A resource on public procurement practice, policy and law, from around the globe.
Author: Christopher Yukins
Professor Christopher Yukins teaches in the government procurement law program (founded in 1960) at The George Washington University Law School in Washington, D.C.
Senior Economist, Chief Trade Economist Unit,
European Commission
Most debates over protectionism
look only at the direct effects of “Buy National” laws — how do those laws
help specific domestic producers, and how do they raise costs and reduce
choice?
The European Commission is taking
a new approach. Building on other
transnational studies, the Commission has undertaken a multi-year effort to
assess the economy-wide impact of
domestic preferences in procurement.
Through this effort, the European Commission will be able to predict the
costs, direct and indirect, of new “Buy National” laws around the world.
Please join Zornitsa Kutlina-Dimitrova, a senior trade economist at the European Commission, in an interactive discussion of this important development in international trade.
On May 30, 2019, there will be a conference on U.S. – EU environmental issues in Rome; the program for the colloquium, which will cover issues from climate change to sustainability in procurement, may be downloaded below.
Dr. G. Antonelli (B.A., M.A., J.D., LL.M, Ph.D.); Prof. M.V. Ferroni (Prof. of Administrative Law and Environmental Law at Sapienza University Department of Political Science); Prof. F. Giglioni (Prof. of Administrative Law, Environmental and Health Law. Director of the Ph.D. Program in Public, Comparative and International Law at Sapienza University Department of Political Science)
The conference was launched by Dr. Giovanni Antonelli, of the “Sapienza” University of Rome, with the support of Prof. F. Giglioni and Prof. M.V. Ferroni of the University’s Department of Political Science, and the Center for American Studies. Dr. Antonelli writes:
For over the last year we have
been thinking how to engage some of the most eminent international experts for
empowering our common interest and work towards potential models of sustainable
development.
Built upon the shared belief
that the current political divide felt over our continents is polarizing and
alienating not only our cultures but often
it is even estranging groups and movements that have similar values and
goals, the “U.S.–E.U. Environmental Law Colloquium” aims to encourage participation
and collaboration between American and European Scholars on a regular basis, to
share the progress of our researches and to launch new initiatives and projects
for the implementation of the environmental policies.
For the organization of this first
edition we do want to acknowledge the important role played by the Sapienza
University Department of Political Science and by the Center for American
Studies of Rome, without whose fundamental support this international project
would not have been carried out.
We would like to thank all the speakers who have decided to join our project, with a specific regard to Prof. J. Freeman (Harvard Law School), Prof. M. Gerrard (Columbia Law School), Prof. M. Scanlan (Vermont Law School), Prof. C. Yukins (GWU School of Law) and Prof. J. Dernbach (Widener University).
The all-day colloquium will begin at 9:30 a.m. on May 30, 2019, at the Center for American Studies, Via M. CAETANI, 32, Rome.
For information and reservations: giovanni.antonelli@uniroma1.it
On February 20, 2019, Dr. Colette Langos, a Senior Lecturer at the University of Adelaide, made a very interesting presentation at GWU Law School, on developments in Australia’s bid protest procedures. She explained that these latest reforms, outlined in her attached slides, were an important part of Australia’s accession to the WTO Government Procurement Agreement.
Professor Andrea Sundstrand of Stockholm University will be
visiting GWU Law School this week to teach on European procurement law.
We will meet in Law Learning Center (LLC) Room 006, 2028 G
Street NW (across the street from the main law school building) on the
following days and times:
Wednesday, Feb. 20 – noon to 2 pm – Intro to EU Procurement
Thursday, Feb. 21 – noon to 2 pm – EU Bid Protests
Friday, Feb. 22 – 6-8 pm – EU Contracting (canceled)
This is a very nice (and rare) opportunity to learn about Europe’s approach to procurement law, first-hand. We hope to see you there.
On April 5, 2019, scholars from Pace University, the University of Copenhagen and George Washington University hosted an all-day roundtable on emerging issues in sustainable public procurement, through Pace University’s Elisabeth Haub School of Law.
The First Annual Transatlantic Roundtable on Sustainable Public Procurement was hosted by:
Pace Environmental Law and the Elisabeth Haub School of Law,
The Centre of Enterprise Liability, Faculty of Law, University of Copenhagen, and
The George Washington University Law School’s Government Procurement Law Program.
Researchers and renowned specialists from around the globe discussed recent developments in the field of sustainable public procurement. The global value of public procurement spending is enormous. OECD countries alone spend a total of a trillion U.S. dollars per year, and each year their governments spend around 14-19% of GDP on the purchase of services, works and supplies. In many sectors such as energy, transport, waste management, social welfare, education and health services, public authorities are the principal buyers. The sheer scale of public procurement spending can literally create and shape markets, impact lives of citizens across the country, and foster greater sustainability in terms of environmental protection, public health, and economic equality.
Speakers included:
Professor Jason J. Czarnezki, Kerlin Distinguished Professor of Environmental Law and Associate Dean, Elisabeth Haub School of Law at Pace University,
Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark,
Professors Steven Schooner and Christopher Yukins, George Washington University Law School, Washington, D.C., and
Nicole Darnall, Associate Dean and Professor, School of Sustainability Arizona State University
This event was held at Pace University’s Downtown Campus – 1 Pace Plaza, on the 18th floor in the North and South Boardrooms.
Introductions Jason J. Czarnezki –Kerlin Distinguished Professor and Associate Dean, The Elisabeth Haub School of Law at Pace University, New York
Marta Andhov – Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at Pace University’s Elisabeth Haub School of Law
Session 1 : Does the United States need a sustainable public procurement legal framework?
U.S. Federal Public Procurement – A lack of interest in sustainable purchasing? – Steven Schooner, Nash & Cibinic Professor of Government Procurement Law, The George Washington University Law School
Do state level and local contracting authorities drive the sustainable procurement agenda in the United States? – Jason J. Czarnezki, Kerlin Distinguished Professor and Associate Dean, The Elisabeth HaubSchool of Law at Pace University, New York City
Sustainable Procurement in Local Governments – Nicole Darnall Associate Dean and Professor, School of Sustainability, Arizona State University
Session 2: European Union – A leader in sustainable purchasing?
How we got to the Strategic Public Procurement Agenda-Understanding the EU legal framework – Roberto Caranta, Professor of Administrative Law, University of Turin, Italy
All that glitters is not gold – Paradoxes of EU Public Procurement Law – Marta Andhov, Assistant Professor, Faculty of Law, University of Copenhagen, Denmark; Haub Visiting Scholar at the Pace University’s Elisabeth Haub School of Law
The Evolution of Sustainable Procurement in the United Kingdom: From Thatcherism to the Social Value Act and a widening and deepening policy agenda. Where next post-Brexit? – Michael Bowsher QC – Director of the Distance Learning Diploma and Masters in Public Procurement Law at King’s College London; Visiting Professor, Dickson Poon School of Law, King’s College London; Barrister (Monckton Chambers), England & Wales, Northern Ireland, Republic of Ireland
Session 3: WTO & UNCITRAL
SPP: International perspectives, including under the UNCITRAL Model Law and the WTO Government Procurement Agreement – Christopher R. Yukins – Professor of Public Procurement Law and Co-Director, Government Procurement Law Program, George Washington University Law School
Sustainable public procurement under the OECD and the multilateral development banks- Carol Cravero, PhD student at the University of Turin, Italy and University of Paris Nanterre (CRDP), France
Sustainable procurement at UNOPS –Benedetta Audia, Corporate Legal Advisor, Head of the Commercial and Institutional Law Practice, Legal Group, United Nations Office for Project Services, New York
Session 4: Selected Countries and Their Experiences
Canadian experience with Sustainable Public Procurement –Paul Emanuelli,General Counsel and Managing Director, Procurement Office, Toronto
Challenges and the future of sustainable public procurement in Poland – Michal Kania, Professor, Silesian University, Poland; Fulbright Visiting Scholar The George Washington University Law School
Brazilian experience with SPP – Luciana Stocco Betiol, Professor – Department of Social and Legal Sciences, São Paulo School of Business Administration – FGV/EAESP
On January 31, 2019, President Trump issued an Executive
Order encouraging federal grantees to “Buy American” when purchasing iron, aluminum,
steel and certain manufactured products for infrastructure projects funded by
federal grants. Although the Executive Order on Strengthening
Buy-American Preferences for Infrastructure Projects only directs federal
agencies to encourage grantees to “Buy
American,” it also calls for federal agencies to assess whether federal
grantees (including state and local governments) might be required to buy
U.S.-made goods in the future.
“We want American roads, bridges, and railways, and everything else to be built with American iron, American steel, American concrete, and American hands.”
White House economist Peter Navarro, a key proponent of closing
U.S. borders to international trade, published an op-ed
on Fox News before the order was released, explaining and supporting the
order. As the President and Peter Navarro
made plain in the signing
ceremony in the Oval Office, the new order is part of a broader White House
initiative to boost U.S. manufacturing, a central theme in Trump’s reelection
efforts.
The order highlights a gap in trade agreements, because federal
grants are generally excepted from U.S. trade agreements that require open
trade in procurement. See, e.g., WTO Government Procurement
Agreement, U.S.
Annex 7, General Notes, para. 2.
But even though federal grants
are not themselves subject to the trade agreements, state grantees using
federal funds for their own procurements may be covered by those agreements —
and thus may not be able to discriminate against covered foreign vendors when
they procure using federal grant funds. Two-thirds
of the states, for example, are members of the World Trade Organization’s Government
Procurement Agreement, and so have committed not to discriminate in certain
purchases from other members of the GPA.
The new Trump executive order defers to those prior commitments to open
trade in procurement.
The new order calling on grantees to discriminate across borders contrasts sharply with prior White House guidance, through the Office of Management & Budget (OMB), 2 CFR 200.319(b), which requires many grantees to “conduct procurements in a manner that prohibits . . . state, local, or tribal geographical preferences in the evaluation of bids or proposals.” This prior OMB guidance barring grantees from domestic geographic preferences aims to encourage maximum competition in procurements using grant funds; the new order, calling for international discrimination, logically would probably hurt competition.
If grantees follow the President’s admonition and only “Buy
American,” experience suggests that public projects under federal grants may
take longer and cost more. Under Section
1605 of the American Recovery and Reinvestment Act of 2009 — which imposed a
similar “Buy American” requirement — GAO found that grantees
faced severe operational problems when they were forced to comply with similar “Buy
American” requirements. For many of
these same reasons, the National Association of State Purchasing Officers
(NASPO) has opposed
geographic preferences in procurement, because they can undermine competition and
hurt best value.
In her posting on the new executive order, Jean Heilman Grier suggested that this order is a logical successor to Trump’s April 2017 executive order which called for federal agencies to “Buy American and Hire American.” While that earlier order encouraged federal agencies to Buy American whenever they can, this order extends that admonition to federal grantees.
Because of the latticework of policies and agreements which bar or discourage discriminatory procurement by state and local governments, it is unclear exactly what impact this new executive order may have on federal grantees’ purchasing. What is clear, however, is that even the most aggressive “Buy American” requirements in procurement are unlikely to have any serious impact on the nation’s trade deficit. At the federal level, a December 2018 GAO report showed that only roughly 1.5% of federal procurement ($7.8 billion of approximately $500 billion per year) were foreign products — compared to a national trade deficit of $566 billion in 2017. Foreign purchases probably total an even smaller share of state and local procurement, compared to federal purchases from abroad, because trade agreements force open a much smaller portion of state and local public markets. In sum, therefore, no matter how aggressively federal grantees implement the executive order, it is unlikely that the new order, though trumpeted for political reasons, will reduce the U.S. trade deficit in any significant way.
Effective international trade in government procurement depends on predictable legal structures, including those that address corruption and misconduct in tender processes. But at this point, the purchaser’s primary tools to maintain integrity — debarment or exclusion — remain wildly out of sync on both sides of the Atlantic. This annual free symposium on transatlantic issues in procurement, hosted by King’s College London and George Washington University Law School, focused this year on debarment and exclusion. In a highly successful day of frank and collegial discussions, judges, officials, attorneys and professors from the multilateral development banks, the European Union and the United States joined to discuss the best ways forward to harmonize a common approach to debarment in international trade.
Please note (see below) that because of the strong interest in this program, it was moved to a larger room at Gray’s Inn.
Members of the “GWU” team at the symposium at Gray’s Inn (left to right): Professor Michal Kania (Fulbright scholar), Program Director Karen Thornton, Ruairi Macdonald (alumnus), John Pachter (alumnus and panelist), Paul Khoury (alumnus and panelist), Collin Swan (alumnus and panelist), Alix Town (alumna), and Professor Christopher Yukins (symposium co-chair)Collin Swan (World Bank), Michal Kania (University of Katowice) and Dominique Casimir (Arnold & Porter, Washington DC)
Panel II: Sanctions and Exclusions at the Multilateral Development Banks (11:30-12:30)
Panel II: Lisa Miller (World Bank), Prof Christopher Yukins (GWU), Collin Swan (World Bank) and Paul Kearney (European Bank for Reconstruction and Development)
Panel III: John Pachter (Smith Pachter, McLean VA), Paul Khoury (Wiley Rein, Washington DC), Vera Eiro (Linklaters, Lisbon), Michael Bowsher QC (symposium co-chair/moderator, Monckton Chambers & King’s College, London) and Pascal Friton (BLOMSTEIN, Berlin).
John Pachter, Christopher Yukins & Jessica Tillipman, U.S. Debarment: An Introduction (discussion draft 24 February 2019), forthcoming in Cambridge Handbook of Compliance (Cambridge University Press, Daniel Sokol & Benjamin van Rooij eds.).
Pascal Friton, Debarment in EU Public Procurement Law – Tentative progress or treading water? (presented at Thomson Reuters Government Contracts Year in Review (Feb. 2019))
Panel V: Judge Marc Steiner (Swiss Federal Administrative Court), Judge Christopher Vajda (Court of Justice for the European Union), Prof Carl Baudenbacher (former Chief Judge of the EFTA Court, Monckton Chambers), Michael Bowsher QC (Monckton Chambers/King’s College, London), Judge Katja Hoegh (Chair, Ostre Landstret (High Court of Eastern Denmark), Copenhagen), Judge Helena Rosen Anderrson (Swedish Supreme Administrative Court)
Emmanuelle Auriol & Tina Søreide, An Economic Analysis of Debarment, 50 Int’l Rev. L. & Econ. 36 (2017) (arguing that debarment needs to be rethought in light of its competitive impacts)
Christopher R. Yukins & Michal Kania, Suspension and Debarment in the U.S. Government: Comparative Lessons for the EU’s Next Steps in Procurement, 19-2 UrT 47 (2019), available at https://ssrn.com/abstract=3422499
Background materials by panelists (from a fall 2018 seminar at GWU):
The Congressional Research Service, a research arm of the Library of Congress, has published a very useful overview of the U.S. bid protest (bid challenge) system, by David Carpenter & Moshe Schwartz, Government Contract Bid Protests: Analysis of Legal Processes and Recent Developments (Updated November 28, 2018, CRS Report R45080), https://fas.org/sgp/crs/misc/R45080.pdf
Visiting Fulbright scholar Professor Michael Kania (Silesian University) will present on European Defense Procurement at George Washington University Law School, Law Learning Center 006, 2028 G Street NW, Washington, DC, from 6-8 pm on Tuesday, November 6, 2018. His presentation is linked above. If you would like to attend this open seminar, please reserve a space with Cassandra Crawford, ccrawford@law.gwu.edu.
