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ABA Public Contract Law Section – International Procurement Committee – Presentation on International Trade Agreements October 10, 2019. Christopher Yukins & Allen Green Program information: https://publicprocurementinternational.com. REading.
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ABA Public Contract Law Section – International Procurement Committee – Presentation on International Trade AgreementsOctober 10, 2019 Christopher Yukins & Allen Green Program information: https://publicprocurementinternational.com
“It is the maxim of every prudent master of a family, never to attempt to make at home what it will cost him more to make than to buy. . . . If a foreign country can supply us with a commodity cheaper than we ourselves can make it, better buy it of them with some part of the produce of our own industry, employed in a way in which we have some advantage. • Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776)
What Is Goal of Protectionism? • Protect Jobs • Industrial policy • Ensure security of supply
United States’ suggested charter for predecessor to World Trade Organization (1946) ”. . .the ITO Charter was never ratified due in large part to the refusal of the United States Congress to join any further international organizations. Nevertheless, through executive agreements, the United States joined twenty-one other countries in signing the Protocol of Provisional Application of the General Agreement on Tariffs and Trade. Through this agreement between nations tariffs and other barriers to free trade were steadily reduced over decades by means of increased membership and GATT negotiating Rounds. ” – Text § 2:26
EU: A country’s essential security interests = interests vital to the country's military capabilities, not economic interests
Elements of WTO Government Procurement Agreement (text § 2:37): • National treatment/non-discrimination • Publication of information on laws, etc. • Publication of intended procurement • Certain approved methods of procurement • Minimum time periods • Development of specifications – no intentional discrimination • Tender documents must be provided • Minimize conditions; assess activities inside and outside country • Comply with tender requirements • Transparent award information • Domestic review procedures GPA Parties and observers
“Government procurement as discussed earlier, was not included in the scope of coverage for the GATT in 1947; indeed, government procurement was expressly excluded from the national treatment obligation. At the Uruguay Round which created the WTO, the GPA was created through a revision of the plurilateral GATT Procurement Code. ” – Text, § 2:34 World Trade Organization Free Trade Agreements Government Procurement Agreement Trade Agreements Act FAR
ARRA What Is “Manufacturing”? From Recovery Act administrative implementation: The Councils have considered in the past including a definition of “manufacture” in the FAR but did not do so because of the case-specific nature of its application. The definition may be different for canned beans than for an aircraft. . . However, . . .there is also a longstanding record of interpretation of “manufacture” under the Buy American Act. (See for example B-175633 of November 3, 1975, which addressed the issue of whether a radio had been manufactured in the United States. The GAO did not find against the Army position that, if the final manufacturing process takes place in the United States, the end product is “manufactured in the United States.”) • See, e.g., Veterans Administration, Comp. Gen. B-161061, 1967 CPD ¶ 16 (May 22, 1967) (citing legislative history of Buy American Act to show that assembly of motors with pumps constituted “manufacture” in the United States).
Defense – Memoranda of Understanding Authority for the defense MOUs rests in the “public interest” exception to the BAA. The agreements serve as a national security benefit, enhance alliance-wide security objectives, and serve as an underpinning for armaments cooperation. – Text § 2:21
Defense – Memoranda of Understanding – UK Example Discuss Don’t discriminate
Germany Canceled Verizon Contract Thu Jun 26, 2014 German government cancels Verizon contract in wake of U.S. spying row BERLIN REUTERS/RICK WILKING The German government has cancelled a contract with U.S. telecoms firm Verizon Communications Inc VZ.N as part of an overhaul of its internal communications, prompted by revelations last year of U.S. government spying. Reports based on disclosures by former U.S. intelligence contractor Edward Snowden alleged Washington had conducted mass surveillance in Germany and had even eavesdropped on Chancellor Angela Merkel's mobile phone. Berlin subsequently demanded talks with Washington on a "no-spy" deal, but these collapsed after the United States appeared unwilling to give the assurances Germany wanted. Germany also launched an overhaul of its internal communications and secure government networks. This is one of the first actions involving a U.S. firm to result.
GPA, Art. III Leaves Discretion To Discriminate Regarding Classified Work 1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
