“Modern Ghana” Posting on the World Bank’s New Procurement Framework — Now Effective

New World Bank Procurement Framework Promotes Strengthened National Procurement Systems

By World Bank

Flexible approach will help countries make the best use of public spending

The World Bank’s new Procurement Framework becomes effective tomorrow, July 1, 2016. Aimed at helping countries make the best use of their public spending, the new Framework will enhance the strategic role of procurement in development effectiveness.

“The new Procurement Framework reflects the views, knowledge, and expertise of a wide range of stakeholders from across the globe. The Bank can now offer a more modern and nimble procurement system to help promote sustainable development,” said Hart Schafer, World Bank Vice President for Operations Policy and Country Services .

The new Procurement Framework will allow the World Bank to better respond to the needs of client countries, while preserving robust procurement standards throughout Bank-supported projects. It provides an expanded range of procurement tools to enable a better fit for varying country contexts and client needs.

“With this modernization of the procurement system, the Bank looks forward to working together with its partner countries to strengthen efficiency in public spending and to strengthen procurement systems around the world. This will help assure that public resources are being well used, and countries can better deliver critical services such as education, health, and infrastructure” says Deborah Wetzel, Senior Director of the Governance Global Practice .

The World Bank’s Board of Executive Directors initially approved this new policy framework in July 2015. It governs procurement in Bank-financed projects in 172 countries worth about USD 56 billion. This new Framework is a result of an extensive review and three-year consultation process involving over 5,000 people in 100 countries including partner countries, CSOs, and private sector.

“Reflecting the latest thinking in procurement, including greater use of technology, the new Framework emphasizes greater choice and flexibility, quality, and accountability while enabling greater adaptation to country contexts,” said Robert Hunja, Director, Governance Global Practice .

The new Framework enables the Bank to work more closely with country partners in improving their own procurement systems. Furthermore, under this framework, clients can use the procurement arrangements of other multilateral development partners or of national agencies in some circumstances.

The new Framework will introduce an ICT based tracking and monitoring tool Systematic Tracking of Exchanges in Procurement (STEP) to make procurement processes speedier, while promoting transparency and accountability. The Bank will also step up its approach to resolving procurement related complaints.

http://www.modernghana.com/news/703203/new-world-bank-procurement-framework-promotes-strengthened-n.html?

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.

International Conference on Public Procurement Law – Africa – Nov. 24-25, 2016

2ND INTERNATIONAL CONFERENCE ON PUBLIC PROCUREMENT LAW AFRICA ANNOUNCED

The African Public Procurement Regulation Research Unit (APPRRU), Faculty of Law, Stellenbosch University, is pleased to announce the second International Conference on Public Procurement Law Africa. The Conference will be held from 24 – 25 November, 2016 at the Century City Conference Centre & Hotel, Cape Town, South Africa. The Conference theme is Public Procurement Regulation suited for 21^st Century Africa: Reform, Governance and Innovation. The theme will address a range of critically important issues and themes relating to the intersection between procurement regulation, governance, reform, and innovation. Plenary speakers include some of the leading thinkers in public procurement in Africa and internationally, and the conference will feature numerous papers, and workshop presentations. More detail on the conference, including the call for papers, can be found at www.africanprocurementlaw.org/projects/conference2016.

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?

Brexit A 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

In 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

Michael Bowsher QC on the Post-Brexit Outlook in UK Procurement

Editor’s note: Michael Bowsher is the coordinating co-chair of the September 19, 2016 conference at Kings College London, which will address procurement issues after Brexit; registration is free, at http://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589. Michael’s contribution below is part of a very interesting review of regulatory issues that may emerge from Brexit.

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Procurement

Michael Bowsher QC of Monkton Chambers considers the potential implications for the EU procurement regime, a key area for criticism from those who have campaigned to leave the EU.

“At a very simple level, it is hard to see politicians, administrators or courts wanting the disposal of the money raised from taxpayers to be done without some transparent framework in which to operate. Perhaps even more fundamentally though, these are not just the EU’s rules (which of course reflected many of the UK’s demands). Any modern trade agreement between industrialised nations includes a chapter regarding the opening up, and therefore also the regulation of, government procurement markets. The EU rules themselves are actually the expression in the EU of the requirements of the WTO’s Government Procurement Agreement (GPA). The UK or England and Wales could join the WTO without joining the GPA, but it would be very strange if it did given the list of countries that are already signed up.

“Finally, it already seemed likely that the EU would soon legislate to provide for the means of closing its own government markets to countries that did not provide reciprocal access. If that happened, we would have to put in place something comparable to the GPA rules just to continue trade for this 20% or so of the EU market, and those GPA rules require something very like the EU directives with some appropriate remedies. So, while there will be a lot of change, some elements of the current system are likely to remain.

“In the short term, there will be an immediate impact on projects, research and so forth funded by the EU, or in some way related to the EU. Those dependent on those projects and research that are funded may be immediately affected. The volume of government funded work generally may reduce and this will affect the practice of procurement law, although history shows that this can be unpredictable. Quite often when there are more people chasing less work, there is more concern as to how that smaller pie is distributed and more disputes over the result.”

UNCITRAL Call for Papers – July 4-6, 2017 Conference in Vienna

Modernizing International Trade Law to Support Innovation and Sustainable Development

A three day Congress hosted by the United Nations Commission on International Trade Law to celebrate its 50th anniversary and explore new directions in cross-border commerce

4-6 July 2017, Vienna International Centre, Vienna

Join us to celebrate the 50th anniversary of the Commission and to engage with leaders in the field of international trade law, including practitioners, judges, academics, international officials and other experts to explore the opportunities that UNCITRAL should seize in the coming years.

Participants will examine ways in which UNCITRAL can contribute to managing new development issues and fostering innovation through the modernization of international trade law. The Congress will be open to anyone with an interest in international trade and business, the work of UNCITRAL and the potential of trade law reform and innovation to translate the United Nations sustainable development goals into action to advance business and trade at country level.

Attendance at the Congress is free of charge. More information will be available on this site when it becomes available.

Congress flyer

Call for papers

The Post-Brexit Pivot

Brexit While an earlier post discussed how Britain’s procurement rules may evolve after Brexit, this post assesses how international procurement reform — specifically, the UK-based colleagues engaged in those reforms — may shift focus after the historic referendum.

First we must put Brexit into context, with regard to procurement law. In 2014, the European Union revamped its procurement directives. By U.S. standards, the EU directives are relatively short and straightforward. For example, Directive 2014/24/EU, which covers most larger public purchases of goods and services, is less than 180 pages long, while by contrast the Federal Acquisition Regulation runs to thousands of pages. Though the EU directives tend to place first emphasis on economic integration, not best value, the EU rules generally align closely with global best practices, and the EU rules conform with international trade agreements such as the WTO’s Government Procurement Agreement.

Although EU member states had two years to transpose the 2014 directives into their own laws, in less than a year the UK government enacted its new Public Contracts Regulations 2015. The new UK law, it was noted by some, was an almost direct transcription of the governing EU directives, although the UK, as a member state, had more discretion to innovate. Some suggested quietly that the UK government rushed the Public Contracts Regulations to avoid the coming storm over Brexit; subsequent events seemed to confirm that.

During the Brexit debate this year, those urging that Britain leave the European Union condemned the EU procurement directives as an example of intrusive regulation from Brussels. The “Leave” campaign argued that “EU public procurement law imposes extremely onerous requirements on public authorities.” Justice Secretary Michael Gove, a Conservative leader in the Leave campaign, joined the chorus; he argued: “If we Vote Leave we can scrap the EU’s foolish rules on how Whitehall runs procurement processes which add billions to the cost of Government every year.”

The Brexit vote thus left UK procurement law in a jumble. Britain’s procurement law is today based on an EU governance model that many British voters have rejected, and on EU rules that Britain’s chief legal officer has called “foolish” — though the EU rules reflect, in the main, international best practices. If Britain abandons sound procurement rules, it risks losing legitimacy in its procurement system; if Britain instead rewrites its procurement law, it may come full circle to a body of rules, shaped by international obligations and best practices, which looks much like what it already has.

While it is difficult to predict how future UK governments will untangle all this, it may be easier to discern what role the UK procurement community could play, post-Brexit. Many of the world’s best procurement lawyers and academics work in Britain, and they may well pivot: from voices inside the European Union, bound sometimes by norms of European economic integration, to strong voices in a more global procurement community, focused first on procurement as an instrument of best value for governments and their citizens. If this shift does occur — if the British leaders in procurement do pivot to step beyond European goals, to more global concerns — Brexit ironically may have built a bridge, not a chasm.

– 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 at http://www.eventbrite.co.uk/e/opening-transatlantic-procurement-markets-tickets-25739851589 .