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For the last four-and-a-half years the WTO has actively pursued a work
programme on the subject of transparency in government procurement.
This has been based on a mandate adopted by ministers at the WTO
Singapore Ministerial Conference held in December 1996 to: “establish
a working group to conduct a study on transparency in government
procurement practices, taking into account national policies, and,
based on this study, to develop elements for inclusion in an
appropriate agreement”.
The
Singapore mandate reflects the heavy emphasis placed throughout the
WTO system of rules and practices on transparency. Transparency is
often referred to as one of the three fundamental principles of the
WTO, the others being most-favoured-nation and national treatment. The
role of transparency is perhaps of greatest importance in situations
where the extent to which rules of general application determine
trading conditions is limited and the scope for discretionary
decision-making is greatest. Government procurement is a notable
example. The GATT and now the WTO have for a long time had a
plurilateral Agreement, currently with 26 parties out of the 142 WTO
members, with detailed requirements in respect of transparency in
government procurement. The object of the transparency provisions in
this Agreement is not only to ensure that adequate information on
procurement opportunities is made available and that decisions are
fairly taken, but also to facilitate monitoring of the commitments
made under that Agreement not to discriminate against suppliers and
supplies from other Parties.
The
focus of the multilateral work presently under way on transparency in
government procurement is somewhat different. First, as indicated,
this work is multilateral in nature and aimed at drawing up an
agreement to which all 142 WTO members will be parties. Second, the
focus is on transparency as such, rather than on transparency as a
vehicle for monitoring market access commitments. However, some
members have indicated that they would wish future negotiations to
have a broader mandate that could provide, in the long term, for the
exploration of the scope for market access on a multilateral basis.
The
WTO Working Group on Transparency in Government Procurement, since its
first meeting in May 1997, has met 13 times. The Working Group
initiated its work by hearing presentations from other
intergovernmental organizations which have international instruments
and activities relevant to transparency in government procurement,
notably the United Nations Commission for International Trade Law (UNCITRAL)
and the World Bank. It then considered a WTO comparative study of the
transparency-related provisions in existing international instruments
on government procurement procedures as well as in national practices.
This covered the procedures under the plurilateral WTO Agreement on
Government Procurement, the UNCITRAL Model Law and the World Bank
Guidelines, as well as available material on national practices.
The
next stage in the work of the Working Group was the systematic study
of 12 issues that were identified as important in relation to
transparency in government procurement. These are: definition and
scope of government procurement; procurement methods; publication of
information on national legislation and procedures; information on
procurement opportunities, tendering and qualification procedures;
time-periods; transparency of decisions on qualification; transparency
of decisions on contract awards; domestic review procedures; other
matters related to transparency; maintenance of records of
proceedings; information technology; language; fight against bribery
and corruption; information to be provided to other governments; WTO
dispute settlement procedures; and technical cooperation and special
and differential treatment for developing countries. Written
contributions on national practices, on issues meriting study and
setting out ideas for action have been presented by many members to
the Working Group. A number of members tabled texts of draft
agreements before the Seattle Ministerial Conference.
In
addition to these subjects, the Working Group — since the Seattle
Ministerial — has also heard experiences of countries on the
application of information technology in government procurement.
members also have reported on national experiences in respect of
regional initiatives and agreements on government procurement in the
context of the Free Trade Area of the Americas (FTAA) negotiations and
the Government Procurement Experts Group of the Asia-Pacific Economic
Cooperation (APEC) as well as a number of regional trade agreements.
The
work of the Working Group has shown that there seems no disagreement
among members about the importance of transparency in government
procurement and of the desirability of the WTO pursuing its work in
this area. The differences essentially relate to how this should be
done. In the run-up to the Doha Ministerial, a number of members argue
that after the intensive work during the past four-and-a-half years,
the WTO is now in a position to negotiate a transparency agreement in
the context of a new round. A number of developing countries, on the
other hand, have expressed concerns about enforcement rules in this
area, including application of the WTO dispute settlement system, and
whether the issue is ripe for the launching of negotiations.
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