Edmund Sim and Supprakanya Geschumpol Hunton & Williams Jane Drake-Brockman and Anna Plotkin

1. Cost/Benefit Study of the Implications for Thailandof Greater Cooperation on Government ProcurementWith Australia and New Zealand

2. Edmund Sim and Supprakanya Geschumpol Hunton & Williams Jane Drake-Brockman and Anna Plotkin Moulis Legal

3. Basic Government Structure • Australia

4. Basic Government StructureAustralia • Federation of six States and two Territories • Independent • Constitution gives specific areas of responsibility to Commonwealth (Federal) government • States and Territories responsible for all matters in their physical area of responsibility other than those set out in the Australian Constitution which are within the Commonwealth’s powers.

5. Basic Government Structure Australia • Commonwealth Government • The Department of Finance and Deregulation is the main body responsible for procurement policy at a Federal level. • Major Procurement Legislation • Financial Management Act 1997: covers government agencies • Commonwealth Authorities and Companies Act 1997: coverscorporatised government agencies • Major Procurement Policies • Commonwealth Procurement Guidelines: mandatory rules • Guidance on Procurement Publishing Obligations Publication • AusTender: www.austender.gov.au States and Territory Governments Own systems of procurement, generally following the Commonwealth System

6. Commonwealth Departments Dept. Finance and Deregulation Dept. Agriculture, Fisheries and Forestry Dept. Attorney General Dept. Environment, Water, Heritage and the Arts Dept. of Broadband, Communications and the Digital Economy Department of Prime Minister and Cabinet Department of Treasury Department of Human Services Department of Education, Employment and Workplace Relations Department of Innovation, Industry, Science and Research Department of Resources, Energy and Tourism Department of Families, Housing, Community Services and Indigenous Affairs Department of Health and Ageing Department of Foreign Affairs and Trade Department of Immigration and Citizenship Department of Infrastructure, Transport, Regional Development and Local Government Basic Government Structure Australia

7. Basic Government Structure continued • New Zealand

8. Basic Government Structure New Zealand • Unicameral democracy • 16 regions created by authority of central government

9. Basic Government Structure New Zealand New Zealand Government • The Ministry for Economic Development is the main body responsible for procurement policy for the New Zealand Government Major Procurement Policies • Mandatory Rules for Procurement by Departments • Policy Guide for Purchasers Mandatory Rules for Procurement apply to core New Zealand Departments listed in the State Sector Act 1988 (NZ): apply to ‘core departments’ only

10. Core Departments Archives New Zealand Crown Law Office Department of Building and Housing Department of Conservation Department of Corrections Department of Internal Affairs Department of Labour Department of the Prime Minister and Cabinet Education Review Office Government Communications Security Bureau Inland Revenue Department Land Information New Zealand Ministry of Agriculture and Forestry Ministry for Culture and Heritage Ministry of Defence Ministry of Economic Development Ministry of Education Ministry for the Environment Ministry of Fisheries Ministry of Foreign Affairs and Trade Ministry of Health Ministry of Justice Ministry of Māori Development Ministry of Pacific Island Affairs Ministry of Research, Science and Technology Ministry of Social Development Ministry of Transport Ministry of Women's Affairs National Library of New Zealand New Zealand Customs Service New Zealand Food Safety Authority Serious Fraud Office State Services Commission Statistics New Zealand The Treasury New Zealand Police New Zealand Defence Force Basic Government Structure New Zealand

11. Types of Procurement • Open • Select/Selective • Special/Limited • Direct/by negotiation • MULs • Panels • PPPs • E-auction (Thailand): no equivalent in ANZ)

12. Types of Procurement • Open • Free competition if submission complies with published invitation: all interested suppliers may submit a tender • Most widely publicised • Select/Selective • Free competition amongst invited tenderers • Eg tenderers on a Multi Use List (MUL)

13. Types of Procurement • Special/Limited • Like Select Tendering (from WTO text) • Direct Sourcing/ by negotiation • Not publicised • Obtain quotes and negotiate with known suppliers

14. Types of Procurement Multi Use Lists • Regulated by CPGs (for Australian Commonwealth procurement) • Operates like a non-specific tender: pre-qualification • In practice, expensive for suppliers, efficient for the procuring entity • No guarantee of contracts • Doorway to Select Tendering • Published on AusTender

15. Types of Procurement Panels • Established for services like legal, accountancy, design • Established by open tender • Include price for services for specified term • No guarantee of contracts • No further negotiation required PPPs • Covered by CPGs • Additional approvals required • Agency Chief Executive/ Minister for Finance /Cabinet • Most State/Territory based. Commonwealth will increase use.

16. Procurement that is readily accessible to Thai Firms • Open tendering • MULs • (Select Tendering)

17. Basic rules for Open Tendering • Thresholds for covered contracts • Basic principles of assessment

18. Thresholds for Open Tenders *exchange rate as at 4 August 2008

19. Basic rules for Open Tendering Basic principles of assessment: Commonwealth (States and Territories) • Value for money • All costs and benefits over life of contract • Performance history/ risk • Free and fair competition • Non-discrimination • Foreign connection not itself relevant • Subject to SME protection: 10% by annual value of contracts of each entity

20. Basic rules for Open TenderingCommonwealth (States/Territories)continued • Efficient, effective and ethical use of resources • Avoid conflicts of interests • Equal dealing: time/ extension of time/ correction of mistakes • No gifts/ hospitality accepted • Accountability and transparency • Publication on AusTender: Open Tendering and MULs • Notification • Full information • All pre-conditions to be specified (eg inclusion on a MUL) • Pre-conditions cannot include prior contracting with the agency • Performance and functional basis for requirements: not description/ design. International standards where possible.

21. Basic rules for Open TenderingCommonwealth (States/Territories)continued Deadlines • At least 25 days from notice of procurement • At least 30 days for AusTender Exemptions • Motor vehicles • Defence items • Advertising • Plasma fractionation

22. Basic rules for Open Tendering Basic principles of assessment: New Zealand • Publication of notices of intended procurement, annual procurement plans and requests for tender/ MUL on GETS • Non-discrimination subject to full opportunity to local suppliers • Value for money • No off-sets • Departmental lists of preferred suppliers via GETS

23. Basic rules for Open Tendering( New Zealand)continued Exemptions • Public health • Education • welfare services

24. Basic procedures for States and Territories NSW • Policies, procedures, investigation of grievances: by State Contracts Control Board, also NSW Treasury • Publication of tendering opportunities on https://tenders.nsw.gov.au/nsw/

25. Basic procedures for States and Territories Victoria • Central body: Victorian Government Purchasing Board, delegates powers to departmental Accredited Purchasing Bodies • Publication of tendering opportunities on www.tenders.vic.gov.au and in business tenders section of Herald Sun newspaper each Wednesday

26. Basic procedures for States and Territories Queensland • Central body: Queensland Chief Procurement Office and Procurement Board of Management • Publication of tendering opportunities on https://tenders.qld.gov.au/queensland/

27. Basic procedures for States and Territories Western Australia • Central body: State Supply Commission • Publication of tendering opportunities on ‘GEM’ www.gem.wa.gov.au

28. Domestic Preferences • Commonwealth Australia • 10% by value of contracts granted per agency per year to go to Australian or New Zealand SMEs Small to Medium Enterprise: a fuzzy concept Australia • Less than 20 employees (services) • Less than 100 employees (manufacturers) • Or less than 200 employees New Zealand • Less than 20 employees

29. Domestic Preferences Australian States and Territories • Plenty to target • some specific, some require local content or attempt to source locally • Dispersed so effect is less • No preference schemes operate in Australian Capital Territory

30. Domestic Preferences New Zealand • Non-discrimination principle applies but must not deny full, fair, reasonable opportunity to domestic suppliers • ie. must give reasons for rejecting local supplier for contracts valued at NZ$100,000 or more: assistance from Manadatory Rules

31. Domestic Preferences Thailand • 3% price preference to domestically supplied contracts for works • 7% price preference to goods meeting TIS/ISO 9001 or TIS/ISO 9002 • 5% price preference to domestic products registered with Ministry of Industry • Must have Thai leading firm for services. If not possible, 50% Thai personnel to be engaged on the project Note: Tariffs provide additional protection

32. Blacklisting and Review Procedures • Thailand • Allowed • Australia • Not allowed, but past performance relates to ‘value for money’ ( risk) • Some States maintain registers with review procedures: does not amount to blacklisting • New Zealand • Not allowed

33. WTO GPA What is the GPA? Where is Thailand now? • Not compliant with the GPA

34. Towards the GPA continued… ANZ attitude to GPA • Australia • New Zealand

35. ANZ attitudes to FTAs Australia • Australia-US FTA • Australia-Chile FTA New Zealand • No commitments yet • Will negotiate

36. The Economic Consequences and Commercial Implications of reforming Government Procurement in Thailand

37. First; the Economics • We need to impose some economic discipline because “you cant manage what you can’t measure” • Can we construct a useful economic model? • How can we estimate the economic benefits we might obtain if we reform Government Procurement practices in Thailand? • How significant are our results?

38. A Simple but Powerful Model • We don’t need to start with complex econometrics • In any case we don’t have much data • Lets keep it simple and think about this together • Government Procurement accounts for roughly 15 percent of the Thai economy. 15% is a very big number • So we know immediately that any efficiency gain we can achieve, will necessarily have a big impact on the economy • What kind of efficiency gains might we be able be find?

39. Having looked at the Thai system and compared it with practice elsewhere, we think that reform of the Thai system could readily generate, over a short period, a 10% improvement in “Value-for-Money” • A 10% improvement across 15% of Thai GDP is worth an extra 1.5% of Thai GDP • A 1.5% increase is a very significant boost to Thai productivity and economic growth • The economic logic to a 1.5% gain in GDP growth would be overwhelming - wouldn’t it? • (And Thailand could do this unilaterally, independently of any trade negotiation, if it chooses to) • So where did we find this 10 % efficiency gain we have “assumed” is possible

40. Before we look too deeply, there is one very obvious source of prospective efficiency gain (“low hanging fruit”) • We know that the Thai Government automatically provides a price margin for all local suppliers of Thai goods - in the range of 3% to 7%. • Lets deliberately estimate this at the low end and call it an average price margin of 5%. We can readily extrapolate this to the services sector (where the local preference is provided by a quantity rather than a price measure) • I think you can see that this 5% price reduction across 15% of Thai GDP by itself generates 0.75% increase in GDP growth. This represents a minimum that is achieveable, not over a period of time, but immediately and with a high degree of policy certainty

41. From a 5% price reduction in goods to an overall 10% increase in Value-for-Money 1.The starting point of a 5% price reduction is based on contracts only for goods. In services, which is more than 50% of Government Procurement, all contracts must go to lead Thai firms, employing at least 50 % Thai nationals. Anecdotal business evidence suggests this generates a price differential of considerably more than 5%! 2.Value-for-Money is not only about Price: it’s also about Quality and about Risk. There are a number of other reforms which Thailand could make, in keeping with the APEC Principles on Government Procurement, which would over a short period of time, deliver additional economic efficiency gains in transparency, open and effective competition, fair dealing, accountability and due process. Some rough proxy indicators for these can be found in Thailand’s rankings in eg World Bank Doing Business index

42. Second; the Commercial Gains • In addition to the economy-wide efficiency gains from domestic reform, there are distinct opportunities to increase potential market access for Thai firms in the context of bilateral, regional and multilateral negotiation • The Australian Government Procurement market is more than AU$140 billion and the New Zealand Government Procurement market is around NZ$20 billion a year • In Australia, the non-defence budget is around $20 billion at Federal Government level and at least that much again at State Government level (concentrated in New South Wales, Queensland and Western Australia) • In both countries, there are Government Procurement preferences of various kinds which are provided to local firms, which could be targetted by Thailand in inter-governental trade negotiations, thereby increasing the size of the market potentially open to Thai firms.

43. Market opportunities • Thailand has a strong trade surplus with Australia, in both goods and services. Australia imports from Thailand are roughly double Australia’s exports to Thailand • Thailand already has a demonstrated competitive edge in the Australian market and this could be enhanced by a good deal on Government Procurement • In both the Australian and New Zealand Government Procurement markets, there are likely to be growth opportunities for Thai firms in eg manufacturing components and supplies, furniture cement, glass, infrastructure construction and maintenance, automobiles and auto parts, catering (processed foods), textiles, health services and professional services such as logistics

44. Are there any Costs? The strong economy wide gains we have identified are net gains. And the market access gains we have identified are “icing on the cake”. But as with any structural reform, there may also be some actual and perceived transitional distributional costs • Perceived industry policy losses • Losses in terms of other social or economic policy objectives to which Government Procurement has been directed • Administrative costs • Commercial impacts from greater competition with foreign suppliers

45. Afternoon Panel: The Trade Policy ContextHow could Thailand take some initial steps to reform Government Procurement ? How much reform might bilateral partners require of Thailand in a Free Trade Agreement?What might Thailand expect to gain in return? What progress is Thailand making in applying the APEC Principles?How much domestic reform would be required for Thailand to join the WTO GPA?

46. Afternoon Panel: The Trade Policy ContextWhat progress is Thailand making in applying the APEC Principles?How much domestic reform would be required for Thailand to join the WTO GPA?How much reform might bilateral partners require of Thailand in a Free Trade Agreement?What might Thailand expect to gain in return?