The World Trade Organisation (WTO) and public contracts

Résumé du document

The World Trade Organization aims at ensuring "harmony, freedom, equity and security" in trading activities. The organization has the institutional means to control the compatibility of national policies to its requirements. From financial to commercial items, all fields of legislation that are linked with economic openness are being watched by the WTO. Thus it is not surprising that the organization produces some rules that target administrative law. Among it, public procurements regulation offers an interesting example of the penetration of domestic rule by international standards. A contract is public when a public authority contracts with a private actor or with another public authority. Traditionally, countries have tended to defend national interests by adopting attitudes of protection against foreign participation into public contracts. Whether it be through legislation or de facto practice, administrations have managed to limit the access to procurements or to choose arbitrarily among competitors. Nowadays such national reflexes are relatively inefficient. Globalization, which can be defined as the process of greater inter-connection of international actors on a global scale, clearly changes the way contracts are passed.

Extraits

[...] Bibliography Government Procurement Agreement WTO website Singapore Ministerial Declaration, December 18th 1996 J.HEILMAN GRIER, “Recent developments int international trade agreements covering government procurement”, Public Contract Law Journal, Spring S. ARROWSMITH, “Reviewing the GPA: the role and development of the plurilateral agreement after Journal of International Economic Law, Oxford University Press, December M.R. de GOUVEIA, Price Factor in EC Public Contracts”, Public Contract Law Journal, Summer 2002, American Bar Association M.A. KINSEY, “Transparency in Government Procurement: An International Consensus?”, Public Contract Law Journal, Fall 2004, American Bar Association JB. AUBY, L'Internationalisation du Droit des Contrats Publics Droit Administratif, Juris-Classeur, Aout-Septembre 2003 T. [...]

[...] Once again we can notice that the WTO regulation sets a precise direction in which the parties should contract; the parties keep a certain freedom of application, though limited as the choice of the procedure must be justified by the nature of the goods, services or works at stake. The GPA also imposes that some “minimum deadlines” are to be settled to preparation, submission and receipt of tenders to enable responsive tendering” (Article XI:2). The parties determine these deadlines. As to the method to employ within the procedure, the Agreement allows the recourse to negotiation between the entities and the suppliers. [...]

[...] The example of the European Community is particularly striking in this respect. Indeed it is a media between WTO law and domestic law. For example, the French Nouveau Code des Marchés Publics of 2001 includes some principles derived from the European Directives on Public Markets. This corresponds to a constitutional measure: the Article 55 states that all international agreement are superior to national rule, whether it be constitutional, legislative or regulatory. Thus WTO law, as well as EC law, must be applied to French rules. [...]

[...] The method proves to be efficient at different steps. Considering the implementation of the norms at the EC level, it can be said that before “these methods and systems became usual practice, the Contracting Authorities tended to rely on their discretionary powers to evaluate tenders, not following any pre- established calculation standards”[7]. Together with these institutional items, conceptualization is also affected by the Organization's impulsion. As we saw before, the conceptions of “entities”, of “government procurement” are wide and open to interpretations by the parties. [...]

[...] A part of the GAP is not universally applied to allocation the contracts. The National treatment principle can be excluded: developing country may negotiate with other participants in negotiations under this Agreement mutually acceptable exclusions from the rules on national treatment with respect to certain entities, products or services that are included in its coverage lists, having regard to the particular circumstances of each case.” (Article Some non-economic exclusions reasons justify other exclusions, such as the protection of national security interests, public morals, order or safety, human, animal or plant life or health or intellectual property, etc. [...]