Both the UK and Australia are members of the World Trade Organisation Government Procurement Agreement (GPA). The GPA is a multilateral agreement and its members generally make commitments applicable to all other members, but the GPA’s operation is also largely bilateral in the sense that countries can tailor their coverage schedules to include specific rules or derogations of commitments vis-a-vis specific GPA members (either on the basis of expected reciprocity, or otherwise).
Given this possibility of differentiated bilateral treatment within the multilateral framework of the GPA, it could seem surprising that the recent bilateral UK-Australia Free Trade Agreement (UK-AUS FTA) includes a chapter on public procurement (chapter 16). However, this approach to the inclusion of procurement chapters that go beyond existing GPA commitments (GPA+) in bilateral FTAs rather than through the GPA is not new. Australia has long engaged with this approach [see eg D Collins, ‘Government Procurement with Strings Attached: The Uneven Control of Offsets by the World Trade Organization and Regional Trade Agreements’ (2018) 8(2) Asian Journal of International Law 301–321]. As has the UK, in a manner that carries on from the EU’s approach that bound the UK until it gained independent GPA membership on 1 January 2021 [see eg M Garcia, ‘Procurement Liberalization Diffusion in EU Agreements: Signalling Stewardship?’ (2014) 48(3) Journal of World Trade 481-500].
Ways of going GPA+ in bilateral FTAs
There are two primary approaches to the creation of bilateral GPA+ procurement regimes in FTAs. One is to simply incorporate the GPA and the relevant schedules of coverage into the bilateral FTA by reference, and then add whichever ‘plus’ elements are agreed in specific FTA provisions and/or expanded schedules of coverage. This is the approach followed in the EU-UK Trade and Cooperation Agreement (EU-UK TCA), which Art 277 incorporates certain provisions of the GPA and covered procurement, and Arts 278-286 establish additional rules for covered procurement—with additional requirements for not covered procurement also contained in the TCA (Art 287-288), as well as a specific set of rules on modification of coverage, dispute resolution and cooperation (Arts 289-294).
The alternative approach is to replicate the text of the GPA itself in the bilateral FTA and to include additional commitments either as part of those provisions (eg by reducing optionality and making specific requirements mandatory), or by adding additional provisions, as well as including expanded schedules of coverage. This is for example the approach followed in the EU-Singapore FTA (Chapter 9), or the EU-Canada FTA (CETA, Chapter 19). And this is also the approach followed by the UK-AUS FTA, which includes a significant number of variations on the GPA text worth assessing (below).
Complications of going GPA+ in bilateral FTAs
From a legal interpretation perspective, the first approach (incorporation by reference) is likely to minimise risks of inconsistency between the GPA and the FTA because, unless the additional obligations overlap (and contradict) the basic obligations in the GPA, it is more likely that the FTA really only deals with the ‘plus’ agreed between its parties. In contrast, the second approach (replication) creates significant scope for legal uncertainty where the text of the GPA is altered in the process of its inclusion into the FTA, as it will not always be clear whether the parties sought to deviate from GPA obligations and, in my view, establishing the purpose of a specific deviation is more difficult to do in the context of a provision that is mostly like the GPA’s, rather than in a self-standing provision.
Either way, under both approaches, where the bilateral FTA deviates from the GPA in a way that is not clearly adding obligations or expanding scope of coverage, but rather varying or reducing the parties’ obligations towards each other, the extent to which the inclusion of an incompatible clause in the FTA will generate a change in the legal position of the parties under the GPA or more generally is unclear as, more importantly, is unclear whether it will generate a practical effect.
This can be a rather tricky issue of treaty interpretation governed by the 1969 Vienna Convention on the Law of the Treaties (Art 30), on which I will have to defer to specialists. However, from a practical perspective, it seems to me that the GPA+ approach is incapable of generating practical effects concerning a reduction or variation of the requirements applicable to the tendering of public contracts where the specific procurement is subject to dual coverage. Given that GPA+ extensions of coverage are usually only incremental above the general coverage included in the GPA schedules for each of the parties, most of the procurement opportunities covered by the FTA will be subject to such dual regulation.
Imagine a bilateral FTA that excludes a specific obligation (eg concerning the need to mention in the notice of intended procurement that the procurement is covered by the FTA) while that obligation is, however, included in the GPA. If a procurement is covered both by the GPA and the FTA, the procuring Member State will have to comply with the most demanding legal regime between the GPA and the FTA (at least vis-a-vis the other GPA members; in the example, it will have to indicate that the procurement is covered by the GPA) and, in that scenario, the practical effects of the deviation in the FTA from the GPA regulatory benchmark will be nullified (eg because it will be possible for tenderers from the FTA jurisdiction to identify the opportunity as also open to them).
While there can be some marginal circumstances in which there can be a practical effect (eg reducing or excluding access to remedies vis-a-vis tenderers from the FTA jurisdiction), those are unlikely to go unchallenged (eg on the basis that more unfavourable treatment under the bilateral FTA is incompatible with the GPA commitments, subject to issue of treaty interpretation, as above).
All in all, it seems difficult to understand why countries would want to vary or reduce their obligations under the GPA in bilateral FTAs—given that, at the end of the day, those are regulatory constraints they had accepted in the context of the GPA that bound them (also bilaterally) prior to entering into the FTA. It could be that reduced procedural or substantive guarantees are a trade-off they are willing to make in exchange for increased economic coverage of their bilateral procurement trade. But this seems to unnecessarily overcomplicate the legal environment, potentially with unpredictable consequences. However, this is clearly the approach followed in the procurement chapter of the UK-AUS FTA, which is worth looking at closely. Some of the analysis of the UK-AUS FTA will be applicable to other GPA+ FTAs, to the extent that they include the same, or similar deviations from the GPA.
Selected complications in the GPA+ (or GPA-) approach of the UK-AUS FTA
The procurement chapter of the UK-AUS FTA includes relevant deviations from the GPA (a full list is available below, Appendix). Some of these variations raise interpretive and practical issues, such as the effect of a change in the national treatment clause (arguably the pillar of the GPA regime), or a change in the wording of the main clause on remedies (another of the crucial provisions in the GPA). I will now address these two issues in detail, as they seem to me to be indicative of a GPA- rather than a GPA+ approach in the UK-AUS FTA—and thus liable to the sort of complication laid out above.
Remit of the national treatment obligation
The GPA imposes national treatment and non-discrimination obligations as the foundation of its regulatory architecture. The GPA national treatment clause reads ‘With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party offering the goods or services of any Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to: a) domestic goods, services and suppliers; and b) goods, services and suppliers of any other Party’ (Art IV(1) emphasis added). This creates a two-tier requirement of ‘most favoured treatment’, both between the goods, services and suppliers of two given GPA members (procuring and supplying) and across the goods, services and suppliers of all GPA parties other than the procuring party.
The underlined clause leaves the possibility open for differential treatment of suppliers of a GPA party offering goods or services of a non-GPA party. This is in line with the GPA non-discrimination clause, which reads: ‘With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not: a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of any other Party’ (Art IV(2) emphasis added). Again, the possibility is open for differential treatment of suppliers of a GPA party offering goods or services of a non-GPA party—on the implicit assumption that domestic suppliers offering goods or services of a non-GPA party are subjected to the same differential treatment.
The UK-AUS FTA replicates these two clauses in Art 16.4(1) and (2). However, Art 16.4(1) simply states that ‘With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party, treatment no less favourable …’. Similarly, Art 16.4(2) establishes that ‘With respect to any measure regarding covered procurement, neither Party, including its procuring entities, shall: … (b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.’
The deviation in the UK-AUS FTA from the GPA clause can raise interpretive issues concerning the possibility of differential treatment of UK or AUS suppliers offering the goods or services of a third party, which can lead to two views. One view, based on a literal interpretation of the clause, is that suppliers of either of the parties are protected under the national treatment regime, even if they offer goods or services from third parties (unless domestic suppliers offering goods or services from third parties are also subjected to specific differential treatment—eg exclusion). The other view, based on a functional/systematic interpretation that took account of the fact that Art 16.4(2)(b) only refers to locally established suppliers offering goods or services of the other party, would be that it is implicit in Art 16.4(1) that suppliers are only protected as long as they offer goods or services of one of the parties (ie UK or AUS goods or services).
The interpretation is not limited to the FTA itself, but needs to take into account the interplay with the GPA, given that the UK and AUS are bound by it in relation to the other GPA parties. In that regard, if a procurement is dually covered by the FTA and the GPA, the second interpretation in my view just does not hold water because eg a UK tenderer for an AUS contract covered by both the FTA and the GPA offering the goods of another GPA member (eg the EU) would necessarily be protected by the GPA national treatment clause in order for the EU goods not to be ultimately discriminated against in breach of the AUS-EU obligations under the GPA. And a similar effect would result from the triangular interaction between the UK-AUS FTA and other FTAs binding either of the parties.
If this is correct, it also seems difficult to argue that the interpretation of Art 16.4(1) in the FTA varies, depending on whether the third country goods or services for the purposes of the FTA being offered by a UK or AUS supplier, are (or not) also third country goods for the purposes of the GPA and/or other applicable FTAs. It should also be stressed that (pragmatically) not all third countries will be seen as deserving the same treatment (eg exclusion), so that there can be undesirable implications in eg applying differential treatment to both domestic and foreign (UK and AUS) suppliers offering third country goods or services, where the origin of those services is not the same.
Therefore, it would have been much preferable to include a specific clause in Art 16.4(1) establishing that national treatment needs to be granted to suppliers of either party offering goods or services covered by this or any other international agreements requiring equal treatment of goods or services of a specific origin — or something to that effect. An alternative would have been to change the drafting and adopt a broader clause, eg based on Art 25 of Directive 2014/24/EU [for analysis, see A La Chimia, ‘Art 25’ in R Caranta and A Sanchez-Graells, European Public Procurement. Commentary on Directive 2014/24/EU (Edward Elgar, 2021) 274-286].
Overall, this will primarily be relevant in procurement covered by the UK-AUS FTA and not the GPA (either because of differential value thresholds, or differences in scope of coverage: notably, in the concessions sector). But some of these contracts can have very high values. Against that background, it seems that the uncertainty on the proper meaning of the (reduced) national treatment clause in the FTA generates an unnecessary complication.
Watering down of procedural guarantees and access to remedies?
The GPA develops a rather robust set of requirements for the design of domestic review procedures (Art XVIII GPA). The UK-AUS FTA deviates from the GPA benchmark in two important aspects.
First, the FTA limits the right to be heard in the context of a procurement challenge. While the GPA states that ‘the participants to the proceedings … shall have the right to be heard prior to a decision of the review body being made on the challenge’ (Art XVIII(6)(b)), the FTA provides instead that ‘a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint’ (Art 16.19(6)(b)). Although the relevance of these differences in wording will depend on how the review bodies and courts interpret them, there seem to be two clear intended changes:
First, a reduction of the potential scope of beneficiaries of the right to be heard, which is constrained to the supplier that initiates a complaint. Whether other ‘challengers’ are allowed in a procurement review procedures will depend on the rules on active standing, but this is clearly more prescriptive than the broader term ‘participants’ used by the GPA. It is also interesting to note that the FTA uses the term ‘participants’ in the rest of Art 16.19(6), eg concerning the right to be represented and accompanied (c), or the right to access to all proceedings (d), or the right to request that the proceedings take place in public and that witnesses may be presented (e).
Second, there is a parallel reduction of the extent of the right to be heard, which is limited to replying to the procurement entity’s response to the initial complaint. The practical implications of these changes are difficult to understand in abstract terms—although they do seem to put significant pressure on the comprehensiveness of the initial complaint and perhaps seek to bar the addition of further grounds for challenge as discovery takes place—but there must be some reason behind this (eg seeking to reduce the cost of defending procurement challenges, perhaps especially in UK Courts?).
In a similarly restrictive fashion, the FTA also includes changes in the regulation of remedies. There are two issues.
The first one is an omission of the possibility to obtain a suspension of proceedings as an interim measure. While the GPA clearly indicates that the obligation to provide for rapid interim measures includes the possibility that ‘Such interim measures may result in suspension of the procurement process’ (Art XVIII(7)(a) GPA), the FTA omits that explicit reference (Art 16.19(7)(a) FTA). In general, the FTA would to me seem insufficient to exclude suspension as a potential interim measure if it is generally available under the applicable procedural rules, but this should perhaps be analysed with the second change in the regulation of remedies.
The second change is a relocation of the public interest clause allowing for the overriding adverse consequences of a procurement challenge to be taken into account, so that it not only applies to the possibility of seeking interim relief, but also to corrective action. In the GPA, the obligation to provide for rapid interim measures is caveated as follows: ‘The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing’ (Art XVIII(7)(a) GPA). This clearly is meant to allow a review body not to adopt interim measures, but without prejudice of an eventual decision on corrective action or financial compensation, which are separately regulated (Art XVIII(7)(b) GPA).
Conversely, in the FTA, the public interest clause is placed at the end of the relevant provision (Art 16.19(7)) and covers both the obligation to adopt or maintain procedures that provide for (a) prompt interim measures to preserve the supplier's opportunity to participate in the procurement; and (b) corrective action that may include compensation. This can hardly be seen as a clerical error, but the likely intended effect of excluding financial compensation on grounds of an overriding public interest is, in my view, unlikely to be upheld in case of challenge, especially bearing in mind that the FTA has already significantly limited the scope for financial compensation in establishing that ‘If the review authority has determined that there has been a breach or a failure [of the claimant’s rights under the FTA or the domestic rules implementing it] a Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both’ (Art 16.19(5)).
The possibility to completely exclude financial compensation for breach of the FTA obligations would render the system toothless. Moreover, this is clearly a deviation that would be disputed in terms of legal interpretation (eg in relation to dual coverage procurements under the GPA and the FTA). Once again, it seems that the uncertainty on the proper meaning of the watered down procedural guarantees and access to remedies in the FTA generate an unnecessary complication.
Some final thoughts on increased coverage, and its bilateral nature
A final issue worth considering is the technical complexity (and tediousness) of identifying the economic coverage gains expected of a GPA+ procurement chapter in an FTA. While this is probably abundantly clear to negotiating teams, it is quite difficult to assess on the basis of the written agreement, even carefully combing through the schedules of coverage of the GPA and the FTA. In that regard, it would be helpful if those assessments were published, or for the relevant publications to include more detail.
The Impact Assessment of the UK-AUS FTA published by the Department for International Trade (DIT) solely contains a brief paragraph (and a complicated footnote) to support rather large headline claims:
‘Australia has offered the UK more legally guaranteed procurement market access than it has offered in any other FTA, amounting to approximately £10 billion of new legally guaranteed market access for UK businesses per year.[34] In return, the UK has offered to build on the legally guaranteed market access offered to Australia in the GPA by offering additional sub-central entities and coverage of additional services’ (Impact assessment, at 21).
[34] This estimate has been derived using a combination of publicly available contract award notices (AusTender, 2018-2019). Where data is missing or unavailable, individual expenditure reports for relevant entities have been sourced. Certain assumptions have then been applied using published OECD statistics (OECD Government at a Glance, 2019). Australia provided estimates for the value of their services offer. Detailed UNSPSC-CPC matching was undertaken, with the help of Australia, to determine which exact services would come into scope of their offer. This estimate was then verifed by DIT analysts.
As things stand, the only other way of getting a sense of how much more procurement volume is susceptible of trade liberalisation and in which sectors is by looking into the documents published to ‘sell’ the conclusion of the FTA. In the specific case of the UK-AUS FTA, this other DIT document on ‘UK-Australia Free Trade Agreement: Benefits for the UK’ is illustrative. However, there are a couple of points to note about the way the ‘trade gains’ are presented.
One point is that these documents would be more useful (and credible) if they made it very clear that most of the additional opening in procurement is either reciprocal (in strict terms) or based on mutual concessions. For the agreement to be balanced, both parties need to see a similar volume of benefits and, while it is possible to compensate for net gains in one chapter (eg procurement) against another (eg financial or digital services), it would seem odd if one of the parties was clearly massively better off than the other in any given chapter, or at least in the procurement chapter, given that FTA concessions build on already existing GPA concessions and a very unbalanced FTA chapter on procurement could put pressure on the relevant party to review its GPA schedules more generally).
This is important eg in the context of the inclusion of public works concession contracts under the UK-AUS FTA because the DIT document makes significant emphasis on the opportunities for UK companies to bid for opportunities in Australia, especially in the rail sector, but this perhaps is slightly dampened by the fact that this opening up is reciprocal, as well as by the fact that some of the largest operators of rail franchises in the UK already are not ‘British’ (see eg here), which raises some questions on the extent to which there are direct advantages to UK companies commensurate to the economic claims in the impact assessment or the more accessible document on benefits for the UK.
The other point is that these documents need to be precise as to the incremental opening of procurement specifically brought by the FTA. In the second DIT document, there is eg a rather broad claim that 'UK companies will have a legally guaranteed right to bid for all contracts for financial and business services procured by Australian government bodies covered by this deal. For example, UK businesses will now have a right to bid for financial and business service contracts procured by the Australian Financial Security Authority and other federal and state-level finance departments. This will help UK businesses compete on an equal footing with Australian companies’ (emphasis added).
This is, well ... at least imprecise. The Australian Financial Security Authority (AFSA) is already covered in the GPA (AUS Annex 3), so its procurement of services is already covered (AUS Annex 5, and thanks to reciprocity of coverage of financial and related services in the UK's own Annex 5), as long as the value threshold of SDR 400,000 is crossed. What the UK-AUS FTA does is changing AFSA's classification as a Section A entity (equivalent to AUS Annex 1 in the GPA) and this reduces the value threshold for services to SDR 130,000. So, while there is clearly an incremental change, it is also clear that UK businesses already had a right to bid for AFSA contracts for financial services (just not the right to bid for those between SDR 400k and 130k). In my view, avoiding potentially misleading simplifications of the complex and incremental ways in which a GPA+ FTA extends procurement liberalisation would be desirable.
Conclusion
Until now, I had never really looked in detail at GPA+ procurement chapters in FTAs, but it does seem like there is plenty to reflect upon and perhaps even a research project hidden somewhere. If anyone has any useful suggestions, or if anyone can point me to existing research on this topic that I may have overlooked, I would be most grateful: a.sanchez-graells@bristol.ac.uk.
Appendix: The procurement chapter in the UK-AUS FTA in detail
Comparing the text of the procurement chapter in the UK-AUS FTA with the GPA, I have identified the differences below (I may have overlooked some, but hopefully not):
Art 16.1 Definitions - two seemingly technical differences:
it includes a definition of ‘build-operate-transfer contract’ / ‘public works concession contract’ to reflect the expanded coverage (below, 16.2).
it also includes a modification in the definition of ‘technical specifications’ as applicable to ‘services’, which adds ‘applicable administrative provisions’ as part of the definition.
Art 16.2 Scope
Scope of application reflects an extension of scope (GPA+), including:
there is no exclusion of procurement ‘with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale’ (cfr Art II(2)(a)(ii) GPA).
coverage is extended to include procurement by means of ‘build-operate-transfer contracts and public works concessions contracts’, which brings concessions (especially in transport) under the scope of the FTA.
Given the bilateral nature of the FTA, the Schedules are required to regulate issues included in the core text of the GPA (a threshold adjustment formula and information on the procurement system).
Excludes the rule on delegated procurement in Art II(5) GPA.
A new section on Compliance includes:
a general ‘good faith’ obligation (16.2(5))
a varied non-circumvention clause (16.2(6)) that excludes the intentional element of the GPA equivalent (Art II(6)(a))
a clause explicitly allowing both parties and their contracting authorities to develop ‘developing new procurement policies, procedures or contractual means, provided that they are not inconsistent with this Chapter’ (16.2(7)) — which I read as an (unnecessary) hint to the ongoing process of reform of the UK’s procurement rulebook following the Transforming Public Procurement green paper consultation.
The section on Valuation includes
a specific addition in the rules on the calculation of contract value to capture any ‘other revenue stream that may be provided for under the contract’, which will be particularly relevant for concessions;
a looser regulation of the rule on recurring contracts than in the GPA (cfr Art II(7)); and
a streamlined and seemingly stricter approach to the coverage of contracts with unknown total value (cfr Art II(8) GPA), which will also be particularly relevant for concessions.
Art 16.3 General exceptions
does not include the defence exception in Art III(1) GPA.
creates a new clarification seemingly tailored to the climate crisis, whereby it is stressed that the possibility of adopting or maintaining measures ‘necessary to protect human, animal or plant life or health’ ‘includes environmental measures’.
Art 16.4 General principles
In regulating the general principle of National Treatment and Non-Discrimination, the FTA introduces two variations on the GPA:
the wording of the national treatment requirement excludes an important element of the GPA’s clause concerning ‘suppliers of any other Party offering the goods or services of any Party’ (Art IV(1) emphasis added). See analysis above.
there is a specific clause clarifying that ‘All orders under contracts awarded for covered procurement shall be subject’ to the national treatment and non-discrimination obligations (Art 16.4(3)), which will be particularly relevant in the context of framework agreements and similar procurement vehicles.
The FTA makes the Use of Electronic Means mandatory beyond GPA requirements.
The FTA also seems to strengthen the prohibition of Offsets by stressing that they cannot take place ‘at any stage of a procurement’ (Art 16.4(8)). However, given eg the general notes of the Australian schedule (Section G 1(c) and 1(d)), the practical effectiveness of this remains to be seen.
Art 16.6 Notices
The FTA imposes the Electronic Publication of Notices, also at sub-central level (Art 16.6(1)).
There are some changes concerning the content of the Notice of Intended Procurement:
there is no reference to the ‘cost and terms of payment, if any’ related to access to procurement documents, which could suggest that charges are forbidden;
there is no reference to an obligation to include ‘a description of any options’ (which would seem like an unwanted omission);
there is no obligation to include ‘an indication that the procurement is covered by this Agreement’ (but see above re interplay with that requirement in Art VII(2)(l) GPA);
there are no references to the publication of summary notices - which are a language-based specific requirement of the GPA that is probably irrelevant in the context of an FTA between two English-speaking countries;
there is no option for the use of a Notice of Planned Procurement as a Notice of Intended Procurement for sub-central and other procuring entities ex Art VII(5) GPA.
Art 16.7 Conditions for participation
Art 16.7(2)(a) extends the prohibition on requirements for local experience, forbidding not only requirements that ‘the supplier has previously been awarded one or more contracts by a procuring entity of a Party’ (as in the GPA), but also requirements that ‘the supplier has prior work experience in the territory of that Party’.
Art 16.8 Qualification of suppliers
There are some precisions concerning Registration Systems and Qualification Procedures, including:
an explicit (if unnecessary?) prohibition on using registration systems or qualification procedures to delay or bar consideration of specific suppliers (Art 16.8(3)(b) FTA, cfr Art IX(3) GPA);
a new set of rules concerning supplier registration systems (Art 16.8(4));
mandatory electronic publication of multi-use lists requiring continuous availability (which makes part of GPA requirements for paper-based or time-limited lists redundant; cfr Art IX(8) and (9));
suppression of the requirement for notices of multi-use lists to include ‘an indication that the list may be used for procurement covered by this Agreement’ (cfr Art IX(8)(e); see also above Art 16.6).
There are some implicit changes regarding Information on Procuring Entity Decisions indicating the possibility to delegate the management of procurement procedures (see Art 16.8(14) and (15), referring to ‘a procuring entity or other entity of a Party’).
Art 16.9 Technical Specifications and Tender Documentation
There is a clause that goes beyond the text of the GPA on Technical Specifications, for data governance concerning ‘sensitive government information’ (Art 16.9(7), which can in part mitigate for the omission of the exception in Art III(1) GPA, as above Art 16.3 FTA);
There are some differences on Tender Documentation requirements:
small technical change concerning the description of the conditions for participation (Art 16.9(8)(b));
omission of the possibility of running procurements where price is the sole award criterion (Art 16.9(8)(c), although this is foreseen in Art 16.14(5)(b), so it looks like an unwanted omission).
There is a new clause on Preliminary Market Research and Engagement (Art 16.9(13).
Article 16.10 Time-Periods
The requirement for time periods and any extensions thereof to apply equally to all interested or participating suppliers is relocated (see Art 16.10(7) cfr Art XI(1) in fine GPA).
Given the obligation to publish notices of intended procurement by electronic means (Art 16.4(4)(a) and 16.6(1)), the possibility to shorten time periods for the submission of tenders on that basis makes little sense (Art 16.10(5)(a)), other than as a hangover rule meant to maintain alignment with the GPA (Art XI(5)(a)).
Art 16.12 Limited Tendering
The FTA modifies the grounds allowing for limited tendering to acquire ‘a prototype or a first good or service that is developed at its request’ (Art XIII(1)(f) GPA) to cover ‘a prototype or a first good or service that is intended for limited trial or that is developed at its request’ (Art 16.12(1)(e) emphasis added), with the remit of such limited trial remaining undefined. The same provision adds clarification that subsequent procurement of such goods or services are fully covered.
16.15 Transparency of Procurement Information
The FTA makes the Publication of Award Information mandatorily electronic (Art 16.15(2)).
The FTA omits the GPA rules on the Collection and Reporting of Statistics (Art XVI(4) and (5) GPA).
Article 16.17 Environmental, Social and Labour Considerations - entirely new.
Article 16.18 Ensuring Integrity in the Procurement Process - entirely new.
Article 16.19 Domestic Review Procedures
The FTA reorders part of the content of Art XVIII GPA, and introduces two relevant changes (analysed above):
limitation of the right to be heard: instead of following the GPA clause stating that ‘the participants to the proceedings … shall have the right to be heard prior to a decision of the review body being made on the challenge’ (Art XVIII(6)(b)), the FTA provides instead that ‘a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint’ (Art 16.19(6)(b)); and
change in the regulation of remedies, including: (1) an omission of the possibility to obtain a suspension of proceedings as an interim measure (Art 16.19(7)(a) FTA cfr Art XVIII(7)(a) GPA); and (2) a relocation of the public interest clause allowing for the overriding adverse consequences of a procurement challenge to be taken into account, so that it not only applies to the possibility of seeking interim relief, but also to corrective action (Art 16.19(7) cfr Art XVIII(7)(a) GPA).
Article 16.20 Modifications and Rectifications to Annex - introduces changes to reflect bilateral nature of FTA.
Article 16.21 Facilitation of Participation by SMEs - entirely new (although practical effect may be doubtful, given that SME preferences are allowed).
Article 16.22 Cooperation - entirely new. interestingly, it includes cooperation on ‘exchanging government procurement statistics and data’ despite the suppression of the requirements concerning collection and reporting of statistics as per the GPA (Art XVI(4) and (5), above).