EN Official Journal of the European Communities L 134/26

AGREEMENT

in the form of an exchange of letters between the European Community and the United States of America on government procurement

His Excellency Sir Leon Brittan,

Commissioner,

Commission of the European Communities,

200 Rue de la Loi/Wetstraat,

1049 Brussels.

Washington, 30 May 1995

Dear Mr Commissioner,

With reference to the discussion held between representatives of the Government of the United States of America (hereinafter the US) and the European Community (hereinafter the EC) regarding government procurement, I have the honour to confirm the following:

1. The US and the EC agree to amend their respective Appendix I of the Government Procurement Agreement signed at Marrakesh on 15 April 1994, as set out in the attachments to this letter.

2. The US shall grant to EC suppliers of goods and services, including construction services, treatment no less favourable than for out-of-state suppliers for the Massachusetts Port Authority and for the states of West Virginia, North Dakota and as regards Illinois for procurement not covered by the Government Procurement Agreement, and for out-of-city suppliers for the cities of Boston, Chicago, Dallas, Detroit, Indianapolis, Nashville and San Antonio.

3. The US and EC agree to cooperate and take all necessary steps to improve substantially the transparency of the notices of intended procurement in order to ensure that contracts covered under the Government Procurement Agreement can be clearly identified as such.

4. The US and EC agree that the Memorandum of Understanding between the US and the EC on Government Procurement of 25 May 1993 will be extended until the date of entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

5. The US agrees that it will implement its obligations with respect to the Rural Electrification Administration contained in Annex 3 of its Appendix I attached hereto as soon as possible after entry into force of this Agreement, but no later than entry into force of the Agreement establishing the World Trade Organization.

I shall be grateful, Mr Commissioner, if you could kindly confirm that this letter and its attachments correctly set out the understanding reached between us.

I propose that, if the EC so agrees, this letter and its attachments and your reply to that effect constitute an agreement between the EC and the Government of the US, which will enter into force on the date hereof, with the exception of point 2 above, which will be effective upon entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

Please accept, Mr Commissioner, the assurance of my highest consideration.

Sincerely, Michael KANTOR Attachments: Amended Annexes 2 and 3 General Notes of Appendix I of the United States. Amended general notes and derogations from the provisions of Article III O Appendix I of the EC.

Ambassador Michael Kantor,

United States Trade Representative,

Executive Office of the President,

WASHINGTON DC 20506 (United States of America).

Brussels, 30 May 1995

Dear Mr Ambassador,

I have the honour to acknowledge receipt of your letter of today's date, which reads as follows:

‘With reference to the discussions held between representatives of the Government of the United States of America (hereinafter the US) and the European Community (hereinafter the EC) regarding government procurement, I have the honour to confirm the following:

1. The US and the EC agree to amend their respective Appendix I of the Government Procurement Agreement signed at Marrakesh on 15 April 1994, as set out in the attachments to this letter.

2. The US shall grant to EC suppliers of goods and services, including construction services, treatment no less favourable than for out-of-State suppliers for the Massachusetts Port Authority and for the States of West Virginia, North Dakota and as regards Illinois for procurement not covered by the Government Procurement Agreement, and for out-of-city suppliers for the cities of Boston, Chicago, Dallas, Detroit, Indianapolis, Nashville and San Antonio.

3. The US and the EC agree to cooperate and take all necessary steps to improve substantially the transparency of the notices of intended procurement in order to ensure that contracts covered under the Government Procurement Agreement can be clearly identified as such.

4. The US and the EC agree that the Memorandum of Understanding between the US and the EC on Government Procurement of 25 May 1993 will be extended until the date of entry into force of the Government Procurement Agreement signed at Marrakesh on 15 April 1994.

5. The US agrees that it will implement its obligations with respect to the Rural Electrification Administration contained in Annex 3 of its Appendix I attached hereto as soon as possible after entry into force of this Agreement, but no later than entry into force of the Agreement establishing the World Trade Organization.

I shall be grateful, Mr Commissioner, if you could kindly confirm that this letter and its attachments correctly set out the understanding reached between us.

I propose that, if the EC so agrees, this letter and its attachments and your reply to that effect constitute an agreement between the EC and the Government of the US, which will enter into force on the date hereof, with the exception of point 2 above, which will be effective upon entry into force of the Government Procurement Agreement signed at Marakesh on 15 April 1994.

Please accept, Mr Commissioner, the assurance of my highest consideration.

Sincerely,

Michael KANTOR

Attachments: Amended Annexes 2 and 3 and General Notes of Appendix I of the United States.

Amended general notes and derogations from the provisions of Article III of Appendix I of the EC.’

I have the honour to confirm that the EC agrees to the common understanding set out in your letter and its attachments and that your letter, this reply and the attachments shall constitute an agreement between the EC and the Government of the US.

Please accept, Mr Ambassador, the assurance of my highest consideration.

Sincerely,

Leon BRITTAN

AMENDED ANNEXES 2 AND 3 AND GENERAL NOTES OF APPENDIX I OF THE UNITED STATES ANNEX 2 SUB-CENTRAL GOVERNMENT ENTITIES WHICH PROCURE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT Threshold:355 000 SDRs for supplies and services 5 million SDRs for construction LIST OF ENTITIES Arizona Executive branch agencies Arkansas Executive branch agencies, including universities but excluding the Office of Fish and Game and construction services California Executive branch agencies Colorado Executive branch agencies Connecticut Department of Administrative Services Connecticut Department of Transportation Connecticut Department of Public Works Constituent Units of Higher Education Delaware (*) Administrative Services (Central Procurement Agency) State Universities State Colleges Florida (*) Executive branch agencies Hawaii Department of Accounting and General Services (with the exception of procurements of software developed in the state and construction) Idaho Central Procurement Agency (including all colleges and universities subject to central purchasing oversight) Illinois (*) Department of Central Management Services Iowa (*) Department of General Services Department of Transportation Board of Regents' Institutions (universities) Kansas Executive branch agencies, excluding construction services, automobiles and aircraft Kentucky Division of Purchases, Finance and Administration Cabinet, excluding construction projects Louisiana Executive branch agencies Maine (*) Department of Administrative and Financial Services Bureau of General Services (covering State government agencies and school construction) Maine Department of Transportation Maryland (*) Office of the Treasury Department of the Environment Department of General Services Department of Housing and Community Development Department of Human Resources Department of Licensing and Regulation Department of Natural Resources Department of Public Safety and Correctional Services Department of Personnel Department of Transportation Massachusetts Executive Office for Administration and Finance Executive Office of Communities and Development Executive Office of Consumer Affairs Executive Office of Economic Affairs Executive Office of Education Executive Office of Elder Affairs Executive Office of Environmental Affairs Executive Office of Health and Human Service Executive Office of Labor Executive Office of Public Safety Executive Office of Transportation and Construction Michigan (*) Department of Management and Budget Minnesota Executive branch agencies Mississippi Department of Finance and Administration (does not include services) Missouri Office of Administration Division of Purchasing and Materials Management Montana Executive branch agencies (only for services and construction) New York (*) State agencies State university system Public authorities and public benefit corporations, with the exception of those entities with multi-state mandates In addition to the exceptions noted at the end of this Annex, transit cars, buses and related equipment are not covered Nebraska Central Procurement Agency New Hampshire (*) Central Procurement Agency Oklahoma (*) Office of Public Affairs and all State agencies and departments subject to the Oklahoma Central Purchasing Act, excluding construction services Oregon Department of Administrative Services Pennsylvania (*) Executive branch agencies, including: Governor's Office Department of the Auditor General Treasury Department Department of Agriculture Department of Banking Pennsylvania Securities Commission Department of Health Department of Transportation Insurance Department Department of Aging Department of Correction Department of Labor and Industry Department of Military Affairs Office of Attorney General Department of General Services Department of Education Public Utility Commission Department of Revenue Department of State Pennsylvania State Police Department of Public Welfare Fish Commission Game Commission Department of Commerce Board of Probation and Parole Liquor Control Board Milk Marketing Board Lieutenant Governor's Office Department of Community Affairs Pennsylvania Historical and Museum Commission Pennsylvania Emergency Management Agency State Civil Service Commission Pennsylvania Public Television Network Department of Environmental Resources State Tax Equalization Board Department of Public Welfare State Employees' Retirement System Pennsylvania Municipal Retirement Board Public School Employees' Retirement System Pennsylvania Crime Commission Executive Offices Rhode Island Executive branch agencies, excluding boats, automobiles, buses and related equipment South Dakota Central Procuring Agency (including universities and penal institutions) In addition to the exceptions noted at the end of this Annex, procurements of beef are not covered Tennessee Executive branch agencies (excluding services and construction) Texas General Services Commission Utah Executive branch agencies Vermont Executive branch agencies Washington Washington State executive branch agencies, including: General Administration Department of Transportation State Universities In addition to the exceptions noted at the end of this Annex, procurements of fuel, paper products, boats, ships and vessels are not covered Wisconsin Executive branch agencies, including: Department of Administration State Correctional Institutions Department of Development Educational Communications Board Department of Employment Relations State Historical Society Department of Health and Social Services Insurance Commissioner Department of Justice Lottery Board Department of Natural Resources Administration for Public Instruction Racing Board Department of Revenue State Fair Park Board Department of Transportation State University System Wyoming (*) Procurement Services Division Wyoming Department of Transportation University of Wyoming Notes to Annex 2 In addition to the conditions specified in the General Notes, the following conditions apply: 1. For those States marked by an asterisk with pre-existing restrictions, the Agreement does not apply to procurement of construction-grade steel (including requirements on subcontracts), motor vehicles and coal. 2. The Agreement shall not apply to preferences or restrictions associated with programs promoting the development of distressed areas and businesses owned by minorities, disabled veterans and women are reserved from coverage. 3. Nothing in this Annex shall be construed to prevent any State entity from applying restrictions that promote the general environmental quality in that State, as long as such restrictions are not disguised barriers to international trade. 4. The Agreement shall not apply to any procurement made by a covered entity on behalf of non-covered entities at a different level of government. 5. The Agreement shall not apply to restrictions attached to Federal funds for mass transit and highway projects. ANNEX 3 ALL OTHER ENTITIES WHICH PROCURE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT Threshold:400 000 SDRs for supplies and services (except as specified below) 5 million SDRs for construction LIST OF ENTITIES The following entities at the SDR equivalent of $ 250 000 for supplies and services: Tennessee Valley Authority Power Marketing Administrations of the Department of Energy — Bonneville Power Administration — Western Area Power Administration — Southeastern Power Administration — Southwestern Power Administration — Alaska Power Administration St Lawrence Seaway Development Corporation The following entities at 400 000 SDRs for supplies and services : The Port Authority of New York and New Jersey with the following exceptions: — maintenance, repair and operating materials and supplies (e.g. hardware, tools, lamps/lighting, plumbing); — in exceptional cases, individual procurements may require certain regional production of goods if authorized by the Board of Directors; — procurements pursuant to multi-jurisdictional agreement (i.e. for contracts which have initially been awarded by other jurisdictions). The Port of Baltimore (subject to the conditions specified for the state of Maryland in Annex 2) The New York Power Authority (subject to the conditions specified for the state of New York in Annex 2) Rural Electrification Administration Financing: 1. waiver of Buy American restrictions on financing for all power generation projects (restrictions or. financing for telecommunication projects are excluded from the Agreement); 2. application of Code-equivalent procurement procedures and national treatment to funded projects exceeding the thresholds specified above. Notes to Annex 3 1. With respect to these entities, the Agreement shall not apply to restrictions attached to Federal funds for airport projects. 2. The conditions specified in the General Notes apply to this Annex. General Notes 1. Notwithstanding the above, this Agreement will not apply to set asides on behalf of small and minority businesses. 2. Except as specified otherwise in this Appendix, procurement in terms of US coverage does not include non-contractual agreements or any form of government assistance, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, and governmental provision of goods and services to persons or governmental authorities not specifically covered under US Annexes to this Agreement. 3. Procurement does not include the acquisition of fiscal agency or depositary services, liquidation and management services for regulated financial institutions and sale and distribution services for government debt. 4. Where a contract to be awarded by an entity is not covered by this Agreement, this Agreement shall not be construed to cover any good or service component of that contract. 5. For goods and services (including construction) of the following countries and suppliers of such goods and services, this Agreement does not apply to procurement by the entities listed in Annexes 2 and 3 or the waiver described in Annex 3: Canada Switzerland Norway Japan The United States is prepared to amend this note at such time as coverage with respect to these Annexes can be resolved with a Party listed above. 6. For construction services of the Republic of Korea and suppliers of such services, this Agreement applies only to procurement of the entities listed in Annexes 2 and 3 above a threshold of 15 million SDRs. 7. For goods and services (including construction) of Japan and suppliers of such goods and services, this Agreement does not apply to procurement by the National Aeronautics and Space Administration. 8. A service listed in Annex 4 is covered with respect to a particular Party only to the extent that such Party has included that service in its Annex 4.