19 U.S.C. § 2511
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-
The President may designate a foreign country or instrumentality for purposes of subsection (a) only if he determines that such country or instrumentality-
The President may modify or withdraw any waiver granted pursuant to subsection (a) or designation made pursuant to subsection (b).
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.
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.
19 U.S.C. § 2511
EDITORIAL NOTES
AMENDMENTS2020-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, §§70047004,, 70057004,, 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 AMENDMENTPub. 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 DATEPub. 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 FUNCTIONSFunctions 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 PROCUREMENTEx. 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. RESPONSIBILITIES1-101. 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 Defense1-104. 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 AUTHORIZATION1-201. 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.
ANNEX1. ACTION2. Administrative Conference of the United States3. American Battle Monuments Commission4. Board for International Broadcasting5. Civil Aeronautics Board6. Commission on Civil Rights7. Commodity Futures Trading Commission8. Consumer Product Safety Commission9. Department of Agriculture (The Agreement on Government Procurement does not apply to procurement of agricultural products made in furtherance of agricultural support programs or human feeding programs)10. Department of Commerce11. Department of Defense (Excludes Corps of Engineers)12. Department of Education13. Department of Health and Human Services14. Department of Homeland Security15. Department of Housing and Urban Development16. Department of the Interior (Excludes the Bureau of Reclamation)17. Department of Justice18. Department of Labor19. Department of State20. Department of the Treasury21. Environmental Protection Agency22. Equal Employment Opportunity Commission23. Executive Office of the President24. Export-Import Bank of the United States25. Farm Credit Administration26. Federal Communications Commission27. Federal Deposit Insurance Corporation28. Federal Home Loan Bank Board29. Federal Maritime Commission30. Federal Mediation and Conciliation Service31. Federal Trade Commission32. General Services Administration (Purchases by the Tools Commodity Center, and the Region 9 Office in San Francisco, California are not included)33. Interstate Commerce Commission34. Merit Systems Protection Board35. National Aeronautics and Space Administration36. National Credit Union Administration37. National Labor Relations Board38. National Mediation Board39. National Science Foundation40. National Transportation Safety Board41. Nuclear Regulatory Commission42. Office of Personnel Management43. Overseas Private Investment Corporation [now United States International Development Finance Corporation]44. Panama Canal Commission45. Railroad Retirement Board46. Securities and Exchange Commission47. Selective Service System48. Smithsonian Institution49. United States Arms Control and Disarmament Agency50. United States Information Agency51. United States Agency for International Development52. United States International Trade Commission53. Veterans Administration54. Maritime Administration of the Department of Transportation55. The Peace Corps[For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of Title 22, Foreign Relations and Intercourse.][For abolition of United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau), transfer of functions, and treatment of references thereto, see sections 6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.]
EX. ORD. NO. 12849. IMPLEMENTATION OF AGREEMENT WITH EUROPEAN COMMUNITY ON GOVERNMENT PROCUREMENTEx. Ord. No. 12849, May 25, 1993, 58 F.R. 30931, provided:WHEREAS, the United States and the European Community (EC) have entered into a Memorandum of Understanding on Government Procurement (Agreement) that provides appropriate reciprocal competitive government procurement opportunities;WHEREAS, the commitments made in the Agreement are intended to become part of an expanded General Agreement on Tariffs and Trade Agreement on Government Procurement (GATT Code) and are an important step toward an expanded GATT Code;WHEREAS, as a result of these commitments, U.S. businesses will obtain increased access to EC member state procurement for U.S. goods and services;WHEREAS, I have determined that it is inconsistent with the public interest to apply the restrictions of the Buy American Act, as amended ([former] 41 U.S.C. 10a-10d) [see 41 U.S.C. 8301 et seq.], to procurement covered by the Agreement;NOW, THEREFORE, by virtue of the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-2518), and in order to implement the Agreement, it is hereby ordered as follows:SECTION 1. In applying the provisions of the Buy American Act, the heads of the agencies listed in Annex 1, Parts A and B, of this order are requested, as of the date of this order, to apply no price differential between articles, materials, or supplies of U.S. origin and those originating in the member states of the EC.SEC. 2. For purposes of this order, the rule of origin specified in section 308 of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2518), shall apply in determining whether goods originate in the member states of the EC.SEC. 3. This order shall apply only to solicitations, issued by agencies listed in Annex 1, Parts A and B, of this order, above the threshold amounts set forth in Annex 2.SEC. 4. This order shall apply to solicitations outstanding on the date of this order, except for those for which the initial deadline for receipt of bids or proposals has passed, and to all solicitations issued after the date of this order.SEC. 5. Except for procurements by the Department of Defense, the United States Trade Representative (USTR) shall be responsible for interpretation of the Agreement. The USTR 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 agencies, including the Office of Federal Procurement Policy.SEC. 6. This Executive order is effective immediately. Although regulatory implementation of this order must await revisions to the Federal Acquisition Regulation (FAR), it is expected that agencies listed in Annex 1, Parts A and B, of this order will take all appropriate actions in the interim to implement those aspects of the order that are not dependent upon regulatory revision.SEC. 7. Pursuant to section 25 of the Office of Federal Procurement Policy Act, as amended ([former] 41 U.S.C. 421(a)) [now 41 U.S.C. 1302, 1303], the Federal Acquisition Regulatory Council shall ensure that the policies established herein are incorporated in the FAR within 30 days from the date this order is issued.William J. Clinton.
ANNEX 1ADepartment of AgricultureDepartment of CommerceDepartment of DefenseDepartment of EducationDepartment of Energy (Not including national security procurement made in support of safeguarding nuclear materials or technology and entered into under the authority of the Atomic Energy Act [42 U.S.C. 2011 et seq.]; and oil purchases related to the Strategic Petroleum Reserve)Department of Health and Human ServicesDepartment of Housing and Urban DevelopmentDepartment of the InteriorDepartment of JusticeDepartment of LaborDepartment of StateDepartment of Transportation (The national security consideration currently applicable to the Department of Defense under the GATT Government Procurement Code is equally applicable under this Agreement to the Coast Guard)Department of the TreasuryUnited States Agency for International DevelopmentGeneral Services Administration (other than Federal Supply Groups 51 and 52 and Federal Supply Class 7340)National Aeronautics and Space AdministrationDepartment of Veterans AffairsEnvironmental Protection AgencyUnited States Information AgencyNational Science FoundationPanama Canal CommissionExecutive Office of the PresidentFarm Credit AdministrationNational Credit Union AdministrationMerit Systems Protection BoardACTION AgencyUnited States Arms Control and Disarmament AgencyOffice of Thrift SupervisionFederal Housing Finance BoardNational Labor Relations BoardNational Mediation BoardRailroad Retirement BoardAmerican Battle Monuments CommissionFederal Communications CommissionFederal Trade CommissionInterstate Commerce CommissionSecurities and Exchange CommissionOffice of Personnel ManagementUnited States International Trade CommissionExport-Import Bank of the United StatesFederal Mediation and Conciliation ServiceSelective Service SystemSmithsonian InstitutionFederal Deposit Insurance CorporationConsumer Product Safety CommissionEqual Employment Opportunity CommissionFederal Maritime CommissionNational Transportation Safety BoardNuclear Regulatory CommissionOverseas Private Investment Corporation [now United States International Development Finance Corporation]Administrative Conference of the United StatesBoard for International BroadcastingCommission on Civil RightsCommodity Futures Trading CommissionThe Peace CorpsNational Archives and Records Administration
ANNEX 1BThe Power Marketing Administrations of the Department of EnergyTennessee Valley Authority
ANNEX 2
Thresholds Applicable to Agencies listed in Annex 1AGoods contracts-130,000 SDRs (currently $176,000)Construction contracts-$6,500,000
Thresholds Applicable to Agencies listed in Annex 1BGoods contracts-$450,000Construction contracts-$6,500,000[For abolition of United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau), transfer of functions, and treatment of references thereto, see sections 6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.][For abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of Title 22, Foreign Relations and Intercourse.]