Preliminary analysis of leaked proposed TISA Annex on Government Procurement

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1 Preliminary analysis f leaked prpsed TISA Annex n Gvernment Prcurement Sanya Reid Smith, legal advisr, Third Wrld Netwrk Summary 1 Imprtance f gvernment prcurement 1 What GP is cvered by the prpsed TISA text? 2 What are the requirements fr GP cvered by the prpsed AGP? 3 Exceptins t prpsed pening f services GP in TISA? 5 Table 1 5 Cnclusin 6 Summary This memrandum prvides a preliminary 1 analysis f the leaked prpsed Annex n Gvernment Prcurement (AGP) in the Trade In Services Agreement (TISA) currently being negtiated. A number f ther TISA Parts and Annexes are relevant t this analysis including the cre text and the leaked Financial Services Annex 2. The prpsed AGP has extreme liberalisatin f gvernment prcurement (GP) by a wider range f gvernmental entities and fr services cntracts f all values cmpared t what is required fr sme cuntries at the Wrld Trade rganizatin (WT), under a United States (US), Eurpean Unin (EU) r Eurpean Free Trade Assciatin (EFTA) 3 free trade agreement (FTA). This extreme liberalisatin f GP wuld undermine the deliberate gvernment plicies f a number f develped and develping TISA cuntries which try t prmte their dmestic services cmpanies and hence lcal emplyment including fr indigenus peples etc thrugh GP laws and plicies. It is als likely t undermine widespread plicies t supprt dmestic micr, small and medium enterprises. The limited exceptins available fr this prpsed AGP wuld nt save these and ther prgrams in TISA cuntries frm being severely undermined by this prpsal if it is agreed t. This prpsed text ges beynd the WT because the WT des nt have rules n GP that apply t all WT Members. The WT s Agreement n Gvernment Prcurement (GPA) is an ptinal agreement that sme TISA cuntries have jined (see Table 1). 4 The WT s services rules (GATS) stipulate negtiatins n services GP, 5 hwever they are still at very early stages with n cnvergence n the utcme 6. The EU and USA tried t add GP (transparency nly) t the WT negtiatins in 1996, 7 hwever it was ppsed by develping cuntries 8 and was eventually rejected frm the current Dha Rund f WT negtiatins. 9 Imprtance f gvernment prcurement In mst develping cuntries, the gvernment is the main surce f prcurement fr services, including cnstructin and maintenance f infrastructure. 10 In develping cuntries, public prcurement (f gds and services) can accunt fr as much as 20% f grss dmestic prduct 11 r mre than 25% in the case f Malaysia 12. Gvernment purchasing therefre prvides a majr surce f demand fr dmestic service suppliers and reserving that fr dmestic cmpanies (r therwise preferring them) can facilitate scial and ecnmic develpment, 13 prvide emplyment and business pprtunities fr marginalized r disadvantaged individuals and cmmunities 14 and act as a wealth 1

2 redistributin tl 15. Examples f these benefits f directing gvernment purchasing at lcal suppliers (which culd be undermined by the prpsed TISA text, see belw) include: the current Canadian gvernment has directed that prcurements invlving munitins and shipbuilding be limited t cmpanies in Canada. 16 The Natinal Shipbuilding Prcurement Strategy in Canada is a lng-term plan that, accrding t the Ministers f Natinal Defense, Fisheries and ceans, and State, will create gd jbs in high-tech industries acrss Canada 17 In 1996, the Canadian gvernment s prcurement plicy mandated that all cntracts valued at mre than $5,000, which wuld benefit the Abriginal ppulatin, wuld nly be pen t bidding fr abriginal suppliers as lng as thse suppliers culd meet basic standards f cntract management. 18 This has had a psitive impact n indigenus businesses in Canada, As f 2000, Abriginal businesses had increased their ttal annual cntracting dllars frm 76.5 millin t millin, an increase f 78.3 percent. 19 In Australia, upn winning a cntract t supply equipment r service t the Defence Department, freign cntractrs were bligated t prvide defence ffsets activities fr Australian industry. A survey dne by the Australian Department f Defence in 1991 indicates that ffsets had induced lcal industry t upgrade technlgy and it was respnsible fr at least a 10% pint increase in lcal industry invlvement in defence prjects. 20 Cmpanies undertaking ffsets activities indicated that this type f wrk had led t a prprtinately higher level f benefits such as develping new capability, increasing verseas cmpetitiveness and intrducing new technlgy. 21 Since GP can be s large, pening it t freign cmpanies has als given rise t cncerns abut balance f payments prblems. 22 Fr gvernments which want t save mney by purchasing frm the cheapest service supplier in the wrld, r which want a greater chice r different quality than is available frm dmestic cmpanies, they can always vluntarily pen up their gvernment purchasing f services t cmpanies frm any cuntry in the wrld. This unilateral liberalisatin can be dne immediately withut having t jin TISA with gvernment prcurement liberalisatin prvisins. If services GP is pened t freign cmpetitin unilaterally, then in future if the gvernment wishes t reserve it fr lcal suppliers (fr example fr any f the reasns abve), it can restrict it t lcal cmpanies again. Hwever, if services GP is pened t freign cmpanies via TISA, it cannt be clsed again. What GP is cvered by the prpsed TISA text? The prpsed text wuld pen gvernment purchasing f services 23 but als gds where they are a minr part f the cntract. 24 (Fr ease f reference in this analysis, these cmbined gds and services cntracts will als be called services ). The prpsed text appears t cver: Purchasing by all gvernmental agencies. 25 This is very unusual because even in the WT s GPA, 26 EFTA FTAs, 27 EU FTAs 28 and US FTAs 29 it is psitive list liberalisatin f GP, i.e. nly the purchasing by thse gvernmental entities listed is pened t cmpetitin frm suppliers frm ther cuntries in the trade agreement. Negative list is a mre extreme versin f liberalisatin than psitive list. Negative list liberalisatin wuld mean that purchasing by all gvernment entities except thse listed wuld be pened t cmpetitin frm suppliers frm ther cuntries in the trade agreement. The prpsed AGP text is even mre extreme than negative list liberalisatin and des nt allw any exceptins fr purchasing by any entities which meet the definitin f gvernmental agencies. Services purchasing f any amunt, even small cntracts (prvided it is via an pen tendering prcedure etc, see belw). This is very unusual because even in the WT s GPA, 30 EFTA FTAs, 31 EU FTAs 32 and US FTAs 33 there is a minimum threshld cntract value s that cntracts which are belw this in value are nt pened t freign cmpetitin. This minimum threshld value helps t ensure that dmestic micr, small and medium enterprises 2

3 (MSMEs) can still supply their gvernments because they d nt have t cmpete with freign suppliers fr small cntracts. A grwing small business sectr has great ptential t reduce unemplyment, increase average husehld incmes, reduce the pverty gap, and increase the tax base f the ecnmy, which in turn prvides the basis fr further, sustainable lng-term grwth in the ecnmy. 34 Hwever the prpsed AGP text des nt allw TISA cuntries t reserve small cntracts which are usually mre accessible t MSMEs fr dmestic MSMEs r give ther preferences t dmestic MSMEs, see belw. the purchasing f services n a negative list basis (since it specifies pursuant t Article I-4 f the Agreement 35 which is the natinal treatment prvisin 36 which is negative list 37 ) where there is a cmmercial presence f a services cmpany frm anther TISA cuntry. (Negative list means GP in all service sectrs except thse listed is pened t suppliers frm ther TISA cuntries). This ges beynd sme existing trade agreements invlving TISA cuntries such as the Peru-EFTA FTA where EFTA cuntries nly pened GP f the services listed n a psitive list basis. 38 (Psitive list nly pens the GP in the service sectrs which are listed). It is unclear whether the prpsed text wuld pen purchasing f services by all levels f gvernment including municipal and ther sub-natinal gvernments. In the WT GPA bth the revised and 1994 versins, it cvers bth natinal and sub-central gvernment purchasing, 39 s there may be an attempt t d s in TISA as well. It is als unclear whether the prpsed text wuld pen the purchasing by state wned enterprises. State wned enterprises can be significant purchasers fr example 61% f Uruguay s public invitatins t tender in 2008 were by state wned enterprises, 40 (Uruguay is negtiating TISA). In the WT s GPA, purchasing by state wned enterprises is als pened, 41 s there may be an attempt t d s in TISA as well. Althugh the prpsed text wuld nly pen GP f services where there is a prir publicatin f a prcurement ntice, 42 depending n the cuntry, this may be mst f the time. Fr example fr a subnatinal gvernment in Australia, a basic requirement in the Victrian gvernment s purchasing is t publish prcurement ntices except in certain circumstances. 43 This may be exacerbated by anther trade agreement which requires that GP cvered by that ther trade agreement always has a prcurement ntice published except in certain rare listed circumstances, as is the case in the Peru- U.S. free trade agreement, 44 (Peru is negtiating TISA). The prpsed text wuld nly apply t services GP via pen tendering (which is likely t be mst GP especially f larger cntracts). This may be exacerbated by anther trade agreement which requires that GP (including f services) cvered by that ther trade agreement is always via pen tendering except in certain listed circumstances, as is the case in the Peru-U.S. free trade agreement, 45 (Peru is negtiating TISA). The prpsed text wuld nt apply t cncessins t prvide services t the public. 46 Since a definitin f GP equivalent t the ne in the WT s General Agreement n Trade in Services (GATS) will be used, 47 it can be expected t be smething like GP means the prcurement by gvernmental agencies f services purchased fr gvernmental purpses and nt with a view t cmmercial resale r with a view t use in the supply f services fr cmmercial sale. 48 What are the requirements fr GP cvered by the prpsed AGP? The main substantive requirement is fr TISA Cuntry A t treat service suppliers frm any ther TISA cuntry which have established a cmmercial presence by setting up, acquiring r maintaining a cmpany etc (see definitin f juridical persn in the leaked cre text) in Cuntry A the same as Cuntry A s wn service suppliers when it is buying the relevant services. This means that fr the services GP liberalised via TISA (see abve), TISA cuntries can n lnger: have set asides fr lcal services suppliers. (A set aside is where nly lcal cmpanies can supply certain gvernment cntracts). Fr example: 49 3

4 in Mexic, in 2011, gvernment prcurement registered n CmpraNet was Mex$293,939 millin f which 48% was nly available t Mexican natinals. 50 If this TISA prpsal is agreed t, Mexic culd n lnger reserve all the services part f this GP fr Mexican natinals. Even if all Mexic s free trade agreements with GP chapters liberalised GP in services, Mexic still has nt pened GP in services t 11 ther TISA cuntries. 51 fr Paraguay, the WT Secretariat nted that 52 the amunt f cntracts awarded reaching US$1,541 millin in f ttal gvernment prcurement ver the perid , 55 per cent was fr gds and 44 per cent fr services (including public wrks)... Paraguay has used the gvernment prcurement regime as a tl fr prmting dmestic prductin and emplyment. In 2009, 41.7% f amunts f cntracts awarded were via natinal cmpetitive bidding (nly pen t natural r legal persns dmiciled in Paraguay), (cmpared t 38.1% under internatinal cmpetitive bidding). have price preferences. (A price preference is when a lcal cmpany can still win the bid t supply a gvernment even if its price is X% mre expensive than the freign cmpany s). In Uruguay: If the number f abridged prcedures and direct prcurement by all gvernment bdies is included, the ttal amunt f gvernment prcurement was ver US$2 billin in 2008 (excluding imprted electricity, petrleum and related freight charges)... Uruguay uses the gvernment prcurement system t prtect and prmte dmestic industry...[eg] in gvernment prcurement a preference margin f 8 per cent shall be applied t the price f Uruguayan gds, services and public wrks, f equal quality r suitability cmpared t freign gds, services r public wrks... MSMEs cvered by this subprgramme are given a preference n the price f Uruguayan gds, services and public wrks, which ranges frm 8 t 16 per cent fr micrenterprises and small enterprises and frm 4 t 12 per cent fr medium-sized enterprises. 53 If this TISA prpsal is agreed t, Uruguay culd n lnger cntinue t d this fr the relevant services GP (see abve). Paraguay als uses price preferences fr natinal services 54 but wuld nt be able t cntinue t d s fr the relevant services GP if this prpsal is accepted. In Peru, services are a significant prprtin f GP and price preferences are still used: 55 Services was 26.6% f prcurement and wrks was anther 33.7% f prcurement and GP was 28.9billin nuev sl in fr prcurement f wrks r services t be executed r supplied utside the prvinces f Lima and Calla with cntracts awarded accrding t the ADS and small cntract (AMC) prcedures, a preference f 10% is given n the amunt f the technical and ecnmic prpsal f bidders dmiciled in the prvince where the wrk is t be carried ut r the service supplied, r in neighburing prvinces. 56 It is unclear whether ffsets are still allwed under this TISA prpsal. (Direct ffsets are when the freign services cmpany supplying the gvernment has t use lcal inputs (eg lcal banks) related t the cntract. Indirect ffsets are when the freign services cmpany supplying the gvernment has t buy sme unrelated ther lcal prduct/service eg bananas (eg if there is n lcal expertise fr direct ffsets). ffsets are imprtant fr lcal emplyment, balance f payments 57, technlgy transfer etc, see abve. There are als prcedural requirements that specify the GP prcess fr TISA cuntries in the prpsed text. 58 Depending n their current GP prcess (which may already have t cmply with prcedural requirements in ther trade agreements), the prcedural prpsals may be mre burdensme fr sme TISA cuntries t implement than thers. 4

5 Exceptins t prpsed pening f services GP in TISA? As nted abve, the usual exceptins t pening services GP in trade agreements (exclusin f small prcurement cntracts via a minimum threshld value, exclusin f certain prcuring entities etc) are nt allwed in the prpsed TISA GP text. The cre text seems t allw the usual GATS exceptins 59 t apply t this prpsed GP Annex 60. Hwever: These nly cver health and the envirnment etc, nt ther plicies which may be undermined by the prpsed TISA GP rules such as lcal jb creatin r assistance t indigenus peples etc. Even fr the areas cvered by the GATS exceptin and its equivalent fr gds rules at the WT, 61 they have been very difficult fr gvernments t use, succeeding nly nce in 40 attempts at the WT accrding t ne study. 62 There is n special and differential treatment (eg additinal exceptins r flexibilities) r even transitin perids fr develping cuntries in the prpsed TISA text. Whereas the EU s prpsal t pen services GP in the stalled GP negtiatins under GATS at the WT at least had a transitin perid fr develping cuntries fr up t 10 years fr price preferences and ffsets. 63 Table 1 TISA Party 64 In WT s GPA? 65 Australia Canada Chile Clmbia Csta Rica EU Hng Kng Iceland Israel Japan Krea Liechtenstein Mexic New Zealand Nrway Pakistan Panama Paraguay Peru Switzerland Taiwan Turkey A N A N N 5

6 Uruguay USA = yes N= n N A= negtiating accessin t the GPA = bserver Cnclusin The extreme liberalisatin f gvernment prcurement prpsed in this text ges beynd liberalisatin under existing trade agreements with the resultant undermining f laws, prgrams and plicies such as thse utlined abve. Fr: Cuntries which are already party t the WT s GPA, if accepted, the prpsed text here in TISA: pens purchasing by mre gvernment entities pens GP f smaller services cntracts Can pen GP f mre services pens the services GP abve t mre cuntries Cuntries which have already pened services GP via an EFTA, EU r US FTA, if accepted, the prpsed text here in TISA: pens purchasing by mre gvernment entities pens GP f smaller services cntracts Can pen GP f mre services pens the services GP abve t mre cuntries Cuntries which have nt pened services GP via an EFTA, EU r US FTA r the WT s GPA, if accepted, the prpsed text here in TISA wuld pen their services GP in a mre extreme way than even that required via an EFTA, EU r US FTA r the WT s GPA. If these TISA cuntries which have s far decided nt t lck pen their services GP in a trade agreement and which ppsed even rules requiring mere transparency in the GP prcess at the WT, then agree t lck pen their services GP in TISA, this wuld be a radical change f plicy. 1 Fr example this analysis des nt cmpare the AGP t all existing trade agreements invlving TISA cuntries which pen services gvernment prcurement 2 Which prpsed liberalisatin f purchasing f financial services by public entities in Article X.6, https://wikileaks.rg/tisa/financial/ / 3 Iceland, Liechtenstein, Nrway, Switzerland, all f whm are in TISA, 4 https://www.wt.rg/english/tratp_e/gprc_e/membs_e.htm 5 Article XIII.2 https://www.wt.rg/english/dcs_e/legal_e/26-gats_01_e.htm#articlexiii 6 https://www.wt.rg/english/tratp_e/dda_e/chair_texts11_e/serv_e.dc WT dcument WT/L/579 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx 10 Rgersn, Christian M. (2004). Pr-Pr Lcal Ecnmic Develpment in Suth Africa: The Applicatin f Public Prcurement. Urban Frum. Vl. 15, N. 2 (180). 11 Center f Internatinal Develpment at Harvard University. Glbal Trade Negtitatins Hmepage: 6

7 12 In 2003, McCrudden, Christpher and Stuart G. Grss. WT Gvernment Prcurement Rules and the Lcal Dynamics f Prcurement Plicies: A Malaysian Case Study. The Eurpean Jurnal f Internatinal Law. Vl. 17, n.1. (2006): Rgersn, Christian M. (2004). Pr-Pr Lcal Ecnmic Develpment in Suth Africa: The Applicatin f Public Prcurement. Urban Frum. Vl. 15, N. 2 ( ). 14 Rgersn, Christian M. (2004). Pr-Pr Lcal Ecnmic Develpment in Suth Africa: The Applicatin f Public Prcurement. Urban Frum. Vl. 15, N. 2 (188). 15 Bltn, Phebe. Gvernment Prcurement as a Plicy Tl in Suth Africa. Jurnal f Public Prcurement. Vl. 6:3 (2006): Williams, Alan. The Williams Grup. "Defence Prcurement, Industrial Develpment & Reginal Benefits." FrntLine Defence (Jan/Feb 2007): Gvernment f Canada, Public Wrks & Gvernment Services, "Gvernment f Canada annunces Natinal Shipbuilding Prcurement Strategy." Canada News Centre (June 3, 2010): 18 La Nue, Gerge R. Plicies t Ensure Grup Equality in Public Cntracting in Fur Cuntries. The Internatinal Jurnal f Diversity in rganisatins, Cmmunities and Natins, Vl. 8, N. 6 (2009). 19 La Nue, Gerge R. Plicies t Ensure Grup Equality in Public Cntracting in Fur Cuntries. The Internatinal Jurnal f Diversity in rganisatins, Cmmunities and Natins, Vl. 8, N. 6 (2009): Jsn, S.S.. "Defense ffsets and Industrial Prtectin." Indian Jurnal f Quantitative Ecnmics 11 n. 1 (1996): Jsn, S.S.. "Defense ffsets and Industrial Prtectin." Indian Jurnal f Quantitative Ecnmics 11 n. 1 (1996): See fr example 23 An example f services likely t be cvered are thse cvered in the Wrld Trade rganizatin, https://www.wt.rg/english/tratp_e/serv_e/mtn_gns_w_120_e.dc, https://www.wt.rg/english/tratp_e/serv_e/serv_e.htm. 24 Ftnte 2 f the prpsed text 25 Assuming the term gvernmental agencies is still used when an equivalent definitin t the ne in the Wrld Trade rganizatin s General Agreement n Trade in Services is incrprated, see belw 26 https://www.wt.rg/english/tratp_e/gprc_e/gp_app_agree_e.htm 27 Eg the Peru-EFTA FTA, 28 Eg the Peru-EU FTA, 29 E.g. the Peru- USFTA, https://ustr.gv/trade-agreements/free-trade-agreements/peru-tpa/final-text 30 https://www.wt.rg/english/tratp_e/gprc_e/gp_app_agree_e.htm 31 Eg the Peru-EFTA FTA, 32 Eg the Peru-EU FTA, 33 E.g. the Peru- USFTA, https://ustr.gv/trade-agreements/free-trade-agreements/peru-tpa/final-text 34 Mkhize, Z. L. (2004). MEC fr Finance and Ecnmic Develpment. Paper presented at Supply Chain Management Cnference: Transfrming Gvernment Prcurement System, Nvember 22-23, Durban, Suth Africa. 35 Paragraph 2 36 See cre text als released tday https://www.wt.rg/english/tratp_e/gprc_e/gp_app_agree_e.htm 40 WT dcument WT/TPR/S/263/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 41 https://www.wt.rg/english/tratp_e/gprc_e/gp_app_agree_e.htm 42 Paragraph 1 f the prpsed text 43 Assessment-Plicy, 44 Article 9.4.1, https://ustr.gv/sites/default/files/uplads/agreements/fta/peru/asset_uplad_file52_12926.pdf 45 Article 9.2.3, https://ustr.gv/sites/default/files/uplads/agreements/fta/peru/asset_uplad_file52_12926.pdf 46 Ftnte 2 f the prpsed text 47 Ftnte 1 f the prpsed text 48 Article XIII, https://www.wt.rg/english/dcs_e/legal_e/26-gats_01_e.htm#articlexiii 49 Frm TISA cuntries which have nt jined and are nt in the prcess f jining (r bserving) the WT s GPA, see Table 1. All f these cuntries have laws/prgrams which wuld be undermined if this prpsal is accepted in TISA. 7

8 The definitin f GP used by the WT Secretariat in their reprts cited here may nt be the same as that in TISA. 50 This is presumably gds and services. WT dcument WT/TPR/S/279/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 51 This is presumably gds and services. WT dcument WT/TPR/S/279/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 52 WT dcument WT/TPR/S/245/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 53 WT dcument WT/TPR/S/263/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 54 WT dcument WT/TPR/S/245/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 55 WT dcument WT/TPR/S/289/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 56 WT dcument WT/TPR/S/289/Rev.1 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx. 57 https://www.wt.rg/english/dcs_e/legal_e/rev-gpr-94_01_e.pdf 58 See fr example the prpsed Appendix t the TISA Annex n GP. 59 Article XIV GATS, https://www.wt.rg/english/dcs_e/legal_e/26-gats_01_e.htm#articlexiv 60 Article I-9 61 Article XX f the General Agreement n Tariffs and Trade (GATT), https://www.wt.rg/english/dcs_e/legal_e/gatt47_02_e.htm#articlexx 62 https://www.citizen.rg/dcuments/general-exceptin.pdf 63 WT dcument S/WPGR/W/54 frm https://dcs.wt.rg/dl2fe/pages/fe_search/fe_s_s001.aspx https://www.wt.rg/english/tratp_e/gprc_e/membs_e.htm. WT GPA Parties have already pened their services GP t 13 ther ecnmies (cunting the EU as ne and the Netherlands as including Aruba) under the GPA f which 12 are already negtiating TISA (nly Armenia and Singapre are GPA Parties which are nt in TISA). 8

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