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Scope of Today’s Discussion
A Brief Comparative Overview of the International Procurement régimes & Best practices relating to:
• Contracting Authorities• Types of contracts covered• Methods of procurement• Contract award procedures• Post-award obligations/Notices
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International Legal Procurement Regimes
Agreement on Government Procurement (GPA)
EU Directives on Public Procurement
UNCITRAL Model Law on Public Procurement
MDBs’ Guidelines on Public Procurement
Federal Acquisitions Regulations (FAR)
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Agreement on Government Procurement (GPA)
• Tokyo Round of Trade Negotiations (1979)
• GPA signed in 1979 and enforced in 1981. • Annex-4 to the WTO-Marrakech 15 April 94
• A “Plurilateral” Agreement
• USA, Canada, EU, Hong Kong, Japan, Korea, Singapore, Switzerland, Norway, Israel
Netherlands, Switzerland, Liechtenstein, Observers include: 23 countries
• Pakistan - neither a member nor an observer.
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European Community’s Procurement Directives
27 member European Union enterprises
• preventing discrimination
• Transparent but Restrictive Procedure EU Directive 2004/18/CE - Public
works, public supply & public service contracts
EU Directive 2004/17/CE - water, energy, transport and postal services sectors
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The United Nations Commission on International Trade Law (UNCITRAL) on Procurement of Goods, Construction and Services
• UN General Assembly on 17.12.1966
• For introducing PP laws, or reforming their Proc systems
• promoting international competition in PP markets
• achieving economy and efficiency in PP
• reducing corruption in countries
• soft globalization tool-trade harmonization
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Multilateral Development Banks (MDBs) Like the World Bank & ADB (Bank’s Guidelines)
Procurement for works & Goods
Selection and Employment of Consultants
Standard Bidding Documents (SBDs) on Procurement of Works, Goods and services
FIDIC Standard Conditions of Contract & Forms utilized by the Bank-Guidelines
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Procurement Entities Covered
GPA: In Appendix I
• Annex 1 - central government entities.
• Annex 2 - sub-central government entities.
• Annex 3 - all other entities that procure as per GPA
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Procurement Entities Covered
UNCITRAL:
• Federal government
• Sub-federal level
• Any other entity specifically in GPA
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Procurement Entities Covered (Continued...)
World Bank:1. Government /State as Contracting
Authority
2. Design Consultancy by Private Entity
3. Intermediary Development Finance Companies
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Procurement Entities Covered (Continued...)
EU Directive 2004/18/EC:
• State, Regional & Local Authorities
• Entities financed by the Government
• Entities controlled by the Government
• Private Entities subsidized by CAs
• Entities (including private entities) with
special or exclusive rights
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Types of contract covered
GPA:1. Purchase, lease, rental or hire-purchase,
or any combination of works, goods and services
2. Not all government Procurements are covered in GPA
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Types of contract covered
UNCITRAL:
Any contract between the
procuring entity and a supplier or
contractor
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Types of contract covered (Cont…)
EU Directive 2004/18/EC:
• Between one or more economic operators
• one or more Contracting Authorities
• for execution of works, supply of goods &
provision of services within the meaning of
this Directive
World Bank: Types of Contracts covered
• International Competitive Bidding (ICB)• Limited International Competitive
Bidding (LICB)• National Competitive Bidding (NCB)• Shopping (Small value under a
threshold)• Direct Contracting (Single Source)• Force Account (Direct Labour/Direct
Work/Departmental Forces)
World Bank: Types of Contracts covered
• Procurement from UN Agencies
• Procurement Agents (e.g., Management
Contractors)
• Inspection Agents (Pre-Shipment
Inspection Companies)
World Bank: Types of Contracts covered
• Procurement in Loans to Financial
Intermediaries (Re-lending)
• Procurement under Concessions
(BOO/BOT/BOOT)
• Performance Based Procurement (e.g.,
Services Maintenance Facility)
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Provisions favouring domestic
providers/products etc.
GPA:
1. Article V provided special provisions for Developing Countries
2. Least Developing Countries can also negotiate favours before accession
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Provisions favouring domestic
providers/products etc.
UNCITRAL:
• Contracts restricted to national firms
• preferences to national firms
in
evaluating bids where permitted by law,
subject to rules on transparency
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Provisions favouring domestic providers (Cont…)
World Bank:
• Domestic Preference …. 7.5 - 15%
• International Competitive Bidding (ICB)
• supply of goods contracts
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Provisions favouring domestic providers (Cont…)
EU Directive 2004/18/EC:
Generally prohibited under the EU
Treaties and the directives (although
subject to exceptions e.g. military
equipment)
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GPA: The "usual" award procedure
Tendering procedures:
• Open• Selective• limited
Under open procedures - tender
In selective tendering list of qualified suppliers published once a year
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UNCITRAL:The "usual" award procedure (Cont…)
For Goods, construction & Services, Open tendering procedure
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The "usual" award procedure (Cont…)
EU Directive 2004/18/EC:
General rule:
EU C.As shall award public
contracts by applying the open or
restricted procedure.
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The "usual" award procedure (Cont…)
World Bank:
Mostly open and competitive procedures
except for Direct Contracting where
Single Source is a limitation
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Grounds for using Competitive award procedures other than Competitive Tendering
GPA:• Limited tendering procedures• absence of tenders • selective tender • collusion - strongly anticipated• supply only by a particular supplier• extreme urgency
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Grounds for using competitive award procedures other than open tendering/open solicitation of proposals (Cont….)
UNCITRAL:
• limited providers - highly complex specs
• development of prototype products
• national defence and security
• failure of previous open tendering
procedures
• urgency
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Grounds for using competitive award procedures other than open tendering/open solicitation of proposals (Cont….)
EU Directive 2004/18/EC: Competitive Dialogue (Complex Contracts):
• Specifications cannot be set (services only)
• Overall pricing not possible (civil/Services)
• Prototype development
• Failure of previous open tendering
• restricted procedures where negotiations are
conducted with all qualified bidders.
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Grounds for using competitive award procedures other than open tendering/open solicitation of proposals (Cont….)
World Bank:
• Shopping (Small value under a threshold)
• Direct Contracting (Single Source)
• Force Account (Dept Forces/Existing Skill)
• Procurement from UN Agencies - Inaccessible areas
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Methods of advertising specific contracts in competitive procurement procedures
GPA:
Entities shall publish a notice in the appropriate publication listed in Appendix II
Methods of advertising specific contracts in competitive procurement procedures
UNCITRAL:
• For open & two stage tendering: notice in the relevant official publication
• International contracts: notice in relevant international publication
of wide circulation
• For restricted tendering: notice in the relevant official publication
Methods of advertising specific contracts in competitive procurement procedures (UNCITRAL) Cont…
• For request for proposals (RFP):
notice in relevant international publication of wide circulation
• For competitive negotiations: Request for Quotations (RFQ), and direct solicitation for procurement of services no advertisement required.
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Methods of advertising specific contracts in competitive procurement procedures (Cont…)
EU Directive 2004/18/EC:
• Notice of the specific contract: OJEC • Notice of qualification system: OJEC
• Advertisement through a GIN: OJEC
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Methods of advertising specific contracts in competitive procurement procedures (Cont…)
World Bank:• UN Development Business Online
(UNDB online)-a UN publication www.devbusiness.com • Development Gateway’s dgMarket
(Electronic portal of Development Gateway Foundation, USA)
www.dgmarket.com
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Criteria for selecting between tenders/proposalsAward of Contracts
GPA: • Tender conforming to essential
requirements of the B/Documents
• Abnormally low price, but still capable of fulfilling contract terms
• Tender is either the lowest tender, or
• If non-price factors-most advantageous.
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Criteria for selecting between tenders/proposals (Cont…)
UNCITRAL: a) Goods and construction-Lowest price
b) Non-Price factors are operation,
maintenance and repair costs;
delivery/completion time; functional
characteristics; terms of payment and
guarantees; any preferences to be given
for domestic industry
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Criteria for selecting between tenders/proposals (Cont…)
EU Directive 2004/18/EC:
(a) Price
(b) Most Economically Advantageous Tender • technical merit• aesthetic & functional characteristics• environmental characteristics • after‑sales service • technical assistance• Running cost • delivery date/delivery period • period of completion.
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Criteria for selecting between tenders/proposals (Cont…)
World Bank:1. Lowest Evaluated Responsive Bidder
2. If prior mechanism given in the SBDs - WB favours most economically advantageous Bid to be evaluated as the lowest bid.
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Thankyou Q & A
