GATT/WTO 정부조달협정(GPA) 관련 분쟁사례의 분석 및 평가

Abstract

Government Procurement means that a government or public organization purchases from the private sector goods or services- education, defence, utilities, infrastructure, health, and so forth. Generally speaking, the size of the associated public procurement market is from 10% to 15% of GDP in a nation. Government procurement accounts for a significant proposition of GDP and discrimination in government procurement can create important barriers to trade. The typical examples of discriminative measures include local contents, offsets, and preferential treatment to local products and services at the time of bid evaluation. Because of its sensitive nature, government procurement was largely excluded from the non-discrimination obligations of GATT 1947. But, in 1979, Tokyo Round formulated the GATT agreement on government procurement that extended basic GATT obligations such as non- discrimination and transparency to the tendering procedures of selected government entities. Later, the Uruguay Round supplemented the previous agreement and adopted ‘The WTO agreement on government procurement’ (GPA). The primary obligation imposed by the GPA on covered entities is non-discrimination. This extends not only to imports but also to subsidiaries of locally established foreign firms. The GPA thus treated foreign affiliates as national firms, government should treat foreign firms no less than domestic ones. Price-preference policies, offsets and similar policies are therefore in principle prohibited. The GPA provides for three tendering method: open, selective, and limited. The first two methods are preferred. Entities must publish an invitation to participate for all cases of intended procurement, except for the case of limited tendering, stating the mode of procurement, its nature and quantity, dates of delivery, economic and technical requirements, and amounts and terms of payment. Entities must award contracts to the tenderer who has been determined to be fully capable of undertaking the contract and who is either the lowest tender or the tender that is most advantageous in terms of the evaluation criteria set out in the notices or tender documentation. And the GPA also contained transparency rules, designed mainly to make it difficult to conceal discrimination. This transparency rules include publicity for contracts opportunities, publicity for rules of award procedures, limitation on discretion, provisions on verification and enforcement. There have been a number of disputes under GATT/WTO GPA. But, these cases have exposed limitations of Dispute Settlement Mechanism(DSM) in GATT/WTO GPA. Most of all, the DSM still lack some characteristics of a fully judicialised system, most notably an effective enforcement mechanism. So, we must pay attention the national challenge procedures. A government's freedom not to comply with rules relating the GPA may be constrained by the existence of the national challenge procedures. The existence of these procedures enhance the adverse practical and political consequences of non-compliance.