BRAZIL AND THE WTO
GOVERNMENT PROCUREMENT
AGREEMENT
CHALLENGES FOR GPA-ACCEDING NATIONS
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
COLLOQUIUM
4 November 2014, Washington, DC, United States
TOPICS
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Why to join the GPA now
Key challenges
Flexibilities
Summery
WHY TO JOIN THE GPA NOW?
Highest market access opportunities ever (US$ 1.7 trillion in
procurement opportunities per year)
Likeness that coverage will expanded significantly in near future
GPA was recently revised (numerous flexibilities)
Many countries do not discriminate against foreign companies but
do not get the same treatment in return
Joining the GPA is a logical and natural step for countries in the
process of reforming domestic public procurement law
"Stamp of approval" indicating that domestic law is consisted with
international best practice
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HOW TO BECOME A GPA PARTY?
Ensure conformity of national public
procurement legislation with GPA obligations
• GPA „only“ lays down common ground rules
• Procedural provisions of the procurement process
(non-discrimination, transparency)
• Provisions regarding remedies (domestic review)
Agree with existing GPA members on
coverage offer
• Which procuring entities are obliged to tender which
kinds of procurements in accordance with the GPA?
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HOW TO BECOME A GPA PARTY?
Ensure conformity of national public
procurement legislation with GPA
obligations
• NOT negotiable
Agree with existing GPA members on
coverage offer
• Coverage offer needs to be negotiated in a series of
(bilateral) consultations
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KEY CHALLENGES
Political will / commitment
Understand your industry /
expectations of industry
Understand the negotiation
process
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KEY CHALLENGES
Proof that national procurement
legislation is GPA compliant
• Preparing replies to the so-called ‘checklist
of issues’
• Legal gap analysis by an independent
institution (i.e., independent from the
acceding country) ?
• Armenia  SIGMA report
• Montenegro  EU screening report
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KEY CHALLENGES
Negotiating coverage
• Understand the negotiation process
• Understand the respective GPA party’s coverage
commitments
• Some GPA parties might want more than they are offering
in return
• Set up a coherent negotiation strategy differentiating
between the various GPA parties (e.g., the United States, the
European Union, Japan, etc)
• Decide early on your approach as to coverage but keep
flexible
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KEY CHALLENGES
Negotiating coverage
• Everything is negotiable but GPA parties
have certain expectations
• Monetary thresholds
• Coverage of sub-central level
• Coverage of state-owned-enterprises and
utility companies
• Scope/number of exceptions to coverage
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FLEXIBILITIES
Transition
period
Phasing-in
entities
Initially
higher
thresholds
Offset
Price
preference
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SUMMARY
GPA membership has many
advantages
Accession to the GPA unlikely to be
easier in the future
GPA accession is an ongoing process
 important to get the ball rolling
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SCHNITZER Rechtsanwalts GmbH
CONTACT
Johannes S. Schnitzer
T: +43 (1) 361 1 361-61
E: schnitzer@schnitzer-law.com
W: schnitzer-law.com
Chambers Europe (2014) recommends Johannes S. Schnitzer as "leading
individual" in public procurement/PPP
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