Category: European Union

Transatlantic Roundtable on Sustainable Public Procurement: 5 April 2019, Pace University, New York City

On April 5, 2019, scholars from Pace University, the University of Copenhagen and George Washington University hosted an all-day roundtable on emerging issues in sustainable public procurement, through Pace University’s Elisabeth Haub School of Law.

The First Annual Transatlantic Roundtable on Sustainable Public Procurement was hosted by:

  • Pace Environmental Law and the Elisabeth Haub School of Law,
  • The Centre of Enterprise Liability, Faculty of Law, University of Copenhagen, and
  • The George Washington University Law School’s Government Procurement Law Program.

Researchers and renowned specialists from around the globe discussed recent developments in the field of sustainable public procurement. The global value of public procurement spending is enormous. OECD countries alone spend a total of a trillion U.S. dollars per year, and each year their governments spend around 14-19% of GDP on the purchase of services, works and supplies. In many sectors such as energy, transport, waste management, social welfare, education and health services, public authorities are the principal buyers. The sheer scale of public procurement spending can literally create and shape markets, impact lives of citizens across the country, and foster greater sustainability in terms of environmental protection, public health, and economic equality.

Speakers included:

  • Professor Jason J. Czarnezki, Kerlin Distinguished Professor of Environmental Law and Associate Dean, Elisabeth Haub School of Law at Pace University,
  • Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark,
  • Professors Steven Schooner and Christopher Yukins, George Washington University Law School, Washington, D.C., and
  • Nicole Darnall, Associate Dean and Professor, School of Sustainability Arizona State University

This event was held at Pace University’s Downtown Campus – 1 Pace Plaza, on the 18th floor in the North and South Boardrooms.

Click here for detailed program information.

Introductions
Jason J. Czarnezki –Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York

Marta Andhov – Assistant Professor, Faculty of Law,
University of Copenhagen, Denmark;
Haub Visiting Scholar at Pace University’s Elisabeth Haub School of Law

Session 1 : Does the United States need a sustainable
public procurement legal framework?

U.S. Federal Public Procurement –
A lack of interest in sustainable purchasing? – Steven Schooner,
Nash & Cibinic Professor of Government Procurement Law,
The George Washington University Law School

Do state level and local contracting authorities drive the sustainable procurement agenda in the United States? – Jason J. Czarnezki, Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York City

Sustainable Procurement in Local Governments – Nicole Darnall
Associate Dean and Professor, School of Sustainability,
Arizona State University

Session 2: European Union – A leader in sustainable purchasing?

How we got to the Strategic Public Procurement Agenda-Understanding the EU legal framework – Roberto Caranta, Professor of Administrative Law, University of Turin, Italy

All that glitters is not gold – Paradoxes of EU Public Procurement Law –
Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at the Pace University’s Elisabeth Haub School of Law

The Evolution of Sustainable Procurement in the United Kingdom: From Thatcherism to the Social Value Act and a widening and deepening policy agenda. Where next post-Brexit? – Michael Bowsher QC – Director of the Distance Learning Diploma and Masters in Public Procurement Law at King’s College London; Visiting Professor, Dickson Poon School of Law, King’s College London; Barrister (Monckton Chambers), England & Wales, Northern Ireland, Republic of Ireland

Session 3: WTO & UNCITRAL

SPP: International perspectives, including under the UNCITRAL Model Law and the WTO Government Procurement Agreement – Christopher R. Yukins – Professor of Public Procurement Law and Co-Director, Government Procurement Law Program, George Washington University Law School

Chris Yukins – Sustainability Symposium – Pace – 5 April 2019Download

Sustainable public procurement under the OECD and the multilateral development banks- Carol Cravero, PhD student at the University of Turin, Italy and University of Paris Nanterre (CRDP), France

Sustainable procurement at UNOPS –Benedetta Audia, Corporate Legal Advisor, Head of the Commercial and Institutional Law Practice, Legal Group, United Nations Office for Project Services, New York

Session 4: Selected Countries and Their Experiences

Canadian experience with Sustainable Public Procurement –Paul Emanuelli,General Counsel and Managing Director, Procurement Office, Toronto

Challenges and the future of sustainable public procurement in Poland – Michal Kania, Professor, Silesian University, Poland; Fulbright Visiting Scholar The George Washington University Law School

Sustainable Procurement in Poland – Michal Kania – PresentationDownload

Brazilian experience with SPP – Luciana Stocco Betiol, Professor – Department of Social and Legal Sciences, São Paulo School of Business Administration – FGV/EAESP


King’s College, London – GWU Law School Annual Symposium: Exclusion and Debarment – 18 March 2019

Effective international trade in government procurement depends on predictable legal structures, including those that address corruption and misconduct in tender processes.  But at this point, the purchaser’s primary tools to maintain integrity — debarment or exclusion — remain wildly out of sync on both sides of the Atlantic.  This annual free symposium on transatlantic issues in procurement, hosted by King’s College London and George Washington University Law School, focused this year on debarment and exclusion. In a highly successful day of frank and collegial discussions, judges, officials, attorneys and professors from the multilateral development banks, the European Union and the United States joined to discuss the best ways forward to harmonize a common approach to debarment in international trade.

Please note (see below) that because of the strong interest in this program, it was moved to a larger room at Gray’s Inn.

Members of the “GWU” team at the symposium at Gray’s Inn (left to right): Professor Michal Kania (Fulbright scholar), Program Director Karen Thornton, Ruairi Macdonald (alumnus), John Pachter (alumnus and panelist), Paul Khoury (alumnus and panelist), Collin Swan (alumnus and panelist), Alix Town (alumna), and Professor Christopher Yukins (symposium co-chair)
Collin Swan (World Bank), Michal Kania (University of Katowice) and Dominique Casimir (Arnold & Porter, Washington DC)

Change of Venue: The Pensions Room, Grays Inn, 8 South Square, London, WC1R 5ET (map) (map of access to Grays Inn during construction)

Reservation page here

Symposium ProgrammeDownload
Panelist BiographiesDownload

Program materials

Introductions (10-10:15)

Panel I: Establishing an Exclusion System (10:15-11:15)

Panel I: Dominique Casimir (Arnold & Porter), Lisa Miller (World Bank), Duc Nguyen (U.S. Environmental Protection Agency), Olivier Waelbroeck (European Debarment & Exclusion System (EDES)) and Kai Hooghoff (Bundeskartellamt (Federal Cartel Office) Germany)
Overview of the EU Early Detection and Exclusion System (EDES)Download
Dominique Casimir & Duc Nguyen: Overview of Suspension and Debarment in the USDownload

Panel II: Sanctions and Exclusions at the Multilateral Development Banks (11:30-12:30)

Panel II: Lisa Miller (World Bank), Prof Christopher Yukins (GWU), Collin Swan (World Bank) and Paul Kearney (European Bank for Reconstruction and Development)
Key Comparative Elements of US and European Exclusion- World Bank SanctionsDownload
Summary of World Bank Group Integrity Compliance GuidelinesDownload

Lunch(12:30-13:30)

Panel III: View from the Private Bar(13:30-14:30)

Panel III: John Pachter (Smith Pachter, McLean VA), Paul Khoury (Wiley Rein, Washington DC), Vera Eiro (Linklaters, Lisbon), Michael Bowsher QC (symposium co-chair/moderator, Monckton Chambers & King’s College, London) and Pascal Friton (BLOMSTEIN, Berlin).
  • John Pachter, Christopher Yukins & Jessica Tillipman, U.S. Debarment:  An Introduction (discussion draft 24 February 2019), forthcoming in Cambridge Handbook of Compliance (Cambridge University Press, Daniel Sokol & Benjamin van Rooij eds.).
Pachter, Yukins & TillipmanDownload
  • Pascal Friton, Debarment in EU Public Procurement Law – Tentative progress or treading water? (presented at Thomson Reuters Government Contracts Year in Review (Feb. 2019))
Pascal FritonDownload

Panel IV: Interactions Between Public Procurement and Civil and Criminal Claims (14:30-15:30)

Panel IV: Prof Christopher Yukins (GWU), Prof Renato Nazzini (King’s College, London), Anna Caroline Mueller (WTO) and Prof Alison Jones (King’s College, London)
Alison Jones PresentationDownload

Robert D. Anderson, Alison Jones & William E. Kovacic, Preventing Corruption, Supplier Collusion and the Corrosion of Civic Trust: A Procompetitive Program to Improve the Effectiveness and Legitimacy of Public Procurement (George Mason Law Review, forthcoming 2019).

Anderson Jones and KovacicDownload

Tea (15:30-16:00)

Panel V: Judges Panel (16:00-17:oo)

Panel V: Judge Marc Steiner (Swiss Federal Administrative Court), Judge Christopher Vajda (Court of Justice for the European Union), Prof Carl Baudenbacher (former Chief Judge of the EFTA Court, Monckton Chambers), Michael Bowsher QC (Monckton Chambers/King’s College, London), Judge Katja Hoegh (Chair, Ostre Landstret (High Court of Eastern Denmark), Copenhagen), Judge Helena Rosen Anderrson (Swedish Supreme Administrative Court)
Carl Baudenbacher – The Fosen Linjen CaseDownload

Reception (17:00)

Supplemental Materials

  • Emmanuelle Auriol & Tina Søreide, An Economic Analysis of Debarment, 50 Int’l Rev. L. & Econ. 36 (2017) (arguing that debarment needs to be rethought in light of its competitive impacts)
IRLE 2017 Auriol SøreideDownload
  • Presentation by Prof Michal Kania at the University of Florida, January 2019, on U.S. and European approaches to debarment and corporate compliance
Michal Kania _ University of FloridaDownload
  • Christopher R. Yukins & Michal Kania, Suspension and Debarment in the U.S. Government: Comparative Lessons for the EU’s Next Steps in Procurement, 19-2 UrT 47 (2019), available at https://ssrn.com/abstract=3422499

Background materials by panelists (from a fall 2018 seminar at GWU):

2. Dominique Casimir – What You Need to Know About U.S. Federal Suspension and DebarmentDownload
3. John Pachter – The Capital Punishment of Government ContractsDownload
4. Paul Khoury and Kara Sacilotto – Mitigation in Suspension and Debarment (GWU)Download
5. Collin Swan – World Bank SanctionsDownload
8. Duc Nguyen – Contests, Hearings, Decisions, and Appeals in U.S. DebarmentDownload
9. – Chris Yukins – Emerging International Models for DebarmentDownload
International Models-SummaryDownload
10. Chris Yukins – Ethics and Compliance ProgramsDownload
11. Chris Yukins – Cross-DebarmentDownload

Professor Michal Kania – European Defense Procurement – Presentation at GWU Law School

Defense_Security_UE_Michal_Kania_Final_version – Published

Visiting Fulbright scholar Professor Michael Kania (Silesian University) will present on European Defense Procurement at George Washington University Law School, Law Learning Center 006, 2028 G Street NW, Washington, DC, from 6-8 pm on Tuesday, November 6, 2018.  His presentation is linked above.  If you would like to attend this open seminar, please reserve a space with Cassandra Crawford, ccrawford@law.gwu.edu.

European Commission Proposes Expanding the European Defence Fund—A Major Potential Barrier to Transatlantic Defense Procurement

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3204844

The European Commission has proposed expanding the European Defence Fund, an initiative to fund defense technology developed in Europe. As a general matter, only European firms would have access to the fund for development, and participating European nations would need to commit themselves to purchasing the defense materiel developed under the fund. In effect, this could lock U.S. firms out of billions of euros worth of European defense procurement over the coming years—despite long-standing reciprocal agreements under which the U.S. and its European allies agreed to open their defense markets. The fund was announced quietly last year and now, in the shadow of a trade war launched by the Trump administration, has evolved into a substantial potential barrier in the transatlantic defense market, and potentially another brick in a rising wall of protectionism between the U.S. and Europe.

60 Gov. Contractor para. 196 (June 27, 2018)

The Trade War Comes To Defense Procurement

In response to the Trump administration’s demands that Europe spend more on its own defense, and as part of a broader hardening of trade positions between the United States and Europe as a result of the Trump administration’s trade policies, Europe is moving forward with the European Defence Fund,  which will block non-European firms (including U.S. firms) from billions of dollars in European defense spending.  (Ironically, the Trump administration’s own “Buy American” initiative in procurement apparently has been stalled over the past year, and the Trump administration has pushed recently to expand foreign military sales by U.S. defense firms.)  The European initiative, which goes beyond the protections of the 2009 European defense directive, may be a violation of the many reciprocal defense procurement agreements between the United States and its European allies.  European officials have defended these bars against non-European contractors as “reciprocity” for U.S. security constraints on foreign ownership and control in the U.S. defense industrial base, but the protectionism of the European initiative appears to go well beyond normal security concerns — inspired, perhaps, by the Trump administration’s expansive use of “national security” as a rationale for protectionism.

Jean Grier on “TTIP Procurement Data Debate: Time to Conclude”

TTIP Procurement Data Debate: Time to Conclude?

An interesting comment by Jean Grier on the ongoing EU-U.S. debate over procurement trade data, and the impact that debate is having on TTIP negotiations.  Ms. Grier was previously the lead negotiator on procurement for the Office of the U.S. Trade Representative, and is an   internationally recognized expert on procurement and trade.

Albert Sanchez-Graells: Update on EU Transposition of Procurement Directives

For those researching European nations’ transposition of the 2014 EU procurement directives, Albert Sanchez-Graells at the University of Bristol has compiled a highly useful update at http://www.howtocrackanut.com/blog/2016/6/14/some-anecdotal-updates-on-the-transposition-of-the-2014-public-procurement-package.

Will Brexit Stall TTIP’s Promise for Procurement?

BrexitA previous post suggested that the Transatlantic Trade and Investment Partnership (TTIP) might offer a way to fill some of the gaps left by Brexit, Britain’s prospective departure from the European Union.  This post flips that proposition, and asks whether TTIP’s goals for opening procurement markets might, in effect, be swallowed up by Brexit, as some in the trade community have suggested despite public support from the White House and the EU for moving forward with TTIP.  This means, in turn, that TTIP’s goals for procurement may need to be addressed in another forum, perhaps under the World Trade Organization’s Government Procurement Agreement (GPA).

The previous post used procurement as a case study.  The post pointed out that if the European Union agrees to the TTIP agreement before the UK departs (“Brexits”), the TTIP agreement probably will list UK procurements open to competition under TTIP, and will include guarantees of free access to those procurements.  After “Brexit,” Britain arguably could then “reenter” TTIP as an independent nation, and adopt those former obligations under the TTIP agreement, in return for reciprocal access to EU and U.S. markets.

This outcome — allowing Britain access to open markets in Europe under TTIP, without any concomitant obligation to allow free movement of persons — would be exactly what the British “Leave” campaigners want for the UK; a separate TTIP arrangement with an independent UK also enjoys support from senior U.S. Republicans.  This outcome is, however, exactly what the leaders of the European Union have announced they will not allow.  Hope for such a British “back door” to open markets is also, incidentally, what President Obama warned against before the referendum vote, when he said that an independent Britain would be at the “back of the queue” in the United States’ negotiations of trade deals.

Leave Campaign - STOP TTIP
Leave Campaign – STOP TTIP

In a raucous speech on the floor of the European Parliament on June 29, 2016, Nigel Farage, the UKIP leader in the “Leave” campaign (and a Member of the European Parliament), paused in a harangue of his fellow MEPs to call for “a sensible tariff-free deal” between the European Union and the UK.  (It should be noted that the “Leave” campaign formally opposes TTIP, largely because of the broader integrative measures that might be included in the agreement.)

On that same day, however, European leaders stated that the EU will not afford the UK a free trade arrangement unless the UK agrees to ensure the “four freedoms” at the heart of European integration, including the free movement of European workers — which is anathema to many in the “Leave” camp in Britain.  Specifically, the EU leaders stated:

In the future, we hope to have the UK as a close partner of the EU and we look forward to the UK stating its intentions in this respect. Any agreement, which will be concluded with the UK as a third country, will have to be based on a balance of rights and obligations. Access to the Single Market requires acceptance of all four freedoms.

(Emphasis added.)  Even if Britain could side-step this European opposition by using the “TTIP back door,” a TTIP agreement would not solve all of the United Kingdom’s trade problems.  Again using procurement as an example, trade agreements such as TTIP and the World Trade Organization’s Government Procurement Agreement (GPA) are really best understood as ambitious nondiscrimination arrangements.  Those trade agreements simply do not drive the same rigorous cross-border economic integration, in procurement or otherwise, that the European Union’s governance mechanisms provide.

In sum, although TTIP would hardly be a panacea, because TTIP might give Britain a “back door” to a free trade arrangement with Europe, European leaders may prove reluctant to press forward to conclude the TTIP agreement.

If TTIP does falter, what will this mean for procurement?  If TTIP stalls, it may mean that the goals held for TTIP will need to be addressed under other institutions, such as the WTO Government Procurement Agreement (GPA).  The GPA’s implementation is administered by the WTO Committee on Government Procurement, and logically the TTIP goals — goals which would address persistent structural obstacles to trade in procurement — could be taken up by the Committee, perhaps under the pending work programs to enhance the GPA.

The EU and U.S. negotiating goals for TTIP (at least as of the ninth round of negotiations, in April 2015) were made clearer as a result of a leak of internal European negotiating documents by Greenpeace Netherlands.  According to those leaked materials and the EU and U.S. published statements of position, those TTIP goals include, on the EU side, better access to (and information on) sub-central (state and local) procurements in the United States, and on the U.S. side, stronger commitments by all parties to fighting corruption in procurement.  To the extent Brexit derails those goals in TTIP, it may fall to the WTO to take them up as part of a broader effort to strengthen international procurement markets under the Government Procurement Agreement.

– Chris Yukins

Editor’s note:  On September 19, 2016, these Brexit developments will be discussed at our annual conference on transatlantic procurement at King’s College London; GWU Law School is a co-sponsor.  Attendance is free, and further information is available athttp://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589 .

 

Paper on Brexit Published in Government Contractor

Christopher Yukins’ short paper reviewing the procurement issues under Brexit was published yesterday in Thomson Reuters’ weekly, The Government Contractor; it’s available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802637.

Procurement:  Using TTIP to Fill the Gaps Left by Brexit

TTIP bannerIn the wake of Brexit, much of the public discussion about the Transatlantic Trade and Investment Partnership (TTIP) — the comprehensive trade agreement being negotiated between the European Union and the United States — has focused on the delay that Brexit may cause the TTIP negotiations, and has reflected hope on the part of the British left that Britain can now stay out of TTIP.

In the long term, however, it is perhaps unlikely that a newly independent Britain would remain outside TTIP, which if concluded is likely to prove a critical tool to open markets, and reduce regulatory barriers, between European nations and the United States.  Although the White House has warned that an independent UK would be joining TTIP from a “different starting point,” TTIP, if successful, could simply be too attractive for Britain to ignore — especially if the alternative, a bilateral deal with the United States, would offer reduced access for a weaker Britain.

This possibility that Britain would, after Brexit, seek to join TTIP opens a strategic question:  could TTIP be used to close some of the gaps opened by Brexit?

In procurement, the most serious gap left by Brexit is uncertainty — will the UK agree to continue to follow the EU procurement directives, and can the UK continue to calm the protectionist voices emerging in the European Union?  TTIP may address both problems.

To understand why, we can look to the structure of other free trade agreements, such as the WTO Government Procurement Agreement (GPA), to make an educated guess as to how TTIP would be structured.  Under the GPA, each party lists the nations and agencies to be covered. Thus, under the revised GPA, the European Union has in Annex 1 agreed (with UK acquiescence) that certain United Kingdom agencies will be covered.

We can assume that the procurement provisions under TTIP would adopt the same structure, listing covered nations and agencies.  That has been the case under the Transpacific Partnership (TPP), which lists in Annex 15-A the agencies regarding which the TPP parties have agreed to open their procurements.

We can also assume that the European Union would not object to agreeing under TTIP that its member states will comply with the European procurement directives; agreeing to bind its member states to its own rules should not be difficult for the EU.  Finally, it seems safe to assume that the EU and the United States would be willing to stipulate that any nation that entered the TTIP structure would be allowed to enter only on terms at least as favorable as those that previously bound that state, under that agreement.  Neither the European Union nor the United States would have an obvious reason to object to such a condition; neither, of course, favors Brexit.

Under such a provision, if post-Brexit Britain sought to enter TTIP separately as a nation outside the European Union, Britain would be bound to the coverage terms that previously applied, i.e., arguably the same UK government agencies would be covered, and they would be bound to follow the European procurement directives (or a set of procurement rules as least as rigorous as the EU rules).

None of this would be simple, of course.  But by demanding that any new entrant — including  the United Kingdom — join TTIP on terms as least as favorable as before, TTIP might help bring stability and predictability to procurement in the U.S. and European markets.

That leaves, then, the question of emerging protectionism regarding procurement in the European Union, driven by European concerns that some trading partners, including the United States, have unfair access.  While the United Kingdom has often opposed new protectionism in Brussels, the UK’s influence will likely plummet under Brexit.  Under a redrawn arrangement in TTIP, however, Britain would be able to engage anew, not as a voice within the EU, but rather as another negotiating partner in TTIP.  The dynamics would be different, but the United States would regain an ally in opposing new European protectionism in procurement.

– Chris Yukins

Editor’s note:  On September 19, 2016, these Brexit developments will be discussed at our annual conference on transatlantic procurement at King’s College London; GWU Law School is a co-sponsor.  Attendance is free, and further information is available athttp://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589 .