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Tables of Contents for Regulating Public Procurement
Chapter/Section Title
Page #
Page Count
Introduction
1
27
What is Public Procurement?
1
6
The Importance of Public Procurement
7
5
Taxpayers and Funding Agencies
8
1
The Beneficiaries of Goods and Services
9
1
Government Contractors
9
1
Economic Development
10
1
Social and Environmental Objectives
11
1
Integrity of the Administration
11
1
The Market Framework for Government Procurement
12
1
The Contractual Background
13
2
The Reasons for Regulating Public Procurement and the Recent ``Global Revolution''
15
3
The Limits of Legal Regulation and the Importance of the Procurement Environment
18
5
The Procurement Environment
18
2
The Relationship Between the Procurement Environment and Legal Regulation
20
3
Outline of the Book
23
4
The Domestic Regulation of Procurement
27
72
Introduction
27
1
The Objectives of Domestic Procurement Policy: An Introduction
28
45
Value for Money
28
3
Efficiency of the Procurement Process
31
1
Probity (Integrity)
32
1
The Objective of Probity
32
5
The Relationship Between Probity and Other Procurement Objectives
37
1
Measures for Combatting Corruption
38
1
Transparency
38
1
Conflict of interest rules
39
2
``Procurement'' sanctions on bidders
41
8
Criminal and disciplinary sanctions
49
1
Requirements for internal control mechanisms by contractors
50
1
Supplementary and structural measures
50
1
Anti-corruption measures by foreign countries
51
10
Fair and Equal Treatment by Contractors
61
2
Industrial, Social and Environmental Objectives
63
1
Outsourcing Policies
63
1
The Background to Outsourcing
63
8
Implications of Outsourcing for Procurement Regulation
71
2
Regulatory Strategy
73
15
The Concept of Transparency and Rules Versus Discretion
73
13
Law and Administrative Rules
86
2
The UNCITRAL Model Law on Procurement of Goods, Construction And Services
88
11
International Development Institutions and Public Procurement
99
58
Introduction
99
1
An Overview of the Institutions
100
10
Types of Institutions
100
1
Multilateral Development Banks
100
3
Development Institutions That are not Development Banks
103
7
Procurements Financed by the Multilateral Development Banks
110
32
Questions Considered
110
1
The Role and Legal Status of Procurement Guidelines and Standard Bidding Documents
110
4
The Requirement of International Competitive Bidding (ICB)
The World Bank Model
114
1
The Purposes of International Competitive Bidding
115
2
Domestic Preferences in the World Bank Model
117
1
Other Methods of Procurement
117
1
A Critique
118
1
Note on Procurement Reform
119
1
Consultants
120
6
Adjustment Versus Investment Operations
126
4
Co-Financing
130
5
The Disbursement Process
135
3
How Do Development Banks Deal With Corruption?
138
4
Remedies: Does a Firm Have Legal Redress Against a Donor or Lender?
142
9
Tied Aid
151
6
International Free Trade Agreements
157
80
The Development of International Agreements on Public Procurement
157
1
The Objectives of Free Trade Agreements and the Obstacles to Success
158
24
Procurement Within the World Trade Organisation (WTO)
182
37
Development of the WTO's Government Procurement Agreement (GPA)
182
3
Obligations Under the GPA
185
1
General Principles of the GPA: National Treatment and the Most Favoured Nation Obligation
186
1
National Treatment
186
2
The Most Favoured Nation (MFN) Obligation
188
1
Rules of Origin
188
1
Award Procedures Under the GPA
189
3
Provision of Information by Governments
192
2
Coverage of the GPA
194
1
The General Approach to Coverage
194
1
Entities Covered
195
2
Types of Contracts Covered
197
1
Thresholds
198
1
Derogations Based on Reciprocity
199
1
Other Derogations
200
1
Expanding Participation in WTO Disciplines on Government Procurement
201
18
Remedies and Enforcement
219
1
Regional and Bilateral Agreements
219
11
The Extent of Regional and Bilateral Agreements on Public Procurement
219
6
Regional Agreements and the Global Trading System
225
5
The Relationship Between International and National Procurement Rules
230
7
Industrial, Social and Environmental Concerns in Public Procurement
237
86
Introduction
237
1
Industrial Objectives in Public Procurement
238
18
Preferential Procurement Policies
238
1
Policies to Support Domestic Industries Against Competitive Imports
238
6
Policies to Correct Market Imperfections
244
1
Policies to Create a Comparative Advantage in Imperfect Markets
245
1
Policies to Reduce Government Procurement Costs
246
1
Preferential Procurement Based on the Need to Pay Economic Rents
247
1
Preferential Procurement as a Bargaining Tool in Trade Negotiations
247
4
Policies Directed at Non-Economic Objectives
251
1
Potential Problems
252
1
Industrial Objectives Under the UNCITRAL Model Law
253
1
General Principles
253
1
Provisions in the Model Law
254
2
Social and Environmental Objectives in Public Procurement
256
42
The Use of Procurement for Social and Environmental Objectives
256
1
Contract Compliance and the Development of Disadvantaged Groups
257
23
Contract Compliance and Fair Labour Practices
280
5
Other Secondary Policies in Procurement
285
2
Adopting and Designing a Contract Compliance Policy: Theoretical and Practical Concerns
287
1
The Legitimacy of Contract Compliance
287
1
Methods of Policy Implementation
288
2
Costs of Social and Environmental Policies
290
1
Monitoring and Enforcement
291
5
Social and Environmental Policies Under the UNCITRAL Model Law
296
2
Transparency in Implementing Secondary Objectives
298
3
Industrial, Social and Environmental Objectives Under International Trade Agreements
301
22
The Impact of Trade Agreements on Industrial Objectives
301
1
The Impact of National Treatment Rules
301
3
Should Exceptions be Made for Industrial Policy Measures?
304
6
The Impact of Trade Agreements on Social and Environmental Objectives
310
13
The Coverage of Public Procurement Rules
323
32
Introduction
323
1
Which Entities are Covered?
324
13
Delimiting and Defining Entity Coverage in Domestic Law
324
1
The Problem of Defining ``Public'' Procurement
324
8
The Provisions of the UNCITRAL Model Law
332
2
Legislative Techniques for Defining Coverage: the Example of the European Union Procurement Directives
334
2
Should the Rules be the Same for all Regulated Entities?
336
1
Entity Coverage Under International Procurement Agreements
336
1
Which Types of Transactions are Covered?
337
16
Application of Rules
337
1
Defence and Security Issues
338
3003
Are Privately Financed Public Projects ``Procurement''?
3341
Classification of Contracts
352
1
Value Thresholds
353
2
Procurement Planning
355
104
Introduction
355
2
Procurement Documentation
357
96
The Contents of Procurement Documentation
357
1
Standardised Documents
357
1
The UNCITRAL Model Law
358
4
The World Bank
362
5
Indonesia - Recent Practice by a Developing Country
367
2
Who Bears the Cost of Documentation?
369
1
Contract Types
370
1
Introduction
370
1
Classification by Price Term
370
1
Fixed Price Contracts
371
1
The Firm Fixed Price Contract
371
4
The Fixed Price Contract With Adjustment Mechanism
375
2
The Fixed Price Incentive Contract
377
1
Other Types of Firm Fixed Price Contracts
378
2
Cost Reimbursement Contracts
380
1
The Cost Plus a Percentage of Cost Contract
381
1
The Cost Plus Fixed Free Contract
382
2
The Cost Plus Incentive Fee Contract
384
3
Cost Plus No Fee Contracts
387
1
Classification by Quantity or Delivery Term
387
5
Turnkey or Design-Build Contracts
392
4
Private Finance
396
11
Drafting Specifications
407
1
Ensuring Adequate Competition: Domestic Regulation, UNCITRAL and the World Bank
407
28
Specifications Under International Trade Agreements
435
5
Drafting Evaluation Criteria
440
1
Price or Cost Estimates
440
13
Record Keeping, Debriefing and Disclosure of Information
453
6
The Requirement to Keep Records of Procurement Proceedings
453
2
Debriefing and Disclosure of Information on the Procurement Proceedings
455
4
Methods of Procurement
459
94
Introduction
459
4
Formal Tendering Procedures
463
47
Introduction
463
2
Types of Tendering
465
1
Open Tendering
466
2
Restricted Tendering
468
4
Some Controversial Issue in Tendering
472
1
Should There be a Preference for Tendering?
472
15
Is there a Need for Clear and Precise Specifications in Formal Tendering?
487
1
Should There be Restrictions on Negotiations or Dicussions Following Submission of Tenders?
488
1
Post-Tender Communications
489
9
Pre-Tender Communications
498
5
The Mechanics of Tendering
503
1
Submission of Tenders
503
2
The Opening of Tenders
505
1
Late Tenders
506
2
Withdrawals and Modifications of Tenders
508
2
Two Stage Tendering
510
4
Requests for Proposals (RFP)
514
20
Competitive Negotiation
534
3
Single Source Procurement
537
13
Requests for Quotations or Shopping
550
3
Publicity for Contract Opportunities
553
32
Introduction
553
1
General Notices Giving Advance Publicity of Procurement Opportunities
554
3
Notices Advertising Specific Procurements
557
6
The Place and Method of Publication
563
6
Content of Notices
569
10
Information Required in Notices
569
8
The Language of Notices
577
2
Should a Contract be Readvertised When Requirements Change?
579
3
Exceptions to Publicity Requirements
582
3
Competitive Procedure Without Publicity
582
2
Single Tendering
584
1
Qualification, Prequalification and Shortlisting
585
64
Introduction
585
2
Minimum Financial and Technical Criteria
587
37
Financial and Technical Criteria Under National Systems and World Bank Guidelines
587
1
Financial Criteria
588
2
Technical Criteria
590
6
Procedural Aspects
596
1
Qualification Generally and ``Postqualification''
596
12
Prequalification Procedures
608
1
The Concept
608
8
How to Conduct Prequalifications
616
5
Financial and Technical Criteria Under International Agreements
621
3
Qualification Criteria Other Than Financial and Technical Criteria
624
15
The Use of Lists in Contractor Qualification
639
6
Types of Lists
639
1
Optional Lists
639
2
Mandatory Lists
641
4
Shortlisting
645
4
Examination, Evaluation, Selection and Award
649
100
Introduction
649
1
Responsiveness
650
23
Evaluation
673
68
Introduction
673
1
The Nature of Evaluation/Award Criteria
674
1
The Types of Factors
674
14
Distinguishing Evaluation from Qualification
688
9
The Evaluation Process
697
1
Technical Evaluation
697
2
Price or Cost Evaluation
699
3
Selecting the Winner
702
19
The Requirement to State Evaluation/Award Criteria in Advance
721
9
The Problem of Biased Evaluation Criteria
730
11
Contract Award and Notification of Unsuccessful Firms
741
2
Rejection of All Offers
743
6
Enforcement and Remedies
749
98
Introduction
749
2
Review Procedures
751
72
Introduction to Review Procedures
751
1
Review Procedures in Domestic Law and the UNCITRAL Model Law
751
3
Review Procedures Under International Liberalisation Agreemetns
754
3
Review Procedures and the International Financing Institutions
757
1
Designing a Review System
757
1
Review Procedures in Context
758
3
Designing Review Procedures
761
1
The Importance of Speed: Length of Proceedings and Time Limits for Bringing Proceedings
761
2
The Forum and Procedure for Review
763
2
The UNCITRAL Model Law
765
3
The GPA
768
2
Reviewable and Non-Reviewable Decisions
770
1
Who May Initiate a Complaint?
771
1
Suspension (Interim Measures)
772
9
Remedies to Correct the Breach
781
4
The Problem of Concluded Contracts
785
1
Introduction
785
1
The Right of Aggrieved Firms to Challenge a Concluded Contract
786
2
Can the Parties to the Contract Deny its Legal Effects?
788
1
What are the Consequences of Setting Aside a Contract?
788
7
Damages
Availability of Compensatory Damages
795
1
The Principles for Assessing Compensatory Damages
796
7
``Punitive'' or ``Exemplary'' Damages
803
1
Standards for Review
803
12
Documentation of Award Procedures and Reasons for Decisions
815
1
Example of a System of Challenge Procedures: the Case of Japan
815
8
Criminal, Administrative and Disciplinary Sanctions
823
2
External Enforcement Authorities
825
6
Inter-Governmental Dispute Settlement
831
16
Introduction
831
1
The Dispute Settlement Mechanism Under the GPA
832
9
Procedures Under the DSU
841
1
Remedies Under the DSU
841
6
Inter-Governmental Dispute Resolution and Enforcement Within the European Union
847