CELEX: 21995A0620(01)
Language: en
Date: 1995-05-30 00:00:00
Title: Agreement in the form of an exchange of letters between the European Community and the United States of America on government procurement

Avis juridique important

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21995A0620(01)

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

Official Journal L 134 , 20/06/1995 P. 0026 - 0036

AGREEMENT in the form of an exchange of letters between the European Community and the United States of America on government procurementHis Excellency Sir Leon Brittan,Commissioner,Commission of the European Communities,200 Rue de la Loi/Wetstraat,1049 Brussels.Washington, 30 May 1995Dear 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, >REFERENCE TO A FILM>Michael KANTORAttachments: 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 of 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 1995Dear 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 Marrakesh on 15 April 1994.Please accept, Mr Commissioner, the assurance of my highest consideration.Sincerely,Michael KANTORAttachments: 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, >REFERENCE TO A FILM>Leon BRITTANANNEX 2 SUB-CENTRAL GOVERNMENT ENTITIES WHICH PROCURE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT Threshold: 355 000 SDRs for supplies and services5 million SDRs for constructionLIST OF ENTITIES ArizonaExecutive branch agenciesArkansasExecutive branch agencies, including universities but excluding the Office of Fish and Game and construction servicesCaliforniaExecutive branch agenciesColoradoExecutive branch agenciesConnecticutDepartment of Administrative ServicesConnecticut Department of TransportationConnecticut Department of Public WorksConstituent Units of Higher EducationDelaware (*)Administrative Services (Central Procurement Agency)State UniversitiesState CollegesFlorida (*)Executive branch agenciesHawaiiDepartment of Accounting and General Services (with the exception of procurements of software developed in the state and construction)IdahoCentral Procurement Agency (including all colleges and universities subject to central purchasing oversight)Illinois (*)Department of Central Management ServicesIowa (*)Department of General ServicesDepartment of TransportationBoard of Regents' Institutions (universities)KansasExecutive branch agencies, excluding construction services, automobiles and aircraftKentuckyDivision of Purchases, Finance and Administration Cabinet, excluding construction projectsLouisianaExecutive branch agenciesMaine (*)Department of Administrative and Financial ServicesBureau of General Services (covering State government agencies and school construction)Maine Department of TransportationMaryland (*)Office of the TreasuryDepartment of the EnvironmentDepartment of General ServicesDepartment of Housing and Community DevelopmentDepartment of Human ResourcesDepartment of Licensing and RegulationDepartment of Natural ResourcesDepartment of Public Safety and Correctional ServicesDepartment of PersonnelDepartment of TransportationMassachusettsExecutive Office for Administration and FinanceExecutive Office of Communities and DevelopmentExecutive Office of Consumer AffairsExecutive Office of Economic AffairsExecutive Office of EducationExecutive Office of Elder AffairsExecutive Office of Environmental AffairsExecutive Office of Health and Human ServiceExecutive Office of LaborExecutive Office of Public SafetyExecutive Office of Transportation and ConstructionMichigan (*)Department of Management and BudgetMinnesotaExecutive branch agenciesMississippiDepartment of Finance and Administration (does not include services)MissouriOffice of AdministrationDivision of Purchasing and Materials ManagementMontanaExecutive branch agencies (only for services and construction)New York (*)State agenciesState university systemPublic authorities and public benefit corporations, with the exception of those entities with multi-state mandatesIn addition to the exceptions noted at the end of this Annex, transit cars, buses and related equipment are not coveredNebraskaCentral Procurement AgencyNew Hampshire (*)Central Procurement AgencyOklahoma (*)Office of Public Affairs and all State agencies and departments subject to the Oklahoma Central Purchasing Act, excluding construction servicesOregonDepartment of Administrative ServicesPennsylvania (*)Executive branch agencies, including:Governor's OfficeDepartment of the Auditor GeneralTreasury DepartmentDepartment of AgricultureDepartment of BankingPennsylvania Securities CommissionDepartment of HealthDepartment of TransportationInsurance DepartmentDepartment of AgingDepartment of CorrectionDepartment of Labor and IndustryDepartment of Military AffairsOffice of Attorney GeneralDepartment of General ServicesDepartment of EducationPublic Utility CommissionDepartment of RevenueDepartment of StatePennsylvania State PoliceDepartment of Public WelfareFish CommissionGame CommissionDepartment of CommerceBoard of Probation and ParoleLiquor Control BoardMilk Marketing BoardLieutenant Governor's OfficeDepartment of Community AffairsPennsylvania Historical and Museum CommissionPennsylvania Emergency Management AgencyState Civil Service CommissionPennsylvania Public Television NetworkDepartment of Environmental ResourcesState Tax Equalization BoardDepartment of Public WelfareState Employees' Retirement SystemPennsylvania Municipal Retirement BoardPublic School Employees' Retirement SystemPennsylvania Crime CommissionExecutive OfficesRhode IslandExecutive branch agencies, excluding boats, automobiles, buses and related equipmentSouth DakotaCentral Procuring Agency (including universities and penal institutions)In addition to the exceptions noted at the end of this Annex, procurements of beef are not coveredTennesseeExecutive branch agencies (excluding services and construction)TexasGeneral Services CommissionUtahExecutive branch agenciesVermontExecutive branch agenciesWashingtonWashington State executive branch agencies, including:General AdministrationDepartment of TransportationState UniversitiesIn addition to the exceptions noted at the end of this Annex, procurements of fuel, paper products, boats, ships and vessels are not coveredWisconsinExecutive branch agencies, including:Department of AdministrationState Correctional InstitutionsDepartment of DevelopmentEducational Communications BoardDepartment of Employment RelationsState Historical SocietyDepartment of Health and Social ServicesInsurance CommissionerDepartment of JusticeLottery BoardDepartment of Natural ResourcesAdministration for Public InstructionRacing BoardDepartment of RevenueState Fair Park BoardDepartment of TransportationState University SystemWyoming (*)Procurement Services DivisionWyoming Department of TransportationUniversity of WyomingNotes 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 constructionLIST OF ENTITIES The following entities at the SDR equivalent of $ 250 000 for supplies and services:Tennessee Valley AuthorityPower Marketing Administrations of the Department of Energy- Bonneville Power Administration- Western Area Power Administration- Southeastern Power Administration- Southwestern Power Administration- Alaska Power AdministrationSt Lawrence Seaway Development CorporationThe 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 on 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:CanadaSwitzerlandNorwayJapanThe 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.AMENDED GENERAL NOTES AND DEROGATIONS FROM THE PROVISIONS OF ARTICLE III OF APPENDIX I OF THE EC General notes and derogations from the provisions of Article III 1. The EC will not extend the benefits of this Agreement:- as regards the award of contracts listed in Annex 2 to the suppliers and service providers of Canada,- as regards the award of contracts, other than for supplies, listed in Annex 2 to the suppliers and service providers of the USA,- as regards the award of contracts by entities listed in Annex 3 paragraph(a) (water), to the suppliers and service providers of Canada and the USA;(b) (electricity), to the suppliers and service providers of Canada, Hong Kong and Japan;(c) (airports), to the suppliers and service providers of Canada, Korea and the USA;(d) (ports), to the suppliers and service providers of Canada;(e) (urgan transport), to the suppliers and service providers of Canada, Israel, Japan, Korea and the USAuntil such time as the EC has accepted that the Parties concerned give comparable and effective access for EC undertakings to the relevant markets:- to service providers of Parties which do not include service contracts for the relevant entities in Annexes 1 to 3 and the relevant service category under Annexes 4 and 5 in their own coverage.2. The provisions of Article XX shall not apply to suppliers and service providers of:- Israel, Japan, Korea and Switzerland in contesting the award of contracts by entities listed under Annex 2, paragraph 2, until such time as the EC accepts that they have completed coverage of sub-central entities,- Japan, Korea and the USA in contesting the award of contracts to a supplier or service provider of Parties other than those mentioned, which are small or medium-sized enterprises under the relevant provisions of EC law, until such time as the EC accepts that they no longer operate discriminatory measures in favour of certain domestic small and minority businesses,- Israel, Japan and Korea in contesting the award of contracts by EC entities, whose value is less than the threshold applied for the same category of contracts awarded by these Parties.3. Until such time as the EC has accepted that the Parties concerned provide access for EC suppliers and service providers to their own markets, the EC will not extend the benefits of this Agreement to suppliers and service providers of:- Canada, as regards procurement of FSC 36, 70 and 74 (special industry machinery, general purpose automatic data processing equipment, software, supplies and support equipment (except 7010 ADPE configurations), office machines, visible record equipment and ADP equipment),- Canada, as regards procurement of FSG 58 (communications, protection and coherent radiation equipment) and the USA as regards air traffic control equipment,- Korea and Israel as regards procurement by entities listed in Annex 3 paragraph (b), as regards procurement of HS Nos 8504, 8535, 8537 and 8544 (electrical transformers, plugs, switches and insulated cables); and for Israel, HS Nos 8501, 8536 and 902830,- the USA, as regards procurement by entities listed in Annex 3 paragraph (d), as regards procurement of dredging services and procurement related to shipbuilding,- Canada and the USA as regards contracts for good or service components of contracts which, although awarded by an entity covered by this Agreement, are not themselves subject to this Agreement.4. The Agreement shall not apply to contracts awarded under:- an international agreement and intended for the joint implementation or exploitation of a project by the signatory States,- an international agreement relating to the stationing of troops,- the particular procedure of an international organization.5. The Agreement shall not apply to procurement of agricultural products made in furtherance of agricultural support programmes and human feeding programmes.6. Contracts awarded by entities in Annexes 1 and 2 in connection with activities in the fields of drinking water, energy, transport or telecommunications, are not included.7. This Agreement shall not apply to contracts awarded by entities in Annex 3:- for the purchase of water and for the supply of energy or of fuels for the production of energy,- for purposes other than the pursuit of their activities as described in this Annex or for the pursuit of such activities in a non-member country,- for purposes of re-sale or hire to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or hire the subject of such contracts and other entities are free to sell or hire it under the same conditions as the contracting entity.8. This Agreement shall not be applicable to contracts:- for the acquisition or rental of land, existing buildings or other immovable property or concerning rights thereon,- for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time.9. This Agreement shall not be applicable to the award of service contracts by Spanish entities listed in Annex 3 before 1 January 1997 or to the award of contracts by Greek or Portuguese entities listed in Annex 3 before 1 January 1998.