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.

Professor Michal Kania – European Defense Procurement – Presentation at GWU Law School

Defense_Security_UE_Michal_Kania_Final_version – Published

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.

The U.S.-Mexico-Canada Agreement (USMCA): Some Surprising Outcomes in Procurement

Article available at:  https://ssrn.com/abstract=3268740

Christopher R. Yukins – George Washington University Law School

The Trump administration recently released the proposed text of the U.S.-Mexico-Canada Agreement (USMCA), a major regional trade agreement that, if ratified, would replace the North American Free Trade Agreement (NAFTA).  While the government procurement chapter of the proposed USMCA was largely a copy-and-paste from the abandoned Trans-Pacific Partnership agreement (TPP), the procurement chapter of the USMCA did contain a few major surprises — including the omission of Canada.  This article reviews the background to the USMCA, some of the most important elements of the agreement, and the lessons learned for future international cooperation in procurement policy and law.

This article draws in part upon a paper that Professor Yukins will present at an interdisciplinary conference in procurement at the Sorbonne University, Paris in October 2018.

European Commission Proposes Expanding the European Defence Fund—A Major Potential Barrier to Transatlantic Defense Procurement

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3204844

The European Commission has proposed expanding the European Defence Fund, an initiative to fund defense technology developed in Europe. As a general matter, only European firms would have access to the fund for development, and participating European nations would need to commit themselves to purchasing the defense materiel developed under the fund. In effect, this could lock U.S. firms out of billions of euros worth of European defense procurement over the coming years—despite long-standing reciprocal agreements under which the U.S. and its European allies agreed to open their defense markets. The fund was announced quietly last year and now, in the shadow of a trade war launched by the Trump administration, has evolved into a substantial potential barrier in the transatlantic defense market, and potentially another brick in a rising wall of protectionism between the U.S. and Europe.

60 Gov. Contractor para. 196 (June 27, 2018)

The Trade War Comes To Defense Procurement

In response to the Trump administration’s demands that Europe spend more on its own defense, and as part of a broader hardening of trade positions between the United States and Europe as a result of the Trump administration’s trade policies, Europe is moving forward with the European Defence Fund,  which will block non-European firms (including U.S. firms) from billions of dollars in European defense spending.  (Ironically, the Trump administration’s own “Buy American” initiative in procurement apparently has been stalled over the past year, and the Trump administration has pushed recently to expand foreign military sales by U.S. defense firms.)  The European initiative, which goes beyond the protections of the 2009 European defense directive, may be a violation of the many reciprocal defense procurement agreements between the United States and its European allies.  European officials have defended these bars against non-European contractors as “reciprocity” for U.S. security constraints on foreign ownership and control in the U.S. defense industrial base, but the protectionism of the European initiative appears to go well beyond normal security concerns — inspired, perhaps, by the Trump administration’s expansive use of “national security” as a rationale for protectionism.

Section 809 and ‘E-Portal’ Proposals, by Cutting Bid Protests in Federal Procurement, Could Breach International Agreements and Raise New Risks of Corruption

SSRN Link:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3176223

60 GOV’T CONTRACTOR ¶ 138 (2018)

GWU Law School Public Law Research Paper No. 2018-26

GWU Legal Studies Research Paper No. 2018-26

7 Pages Posted: 10 May 2018

Christopher R. Yukins

George Washington University – Law School

Dan Ramish

George Washington University – Law School

Date Written: 2018

Abstract

Bid protests — vendors’ challenges to contracting officials’ errors, either before or after award — have been an established part of federal procurement for at least a century. Protests (sometimes called “challenges” or “remedies proceedings” abroad) are a recognized bulwark against corruption in the United States, and have become a standard part of procurement systems around the world, often at the urging of the United States. But new proposals being considered for U.S. government procurement in practice could dramatically limit bid protests, in the name of streamlining the procurement process. This drastic change to U.S. procurement practices could violate international agreements under which the United States has agreed to maintain an effective bid protest system, and could raise new risks of corruption in procurement.

Special Procurement Investment Contracts – Russia

Russia’s Srussian-flagpecial Procurement Investment Contracts (SPIC).

From the Public Procurement Institute (Moscow, www.roszakupki.com):

SPIC is an agreement between investor and the Russian Federation and/or region of the Russian Federation under which investor commits to invest certain amount of money in creation, development or modernization of production facilities at the territory of Russia while the government guarantees freezing of tax burden and stability of normative requirements to products for the duration of an investment project and is obliged to apply stimulating measures to the investor, including tax benefits. And procurement idea is that starting from September 1, 2016 SPIC investors are entitled to claim the right to sell up to 30 % of produced merchandise under public procurement procedure on a non-competitive basis.

Background paper:  investment-contract-russia