Dear Colleagues:
The National Association for State Procurement Officials (NASPO) Guide to International Trade Agreements was created to help state officials understand U.S. trade agreements and their obligations under the agreements. This guide is not intended to provide a policy position or direct states in the manner in which they should act.
We would like to express our appreciation to Jean Heilman Grier for authoring this guide.
NASPO's first iteration of this guide was created in 1996. The updated guide features a State-By-State coverage map. Each state profile lists the international trade agreements that apply to that state, the countries covered under those agreements, the procurement and entities covered by that state and state-specific exclusions.
As your NASPO representative to the Office of the United States Trade Representative (USTR), I am glad to answer questions you might have and value your input.
Thank you,
Sherry Neas
Director of Central Services Division, Office of Management and Budget State of North Dakota
NASPO Liaison to the Office of the United State Trade Representative
If you'd like more information about how to use this tool, please watch this recorded webinar.
For questions or additional information, please contact NASPO Senior Policy Analyst Sarah Razor at [email protected] or 859-514-9830.Description of international Trade Agreements: The United States has entered into a number of international trade agreements that are aimed at opening foreign markets and creating a more transparent and predictable trading and investment environment for U.S. companies. The United States is a member of the World Trade Organization (WTO), which has agreements that cover goods, services and intellectual property. In addition, the United States has implemented free trade agreements (FTAs) with 20 countries. It also has negotiated a number of Trade and Investment Framework Agreements (TIFAs) and Bilateral Investment Treaties (BITs). TIFAs and BITs do not include government procurement obligations. The Office of the U.S. Trade Representative has noted Benefits of Trade as well as State Specific Benefits.
Government Procurement in International Trade Agreements: Government procurement is covered in a number of the international trade agreements. The most important agreement is the WTO Government Procurement Agreement (GPA), which entered into force in 1996. Many FTAs also cover government procurement. The GPA and FTAs cover the procurement of both goods and services, including construction services. These agreements only apply to the procurement that the United States and its trading partners have specified in the agreements. In addition to applying to federal or central government entities and government-owned enterprises, a number of agreements extend to purchases by sub-central governments (states in the case of the United States).
Purpose for Covering Government Procurement: The United States negotiates agreements that cover government procurement because of the significant role that procurement plays in many economies. Procurement represents 15% to 20% of the Gross Domestic Product (GDP) of most countries. Without international agreements, foreign countries generally exclude U.S. and other foreign suppliers from much of their government procurement. When foreign countries agree to open their government procurement under trade agreements, U.S. firms gain opportunities to participate in that procurement on an equal basis with local suppliers. In addition, when countries enter trade agreements, they are required to adopt open, competitive and transparent procurement procedures, which facilitate participation by U.S. firms in the foreign procurement.
Negotiations of Procurement Covered under International Agreements: In negotiations to open foreign procurement under trade agreements, the United States agrees to open U.S. procurement on a reciprocal basis. That means that the United States will only open up U.S. procurement in areas in which its trading partners will open their procurement. For example, if another country refuses to open up procurement by its sub-central entities, then the United States would not cover any state procurement under that agreement.
Domestic Preferences and International Agreements: One of the key U.S. objectives in negotiating access to foreign procurement markets is to obtain a commitment from a foreign country to not apply domestic preferences that would prevent or undermine participation by U.S. suppliers in that country's procurement. For its part, the United States waives the application of the Buy American Act of 1933 for the procurement of goods by federal agencies that are covered under international agreements. However, there are U.S. laws that it does not waive, such as the Fly American Act. Instead, the United States excludes the procurement of transportation services from U.S. obligations under trade agreements. A domestic preference law can be applied to procurement that is not covered under a trade agreement.
State Authorization to Cover Procurement in International Agreements
Benefits of Covering State Procurement in Agreements: The Office of the U.S. Trade Representative (USTR) has noted benefits for states to cover procurement under trade agreements in State Government Procurement and Trade Agreements: Sending a Positive Signal About Welcoming International Business and Investment(Mar. 31, 2006):
Also, adding state procurement to international agreements strengthens the U.S. leverage to persuade foreign countries to open their state or other sub-central procurement markets to U.S. suppliers.
Process for State Authorization of Coverage of Procurement:The U.S. Trade Representative has contacted governors to request state authorization to cover state procurement under international agreements. It has sought the authorization on a state-by-state basis. USTR does not determine who can provide such authorization for a state. That decision is left to each state.
Each state determines whether it will participate in an international agreement, and if so, the procurement that it will cover under the agreement. It does so by listing the entities that will be covered under the agreement and any goods, services or sectors that will be excluded from coverage of the agreement. A state may also maintain preference programs for small businesses, distressed areas, minorities or women.
When a state makes a decision to participate in a trade agreement, that state's participation becomes a part of the international agreement and cannot be changed without the concurrence of the parties to the agreement. See the FAQ's, regarding the procedure for notifying the USTR of a change in a state entity/agency that is covered under the agreement.
Reciprocity Policy Applied to State Procurement under Three FTAs: The United States applied a reciprocity policy with regard to state government procurement in FTAs with Colombia, Panama and Peru. USTR described this policy in letters that it sent to state governors in January 2005. Under that policy, suppliers, goods and services from a particular state are ensured of opportunities to compete for procurements conducted by sub-central level government agencies in Colombia, Panama and Peru only if the state authorizes coverage of some of its procurement under the FTA. If a state chooses not to participate in the sub-central procurement provisions of the agreement, its suppliers, goods, and services will not be guaranteed non-discriminatory access to sub-central procurement opportunities in the foreign trading partner. States can be added to those FTAs at any time.
Office of the U.S. Trade Representative (USTR)
Mission of USTR: USTR is responsible for negotiating international trade agreements, including government procurement obligations.
Relationship to States: USTR solicits state authorization to cover procurement under international agreements and provides information to states, including through NASPO, such as biannual adjusted thresholds.
USTR Fact Sheets
State Government Procurement and Trade Agreements: The Facts (April 2004)
State Government Procurement and Trade Agreements: Sending a Positive Signal About Welcoming International Business and Investment (Mar. 31, 2006)
USTR Website: USTR maintains a website that includes a USTR Government Procurement webpage with information on:
WTO Government Procurement Agreement
FTAs with Government Procurement Obligations, with links to Government Procurement Chapters (texts and annexes) for each FTA
U.S.-Canada Agreement on Government Procurement
U.S.-European Communities 1995 Exchange of Letters
Additional Information on U.S. Procurement, which includes links for each state to:
USTR Contact Point:
Scott Pietan
Director of International Procurement Policy
Office of the United States Trade Representative
[email protected]
Intergovernmental Advisory Committee (IGPAC)
IGPAC Role in U.S. Trade Policy Advisory System: IGPAC is of one the U.S. advisory committees. It is part of the advisory committee system established by the U.S. Congress in 1974 to ensure that U.S. trade policy and trade negotiating objectives adequately reflect U.S. public and private sector interests.
IGPAC Members: IGPAC members include state and local representatives from the three branches of government (executive, legislative and judicial) who provide advice on trade issues and their impact on state and local governments.
NASPO Representative on IGPAC: NASPO has one representative on IGPAC who provides advice on procurement matters with regard to trade issues and trade agreements.
The NASPO Representative is:
Sherry L. Neas
Director, Central Services Division
State of North Dakota
IGPAC Comments on Procurement Issues
IGPAC Comments for GAO Report on Impact of FTAs--September 8, 2008
IGPAC Comments on GPA Revisions - September 29, 2006
IGPAC Comments on USTR Discussion Paper: Possible Revised Approach to Coverage of State Government Procurement in Bilateral Trade Agreements 9-8-2004
IGPAC Final Recommendations on State-Federal Trade Policy Coordination 8-5-2004
NASPO
Relationship to USTR: The NASPO representative serves as the liaison with USTR for state procurement officials on issues related to state procurement covered under international trade agreements.
NASPO Comments on International Agreements and Related Issues
Additional Information on State-Level Procurement
World Trade Organization (WTO) Agreement on Government Procurement (GPA)
The World Trade Organization (WTO), established on January 1, 1995, is a global international organization that oversees the rules of trade between nations. At its center are a number of WTO agreements that apply to a wide range of trade issues. One agreement covers government procurement. More information on the WTO may be found at: What is the WTO?
WTO Agreement on Government Procurement (GPA): The GPA is the only legally binding agreement in the WTO that focuses on government procurement. It entered into force on January 1, 1996. The GPA is a plurilateral agreement, which means that it does not apply to all WTO members. Only WTO members that have joined the GPA have rights and obligations under it. The fundamental aim of the GPA is to open government procurement markets among its parties.
The GPA consists of 15 parties and covers 43 WTO members. (The European Union and its 28 member states constitute one party.) The WTO members covered by the GPA are: Armenia, Canada, European Union and its 28 Member States (Austria, Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom), Hong Kong China, Iceland, Israel, Japan, the Republic of Korea (South Korea), Liechtenstein, the Netherlands with respect to Aruba, Norway, Singapore, Switzerland, Chinese Taipei (Taiwan) and the United States. For an up-to-date list, see GPA parties.
The GPA has two parts: the text of the Agreement and the parties' market access annexes that detail the procurement that they cover. For more information, see What is the GPA?
The GPA is administered by the WTO Committee on Government Procurement, which is composed of representatives of all of its parties.
2012 Revision of GPA: In December 2012, the GPA parties approved a revision of the GPA. The revision improved the text of the GPA, but did not change the fundamental obligations and rights of the GPA. For the text of the Revised GPA, see Revised GPA. The revision also expanded the procurement covered by the GPA.
2014 Entry into Force of Revision of GPA: On April 6, 2014, the revision of the GPA entered into effect for the United States and nine other GPA Parties (Canada, European Union, Hong Kong China, Iceland, Israel, Liechtenstein, Norway, Singapore and Taiwan). On April 16, 2014, it entered into force for Japan. The revised GPA will apply to the remaining four GPA Parties (Armenia, South Korea, Netherlands with respect to Aruba, and Switzerland) after they ratify it. Until they ratify it, the 1996 GPA will continue to apply to them.
Free Trade Agreements (FTAs): The following FTAs cover state procurement. For each FTA, its Government Procurement Chapter and Government Procurement Annex, which lists the states covered under the FTA, can be found on the USTR website.
Currently, there are 28 EU member states: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom.
2010 U.S.-Canada Agreement on Government Procurement: Under the U.S.-Canada Agreement on Government Procurement of 2010, Canada agreed to open the procurement of its provinces and territories for the first time and to cover them under the GPA. In exchange for gaining access to these Canadian sub-central entities, the United States extended its coverage of the 37 states covered under the GPA to Canada.
For each state covered under an agreement, the following information is provided on a state-specific page:
General Coverage Provisions: The states that agreed to procure in accordance with the GPA or FTAs (collectively referred to as “GPA/FTAs”) have specified the departments or agencies that are subject to the agreements (“covered entities”), designated the type of procurement covered (goods, services, construction services) and taken specific state exclusions. Click here to download a list of all international agreements and the states covered under them.
The following provisions apply to covered procurement:
Thresholds
Purpose of Thresholds: Thresholds are one of the factors used to determine whether a procurement is covered under the GPA/FTAs. If the estimated value of a procurement is below the GPA/FTAs thresholds, it is not covered under the agreements and the state’s normal contracting process would apply. The GPA and FTAs apply the same thresholds for state procurement.
U.S. Biannual Adjustment of Thresholds: All GPA thresholds are expressed in Special Drawing Rights (SDRs), which is created by the International Monetary Fund (IMF) based on a basket of international currencies. Every two years, the U.S. Trade Representative (USTR) calculates the exchange rate of the U.S. dollar to SDRs and publishes it on its procurement page.
Current U.S. Thresholds: USTR made its latest adjustment of thresholds in December 2013. The thresholds for state procurement for calendar years 2014 and 2015 are:
Application of International Agreements to Specific Procurement: In order to determine if a procurement is a “covered procurement” under the GPA/FTA, it must meet the following three tests. Procurement that meets the three tests is referred to as “covered procurement” throughout this Guide.
| International Procurement Agreement Tests | |
| TEST 1 | Is the entity that is conducting the procurement covered by the GPA/FTAs? |
TEST 2 |
Is the procurement excluded under any of the following categories? 1. Excluded Servicesare services that the United States has excluded from the GPA/FTAs:
2. State-Specific Exclusions listed for the state 3. Other Exclusions
|
TEST 3 |
Is the estimated total value of the proposed procurement above the following threshold, based on the rules for calculating the value, as set out below?
(Note: States covered under the GPA can deny Korean suppliers the opportunity to submit a tender in construction projects with a value below $23,592,000 in 2014-15.) |
Calculating the Value of a Procurement: The GPA/FTAs include provisions for calculating the value of a procurement to determine whether it equals or is above the threshold, and thus is covered procurement. In calculating the value of a procurement:
Rules of Origin: If a state needs to determine the origin of a good or service in a covered procurement, it must apply the rules of origin “applied in the normal course of trade.”
Ensuring Non-Discriminatory Practices: States are required to treat the goods, services and suppliers of the GPA/FTA countries in the same manner as they treat U.S. goods, services and suppliers throughout the procurement process. That means it cannot favor domestic goods, services or suppliers over those of GPA/FTAs countries. Preferences that favor U.S. goods, services or suppliers must not be applied in procurement that meets the three tests described in Scope and Coverage. It also means that the countries themselves must be treated equally. The goods, services or suppliers of one GPA/FTA country cannot be treated more favorably those of another GPA/FTA country. Statutory and regulatory legislation and other policy manuals should reflect non-discriminatory practices for covered procurement.
States covered under the 1995 U.S.-EU Exchange of Letters are required to treat the suppliers of the 28 EU member states in the same manner as they treat their own domestic suppliers, but only if the state opens a procurement to out-of-state suppliers.
Discriminatory procurement laws and other measures can continue to be applied to procurement that is not covered procurement or to goods or services from countries that are not covered countries.
Definitions that apply to covered procurement are set out in the table below.
| Term | Definition |
| build-operate-transfer contract and public works concession contract | Any contractual arrangement, the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, the entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of, such works for the duration of the contract |
| commercial goods or services | goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes; |
| covered countries | the country or countries covered under agreements covered by a state |
| covered procurement | procurement that the state has determined meets the criteria set out in Part IV and is covered by the GPA and/or FTA and thus must be conducted in accordance with this Guide |
| days | calendar days |
| electronic auction | an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tender |
| GPA/FTA countries | the country or countries covered under agreements covered by a state |
| in writing or written | any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information |
| measure | any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement |
| open tendering | a procurement method under which all interested suppliers may submit a tender |
| procuring entity | an entity covered by a state under the GPA/FTAs |
| qualified suppliers list or multi-use list | a list of suppliers that a procuring entity has determined satisfy the conditions for participation in the list and intends to use more than once |
| qualified supplier | a supplier that a procuring entity recognizes as having satisfied the conditions for participation |
| selective tendering | a procurement method under which a procuring entity invites only suppliers that meet certain qualification requirements (qualified suppliers) to submit a tender |
| services | includes construction services, unless otherwise specified |
| sole source procurement (limited tendering) | a procurement method under which a procuring entity may contact the supplier(s) of its choice, provided one of the conditions for its use in covered procurement is met |
| supplier | a person or group of persons that provides or could provide goods or services |
Procurement Procedures
The obligations set out in this section are based primarily on the provisions in the recent revision of the GPA, since most states are covered by the GPA. Except where noted, the provisions of this section also apply to Georgia even though it is only covered under the U.S.-Australia FTA since that FTA is based on the revised GPA. This section does not apply to states covered only under the U.S.-EU Exchange of Letters because that agreement does not provide any requirements with respect to how procurement is conducted.
The GPA/FTAs require covered procurement to be conducted in a transparent and fair manner that is consistent with their provisions, avoids conflicts of interest and prevents corrupt practices. This section provides a detailed outline of the requirements that apply at each stage of the procurement process. It is important to remember that the procedures apply only to covered procurement.
Steps in Procurement Process
| STEP 1: Determine procurement needs | Follow state procedures in determining procurement needs. |
| STEP 2: Determine whether proposed procurement is covered by the GPA/FTAs | Apply the three international agreement tests. If the proposed procurement is covered by the GPA/FTAs, the following steps apply. |
| STEP 3: Prepare technical specifications | in accordance with the following considerations:
|
| STEP 4: Advertise a Procurement Opportunity by Publishing a Notice | The GPA/FTAs require publication of a Notice of Proposed Procurement for each covered procurement, except where limited tendering is used. The notice must be published in an electronic or paper media and remain readily accessible to the public, at least until expiration of the time-period indicated in the notice. States can fulfill this requirement by publishing one of the following three notices:
|
| STEP 5: Provide solicitation or tender documentation | The solicitation or tender documentation must be made available promptly to all suppliers that respond to a Notice of Planned Procurement or a Notice of Supplier Registration System issued in Step 4 or to all suppliers when a Notice of Proposed Procurement is used. The solicitation must include all the information that suppliers need to prepare and submit responsive tenders. The required information includes the following, unless it has been provided in a notice:
|
| STEP 6: Submission, Receipt and Opening of Tenders | States must allow sufficient time for suppliers to prepare and submit tenders. The GPA/FTAs generally required a 40-day period for most tenders. However, for states covered only under the U.S.-Australia FTA, the minimum time for tendering is 30 days. In the GPA and FTAs, the time period for tendering can be reduced to 10 days in certain procurements. See sections below on Notice Requirements and Time Periods. A procuring entity must ensure fair and impartial treatment and confidentiality of tenders. It must not penalize a supplier whose tender is received late due solely to mishandling by the procuring entity. If a procuring entity allows a supplier to correct unintentional errors of form between the opening of tenders and awarding the contract, it must provide the same opportunity to all participating suppliers. |
| STEP 7: Evaluate Tenders and Award Contracts | In awarding a contract, a state may only consider tenders that are submitted in writing and that comply, at the time of opening of tenders, with the essential requirements set out in the notices and solicitation and are from suppliers that satisfy the conditions for participation. A procuring entity must award the contract to the supplier that is capable of fulfilling the contract and that, based solely on the evaluation criteria specified in the notices and solicitation, submits either the most advantageous tender or the tender with the lowest price (where price is the only criterion). |
| STEP 8: Notify Suppliers and Publish Contract Award Information | Notify Suppliers of Contract Awards:
Publish Awards: A state must publish a notice of a contract award within 72 days after the award. For procurement covered by the U.S.-Australia FTA, the notice must be published within 60 days. Where the notice is published in an electronic medium, the notice must remain readily accessible for a reasonable period of time. The Notice must include the following information: |
Notice Requirements: The GPA/FTAs set rules for advertising covered procurement and time frames. The requirements for three types of notices and the time requirements associated with each are described below.
Notice of Planned Procurement (or Annual Forecast): The use of a Notice of Planned Procurement is a two-step procurement process. Step one is an annual advertisement of the state's intended procurements for the year. The Notice must indicate the goods and services that the state intends to procure over the course of the year and ask suppliers to express their interest in tendering in the procurement (and indicating the goods or services of interest to them). The Notice should also include as much of the following information as is available:
Step two is the issuance of the solicitation for the procurement of the goods or services described in the Notice of Planned Procurement. This step cannot be taken until at least 40 days after the Notice has been published (or 30 days for procurement covered only under the U.S.-Australia FTA). At any time after the end of the 40 days, the procuring entity may issue a solicitation without any additional notices. All suppliers that expressed an interest in the procurement of the good or service must be notified of the issuance of the solicitation or provided with the solicitation. The deadline for submission of tenders in response to the solicitation cannot be less than 10 days. Use of this Notice provides states with the most flexibility because once it has been published the solicitation can be issued in accordance with the state's needs.
Notice of a Procurement Qualification System: Use of a Notice of a Procurement Qualification System involves a two-step advertisement. Step one is publication of the Notice, which becomes the procuring entity's annual advertisement calling for suppliers to apply for inclusion on the state's Qualified Suppliers List. The Notice must invite suppliers to apply for inclusion on the list and state that only the suppliers on the Qualified Suppliers List will receive further notices of procurement covered by the list. The Notice must also include:
When a state uses a Qualified Suppliers List, it must:
Step two is the issuance of a solicitation pertaining to the procurement covered by the Notice of Procurement Qualification System. This step cannot be taken until at least 40 days after publication of that Notice. There is no requirement that the state publish any additional notices. But, it must invite all suppliers that are qualified to tender for each procurement conducted using the Qualified Suppliers List, and provide them with the solicitation. The procuring entity can set a deadline for responses to the solicitation of no less than 10 days.
Exception to annual publication: If a Qualified Suppliers List will be valid for three years or less, the procuring entity may publish Notice of Procurement Qualification System only once, at the beginning of the period of validity, provided that the Notice:
Notice of Proposed Procurement: A Notice of Proposed Procurement can be used in conjunction the Notice of Planned Procurement or Notice of Procurement Qualification System for specific procurements covered by either Notice at a time convenient for the state. But, a Notice of Proposed Procurement is not required if a Notice of Planned Procurement or Notice of a Procurement Qualification System is used. However, if neither notice is used, a Notice of Proposed Procurement must be published for each covered procurement.
The Notice of Proposed Procurement must include the following information:
A state must also publish a Notice of Proposed Procurement when it uses selective tendering in a procurement that is not covered by its Qualified Suppliers List. It uses the Notice to invite suppliers to submit a request for participation in the procurement.In such a case, the Notice must include part of the information described above for the Notice of Proposed Procurement and the remainder of that information must be provided to the qualified suppliers by the commencement of the time period for tendering. The information that must be included in the Notice of Proposed Procurement is the following:
The procuring entity must provide suppliers that it has determined are qualified with the following information before commencement of the time period for tendering:
It must also ensure that the solicitation is made available at same time to all qualified suppliers
The deadline for submission of requests for participation must, in principle, be not less than 25 days from the date of publication of the Notice of Proposed Procurement. That period may be reduced to not less than 10 days if due to a state of urgency, or if a longer time period would be impracticable.
When a procuring entity publishes a Notice of Proposed Procurement, it must set a date for tendering that is at least 40 days from when it published the Notice or, when it uses selective tendering notified suppliers that they will be invited to submit tenders. (For procurement covered only by the U.S.-Australia FTA, at least 30 days must be allowed.) The time period can be reduced to not less than:
Information on Procuring Entity Decisions: The GPA/FTAs include provisions related to providing information to suppliers:
Time Periods: In setting time periods, a procuring entity, should ensure that the time period is sufficient to enable suppliers to prepare and submit applications for inclusion on Qualified Suppliers Lists, requests for participation and responsive tenders. Time-periods and extensions must be the same for all interested or participating suppliers. Considerations in setting time-periods include:
In addition, in establishing any date for the delivery of goods or the supply of services, a procuring entity must also take into account the realistic time required for production and transport of goods from the point of supply or for supply of services.
It is important to be clear and specific with regard to dates and times specified in notices and solicitation.
Conditions for Participation of Suppliers: With respect to the conditions for participation of suppliers in its procurement, a state should consider the following:
Use of Electronic Means: States are encouraged, but not required, to publish their notices by electronic means free of charge, using a single point of access for all procuring entities covered by the GPA/FTAs. When procurement is conducted by electronic means, the state must:
Electronic Auctions: Electronic auctions can be used for covered procurement. Before commencing use of an electronic auction, the procuring entity must provide each participant with the following information:
Negotiations: States may use negotiations in covered procurement where the procuring entity has indicated its intention to conduct negotiations in a notice or it appears from the evaluation that no tender is the most advantageous in terms of the evaluation criteria set out in the notice or solicitation. In conducting negotiations, a procuring entity must ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice or solicitation, and provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Sole Source Procurement or Limited Tendering: The GPA/FTAs permit use of sole source procurement (also referred to as proprietary, single or limited tendering) for covered procurement in the following circumstances:
A procuring entity must prepare (and retain for at least three years) a written report on each contract awarded under sole sourcing. The report should include the name of the procuring entity, the value and kind of goods or services procured and a statement indicating the circumstances and conditions that justified the use of sole sourcing.
Retaining Information on Covered Procurement: A state must retain the following information on covered procurement for at least three years after it awards a contract in a covered procurement:
Non-Disclosure of Information: A state should consider the following with regard to disclosing information related to covered procurement:
Bid Protests: Under the GPA/FTAs, suppliers must have access to an impartial administrative or judicial authority that is independent of a state's procuring entities, in order to seek review of a covered procurement. A state should encourage the supplier and procuring entity to seek resolution of the supplier's complaint through consultations. Such consultations should not prejudice the supplier's participation in ongoing or future procurement or its right to seek corrective measures under an administrative or judicial review procedure. A state's bid protest procedure should be in writing and available upon request.
States should require protests to be made within a fixed time period (at least 10 days) after the supplier knows of, or should have known of, the circumstances giving rise to a protest. If the protest is taken to a review body that is not a court, the following procedures should apply:
The state should also provide for interim measures, such as suspension of a procurement, to preserve the supplier's opportunity to participate in the procurement. However, the GPA/FTAs do not require a state to suspend a procurement. Even if a covered country were to bring a case against the United States with respect to a state's procurement, the procurement could continue unless the state decided to suspend it.
Answer: The U.S.-Chile FTA was the only agreement in which the states that had signed up to the GPA were automatically added to an FTA. Since Singapore is a party to the GPA, the states covered under the GPA are also covered under the U.S.-Singapore FTA. Subsequently, USTR recognized the need to cover state procurement under FTAs only where the state had authorized coverage of its procurement under an FTA. That is the policy it continues to follow.
Answer: USTR sends letters to state governors asking the state to consider covering some of its government procurement under particular FTAs. However, USTR does not have any policy as to who has the authority in a state to sign up the state to the GPA or FTAs. That decision is left to each state.
Answer:To obtain a copy of the letter that was sent to USTR authorizing the state's participation in a trade agreement, click here to view the USTR contact's information.
Answer: The same thresholds apply to state procurement covered under the GPA and FTAs.
Answer: The consistency of any measure with the GPA/FTAs would depend upon the precise language of the measure. In relation to the sweat-free procurement issue, the Administration included in the government procurement chapters in the FTAs with Colombia, Panama and Peru a clarification that technical specifications could include requirements relating to compliance with labor laws and conditions. That provision states:
"For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications: . . . (b) to require a supplier to comply with generally applicable laws regarding (i) fundamental principles and rights at work; (ii) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health, in the territory in which the good is produced or the service is performed."
Answer: The GPA and FTAs include a process for modifying the listings of a state's entities. The process requires USTR to inform the other parties to the GPA/FTAs of the proposed modification in a state's entities. The modification becomes effective if no party objects to it. The types of modifications to a state's entity list that should be notified to the other GPA/FTA parties include:
In such cases, the state should inform USTR and provide a description of the modification.
Answer: Under the GPA/FTAs, parties may request information on whether covered procurement was conducted fairly and impartially and in accordance with the agreement. They may also ask for information on the consistency of a state legislative or regulatory measure with the GPA/FTAs. The contact point for such requests is USTR.
The United States is engaged in several negotiations that could involve state procurement.
Trans-Pacific Partnership (TPP): The United States and 11 other countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam) are engaged in negotiations of an FTA, the Trans-Pacific Partnership. The negotiations began in 2010.
Information on TPP negotiations
U.S.-EU Transatlantic Trade and Investment Partnership (TTIP): In July 2013, the United States and the European Union (with its 28 member states) launched negotiations of an FTA, the U.S.-EU Transatlantic Trade and Investment Partnership.
U.S. and EU's procurement objectives in TTIP negotiations
Information on TTIP negotiations
Adding Countries to WTO GPA: The United States is also engaged in negotiations to add WTO members to the GPA. The WTO members involved in those negotiations include China, New Zealand and Ukraine. When a new country joins the GPA, USTR notifies NASPO. The addition of new countries to the GPA means that the states that are covered by the GPA will need to open their GPA-covered procurement to the new GPA parties.