§ 2511. General authority to modify discriminatory purchasing requirements

§ 2511. General authority to modify discriminatory purchasing requirements

(a) Presidential waiver of discriminatory purchasing requirements Subject to subsection (f) of this section, the President may waive, in whole or in part, with respect to eligible products of any foreign country or instrumentality designated under subsection (b), and suppliers of such products, the application of any law, regulation, procedure, or practice regarding Government procurement that would, if applied to such products and suppliers, result in treatment less favorable than that accorded—

(1) to United States products and suppliers of such products; or

(2) to eligible products of another foreign country or instrumentality which is a party to the Agreement and suppliers of such products.

(b) Designation of eligible countries and instrumentalities The President may designate a foreign country or instrumentality for purposes of subsection (a) only if he determines that such country or instrumentality—

(1) is a country or instrumentality which (A) has become a party to the Agreement or the USMCA (as defined in section 4502 of this title), and (B) will provide appropriate reciprocal competitive government procurement opportunities to United States products and suppliers of such products;

(2) is a country or instrumentality, other than a major industrial country, which (A) will otherwise assume the obligations of the Agreement, and (B) will provide such opportunities to such products and suppliers;

(3) is a country or instrumentality, other than a major industrial country, which will provide such opportunities to such products and suppliers; or

(4) is a least developed country.

(c) Modification or withdrawal of waivers and designations The President may modify or withdraw any waiver granted pursuant to subsection (a) or designation made pursuant to subsection (b).

(d) Omitted

(e) Procurement procedures by certain Federal agencies Notwithstanding any other provision of law, the President may direct any agency of the United States listed in Annex 13–A of the USMCA (as defined in section 4502 of this title) to procure eligible products in compliance with the procedural provisions of chapter 13 of the USMCA.

(f) Small business and minority preferences The authority of the President under subsection (a) of this section to waive any law, regulation, procedure, or practice regarding Government procurement does not authorize the waiver of any small business or minority preference.

(Pub. L. 96–39, title III, § 301, July 26, 1979, 93 Stat. 236; Pub. L. 100–418, title VII, § 7005(e), Aug. 23, 1988, 102 Stat. 1553; Pub. L. 103–182, title III, § 381(a), Dec. 8, 1993, 107 Stat. 2128; Pub. L. 116–113, title V, § 505(a), Jan. 29, 2020, 134 Stat. 77.)

Editorial Notes

Amendments

2020—Subsec. (b)(1). Pub. L. 116–113, § 505(a)(1), substituted “the USMCA (as defined in section 4502 of this title)” for “the North American Free Trade Agreement”.

Subsec. (e). Pub. L. 116–113, § 505(a)(2), substituted “Annex 13–A of the USMCA (as defined in section 4502 of this title)” for “Annex 1001.1a–2 of the North American Free Trade Agreement” and “chapter 13 of the USMCA” for “chapter 10 of such Agreement”.

1993—Subsec. (a). Pub. L. 103–182, § 381(a)(1), substituted “Subject to subsection (f) of this section, the President” for “The President”.

Subsec. (b)(1). Pub. L. 103–182, § 381(a)(2), inserted “or the North American Free Trade Agreement” after “the Agreement”.

Subsecs. (e), (f). Pub. L. 103–182, § 381(a)(3), added subsecs. (e) and (f).

1988—Subsec. (d). Pub. L. 100–418, §§ 7004, 7005(e), temporarily added subsec. (d) which read as follows: “The authority of the President under subsection (a) of this section to waive any laws, regulation, procedure, or practice shall be effective notwithstanding any other provision of law hereafter enacted (excluding the provisions of and amendments made by the Buy American Act of 1988) unless such other provision specifically refers to and amends this section.” See Effective and Termination Dates of 1988 Amendment note below.

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Pub. L. 116–113, title V, § 505(c), Jan. 29, 2020, 134 Stat. 77, provided that: “(1) In general.—The amendments made by subsections (a) and (b) [amending this section and section 2518 of this title] shall—“(A) take effect on the date on which the USMCA enters into force [July 1, 2020]; and “(B) apply with respect to a procurement on or after that date. “(2) Transition from nafta treatment.—In the case of a procurement before the date on which the USMCA enters into force—“(A) the amendments made by subsections (a) and (b) to sections 301 and 308 of the Trade Agreements Act of 1979 (19 U.S.C. 2511 and 2518) shall not apply with respect to the contract; and “(B) sections 301 and 308 of such Act, as in effect on the day before that date, shall continue to apply on and after that date with respect to the contract.”

[For definition of “USMCA” as used in section 505(c) of Pub. L. 116–113, set out above, see section 4502 of this title.]

Effective Date of 1993 Amendment

Pub. L. 103–182, title III, § 381(e), Dec. 8, 1993, 107 Stat. 2129, which provided that subtitle G of title III of Pub. L. 103–182 would take effect on the date the North American Free Trade Agreement entered into force with respect to the United States (Jan. 1, 1994), was repealed by Pub. L. 116–113, title VI, § 601, Jan. 29, 2020, 134 Stat. 78, effective on the date the USMCA entered into force (July 1, 2020).

Effective and Termination Dates of 1988 Amendment

Pub. L. 100–418, title VII, § 7004, Aug. 23, 1988, 102 Stat. 1552, provided that: “The amendments made by this title [see Tables for classification] shall cease to be effective on April 30, 1996, unless the Congress, after reviewing the report required by section 305(k) of the Trade Agreements Act of 1979 [former 19 U.S.C. 2515(k)], and other relevant information, extends such date. After such date, the President may modify or terminate any or all actions taken pursuant to such amendments.”

Pub. L. 100–418, title VII, § 7005(f), Aug. 23, 1988, 102 Stat. 1553, provided that: “The amendments made by this section [amending this section and sections 10a, 10b, 10c, and 10d of Title 41, Public Contracts] shall take effect upon enactment [Aug. 23, 1988].”

Effective Date

Pub. L. 96–39, title III, § 309, July 26, 1979, 93 Stat. 241, provided that: “The provisions of this title [this subchapter] shall be effective on the date of enactment of this Act [July 26, 1979], except that— “(1) the authority of the President to grant waivers under section 303 [section 2513 of this title] shall be effective on January 1, 1980; and “(2) the authority of the President to grant waivers under section 301 [this section] shall be effective on January 1, 1981.”

Executive Documents

Delegation of Functions

Functions of President under this section delegated to United States Trade Representative, see section 1–201 of Ex. Ord. No. 12260, set out as a note below.

Ex. Ord. No. 12260. Agreement on Government Procurement

Ex. Ord. No. 12260, Dec. 31, 1980, 46 F.R. 1653, as amended by Ex. Ord. No. 12347, Feb. 23, 1982, 47 F.R. 8149; Ex. Ord. No. 12388, Oct. 14, 1982, 47 F.R. 46245; Ex. Ord. No. 12474, Apr. 17, 1984, 49 F.R. 15539; Ex. Ord. No. 13118, § 10(7), Mar. 31, 1999, 64 F.R. 16598; Ex. Ord. No. 13284, § 12, Jan. 23, 2003, 68 F.R. 4076, provided:

By the authority vested in me as President by the Constitution and statutes of the United States of America, including Title III of the Trade Agreements Act of 1979 (19 U.S.C. 2511–2518), and Section 301 of Title 3 of the United States Code, and in order to implement the Agreement on Government Procurement, as defined in 19 U.S.C. 2518(1), it is hereby ordered as follows:

1–1. Responsibilities

1–101. The obligations of the Agreement on Government Procurement (Agreement on Government Procurement, General Agreement on Tariffs and Trade, 12 April 1979, Geneva (GATT 1979)) apply to any procurement of eligible products by the Executive agencies listed in the Annex to this Order (eligible products are defined in Section 308 of the Trade Agreements Act of 1979; 19 U.S.C. 2518(4)). Such procurement shall be in accord with the policies and procedures of the Office of Federal Procurement Policy ([former] 41 U.S.C. 401 et seq.).

1–102. The United States Trade Representative, hereinafter referred to as the Trade Representative, shall be responsible for interpretation of the Agreement. The Trade Representative shall seek the advice of the interagency organization established under Section 242(a) of the Trade Expansion Act of 1962 (19 U.S.C. 1872(a)) and consult with affected Executive agencies, including the Office of Federal Procurement Policy.

1–103. The interpretation of Article VIII:1 of the Agreement shall be subject to the concurrence of the Secretary of Defense

1–104. The Trade Representative shall determine, from time to time, the dollar equivalent of 150,000 Special Drawing Right units and shall publish that determination in the Federal Register. Procurement of less than 150,000 Special Drawing Right units is not subject to the Agreement or this Order (Article I:1(b) of the Agreement).

1–105. In order to ensure coordination of international trade policy with regard to the implementation of the Agreement, agencies shall consult in advance with the Trade Representative about negotiations with foreign governments or instrumentalities which concern government procurement.

1–2. Delegations and Authorization

1–201. The functions vested in the President by Sections 301, 302, 304, 305(c) and 306 of the Trade Agreements Act of 1979 (19 U.S.C. 2511, 2512, 2514, 2515(c) and 2516) are delegated to the Trade Representative.

1–202. Notwithstanding the delegation in Section 1–201, the Secretary of Defense is authorized, in accord with Section 302(b)(3) of the Trade Agreements Act of 1979 (19 U.S.C. 2512(b)(3)), to waive the prohibitions specified therein.

Annex