What does the Task Force on Public Procurement do?
The aim of the task force established by the ICC Commission on Commercial Law and Practice is to serve the international business community by
- covering the development of international and national law and practices relating to public purchases and various forms of cooperation between public and private sectors
- taking action in the form of statements and opinions whenever appropriate to defend or make known the interests of the international business community in matters of public procurement and matters connected therewith.
1. The interests of the international business community should be respected by ensuring primarily that public purchases are undertaken observing at least the following principles:
(a) The principle of TRANSPARENCY in the meaning both
(i) that public purchases shall be adequately advertised to make known the actual purchase so that tenderers understand what is purchased and how, and
(ii) that the purchasing procedure is open to inspection so that tenderers can verify the correctness of the procedure;
(b) The principle of EQUAL TREATMENT allowing all tenderers a fair and equal chance of winning the contract, of which the principle of SECRECY of submitted offers until opening is an important aspect;
(c) The principle of NON-DISCRIMINATION;
(d) The principle of PROPORTIONALITY, particularly to counteract situations in which public tenders are drafted with the aim or effect to exclude, without reason, certain suppliers, particularly small or medium-sized undertakings;
(e) The principle of ANTI-CORRUPTION through the provision of appropriate and transparent anti-corruption measures;
(f) The principle of availability to all actual or potential suppliers of effective LEGAL REMEDIES, both
(i) during the course of the purchasing
procedure, in order to preserve the possibility for a given tenderer to win the contract, and
(ii) after the award of the public contract by providing adequate compensation for the violation of procurement rules in the course of the purchasing procedure.
2. The task force upholds the ICC mission to promote open trade and investment, and provides support for the development of an international legal framework for public procurement.
International organizations and institutions that have public procurement or public procurement rules on their agenda, and which the task force will cover and/or offer opinions to, include the World Trade Organization (the Government Procurement Agreement, under review), UNCITRAL (the 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services with Guide to Enactment, under review) and the European Union (Remedies Directives under review, public-private partnerships and concessions under consideration).
In addition, there are a number of other international organizations and bodies that use or pay attention to public procurement rules and practices that should be monitored by the task force. These include, but are not limited to, the OECD, UNCTAD and the World Bank.
The task force may also have reason to issue opinions on national procurement rules, particularly in states that do not adhere to the World Trade Organization’s Government Procurement Agreement.
3. Issues that may arise in connection with public procurement rules and practices, and which can engage the attention of the task force, include:
- Public procurement using electronic means
- The use of public procurement rules with respect to public-private partnerships created either through direct agreement or as institutionalized public-private partnerships
- The use of public procurement rules in connection with the awarding of concessions
- The review of remedies under the EC remedies Directives
The task force coordinates its action with other ICC commissions such as the Commission on Competition, Commission on Trade and Investment Policy and the Commission on E-business, IT and Telecoms, and provides a platform for joint efforts.