WORLD TRADE  
ORGANIZATION  GPA/W/303 
24 March 2009 
 
 (09-1447) 
Committee on Government Procurement Original:   English 
  
 
QUESTIONS FOR THE UNITED STATES REGARDING THE BUY AMERICA(N) 
PROVISIONS IN THE US ECONOMIC STIMULUS PACKAGE 
 
Communication from the European Communities
 
 
 
 The following communication, dated 23 March 2009, is being circulated at the request of the Delegation of the European Communities.  
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  Further to the initial discussion held at th e Committee on Government Procurement meeting 
of 25 February 2009, the EC would like to seek the following clarifications from the United States on the issues listed below.  The EC would appreciate re ceiving the answers in writing, so that the follow 
up on these issues could be taken up at the next Committee on Government Procurement meeting, 
scheduled for the week of 11 May 2009. 
 
I. LEGAL FRAMEWORK 
1. General application 
1. How would the US ensure ARRA funding is used in a manner consistent with US obligations 
under international agreements? 
2. The US stated that the rights of the trading partners, Parties to the GPA, will not be affected 
by the ARRA and that the US administration does not need to take any further action to comply with 
the US international obligations.  Can the US reason what is the legal background for this opinion?  In 
any event, does the US intend to confirm this to the GPA Parties in an official manner? 
3. What is the legal regime applicable, both in terms of procedure and eligibility of foreign 
suppliers, for procurement funded from  federal funds, which is effectuated by the States and/or cities?  
Will the ARRA-funded procurement follow a different regime?  In the affirmative, please outline the 
main features of this new regime and indicate, where it is stipulated in the ARRA. 
4. What rules (procedural and for eligibility of foreign suppliers) have been applied/will be 
applied for cases of joint federal and sub-federal procurement? 
5. General Note No. 2 of the current US GPA commitments exempts a large number of 
government assistance instruments from the GPA.  W ill this exception be applicable also for the 
ARRA-funded procurement?  What would be the legal reasoning?  In particular, could the US provide 
the definition(s) and the differences between a gran t and a procurement? In particular, what legal 
regime would apply for a situation when a government  funding is provided to a sub-central entity with 
the requirement to accomplish a sp ecific task (example:  funding fo r major infrastructure projects, 
motorways, etc.)? GPA/W/303 
Page 2  
 
  6. The ARRA refers to the following notions:  "manufactured goods", "produced in the United 
States", "public building", "public work".  Does the US administration intend to provide definitions of 
these notions?  Will these definitions differ from those already provided for under the previously existing Buy America and Buy American legislation?   If so, what will be the relevant definitions? 
7. Can the US explain what will be the impact of the ARRA legislation on procurement, which 
is currently exempted from the US GPA commitments ?  For example, the exception for construction 
grades steel and the mass transit and highway projects? 
8. The EC and the US concluded an Agreement in  the form of an exchange of letters on 
government procurement (on 30 May 1995), by whic h the US granted no less favourable treatment 
than for out-of-state suppliers and for out-of-city su ppliers for a number of States and cities.  Could 
the US confirm that these commitments will remain  unaffected by the provisions of the ARRA Act 
and how will this be achieved? 
9. General Note No. 4 of the current US GPA co mmitments states that the Agreement would not 
apply for contracts, even though their elements ar e covered by the US commitments and the contracts 
are to be awarded by a covered entity.  Could th e US explain how this note will be deployed in 
conjunction with the ARRA Act? 
10. Does the US administration intend to fulfil the obligation foreseen under the Article XIX:1 of 
the GPA, in respect to notifications of implementing legislation? 
2. Exceptions 
11. What will be the process of issuing waivers/ex ceptions?  Who shall request a waiver?  Will 
the US administration issue new implementing rules describing the application process for waiver 
requests or will the implementing rules refer to th e previously established regime under Buy America 
and Buy American legislations? 
12. Will there be a possibility to obtain a wa iver for "category of cases" also for the 
ARRA-funded procurement?  If yes, could the US ou tline the main features of the procedure?  Will 
any consideration be given to the existing Buy Am erica and Buy American waivers or new waivers 
for ARRA-funded procurement would have to be issued? 
13. Will there be clear monitoring of  the waivers issued/denied? 
14. Does the OMB intend to issue guidelines to determ ine what is "inconsistent with the public 
interest"?  Could the notion of public interest vary  by the States?  Can a local aspect be included in 
this notion (local public interest)? 
15. Does the OMB intend to issue guidelines to determ ine "domestic non-availability, insufficient 
quality of domestic supply"?  If not, who will asses th ese issues and what will be the legal basis for 
this assessment.  In particular, what  shall be the territorial scope of the "non-availability" – the entire 
US territory?  Once issued, will su ch a waiver be applicable througho ut the US territory for a period 
of time?  Or will the "non-availability" have to be established for each procurement in question? 
II. IMPLEMENTATION AND MONITORING 
16. Will the OMB or the USTR prepare an analysis  of the ARRA funding in relation to the GPA 
obligations applicable for specific funding/projects?  GPA/W/303 
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  17. Which agencies will be involved in the impl ementation process?  Will OMB be the sole 
agency issuing implementing guidelines, applicable to all US contracting entities or will there be additional "implementing rules" issued by other agencies?  If so, which ones? 
18. What is the timeline for the implementing rul es and for the release of ARRA funding?  Is 
there any opportunity for public comments prior to  release of any guidance or implementing rules? 
19. Will there be any guidelines provided to the US contracting authorities (both central and 
sub-central) which will provide and explain to them their GPA obligations, to ensure consistency with 
the US GPA commitments while tendering with ARRA funding? 
20. Does the US intend to inform, about the a llocation of the ARRA funding, to various 
beneficiaries?  If yes, will this overview contai n details per project, including information on the 
procurement procedure and perhaps information about the awards? 
21. Does the US administration intend to monitor the correct application of the already previously 
existing Buy America and Buy American provisions? 
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