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Document 21995A0620(01)

    Agreement in the form of an exchange of letters between the European Community and the United States of America on government procurement

    OJ L 134, 20.6.1995, p. 26–36 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

    ⏵This document has been published in a special edition(s) (CS, ET, LV, LT, HU, MT, PL, SK, SL, BG, RO, HR)

    Legal status of the document In force

    ELI: http://data.europa.eu/eli/agree_internation/1995/215/oj

    Related Council decision

    20.6.1995   

    EN

    Official Journal of the European Communities

    L 134/26

    AGREEMENT

    in the form of an exchange of letters between the European Community and the United States of America on government procurement

    His Excellency Sir Leon Brittan,

    Commissioner,

    Commission of the European Communities,

    200 Rue de la Loi/Wetstraat,

    1049 Brussels.

    Washington, 30 May 1995

    Dear Mr Commissioner,

    With reference to the discussion held between representatives of the Government of the United States of America (hereinafter the US) and the European Community (hereinafter the EC) regarding government procurement, I have the honour to confirm the following:

    1.

    The US and the EC agree to amend their respective Appendix I of the Government Procurement Agreement signed at Marrakesh on 15 April 1994, as set out in the attachments to this letter.

    2.

    The US shall grant to EC suppliers of goods and services, including construction services, treatment no less favourable than for out-of-state suppliers for the Massachusetts Port Authority and for the states of West Virginia, North Dakota and as regards Illinois for procurement not covered by the Government Procurement Agreement, and for out-of-city suppliers for the cities of Boston, Chicago, Dallas, Detroit, Indianapolis, Nashville and San Antonio.

    3.

    The US and EC agree to cooperate and take all necessary steps to improve substantially the transparency of the notices of intended procurement in order to ensure that contracts covered under the Government Procurement Agreement can be clearly identified as such.

    4.

    The US and EC agree that the Memorandum of Understanding between the US and the EC on Government Procurement of 25 May 1993 will be extended until the date of entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

    5.

    The US agrees that it will implement its obligations with respect to the Rural Electrification Administration contained in Annex 3 of its Appendix I attached hereto as soon as possible after entry into force of this Agreement, but no later than entry into force of the Agreement establishing the World Trade Organization.

    I shall be grateful, Mr Commissioner, if you could kindly confirm that this letter and its attachments correctly set out the understanding reached between us.

    I propose that, if the EC so agrees, this letter and its attachments and your reply to that effect constitute an agreement between the EC and the Government of the US, which will enter into force on the date hereof, with the exception of point 2 above, which will be effective upon entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

    Please accept, Mr Commissioner, the assurance of my highest consideration.

    Sincerely,

    Image

    Michael KANTOR

    Attachments: Amended Annexes 2 and 3 General Notes of Appendix I of the United States.

    Amended general notes and derogations from the provisions of Article III O Appendix I of the EC.

    Ambassador Michael Kantor,

    United States Trade Representative,

    Executive Office of the President,

    WASHINGTON DC 20506 (United States of America).

    Brussels, 30 May 1995

    Dear Mr Ambassador,

    I have the honour to acknowledge receipt of your letter of today's date, which reads as follows:

    ‘With reference to the discussions held between representatives of the Government of the United States of America (hereinafter the US) and the European Community (hereinafter the EC) regarding government procurement, I have the honour to confirm the following:

    1.

    The US and the EC agree to amend their respective Appendix I of the Government Procurement Agreement signed at Marrakesh on 15 April 1994, as set out in the attachments to this letter.

    2.

    The US shall grant to EC suppliers of goods and services, including construction services, treatment no less favourable than for out-of-State suppliers for the Massachusetts Port Authority and for the States of West Virginia, North Dakota and as regards Illinois for procurement not covered by the Government Procurement Agreement, and for out-of-city suppliers for the cities of Boston, Chicago, Dallas, Detroit, Indianapolis, Nashville and San Antonio.

    3.

    The US and the EC agree to cooperate and take all necessary steps to improve substantially the transparency of the notices of intended procurement in order to ensure that contracts covered under the Government Procurement Agreement can be clearly identified as such.

    4.

    The US and the EC agree that the Memorandum of Understanding between the US and the EC on Government Procurement of 25 May 1993 will be extended until the date of entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

    5.

    The US agrees that it will implement its obligations with respect to the Rural Electrification Administration contained in Annex 3 of its Appendix I attached hereto as soon as possible after entry into force of this Agreement, but no later than entry into force of the Agreement establishing the World Trade Organization.

    I shall be grateful, Mr Commissioner, if you could kindly confirm that this letter and its attachments correctly set out the understanding reached between us.

    I propose that, if the EC so agrees, this letter and its attachments and your reply to that effect constitute an agreement between the EC and the Government of the US, which will enter into force on the date hereof, with the exception of point 2 above, which will be effective upon entry into force of the Government Procurement Agreement signed at Marakesh on 15 April 1994.

    Please accept, Mr Commissioner, the assurance of my highest consideration.

    Sincerely,

    Michael KANTOR

    Attachments: Amended Annexes 2 and 3 and General Notes of Appendix I of the United States.

    Amended general notes and derogations from the provisions of Article III of Appendix I of the EC.’

    I have the honour to confirm that the EC agrees to the common understanding set out in your letter and its attachments and that your letter, this reply and the attachments shall constitute an agreement between the EC and the Government of the US.

    Please accept, Mr Ambassador, the assurance of my highest consideration.

    Sincerely,

    Image

    Leon BRITTAN

    AMENDED ANNEXES 2 AND 3 AND GENERAL NOTES OF APPENDIX I OF THE UNITED STATES

     

    ANNEX 2

    SUB-CENTRAL GOVERNMENT ENTITIES WHICH PROCURE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT

    Threshold:355 000 SDRs for supplies and services 5 million SDRs for construction

    LIST OF ENTITIES

    Arizona

    Executive branch agencies

    Arkansas

    Executive branch agencies, including universities but excluding the Office of Fish and Game and construction services

    California

    Executive branch agencies

    Colorado

    Executive branch agencies

    Connecticut

    Department of Administrative Services

    Connecticut Department of Transportation

    Connecticut Department of Public Works

    Constituent Units of Higher Education

    Delaware (*)

    Administrative Services (Central Procurement Agency) State Universities State Colleges

    Florida (*)

    Executive branch agencies

    Hawaii

    Department of Accounting and General Services (with the exception of procurements of software developed in the state and construction)

    Idaho

    Central Procurement Agency (including all colleges and universities subject to central purchasing oversight)

    Illinois (*)

    Department of Central Management Services

    Iowa (*)

    Department of General Services

    Department of Transportation

    Board of Regents' Institutions (universities)

    Kansas

    Executive branch agencies, excluding construction services, automobiles and aircraft

    Kentucky

    Division of Purchases, Finance and Administration Cabinet, excluding construction projects

    Louisiana

    Executive branch agencies

    Maine (*)

    Department of Administrative and Financial Services

    Bureau of General Services (covering State government agencies and school construction)

    Maine Department of Transportation

    Maryland (*)

    Office of the Treasury

    Department of the Environment

    Department of General Services

    Department of Housing and Community Development

    Department of Human Resources

    Department of Licensing and Regulation

    Department of Natural Resources

    Department of Public Safety and Correctional Services

    Department of Personnel

    Department of Transportation

    Massachusetts

    Executive Office for Administration and Finance

    Executive Office of Communities and Development

    Executive Office of Consumer Affairs

    Executive Office of Economic Affairs

    Executive Office of Education

    Executive Office of Elder Affairs

    Executive Office of Environmental Affairs

    Executive Office of Health and Human Service

    Executive Office of Labor

    Executive Office of Public Safety

    Executive Office of Transportation and Construction

    Michigan (*)

    Department of Management and Budget

    Minnesota

    Executive branch agencies

    Mississippi

    Department of Finance and Administration (does not include services)

    Missouri

    Office of Administration

    Division of Purchasing and Materials Management

    Montana

    Executive branch agencies (only for services and construction)

    New York (*)

    State agencies

    State university system

    Public authorities and public benefit corporations, with the exception of those entities with multi-state mandates

    In addition to the exceptions noted at the end of this Annex, transit cars, buses and related equipment are not covered

    Nebraska

    Central Procurement Agency

    New Hampshire (*)

    Central Procurement Agency

    Oklahoma (*)

    Office of Public Affairs and all State agencies and departments subject to the Oklahoma Central Purchasing Act, excluding construction services

    Oregon

    Department of Administrative Services

    Pennsylvania (*)

    Executive branch agencies, including:

    Governor's Office

    Department of the Auditor General

    Treasury Department

    Department of Agriculture

    Department of Banking

    Pennsylvania Securities Commission

    Department of Health

    Department of Transportation

    Insurance Department

    Department of Aging

    Department of Correction

    Department of Labor and Industry

    Department of Military Affairs

    Office of Attorney General

    Department of General Services

    Department of Education

    Public Utility Commission

    Department of Revenue

    Department of State

    Pennsylvania State Police

    Department of Public Welfare

    Fish Commission

    Game Commission

    Department of Commerce

    Board of Probation and Parole

    Liquor Control Board

    Milk Marketing Board

    Lieutenant Governor's Office

    Department of Community Affairs

    Pennsylvania Historical and Museum Commission

    Pennsylvania Emergency Management Agency

    State Civil Service Commission

    Pennsylvania Public Television Network

    Department of Environmental Resources

    State Tax Equalization Board

    Department of Public Welfare

    State Employees' Retirement System

    Pennsylvania Municipal Retirement Board

    Public School Employees' Retirement System

    Pennsylvania Crime Commission

    Executive Offices

    Rhode Island

    Executive branch agencies, excluding boats, automobiles, buses and related equipment

    South Dakota

    Central Procuring Agency (including universities and penal institutions)

    In addition to the exceptions noted at the end of this Annex, procurements of beef are not covered

    Tennessee

    Executive branch agencies (excluding services and construction)

    Texas

    General Services Commission

    Utah

    Executive branch agencies

    Vermont

    Executive branch agencies

    Washington

    Washington State executive branch agencies, including:

    General Administration

    Department of Transportation

    State Universities

    In addition to the exceptions noted at the end of this Annex, procurements of fuel, paper products, boats, ships and vessels are not covered

    Wisconsin

    Executive branch agencies, including:

    Department of Administration

    State Correctional Institutions

    Department of Development

    Educational Communications Board

    Department of Employment Relations

    State Historical Society

    Department of Health and Social Services

    Insurance Commissioner

    Department of Justice

    Lottery Board

    Department of Natural Resources

    Administration for Public Instruction

    Racing Board

    Department of Revenue

    State Fair Park Board

    Department of Transportation

    State University System

    Wyoming (*)

    Procurement Services Division

    Wyoming Department of Transportation

    University of Wyoming

    Notes to Annex 2

    In addition to the conditions specified in the General Notes, the following conditions apply:

    1.

    For those States marked by an asterisk with pre-existing restrictions, the Agreement does not apply to procurement of construction-grade steel (including requirements on subcontracts), motor vehicles and coal.

    2.

    The Agreement shall not apply to preferences or restrictions associated with programs promoting the development of distressed areas and businesses owned by minorities, disabled veterans and women are reserved from coverage.

    3.

    Nothing in this Annex shall be construed to prevent any State entity from applying restrictions that promote the general environmental quality in that State, as long as such restrictions are not disguised barriers to international trade.

    4.

    The Agreement shall not apply to any procurement made by a covered entity on behalf of non-covered entities at a different level of government.

    5.

    The Agreement shall not apply to restrictions attached to Federal funds for mass transit and highway projects.

    ANNEX 3

    ALL OTHER ENTITIES WHICH PROCURE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT

    Threshold:400 000 SDRs for supplies and services (except as specified below)

    5 million SDRs for construction

    LIST OF ENTITIES

    The following entities at the SDR equivalent of $ 250 000 for supplies and services:

    Tennessee Valley Authority

    Power Marketing Administrations of the Department of Energy

    —

    Bonneville Power Administration

    —

    Western Area Power Administration

    —

    Southeastern Power Administration

    —

    Southwestern Power Administration

    —

    Alaska Power Administration

    St Lawrence Seaway Development Corporation

    The following entities at 400 000 SDRs for supplies and services :

    The Port Authority of New York and New Jersey with the following exceptions:

    —

    maintenance, repair and operating materials and supplies (e.g. hardware, tools, lamps/lighting, plumbing);

    —

    in exceptional cases, individual procurements may require certain regional production of goods if authorized by the Board of Directors;

    —

    procurements pursuant to multi-jurisdictional agreement (i.e. for contracts which have initially been awarded by other jurisdictions).

    The Port of Baltimore (subject to the conditions specified for the state of Maryland in Annex 2)

    The New York Power Authority (subject to the conditions specified for the state of New York in Annex 2)

    Rural Electrification Administration Financing:

    1.

    waiver of Buy American restrictions on financing for all power generation projects (restrictions or. financing for telecommunication projects are excluded from the Agreement);

    2.

    application of Code-equivalent procurement procedures and national treatment to funded projects exceeding the thresholds specified above.

    Notes to Annex 3

    1.

    With respect to these entities, the Agreement shall not apply to restrictions attached to Federal funds for airport projects.

    2.

    The conditions specified in the General Notes apply to this Annex.

    General Notes

    1.

    Notwithstanding the above, this Agreement will not apply to set asides on behalf of small and minority businesses.

    2.

    Except as specified otherwise in this Appendix, procurement in terms of US coverage does not include non-contractual agreements or any form of government assistance, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, and governmental provision of goods and services to persons or governmental authorities not specifically covered under US Annexes to this Agreement.

    3.

    Procurement does not include the acquisition of fiscal agency or depositary services, liquidation and management services for regulated financial institutions and sale and distribution services for government debt.

    4.

    Where a contract to be awarded by an entity is not covered by this Agreement, this Agreement shall not be construed to cover any good or service component of that contract.

    5.

    For goods and services (including construction) of the following countries and suppliers of such goods and services, this Agreement does not apply to procurement by the entities listed in Annexes 2 and 3 or the waiver described in Annex 3:

    Canada

    Switzerland

    Norway

    Japan

    The United States is prepared to amend this note at such time as coverage with respect to these Annexes can be resolved with a Party listed above.

    6.

    For construction services of the Republic of Korea and suppliers of such services, this Agreement applies only to procurement of the entities listed in Annexes 2 and 3 above a threshold of 15 million SDRs.

    7.

    For goods and services (including construction) of Japan and suppliers of such goods and services, this Agreement does not apply to procurement by the National Aeronautics and Space Administration.

    8.

    A service listed in Annex 4 is covered with respect to a particular Party only to the extent that such Party has included that service in its Annex 4.

    AMENDED GENERAL NOTES AND DEROGATIONS FROM THE PROVISIONS OF ARTICLE III OF APPENDIX I OF THE EC

    General notes and derogations from the provisions of Article III

    1.

    The EC will not extend the benefits of this Agreement:

    —

    as regards the award of contracts listed in Annex 2 to the suppliers and service providers of Canada,

    —

    as regards the award of contracts, other than for supplies, listed in Annex 2 to the suppliers and service providers of the USA,

    —

    as regards the award of contracts by entities listed in Annex 3 paragraph

    (a)

    (water), to the suppliers and service providers of Canada and the USA;

    (b)

    electricity), to the suppliers and service providers of Canada, Hong Kong and Japan;

    (c)

    (airports), to the suppliers and service providers of Canada, Korea and the USA;

    (d)

    (ports), to the suppliers and service providers of Canada;

    (e)

    (urgan transport), to the suppliers and service providers of Canada, Israel, Japan, Korea and the USA

    until such time as the EC has accepted that the Parties concerned give comparable and effective access for EC undertakings to the relevant markets:

    —

    to service providers of Parties which do not include service contracts for the relevant entities in Annexes 1 to 3 and the relevant service category under Annexes 4 and 5 in their own coverage.

    2.

    The provisions of Article XX shall not apply to suppliers and service providers of:

    —

    Israel, Japan, Korea and Switzerland in contesting the award of contracts by entities listed under Annex 2, paragraph 2, until such time as the EC accepts that they have completed coverage of sub-central entities,

    —

    Japan, Korea and the USA in contesting the award of contracts to a supplier or service provider of Parties other than those mentioned, which are small or medium-sized enterprises under the relevant provisions of EC law, until such time as the EC accepts that they no longer operate discriminatory measures in favour of certain domestic small and minority businesses,

    —

    Israel, Japan and Korea in contesting the award of contracts by EC entities, whose value is less than the threshold applied for the same category of contracts awarded by these Parties.

    3.

    Until such time as the EC has accepted that the Parties concerned provide access for EC suppliers and service providers to their own markets, the EC will not extend the benefits of this Agreement to suppliers and service providers of:

    —

    Canada, as regards procurement of FSC 36, 70 and 74 (special industry machinery, general purpose automatic data processing equipment, software, supplies and support equipment (except 7010 ADPE configurations), office machines, visible record equipment and ADP equipment),

    —

    Canada, as regards procurement of FSG 58 (communications, protection and coherent radiation equipment) and the USA as regards air traffic control equipment,

    —

    Korea and Israel as regards procurement by entities listed in Annex 3 paragraph (b), as regards procurement of HS Nos 8504, 8535, 8537 and 8544 (electrical transformers, plugs, switches and insulated cables); and for Israel, HS Nos 8501, 8536 and 902830,

    —

    the USA, as regards procurement by entities listed in Annex 3 paragraph (d), as regards procurement of dredging services and procurement related to shipbuilding,

    —

    Canada and the USA as regards contracts for good or service components of contracts which, although awarded by an entity covered by this Agreement, are not themselves subject to this Agreement.

    4.

    The Agreement shall not apply to contracts awarded under:

    —

    an international agreement and intended for the joint implementation or exploitation of a project by the signatory States,

    —

    an international agreement relating to the stationing of troops,

    —

    the particular procedure of an international organization.

    5.

    The Agreement shall not apply to procurement of agricultural products made in furtherance of agricultural support programmes and human feeding programmes.

    6.

    Contracts awarded by entities in Annexes 1 and 2 in connection with activities in the fields of drinking water, energy, transport or telecommunications, are not included.

    7.

    This Agreement shall not apply to contracts awarded by entities in Annex 3:

    —

    for the purchase of water and for the supply of energy or of fuels for the production of energy,

    —

    for purposes other than the pursuit of their activities as described in this Annex or for the pursuit of such activities in a non-member country,

    —

    for purposes of re-sale or hire to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or hire the subject of such contracts and other entities are free to sell or hire it under the same conditions as the contracting entity.

    8.

    This Agreement shall not be applicable to contracts:

    —

    for the acquisition or rental of land, existing buildings or other immovable property or concerning rights thereon,

    —

    for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time.

    9.

    This Agreement shall not be applicable to the award of service contracts by Spanish entities listed in Annex 3 before 1 January 1997 or to the award of contracts by Greek or Portuguese entities listed in Annex 3 before 1 January 1998.
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