§ 2511. — General authority to modify discriminatory purchasing requirements.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 19USC2511]
TITLE 19--CUSTOMS DUTIES
CHAPTER 13--TRADE AGREEMENTS ACT OF 1979
SUBCHAPTER I--GOVERNMENT PROCUREMENT
Sec. 2511. General authority to modify discriminatory purchasing
requirements
(a) Presidential waiver of discriminatory purchasing requirements
Subject to subsection (f) of this section, the President may waive,
in whole or in part, with respect to eligible products of any foreign
country or instrumentality designated under subsection (b) of this
section, and suppliers of such products, the application of any law,
regulation, procedure, or practice regarding Government procurement that
would, if applied to such products and suppliers, result in treatment
less favorable than that accorded--
(1) to United States products and suppliers of such products; or
(2) to eligible products of another foreign country or
instrumentality which is a party to the Agreement and suppliers of
such products.
(b) Designation of eligible countries and instrumentalities
The President may designate a foreign country or instrumentality for
purposes of subsection (a) of this section only if he determines that
such country or instrumentality--
(1) is a country or instrumentality which (A) has become a party
to the Agreement or the North American Free Trade Agreement, and (B)
will provide appropriate reciprocal competitive government
procurement opportunities to United States products and suppliers of
such products;
(2) is a country or instrumentality, other than a major
industrial country, which (A) will otherwise assume the obligations
of the Agreement, and (B) will provide such opportunities to such
products and suppliers;
(3) is a country or instrumentality, other than a major
industrial country, which will provide such opportunities to such
products and suppliers; or
(4) is a least developed country.
(c) Modification or withdrawal of waivers and designations
The President may modify or withdraw any waiver granted pursuant to
subsection (a) of this section or designation made pursuant to
subsection (b) of this section.
(d) Omitted
(e) Procurement procedures by certain Federal agencies
Notwithstanding any other provision of law, the President may direct
any agency of the United States listed in Annex 1001.1a-2 of the North
American Free Trade Agreement to procure eligible products in compliance
with the procedural provisions of chapter 10 of such Agreement.
(f) Small business and minority preferences
The authority of the President under subsection (a) of this section
to waive any law, regulation, procedure, or practice regarding
Government procurement does not authorize the waiver of any small
business or minority preference.
(Pub. L. 96-39, title III, Sec. 301, July 26, 1979, 93 Stat. 236; Pub.
L. 100-418, title VII, Sec. 7005(e), Aug. 23, 1988, 102 Stat. 1553; Pub.
L. 103-182, title III, Sec. 381(a), Dec. 8, 1993, 107 Stat. 2128.)
Amendments
1993--Subsec. (a). Pub. L. 103-182, Sec. 381(a)(1), substituted
``Subject to subsection (f) of this section, the President'' for ``The
President''.
Subsec. (b)(1). Pub. L. 103-182, Sec. 381(a)(2), inserted ``or the
North American Free Trade Agreement'' after ``the Agreement''.
Subsecs. (e), (f). Pub. L. 103-182, Sec. 381(a)(3), added subsecs.
(e) and (f).
1988--Subsec. (d). Pub. L. 100-418, Secs. 7004, 7005(e), temporarily
added subsec. (d) which read as follows: ``The authority of the
President under subsection (a) of this section to waive any laws,
regulation, procedure, or practice shall be effective notwithstanding
any other provision of law hereafter enacted (excluding the provisions
of and amendments made by the Buy American Act of 1988) unless such
other provision specifically refers to and amends this section.'' See
Termination Date of 1988 Amendment note below.
Effective Date of 1993 Amendment
Section 381(e) of title III of Pub. L. 103-182 provided that: ``The
provisions of this subtitle [subtitle G (Sec. 381) of title III of Pub.
L. 103-182, amending this section, sections 2512 and 2518 of this title,
and provisions set out as a note under section 903 of Title 7,
Agriculture] take effect on the date the Agreement [North American Free
Trade Agreement] enters into force with respect to the United States
[Jan. 1, 1994].''
Termination Date of 1988 Amendment
Amendment by Pub. L. 100-418 to cease to be effective on Apr. 30,
1996, unless Congress, after reviewing report required by former section
2515(k) of this title, extends such date, see section 7004 of Pub. L.
100-418, set out as an Effective and Termination Dates of 1988
Amendments note under section 10a of Title 41, Public Contracts.
Effective Date
Section 309 of title III of Pub. L. 96-39 provided that: ``The
provisions of this title [this subchapter] shall be effective on the
date of enactment of this Act [July 26, 1979], except that--
``(1) the authority of the President to grant waivers under
section 303 [section 2513 of this title] shall be effective on
January 1, 1980; and
``(2) the authority of the President to grant waivers under
section 301 [this section] shall be effective on January 1, 1981.''
Delegation of Functions
Functions of President under this section delegated to United States
Trade Representative, see section 1-201 of Ex. Ord. No. 12260, set out
as a note below.
Ex. Ord. No. 12260. Agreement on Government Procurement
Ex. Ord. No. 12260, Dec. 31, 1980, 46 F.R. 1653, as amended by Ex.
Ord. No. 12347, Feb. 23, 1982, 47 F.R. 8149; Ex. Ord. No. 12388, Oct.
14, 1982, 47 F.R. 46245; Ex. Ord. No. 12474, Apr. 17, 1984, 49 F.R.
15539; Ex. Ord. No. 13118, Sec. 10(7), Mar. 31, 1999, 64 F.R. 16598; Ex.
Ord. No. 13284, Sec. 12, Jan. 23, 2003, 68 F.R. 4076, provided:
By the authority vested in me as President by the Constitution and
statutes of the United States of America, including Title III of the
Trade Agreements Act of 1979 (19 U.S.C. 2511-2518), and Section 301 of
Title 3 of the United States Code, and in order to implement the
Agreement on Government Procurement, as defined in 19 U.S.C. 2518(1), it
is hereby ordered as follows:
1-1. Responsibilities
1-101. The obligations of the Agreement on Government Procurement
(Agreement on Government Procurement, General Agreement on Tariffs and
Trade, 12 April 1979, Geneva (GATT 1979)) apply to any procurement of
eligible products by the Executive agencies listed in the Annex to this
Order (eligible products are defined in Section 308 of the Trade
Agreements Act of 1979; 19 U.S.C. 2518(4)). Such procurement shall be in
accord with the policies and procedures of the Office of Federal
Procurement Policy (41 U.S.C. 401 et seq.).
1-102. The United States Trade Representative, hereinafter referred
to as the Trade Representative, shall be responsible for interpretation
of the Agreement. The Trade Representative shall seek the advice of the
interagency organization established under Section 242(a) of the Trade
Expansion Act of 1962 (19 U.S.C. 1872(a)) and consult with affected
Executive agencies, including the Office of Federal Procurement Policy.
1-103. The interpretation of Article VIII:1 of the Agreement shall
be subject to the concurrence of the Secretary of Defense
1-104. The Trade Representative shall determine, from time to time,
the dollar equivalent of 150,000 Special Drawing Right units and shall
publish that determination in the Federal Register. Procurement of less
than 150,000 Special Drawing Right units is not subject to the Agreement
or this Order (Article I:1(b) of the Agreement).
1-105. In order to ensure coordination of international trade policy
with regard to the implementation of the Agreement, agencies shall
consult in advance with the Trade Representative about negotiations with
foreign governments or instrumentalities which concern government
procurement.
1-2. Delegations and Authorization
1-201. The functions vested in the President by Sections 301, 302,
304, 305(c) and 306 of the Trade Agreements Act of 1979 (19 U.S.C. 2511,
2512, 2514, 2515(c) and 2516) are delegated to the Trade Representative.
1-202. Notwithstanding the delegation in Section 1-201, the
Secretary of Defense is authorized, in accord with Section 302(b)(3) of
the Trade Agreements Act of 1979 (19 U.S.C. 2512(b)(3)), to waive the
prohibitions specified therein.
Annex
1. ACTION
2. Administrative Conference of the United States
3. American Battle Monuments Commission
4. Board for International Broadcasting
5. Civil Aeronautics Board
6. Commission on Civil Rights
7. Commodity Futures Trading Commission
8. Consumer Product Safety Commission
9. Department of Agriculture (The Agreement on Government
Procurement does not apply to procurement of agricultural products made
in furtherance of agricultural support programs or human feeding
programs)
10. Department of Commerce
11. Department of Defense (Excludes Corps of Engineers)
12. Department of Education
13. Department of Health and Human Services
14. Department of Homeland Security
15. Department of Housing and Urban Development
16. Department of the Interior (Excludes the Bureau of Reclamation)
17. Department of Justice
18. Department of Labor
19. Department of State
20. Department of the Treasury
21. Environmental Protection Agency
22. Equal Employment Opportunity Commission
23. Executive Office of the President
24. Export-Import Bank of the United States
25. Farm Credit Administration
26. Federal Communications Commission
27. Federal Deposit Insurance Corporation
28. Federal Home Loan Bank Board
29. Federal Maritime Commission
30. Federal Mediation and Conciliation Service
31. Federal Trade Commission
32. General Services Administration (Purchases by the Tools
Commodity Center, and the Region 9 Office in San Francisco, California
are not included)
33. Interstate Commerce Commission
34. Merit Systems Protection Board
35. National Aeronautics and Space Administration
36. National Credit Union Administration
37. National Labor Relations Board
38. National Mediation Board
39. National Science Foundation
40. National Transportation Safety Board
41. Nuclear Regulatory Commission
42. Office of Personnel Management
43. Overseas Private Investment Corporation
44. Panama Canal Commission
45. Railroad Retirement Board
46. Securities and Exchange Commission
47. Selective Service System
48. Smithsonian Institution
49. United States Arms Control and Disarmament Agency
50. United States Information Agency
51. United States Agency for International Development
52. United States International Trade Commission
53. Veterans Administration
54. Maritime Administration of the Department of Transportation
55. The Peace Corps
[For abolition, transfer of functions, and treatment of references
to United States Arms Control and Disarmament Agency, see section 6511
et seq. of Title 22, Foreign Relations and Intercourse.]
[For abolition of United States Information Agency (other than
Broadcasting Board of Governors and International Broadcasting Bureau),
transfer of functions, and treatment of references thereto, see sections
6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.]
Ex. Ord. No. 12849. Implementation of Agreement With European Community
on Government Procurement
Ex. Ord. No. 12849, May 25, 1993, 58 F.R. 30931, provided:
WHEREAS, the United States and the European Community (EC) have
entered into a Memorandum of Understanding on Government Procurement
(Agreement) that provides appropriate reciprocal competitive government
procurement opportunities;
WHEREAS, the commitments made in the Agreement are intended to
become part of an expanded General Agreement on Tariffs and Trade
Agreement on Government Procurement (GATT Code) and are an important
step toward an expanded GATT Code;
WHEREAS, as a result of these commitments, U.S. businesses will
obtain increased access to EC member state procurement for U.S. goods
and services;
WHEREAS, I have determined that it is inconsistent with the public
interest to apply the restrictions of the Buy American Act, as amended
(41 U.S.C. 10a-10d) [41 U.S.C. 10a, 10b, 10c], to procurement covered by
the Agreement;
NOW, THEREFORE, by virtue of the authority vested in me as President
by the Constitution and the laws of the United States of America,
including section 301 of title 3, United States Code, and title III of
the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-2518), and
in order to implement the Agreement, it is hereby ordered as follows:
Section 1. In applying the provisions of the Buy American Act, the
heads of the agencies listed in Annex 1, Parts A and B, of this order
are requested, as of the date of this order, to apply no price
differential between articles, materials, or supplies of U.S. origin and
those originating in the member states of the EC.
Sec. 2. For purposes of this order, the rule of origin specified in
section 308 of the Trade Agreements Act of 1979, as amended (19 U.S.C.
2518), shall apply in determining whether goods originate in the member
states of the EC.
Sec. 3. This order shall apply only to solicitations, issued by
agencies listed in Annex 1, Parts A and B, of this order, above the
threshold amounts set forth in Annex 2.
Sec. 4. This order shall apply to solicitations outstanding on the
date of this order, except for those for which the initial deadline for
receipt of bids or proposals has passed, and to all solicitations issued
after the date of this order.
Sec. 5. Except for procurements by the Department of Defense, the
United States Trade Representative (USTR) shall be responsible for
interpretation of the Agreement. The USTR shall seek the advice of the
interagency organization established under section 242(a) of the Trade
Expansion Act of 1962 (19 U.S.C. 1872(a)) and consult with affected
agencies, including the Office of Federal Procurement Policy.
Sec. 6. This Executive order is effective immediately. Although
regulatory implementation of this order must await revisions to the
Federal Acquisition Regulation (FAR), it is expected that agencies
listed in Annex 1, Parts A and B, of this order will take all
appropriate actions in the interim to implement those aspects of the
order that are not dependent upon regulatory revision.
Sec. 7. Pursuant to section 25 of the Office of Federal Procurement
Policy Act, as amended (41 U.S.C. 421(a)), the Federal Acquisition
Regulatory Council shall ensure that the policies established herein are
incorporated in the FAR within 30 days from the date this order is
issued.
William J. Clinton.
Annex 1A
Department of Agriculture
Department of Commerce
Department of Defense
Department of Education
Department of Energy (Not including national security procurement
made in support of safeguarding nuclear materials or technology and
entered into under the authority of the Atomic Energy Act [42 U.S.C.
2011 et seq.]; and oil purchases related to the Strategic Petroleum
Reserve)
Department of Health and Human Services
Department of Housing and Urban Development
Department of the Interior
Department of Justice
Department of Labor
Department of State
Department of Transportation (The national security consideration
currently applicable to the Department of Defense under the GATT
Government Procurement Code is equally applicable under this Agreement
to the Coast Guard)
Department of the Treasury
United States Agency for International Development
General Services Administration (other than Federal Supply Groups 51
and 52 and Federal Supply Class 7340)
National Aeronautics and Space Administration
Department of Veterans Affairs
Environmental Protection Agency
United States Information Agency
National Science Foundation
Panama Canal Commission
Executive Office of the President
Farm Credit Administration
National Credit Union Administration
Merit Systems Protection Board
ACTION Agency
United States Arms Control and Disarmament Agency
Office of Thrift Supervision
Federal Housing Finance Board
National Labor Relations Board
National Mediation Board
Railroad Retirement Board
American Battle Monuments Commission
Federal Communications Commission
Federal Trade Commission
Interstate Commerce Commission
Securities and Exchange Commission
Office of Personnel Management
United States International Trade Commission
Export-Import Bank of the United States
Federal Mediation and Conciliation Service
Selective Service System
Smithsonian Institution
Federal Deposit Insurance Corporation
Consumer Product Safety Commission
Equal Employment Opportunity Commission
Federal Maritime Commission
National Transportation Safety Board
Nuclear Regulatory Commission
Overseas Private Investment Corporation
Administrative Conference of the United States
Board for International Broadcasting
Commission on Civil Rights
Commodity Futures Trading Commission
The Peace Corps
National Archives and Records Administration
Annex 1B
The Power Marketing Administrations of the Department of Energy
Tennessee Valley Authority
Annex 2
Thresholds Applicable to Agencies listed in Annex 1A
Goods contracts--130,000 SDRs (currently $176,000)
Construction contracts--$6,500,000
Thresholds Applicable to Agencies listed in Annex 1B
Goods contracts--$450,000
Construction contracts--$6,500,000
[For abolition of United States Information Agency (other than
Broadcasting Board of Governors and International Broadcasting Bureau),
transfer of functions, and treatment of references thereto, see sections
6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.]
[For abolition, transfer of functions, and treatment of references
to United States Arms Control and Disarmament Agency, see section 6511
et seq. of Title 22, Foreign Relations and Intercourse.]
Section Referred to in Other Sections
This section is referred to in sections 2512, 2514, 2515 of this
title.
