WORLD TRADE
ORGANIZATIONGPA/23
15 July 1998
(98-2803)
Committee on Government Procurement Original:  English
NOTIFICATON OF NATIONAL IMPLEMENTATING LEGISLATION
Communication from the United States
The following communication has been received from the Permanent Mission of the United
States in accordance with the Committee Decision of 4 June 1996 relating to the procedures for the
Notification of National Implem enting Legislatio n (GPA/1/Add.1).
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SUMMARY OF LEGISLATION
1. Basic Legislation on Government Procurement, and Legislation Giving Effect to the
Agreement
The Uruguay Round Agreements Act (19 U.S. Code §§ 3501 et seq.) approves the trade
agreements resulting from the Uruguay Round of multilateral trade negotiations and provides for
implementation and entry into force of those agreements.  The Act, through amendments to the Trade
Agreements Act of 1979 (19 U.S. Code §§ 2511 et seq.), authorizes the President to implement
United States obligations under the Agreement on Government Procurement.  Pursuant to the Act, the
Agreement on Government Procurement entered into force for the United States on 1 January 1996.
The Federal Acquisition Regulation (FAR) System codifies and publishes uniform policies
and procedures for acquisition by all United States executive agencies (central government entities).
The FAR System consists of the FAR, which is the primary legal document, and agency-specific
acquisition regulations that implement or supplement the FAR.
Copies of the following laws and regulations relating to government procurement have been
submitted:
- The Uruguay Round Agreements Act (19 U.S. Code §§ 3501 et seq.)
- The Trade Agreements Act of 1979, as amended (19 U.S. Code §§ 2511 et seq.)- Federal Acquisition Regulation (48 Code of Federal Regulation parts 1-99)- Armed Services Procurement Act (10 U.S. Code §§ 2301 et seq.)- Federal Property and Administrative Services Act (40 U.S. Code §§ 471 et seq. and
41 U.S. Code §§ 251 et seq.)
- The Office of Federal Procurement Policy Act  (41 U.S. Code §§ 401 et seq.)GPA/23
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These statutes can be located electronically by accessing the Federal Acquisition Virtual
Library of the United States Government's Acquisition Reform Network.  The Internet site for the
Acquisition Reform Network is:  < www.arnet.gov >.
2. Additional Legislation Giving Effect to the Agreement
Each state listed in Annex 2 of the United States schedule for coverage under the GPA has
statutes and regulations applicable to government procurement in that state.
3. Contact Point for Information Regarding Laws, Regulations, Final Judicial Decisions,
Administrative Rulings or other Measures Relevant to the Agreement
Office of WTO and Multilateral Affairs
Office of the United States Trade Representative
600 17th Street, N.W.
Washington, D.C.  20508(202) 395-3063
In addition, interested parties are encouraged to consult the Acquisition Reform Network
(ARNET), a central United States Government electronic website that contains information regarding
United States Government procurement laws, regulations, executive orders, and other relevantinformation, including the Federal Acquisition Regulation and Bid Protest Decisions of the United
States General Accounting Office.  ARNET is located on the Internet at:  < www.arnet.gov >.
CHECKLIST OF ISSUES
I. GENERAL ELEMENTS
1. Has the Agreement been transposed into national law and/or does it apply directly?
Pursuant to the Uruguay Round Agreements Act (Public Law 103-465), the Government
Procurement Agreement (GPA) entered into force for the United States on 1 January 1996.  TheUruguay Round Agreements Act approved the agreements resulting from the Uruguay Round of
multilateral trade negotiations, including the GPA, and implements those agreements in United States
law.  Although no statutory amendments were requ ired to implement the obligations of the GPA,
certain amendments to the Federal Acquisition Regulation were necessary.
2. In the case that entities below the federal or central state level are covered:  are these
categories of entities autonomous from fede ral or central state level government in the
implementation of the Agreement?
The federal laws and regulations cited above in section 1 of the Summary govern
procurement by federal government agencies and generally do not apply to state government
procurements.  Where state governments are expending grant monies from the federal government or
have been allocated monies directly by the federal government, those state governments must complywith certain federal statutory requirements.  Each state has its own laws and regulations pertaining to
government procurement.GPA/23
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3. In the case that Annex 3 entities are covered:  are these categories of entities autonomous in
the implementation of the Agreement or do they apply the legislation provided by the
federal/central or subcentral  level?
The following Annex 3 entities are subject to the federal procurement laws and regulations
cited above in section 1 of the Summary:  the Power Marketing Administrations of the Department of
Energy (except the Bonneville Power Administration );  and the St. Lawrence Seaway Development
Corporation.  Due to the commercial nature of the activities carried out by certain Annex 3 entities,
procurements by the other Annex 3 entities are not subject to the Federal Property and Administrative
Services Act and the Office of Federal Procurement Policy Act.  These entities are instead subject to
specific laws governing each such entity.
In accordance with the Tennessee Valley Authority Act (16 U.S. Code §831h), the Tennessee
Valley Authority's (TVA) procurements are subject to the Tennessee Valley Authority Procurement
Standards and Guidelines, which contain a statement of procurement policy and a body of interpretive
regulations governing TVA procurement.  The Bonneville Power Administration's procurement
operations are conducted under the Bonneville Power Administration Act, 16 U.S. Code §832 et seq.
and 16 U.S. Code §474(d)(20), as well as the Federal Columbia River Transmission System Act,16 U.S. Code §838i(b), and the Pacific Northwest Electric Power Planning and Conservation Act,
16 U.S. Code §839f(a) and 839f(b).  These entities follow procurement procedures that are similar to
those contained in the FAR.
The Port Authority of New York and New Jersey is a municipal corporate entity and
subdivision of the States of New York and New Jersey .  The Port Authority has written instructions in
the form of administrative procedures and memoranda for its purchasing agents.  The New York
Power Authority is required by state law to follow comprehensive guidelines detailing operating
policy and instructions regarding procurement contracts.
All federal government entities in Annex 3 are subject to the Trade Agreements Act of 1979.
4. Which main differences (if any) exist between the implementing laws at the federal or central
level, the subcentral  level and for Annex 3 entities?
With respect to entities at the subcentral level, state government procurements are governed
by laws enacted by the individual states.  These laws establish transparent government procurement
procedures and are aimed at establishing a level playing field for suppliers.  One of the principal
differences that exists between federal government and state government laws is the degree of
centralization of procurement.  The federal government generally conducts procurements on a morecentralized basis than do the states.  States also vary among themselves as to the extent to which their
procurements are decentralized.  In addition, states have different designated publication for
advertising procurement opportunities.
5. To what extent is information technology us ed in the process of government procurement?
Information technology (IT) is used throughout the government procurement process, as in all
other administrative processes.  Information is passed from requirements offices to buying offices and
paying offices via computer.  Solicitations are prepared using computers that link directly to data
bases of standard contract clauses.  Contracts are managed through extensive computer systems.
Wherever possible, the paper process has been supplanted by an IT solution.  The United StatesGovernment has begun to use electronic commerce to streamline, consolidate and eliminate processes
wherever possible through the following initiatives:GPA/23
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Commerce Business Daily on the Internet
With certain exceptions, agencies are required to publish notices of procurement opportunities
in excess of US$25,000 in the Commerce Business Daily (CBD).  The CBD is distributed by
the United States Government Printing Office in paper form, and is also available on the
Internet.  The Internet site, known as CBD net, is the official online listing of government
contracting opportunities published in the CBD.  CBD net provides convenient and universal
user access to these notices through a single point of entry. In addition, CBD net provides
users with three search engines to conduct:  (1) text searches;  (2) field searches;  and
(3) searches by classification code.  Access to CBD net is free.  The site can be accessed at
http://cbdnet.access.gpo.gov/index.html.   The United States Government is working towards
enhancements that, among other things, will permit sellers to download solicitations and
related documents from the Internet for loca l printing and editing and to receive automatic
email notification about procurement opportunities in specific categories of interest.
Conducting Small Dollar Purchases through Electronic Commerce
Each year the Federal government makes approximately 22 million purchases from the
private sector worth about US$200 billion.  Federal government agencies are currently
finding that electronic commerce is especially beneficial in helping them conduct smaller
dollar purchases, in light of the high volume of transactions (often for the same supplies or
services) and the amount of associated transaction processing that can be improved by the
application of current electronic commerce and related technologies.
Among other things, agencies are using purchase cards (credit cards for business) to make
micro-purchases (purchases of US$2,500 or less).  Purchase cards are also used to support
other smaller dollar ordering from "electronic catalogs" to fulfill needs better, faster and more
cheaply.
Improved Integration of Procurement and Payment Procedures
In March 1998, the President's Management Council's Electronic Processes Initiatives
Committee issued a Strategic Plan for Electronic Commerce for Buyers and Sellers.  The Plan
sets forth policy principles for making and successfully managing investments in electronic
commerce and a variety of focused activities to facilitate the use of electronic commerce tostrengthen and integrate buying and paying process in government agencies.  The Strategic
Plan can be accessed at http://policyworks.gov/epic .
The Debt Collection Improvement Act of 1996 requires that all Federal payments be made
electronically by 1999.
Making Procurement Information Available on the Acquisition Reform Net (ARNET)
Many agencies have developed their own "home pages" on the Internet to broadcast
electronically a variety of procurement information such as requests for information, draftrequests for proposals (RFPs), RFPs, and other acquisition information such as advanced
procurement planning and forecast information to industry.  The Office of Federal
Procurement Policy (OFPP) has requested agencies to link their home pages to ARNET, a
central site on the Internet's World Wide Web (http://www.arnet.gov ) which currently
provides procurement officials in the publi c and private sectors with a vast amount of
procurement information, including best practices guides, policy letters, and training courses.GPA/23
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II. SPECIFIC ELEMENTS
6. Identify the specific provisions in your legislation which reflect the national treatment and
non-discrimination commitments of Article III of the Agreement.
The Trade Agreements Act of 1979 (TAA), as amended by the Uruguay Round Agreements
Act, authorizes the President to waive the applicat ion of any discriminatory government procurement
laws for all procurements that are subject to the GPA.  19 U.S. Code § 2511.  Under the authority
granted by the TAA, the President has ordered federal agencies that are covered by the GPA to
comply with GPA obligations.  Executive Order 12260 (1980).  Accordingly, Part 25 of the Federal
Acquisition Regulation specifies that the restrictions of the Buy American Act do not apply to
procurements that are subject to the GPA.  48 CFR 25.402.
7. Article IX:2 of the Agreement foresees that the invitation to participate may take the form of a
notice of proposed procurement.  If your implementing legislation provides for this
opportunity, give details.
Consistent with Article IX:2, Part 5 of the Federal Acquisition Regulation requires that a
notice of proposed procurement be published in the Commerce Business Daily  for each procurement
expected to exceed US$25,000.  48 CFR 5.201.  Certain exceptions apply, including where perishable
subsistence supplies are being purchased or where a situation of unusual and compelling urgency
exists that would result in serious injury to the Government if a notice were published.  All state
governments require publication of an invitation to participate;  most state governments require that
this takes the form of a notice of proposed procurement.
8. Article IX:3 of the Agreement foresees that entities at the subcentral  level as well as Annex 3
entities may use a notice of planned procurement or a notice regarding a qualification system
as an invitation to participate.  If your implem enting legislation provides for this opportunity,
give details.
Some states use a notice of planned procurement or a notice regarding a qualification system
as an invitation to participate under Article IX:3.  These notices are sometimes used in addition  to
notices of proposed procurements, affording suppliers multiple opportunities to learn of procurement
opportunities.
9. In the case of selective tendering procedures:  to what extent are entities allowed to use
permanent lists of suppliers or is there a requirement for lists of suppliers to be selected on a
contract-by-contract basis?
A federal government agency may establish a source list if the head of that agency prepares a
written justification explaining the circumstances necessitating use of such a list.  Potential foreign
suppliers from GPA Parties have the opportunity to be included in source lists.  Entities must
specifically justify and document the need for establishing such lists and all interested suppliers mustbe provided an opportunity to be included in such lists.  Moreover, potential suppliers who are not
included in a list must be allowed to participate in the procurement if those suppliers can make timely
and responsive offers.
Most GPA-covered states require suppliers to be selected on a contract-by-contract basis.
Some GPA-covered states utilize qualified or registered vendor lists.  The existence of such lists isadvertised and additions to the lists are generally encouraged in the interest of broadening the
competitive field.GPA/23
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10. Article XIV of the Agreement allows for negotiation under certain conditions.  Are entities
allowed to proceed to negotiations?  If so, which categories and what are the conditions
imposed?
Negotiation is permitted for federal government entities as set forth in Part 15 of the Federal
Acquisition Regulation.  The regulation contains the specific requirements regarding negotiated
contracts.
Most GPA-covered states allow for negotiations in procuring goods and services under
certain conditions, as set forth in applicable state law.
11. Article XI contains the time-limits for tendering and delivery.  Time-limits shall normally be
“not less than X days”.  Does the domestic le gislation reflect the various minimum time-limits
as set out in the Agreement?  If not, give information on any longer time limits which havebeen established.
The Federal Acquisition Regulation requires that:  (1) a notice of proposed procurement be
published in the Commerce Business Daily  (CBD) at least 15 days prior to issuance of a solicitation
for bids;  and (2) prospective suppliers must be given at least 30 days from the date of issuance of thesolicitation to submit bids or proposals.  Thus, United States law requires that a notice of proposed
procurement be published a minimum of 45 days prior to the deadline for receipt of bids or proposals.
The FAR provides, however, that shorter time-frames may be established for procurements of
commercial items or for procurements valued at or below US$100,000.  For procurements subject to
the GPA, the FAR requires that the time period be not less than 40 days unless the procurement was
previously publicized in the CBD not less than 40 days in advance of the deadline.  In this
circumstance, the time-period may be reduced to not less than 10 days.
State governments have established the necessary solicitation response time limits to conform
with the minimum time-limits set forth in the GPA for GPA-covered procurements, either pursuant to
state laws or through administrative practice.
12. To what extent does the implem enting legislation allow entities, in pursuance of Article XII:1,
to permit tenders to be submitted in several languages (one of which has to be a language of
the WTO)?  To what extent do entities use this flexibility?
The Federal Acquisition Regulation requires that tenders for federal government
procurements subject to the FAR be submitted in English.
III. CHALLENGE PROCEDURES -- ARTICLE XX
13. Paragraph 3 of Article XX requires each Party to provide its challenge procedures in writing
and make them generally available.  Please provide this information.
The United States General Accounting Office is authorized under 31 U.S. Code §3552 to hear
protests.  The GAO has promulgated procedures for the filing of protests; these regulations are foundat Title 4 of the Code of Federal Regulations, Part 21.  In addition, suppliers and potential suppliers
may protest directly to the procuring agency.  In 1995, President Clinton ordered all agencies to
establish alternative dispute resolution procedures for bid protests in Executive Order No. 12979
(60 Fed. Reg. 55171 (1995)).  Thus, all agencies are directed to create systems that allow for
inexpensive, informal, procedurally simple, and expeditious resolution of protests.  Suppliers mayalso take protests to United States federal courts under 28 U.S. Code §1491, although most suppliers
prefer to use the GAO and procuring agency procedures because they are less costly and less
disruptive to the procurement process.GPA/23
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14. To the extent that this information does not fully respond to the following points, please
provide the supplementary information necessary to do so.
(i) The time-limit to launch a complaint contained in the Agreement is "not less than
10 days".  What are the limits in domestic legislation?
The United States General Accounting Office (GAO) requires that all protests other than
those based on solicitation improprieties must be filed no later than ten (10) calendar days after the
protester knew or should have known of the basis of  the protest.  For any competitive procurement for
which debriefings are required, protesters must wait to file their protests until after the debriefing has
been held (yet within five calendar days of the debriefing).  If a protest is filed before the debriefing,GAO will dism iss the protest without prejudice.  Protests based upon alleged improprieties in a
solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals,
must be filed prior to bid opening or the time set for receipt of initial proposals.  In procurements
where proposals are requested, alleged improprieties which do not exist in the initial solicitation but
which are subsequently incorporated into the solicitation must be protested not later than the nextclosing time for receipt of propos als following the incorporation.
The time limits established for launching complaints varies among states covered by the
GPA.  Most have limits of ten (10) calendar days ;  however, some have limits of up to fourteen (14)
calendar days.  Some states have specific rules applicable only to contracts covered by the GPA in
order to comply with GPA obligations.
(ii) What body is responsible for the challenge procedures?  Is this a "court" or an
"impartial and independent review body"?  If the latter:
- How are its members selected?
- Are its decisions subject to judicial review?
- If not, how are the requirements of paragraph 6 of Article XX taken into
account?
The General Accounting Office, an arm of the United States Congress, is vested with the
authority to review protests in accordance with Title 31 of the United States Code, §3552. The GAOhas promulgated procedures for the filing of prot ests and they are found at Title 4 of the Code of
Federal Regulations, Part 21.
Protesters may request GAO to reconsider decisions based upon new facts, unavailable at the
time of the initial protest.  Technically, GAO's recommendations themselves are not reviewable by a
court.  However, protestors may always seek judicial review under the Administrative Procedures Actof actions taken by any United States Government agency, including an agency's implementation of a
GAO decision.
States vary with respect to the nature of bid challenge bodies.  Authority to review protests in
most GPA-covered states is vested either in an in dependent review entity, or with an independent arm
of the procuring agency or the state administrative offices.  Decisions are generally subject to judicialreview, usually through the state court system.GPA/23
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(iii) What is the applicable law by reference to which the challenge body will examine
complaints?
See answer to question (ii).
In general, the applicable body of law by reference to which the challenge body in
GPA-covered states will examine complaints is the relevant state statutes and rules, and the decisions
of the state courts.
(iv) Which rapid interim measures are provided to correct breaches of the Agreement and
to preserve commercial opportunities?
- Do these measures include the possibility to suspend the procurement
process?  On what conditions?
Where a protest is filed with the GAO, the contracting agency may be required to withhold
award and to suspend contract performance.
When the agency has received notice from th e GAO of a protest filed directly with the GAO,
a contract may not be awarded unless authorized by the head of the contracting activity and upon awritten finding that:  (1) urgent and compelling circumstances which significantly affect the interest
of the United States will not permit awaiting the decision of the GAO;  and (2) award is likely to
occur within 30 days of the written finding.
When the agency receives notice of a protest from the GAO within ten days after contract
award or within five days after a debriefing, the contracting officer must immediately suspendperformance or terminate the awarded contract unless the head of the contracting activity decides that:
(1) contract performance will be in the best interests of the United States;  or (2) urgent and
compelling circumstances that significantly affect the interests of the United States will not permit
waiting for the GAO's decision.
Many GPA-covered states allow for the temporary restraint or suspension of the procurement
process (including performance of the contract aw ard) pending resolution of bid protests.  A few
states require an appeal bond to stay a contract award.  In addition, courts can generally issue a stay of
the procurement process.
(v) How do challenge procedures provide for correction of the Agreement?  What types
of compensation for loss or damages suffered can the challenge body order?
If the GAO determines that a solicitation, cancellation of a solicitation, termination of a
contract, proposed award, or award does not comp ly with statute or regulation, it must recommend
that the contracting agency implement an y combination of the following remedies:
- refrain from exercising options under the contract;
- terminate the contract;- recompute the contract;- issue a new solicitation;
- award a contract consistent with statute and regulation;  orGPA/23
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- such other recommendation(s) as GAO determines necessary to promote compliance.
If the GAO determines that a solicitation, proposed award, or award does not comply with
statute or regulation, it may recommend that the contracting agency pay the protester the costs of:
- filing and pursuing the protest, including attorneys’ fees and consultant and expert
witness fees;  and
- bid and proposal preparation costs.Remedies for successful bid challenges in the majority of GPA-covered states include the
cancellation and rebidding of the procurement, alon g with other remedies as provided under relevant
state law.
(vi) Give any available information on the time periods for the stages of the challenge
process, including to obtain interim measures and a final decision.
The GAO will genera lly decide on a protest within 100 days after it is filed.  In protests where
the GAO uses express option procedures (an accelerated schedule as requested by a party to theprotest), the GAO shall issue a decision on a protest within 65 days after it is filed.
(vii) What are the usual costs to conduct a challenge procedure?  Are there possibilities
foreseen to do so free of charge?
There are no charges for filing a protest with the GAO.
The majority of GPA-covered states do not impose a fee to file a challenge to a contract
award.  Each party is generally required to pay its  own administrative and legal fees, if incurred.
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