Public Procurement International

International Trade Agreements and U.S. Procurement Law

Chapter by Christopher R. Yukins & Allen B. Green, in The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.)

Available at: https://ssrn.com/abstract=3443244

Some of the most difficult issues in U.S. procurement law stem from the nation’s several centuries of accumulated protectionist measures, and from a patchwork of trade agreements meant to contain that protectionism. These conflicting measures reflect a push-and-pull in U.S. procurement policy, between those who favor closed procurement markets and those who favor open competition; the compromises reached between the two camps have created a Byzantine set of rules and requirements. At the same time, though, this area of law holds a special promise for the future of procurement, for cross-border agreements currently offer the readiest means of erasing anti-competitive differences between national rules, by bringing many nations to a common standard of international best practice. To make sense of this complex area, this chapter proceeds in three parts. Part II reviews the major pieces of protectionist legislation passed by Congress, focusing first on the Buy American Act of 1933; this discussion also references some of the most important implementing regulations. Part III reviews the most important U.S. trade agreements which have limited the force of that protectionist legislation, including the World Trade Organization’s Agreement on Government Procurement (GPA). Because barriers to procurement can also arise from structural factors — “non-tariff barriers to trade” which, in practice, may protect domestic vendors — this part also explains how the trade agreements mitigate those non-tariff barriers. Finally, Part IV concludes by offering some practical suggestions for those working in this field, and suggests a possible road ahead for cooperation in international procurement markets.

Yukins, Christopher R. and Green, Allen, International Trade Agreements and U.S. Procurement Law (2018). Chapter 9 to The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.); GWU Law School Public Law Research Paper No. 2019-55; GWU Legal Studies Research Paper No. 2019-55. Available at SSRN: https://ssrn.com/abstract=3443244

Professor Piga Urges Italian Support for Small- and Medium-Sized Businesses in Response to Trump Buy American Initiative

In an editorial published in Italian newspaper Il Sole 24 Ore, Professor Gustavo Piga of the University of Rome – Tor Vergata, an activist in Italian politics and and a leader in the international procurement community, responded to an article by Christopher Yukins assessing the Trump administration’s latest Buy American initiative. Professor Piga argued that, though the actual impact of the Trump order might be minimal (as Professor Yukins pointed out), Italian policymakers should emulate U.S. support for small businesses, which the U.S. undertakes through protectionist preferences. Professor Piga closed: “GliStatiUniti lo insegnano chiaramente: non pensando per le piccole, smettiamo di pensare in grande.” (“The United States clearly teaches this: by not thinking of the small, we stop thinking big.”).

Maldives Procurement Training

International procurement training led by the Ministry of Finance, Republic of Maldives (Minister Ibrahim Ameer, pictured below), and coordinated by the U.S. Department of Commerce – Commercial Law Development Program was held in Male, capital of the Maldives, on August 4-5, 2019. Chris Yukins’ slides for the program are included here.

Minister Ibrahim Ameer, with Glenn Penfold, Esq. (South Africa)

Download [7.17 MB]

Download [4.74 MB]

Public Procurement: Global Revolution IX – University of Nottingham – June 17-18, 2019

Our colleagues at the Public Procurement Research Group at the University of Nottingham, led by Professors Sue Arrowsmith and Peter Trepte, will be hosting the ninth of their “Global Revolution” conferences on June 17-18. Academics and practitioners from around the globe (including a team from GWU Law School) will join the program for one of the world’s leading conferences on emerging developments in public procurement law.

Sope Williams-Elegbe & Christopher Yukins: The World Bank’s Procurement Framework Download

Gabriella Racca – Presentation on Joint Cross Border Procurement and Innovation Download

Christopher Yukins – Presentation on Use of Commercial Online Marketplaces in Public Procurement Download

U.S. Justice Department Issues New Corporate Compliance Guidance

On April 30, 2019, the U.S. Department of Justice’s Criminal Division announced revised guidance for assessing corporate compliance systems. The guidance goes to what authorities abroad sometimes call corporate “self-cleaning” — efforts by private firms to identify and remediate improper behavior. (See, for example, Article 57 of European Public Procurement Directive 2014/24/EU.) The new guidance expands on the 2017 guidance (below), and elaborates on the Justice Department’s summary discussion of corporate compliance programs in the Justice Manual § 9-28.800.

As the new guidance suggests, it is generally in accord with prior guidance on corporate compliance systems, such as the guidelines issued by the U.S. Sentencing Commission, the guidance published by the U.S. Justice Department and the U.S. Securities & Exchange Commission (SEC) under the Foreign Corrupt Practices Act (FCPA), and the UK Ministry of Justice guidance implementing the UK Bribery Act, among many similar guidance documents published by governments and international organizations under recent anti-corruption laws. As the FCPA guidance acknowledges, at page 56 and note 309, requirements for corporate compliance systems are highly uniform around the world.

The new guidance is noteworthy, though, for stressing (at pages 9-12) that a firm with an effective compliance system should maintain a strong compliance function, either in-house or through an outsourced vendor. As companies around the world move to implement compliance systems, they should recognize that enforcement authorities will often expect to see a robust compliance function in place, with the autonomy and authority necessary to address emerging risks of corruption and misconduct.

Superseded U.S. Department of Justice Guidance – Feb 2017 – Evaluation of Corporate Compliance Programs Download

4th European Conference on E-Public Procurement – Madrid – 13 May 2019

This is the fourth European conference on e-public procurement organized by the Portuguese Observatory of Technology Foresight (OPET), focusing on the European public procurement directives and their implementation in the European member states through e-procurement. The conference scientific committee is headed by Professor Luis Valaderes Tavares, and the conference program is here.

Professor Yukins’ Presentation – Proposal for Use of Electronic Portals in U.S. Government Procurement Download

King’s College, London Postgraduate Diploma: Public Procurement Regulation in the EU and in its Global Context

On March 5, 2019 Christopher Yukins joined a videoconference for King’s College, London’s online diploma course on EU and global procurement law. His slides are below. On April 24, 2020, he joined them for a supplemental class by Zoom videoconference (linked below).

KCL Diploma – Chris Yukins – Slides – 5 March 2019 Download

Class Video – Supplemental Class – April 24, 2020

New Perspectives on International Trade in Procurement — 20 March 2019 — 6 to 7 pm — GWU Law School

A conversation with

Zornitsa Kutlina-Dimitrova

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.

Zornitsa Kutlina-Dimitrova Presentation 20 March 2019 Download

Wednesday, March 20, 2019, 6-7 pm

GWU Law Learning Center Room LLC006

Entrance: 2028 G Street NW (next to Tonic Restaurant)

Info: ccrawford@law.gwu.edu, tel. 202 994 8689

Nearest Metro stations: Foggy Bottom and Farragut West

Light refreshments will be served

U.S. – EU Environmental Colloquium – Rome – 30 May 2019

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.

Photo - conference organizers — **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. Giglio**ni (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

U.S. – E. U. Environmental Law Colloquium (4)Download

Chris Yukins-Sustainability in the United States – Rome-30-May-2019 Download

Colette Langos Speaks on Australian Bid Challenge Developments

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.

LANGOS Developments in Federal Procurement – Australian complaints mechanism Download