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TPD > FTAA > United States Negotiating Positions - Summary > Position

Summary of the United States Negotiating Positions in the FTAA 



Public Summary of U.S. Position

The United States seeks meaningful commitments to provide suppliers throughout the region with the opportunity to compete, on a non-discriminatory basis, for a broad range of government procurement contracts. Those commitments should apply to all types of contractual arrangements that governments in this hemisphere use in their procurement activities. They should be specifically reflected in:

an agreed framework of principles and rules which is sufficiently detailed to ensure transparent, effective and predictable market access, while being no more prescriptive or administratively burdensome than is necessary to achieve that objective; and 

a clearly-defined and broad package of market access commitments which covers a comparable level of tendering opportunities in each FTAA country's government procurement markets. 

Non-Discriminatory Treatment: For each covered government procurement contract, any goods and services produced within an FTAA country, and any supplier of such goods and services from an FTAA country, should be given the same, non-discriminatory consideration as the goods, services and suppliers of the FTAA country whose government is awarding the contract. However, there should be no obligation to provide non-discriminatory treatment to goods, services and suppliers of non-FTAA countries, or to provide that treatment to FTAA goods and services, or suppliers of such goods and services when a contract is not covered by the government procurement chapter of the FTAA Agreement.

The government procurement chapter should prohibit the use of offsets in the qualification of suppliers, the evaluation of tenders, and the award of contracts. Offsets are conditions attached to procurement contracts that provide for a specified level of domestic content, the licensing of technology, involuntary investment, counter-trade or other trade-distorting requirements.

Scope of Commitments: The United States is still in the process of developing its detailed market access negotiating objectives. As part of that process, we will be seeking advice and consulting with a broad range of domestic constituencies, including Congress, representatives of state executives and legislatures, Federal and state government procurement agencies and their associations, the statutory advisory committees, exporters, and other stakeholders with interests in various domestic and foreign procurement policies and programs. In principle, the United States seeks to cover as broad a range of tendering opportunities in each FTAA country's government procurement market as possible. The government procurement chapter, as well as other chapters of the FTAA Agreement, where appropriate, should apply to the full range of financing and contracting arrangements that FTAA governments use to conduct their procurement, including "build-operate-transfer" and other innovative contractual arrangements.

As in the WTO Government Procurement Agreement and Chapter 10 of the North American Free Trade Agreement, the FTAA government procurement chapter should be subject to certain clearly defined general exceptions. The United States is still developing its detailed positions on these issues, including whether such provisions should be included in the government procurement chapter itself or elsewhere in the FTAA Agreement as general exceptions to the Agreement as a whole.

Transparency of Laws and Regulations: The FTAA government procurement chapter should require publication of all laws, regulations, judicial decisions and other measures specifically governing government procurement. These laws and other measures should be published in paper or electronic media which are widely disseminated and readily accessible to interested suppliers and the public.

Selection of Procurement Methods: The United States seeks commitments to ensure that procurement covered by the FTAA government procurement chapter normally will be conducted through tendering procedures that are transparent, open and competitive. Those commitments must ensure that there are clear and predictable rules for choosing different procurement methods. At the same time, there must be flexibility for government buyers to take full advantage of electronic communications and other emerging technologies. They must also have the ability to choose the procurement method best suited to the circumstances of each procurement, including limited and carefully defined exceptions to open and competitive tendering for emergency situations and other appropriate circumstances. 

Publication of Procurement Notices: To ensure that the FTAA government procurement chapter provides effective and predictable access to tendering opportunities, it is important to establish that, for every contract awarded through normal procurement procedures, the government entity conducting the procurement will publish an advance notice that contains sufficient information for suppliers to assess their potential interest in tendering. Such notices should be published in electronic or paper media which are widely disseminated and readily accessible to potential suppliers. They should be published sufficiently in advance to allow suppliers to assess their potential interest in the procurement opportunity and, if they choose, to prepare and submit responsive tenders.

Qualification: The United States seeks to ensure that, when it is necessary to establish a potential supplier's qualifications before considering its tender, the FTAA government procurement chapter will require that qualification requirements be limited to those which are essential to determine the supplier's ability to fulfill the terms of the contract. In evaluating a particular supplier's qualifications, government entities should consider the supplier's global business activities and experience. When a supplier expresses interest in tendering for a contract for which there is a qualification requirement, the responsible government entity should seek to complete the qualification procedures in time for that supplier to participate meaningfully in the procurement process. At the same time, nothing should prevent the dis-qualification of a supplier for bankruptcy or making false declarations. 

Tender Documentation and Specifications: For each government procurement contract covered by the FTAA Agreement, the tender documentation provided to interested suppliers should include a clear and complete description of the specifications and other requirements that the government and its procurement entity have established for the contract, as well as the criteria that will be used to evaluate tenders. The specifications and requirements should be objective, and FTAA governments should ensure that they do not seek or accept advice on the development of specifications and requirements from someone who may have a commercial interest in that procurement, if such advice would preclude effective competition.

Evaluation of Tenders and Contract Award: In the FTAA government procurement chapter, the United States seeks to ensure that government buyers' evaluation of tenders is based solely on the requirements and criteria that have been clearly identified in the tender documentation. Each contract should be awarded to the supplier whose tender is most advantageous in terms of the requirements set out in the tender documentation and, in particular, the FTAA government procurement chapter should provide that procurement entities not award contracts to suppliers that do not meet the essential requirements in that documentation. 

Transparency of Information on Contract Awards: The FTAA government procurement chapter should provide that, after awarding a covered contract, government entities promptly inform all suppliers that submitted tenders of the contract award decision. It should also require that information on the contract award be published in an electronic or paper medium that is widely disseminated and readily accessible to the public.

Review Procedures: The United States seeks to ensure that all FTAA governments provide timely and effective procedures that allow suppliers to challenge alleged breaches of the FTAA government procurement chapter. To ensure these procedures are effective, they should provide for prompt interim measures to preserve the commercial opportunity offered by a specific covered contract, including the possibility of suspending tendering procedures or suspending work on an awarded contract when appropriate. The authorities responsible for implementing such procedures should be impartial and independent of any government procurement entity whose decisions are challenged.


Source: United States Trade Representative