Howard County Maryland Blog

Local Politics and Current Events

WTO vs Buy America provision, another “stimulus package” for lawyers?

Posted by Ed C on Sunday, February 15, 2009

I ran across a post at the NRO’s campaign spot, ‘Buy American’ Includes Loophole for EU, Japan, Korea, Canada; BRIC Imports Blocked that included the following:

Good catch on the apparent incorporation of the WTO Government Procurement Agreement into the Buy American provisions of the stimulus Bill. But it gets better. Not only can we discriminate against non-signers (Brazil, China, etc.) but also, certain parts of the Federal and State governments can discriminate against *anyone*. To see this, you need the U.S. Annnexes to the 1993 agreement, which are here:

http://www.wto.org/english/tratop_e/gproc_e/appendices_e.htm#us

They are mostly a positive list, so any part of the government *not* mentioned is not covered.

This seems to mean that Buy America Stimulus applies to Alabama and Alaska (which don’t have to follow the WTO rules), but not to Arizona or Arkansas (which do). In some states, it may apply to the executive branch but not the university system. Moreover, all of the 50 states can *already* discriminate against “construction-grade steel, motor vehicles and coal.” Also, any “restrictions attached to Federal funds (for states) for mass transit and highway projects” are carved out of the agreement, as are minority, veterans, gender and disability setasides. Plus, there is a whole list of stuff that the Department of Defense can already “buy American” without running afoul of the WTO, including buses, certain specialty metals and other stuff it would take a procurement specialist to identify, but which I think include anchor chains.

All this makes me think that Buy American Stimulus may actually change Federal and State procurement either (a) very little, or (b) very little except a lot for some narrowly defined products that only the lawyers know which ones they are.

Alabama and Alaska don’t need to comply with WTO provisions but Arizona and Arkansas do? Well it turns out that only the following Maryland agencies need to comply with the WTO (from Annex 2)

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

Except for the Port of Baltimore, which for some reason according to a provision in Annex 3 is subject to the conditions specified for the state of New York. And what does the WTO apply to? (just some of my favorites, numbers from original in Annex 1)

22 Railway Equipment
23 Motor Vehicles, Trailers, and Cycles (except buses in 2310)
65 Medical, Dental, and Veterinary Equipment and Supplies
75 Office Supplies and Devices
76 Books, Maps and Other Publications
77 Musical Instruments, Phonographs, and Home Type Radios
85 Toiletries
88 Live Animals
91 Fuels, Lubricants, Oils and Waxes
96 Ores, Minerals and their Primary Products
99 Miscellaneous

Miscellaneous? You have an entire list that specifically itemizes categories as diverse as Motor Vehicles, Veterinary Equipment and Toiletries… and then you throw in Miscellaneous? What is left? How is someone to know?

me: “You didn’t say X was covered”
WTO: “Yes we did, it falls under miscellaneous.”

So, we have a world wide, legally binding agreement that varies country to county, state to state and only includes specific departments within some states, and certain facilities actually follow rules for other states…

But don’t worry, they even have defined how to handle replacement pages in a loose-leaf folders:

Pursuant to the Decision of the Committee on Government Procurement adopted on 4 June 1996 regarding the establishment of a loose-leaf system with legal effect to periodically update the Appendices to the Agreement on Government Procurement (GPA/M/2) and procedures with respect to the modifications to the loose-leaf system (GPA/M/5), this modification is contained in the attached replacement page to the loose-leaf system. Accordingly, the attached page replaces page 4/6 of Annex 2 to Appendix I of the United States in the Loose-Leaf System of Appendices in conformity with the afore-mentioned Decisions.

I wonder how many people where on the committee and how long they had to debate how to actually use a loose-leaf folder. Hopefully they will be the first people selected for the B-Ark.

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