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.
[...] In parallel to the principles of equity and non-discrimination, the Government Procurement Agreement sets some requirements about the procedural aspects of public contracting. The entities shall respect detailed rules concerning the tendering procedure. They aim at assuring “that the access to procurement is effectively open and that an equal opportunity is given to foreign supplies and suppliers in competing for government contracts”. Three sorts of procedures are defined, in respect to their degree of openness to suppliers: open procedures, selective tendering procedures and limited tendering procedures. [...]
[...] The way the World Trade Organization regulates the delicate and tightly national matter of public contracts reveals some characteristics of the current globalization of law. The institutional frame settled by the Organization, as well as the ideas it promotes could make it appear legitimate to both private and public actors. Then the legal content of the Agreement, which sets rules for the procedure of public procurement, is enforced. The norms are adopted on different institutional level: communitarian, national, regional. That is why the authority of the states is contested, on a field were it was unquestioned only two decades ago. [...]
[...] The World Trade Organization's policies on public contracts are the starting point of the emergence of a body of law that blurs the lines between clear-cut juridical distinctions. Public/ private, national/international considerations are mixed. This is one of the main characteristics of the current globalization of law. Firstly, this regulation of public contracts raises the question of national sovereignty. As it was mentioned before, public contracting was a symbol of the administration privileges. That is why the GATT waited until 1979 to produce its first norms on the subject. [...]
[...] Rules for submission, receipt and opening of tenders ensure fairness, equity and transparency in the procurement process (Article XIII:1-3). These are key elements in the process of determining which supplier would be awarded the contract. The Article XIII:4 sets that: entity shall make the award to the tenderer who has been determined to be fully capable of undertaking the contract and whose tender, whether for domestic products or services, or products or services of other Parties, is either the lowest tender or the tender which in terms of the specific evaluation criteria set forth in the notices or tender documentation is determined to be the most advantageous.” The GPA enables both contracting parties to be on an equal step. [...]
[...] Schooner defines transparency as system [that] employs procedures by which offerors and contractors (and even the public at large) ensure that the government business is conducted in an impartial and open manner.” A different definition is given by Prof. S. Arrowsmith: transparency is respected when "the rules to be applied in conducting procurements and information on specific procurement opportunities are made clearly known to affected parties." Whether the stress is on the administration or on the rules, transparency “calls for an open system that provides critical information to interested parties” and “although there is no set definition for transparency, in essence, it is the means by which Governments broadcast the steps taken during the procurement process”. [...]
Online readingwith our online reader
Content validatedby our reading committee