Government procurement was originally removed from the scope of key multilateral trade rules aimed at opening up market access. In the General Agreement on Tariffs and Trade Agreements, originally negotiated in 1947, government procurement was explicitly exempted from the essential obligation of domestic treatment. Recently, government procurement has been removed from the main commitments of the General Agreement on Trade in Services. Given that government procurement is estimated to typically account for 10-15% of GDP, this is a considerable gap in the multilateral trading system. Following its decision to leave the EU, the UK applied to become a member of the GPA „in its own right“ in June 2018. In February 2019, the WTO`s Committee on Government Procurement approved the UK`s conditions of accession, including the replication of public procurement it covers as an EU Member State under the GPA, and stated that as an EU Member State it would be covered by the GPA until its withdrawal from the EU or the expiry of a transitional period. On 31 January 2020, the UK left the EU to enter a transitional period which expires on 31 December 2020. At a meeting in October 2020, the parties to the WTO Agreement on Government Procurement (GPA) asked the UK to take the final steps to become a party to the agreement itself in 2021. This contribution focuses on Britain`s accession to the GPA and its importance for access to the US supply market if the Trump administration continues to insist on excluding purchases from a bilateral trade agreement. It also looks at Brazil`s progress in joining the GPA. There is a general obligation to publish laws, regulations, court decisions, administrative decisions of general application and all procedures relating to public procurement covered by the agreement. The corresponding publications are set out in Annex IV (Article XIX:1). In addition, under the Agreement, each government must collect statistics on its government procurement covered by the Agreement and make them available to the other Parties through the Committee (Article XIX(5)).
Article XX of the GPA provides for binding requirements for the establishment of a national bid challenge system, which gives suppliers who consider that a procurement has not been made with the requirements of the GPA the right to refer an independent national court. Contracting parties may delegate the power to challenge suppliers before national courts or before an impartial and independent supervisory body. In the event that a challenge to the tender is heard by a supervisory body which does not have the status of a court, either its decisions must be subject to judicial review or it must follow the procedures/criteria detailed in the agreement (Article XX: 6, points (a) to (g)). The disputing entity must be empowered to order the correction of a breach of contract or compensation for loss or damage suffered by a supplier, but this may be limited to the costs of establishing the offer or protesting. . . .
