selective or limited tendering: m Certain basic types of information to be provided? m Prior information requirements otherwise to apply to open tendering? q Small-value procurements m to be exempted from information requirements? q Administrative burden/cost

16 Item V: Time Periods

17 WG Discussions q General Considerations m Significant variations in national practices/legislations m Due regard to be accorded to type of procurement m Minimum or harmonised time periods not to be prescribed q Possible criteria: m Sufficient/reasonable time to prepare / submit bids m Non-discrimination in application of time periods

18 Issues and points made in WG q Clarity / certainty of term “sufficient” time q Time periods to be specified in tender notices q Any changes to time periods made known / generally accessible q Whether time periods relate to transparency

19 Item VI: Transparency of Decisions on Qualification

20 Main Issues in WG Discussions q Two main issues m Transparency of qualification criteria m Provision of information – on decisions & registration lists q Criteria to be m pre-established and pre-disclosed m provided in sufficient time q Changes advised to suppliers, in non-discriminatory manner q Content or substance of qualification criteria m outside scope of a TGP?

21 Main Issues - 2 q National preferences in favour of domestic suppliers (see also Item VII) m Outside scope of a transparency agreement m However, any preferences to be applied in non- discriminatory manner q Qualification systems m To be open to all eligible suppliers in non- discriminatory manner m Open to new suppliers q Provision of information on qualification decisions m Public accessibility of information m Provision to all participating suppliers

22 Item VII: Transparency of Decisions on Contract Awards

23 Elements in international instruments q Three broad elements m Transparency of Criteria m Receipt and opening of tenders m Ex post information on contract awards q Transparency of criteria m Objectivity m Evaluation of tenders m Participation of Suppliers m Award of contracts

24 International Instruments - 2 q Receipt & opening of tenders m Regularity/impartiality of procedures m Corrections & alterations m Negotiation m Confidentiality m Clarifications q Ex post Information m Provision m Timing m Content m Confidentiality

25 WG Discussions - Transparency of criteria q Broadly in line with international instruments. q Issues raised m A TGP agreement not to set out criteria m Flexibility required, e.g. on ◆ negotiations, force majeure m Should content of specification be addressed in a TGP agreement? m Advice received on development of specifications: ◆ to be pre-disclosed or supplier barred

26 Receipt & opening of tenders q WG discussions broadly consistent with international instruments q Issues raised m Entities to have procedures to guarantee ◆ regularity ◆ impartiality m Whether setting of detailed procedures within ambit of work of WG? m Procedures to be transparent

27 Ex post information q Provision of ex post information - Options: m In accordance with national legislation m Minimum content of information m Illustrative list m Debrief opportunity for unsuccessful suppliers m At discretion of procuring entity q Publication of information - whether m All cases or “less transparent” procurement only m Issues of cost/administrative burden raised

28 Item IX: Other Matters Related to Transparency

29 Item IX – Other Matters q Maintenance of records m Provides audit trail, basis of accountability m Type, form and duration of information maintained ◆ Should an agreement have provisions on above? q Information technology m Low cost, uniform access to information for suppliers m However, possible technology barrier to some suppliers in developing countries – e.g. SME m Best endeavours provision?

30 Other Matters - 2 q Language m Information on procurement opportunities to be made in Members’ official language m Certain information in a WTO language? q Fight against bribery and corruption m Possible impact of transparency on reducing bribery and corruption m However, outside scope of WG work? m To be dealt with through national legislation?

31 End Note q A brief account of the state of discussion in the WG q For further information: m See WTO document pack available at this workshop m Visit WTO website

32 Abbreviations & Acronyms