International Trade & Procurement Fourth Interdisciplinary Symposium on Public Procurement Christopher R. Yukins Lynn David Research Professor in Government Procurement Law The George Washington University Law School Sorbonne October 26, 2018 14:00-16:30

George Washington University Law School Public Procurement Law Program, 1960 -

History

Prewar Protectionism

United States’ suggested charter for predecessor to World Trade Organization (1946) http://www.worldtradelaw.net/misc/Suggested%20Charter.pdf

USA Model Law for States USA - Federal EU World Bank WTO USA Model Law for States Acquisition Planning Publication of Opportunities Electronic Auctions Open Procedure Competitive Dialogue Frameworks Contract Award Notices Bid Challenges Exclusion Contract Administration CONVERGENCE

Historical Evolution – International Trade Agreements No Discrimination Eliminate Non-Tariff Barriers in Procurement Harmonize – Best Practices or Uniform? GPA

Data

Umer Chaudhry GWU Law Student

“ . . . the direct cross-border share in the number of awards remained under 5% in the majority of EU28 Member States.” https://publications.europa.eu/en/publication-detail/-/publication/5c148423-39e2-11e7-a08e-01aa75ed71a1/language-en

“ . . . the direct cross-border share in the number of awards remained under 5% in the majority of EU28 Member States.” “At the EU level, it is estimated that import penetration in the private sector is about 10% higher than in the public sector. . . . There is no consistent indication of a domestic bias in public purchasing despite . . . the fact that overall import penetration in private purchasing is significantly higher than for the public sector. Higher import penetration in private sector purchasing appears to a large extent to be explained by the significant differences in the composition of purchases between the two groups.” https://publications.europa.eu/en/publication-detail/-/publication/5c148423-39e2-11e7-a08e-01aa75ed71a1/language-en

U.S. has largest share of indirect cross-border awards in the European Union

options

Bernard Hoekman, International Cooperation on Public Procurement Regulation (2015)

Bernard Hoekman, International Cooperation on Public Procurement Regulation (2015)

Key U.S. Trade Issues: Procurement Reciprocal Defense Procurement Agreements – open markets European Defence Fund Defense Constitutional versus Political Sub-Central Access Strict Reciprocity – “Capping” Section 508 Accessibility Standards Cybersecurity Anti-Corruption – Qualification Assessment Sustainability - Environmental Standards – Small & Disadvantaged Regulatory Cooperation

U.S. Trade Policy: Recent History Obama Trans-Pacific Partnership U.S. Out – Comprehensive & Progressive TPP USMCA (NAFTA 2.0): Procurement – No Canada TTIP U.S.-EU Regulatory Cooperation Other Agreements

Revised Accessibility Standards Developed with input from European Commission staff Disability community supported common international standards under Section 508

Cybersecurity Defense Chief Information Officer (CIO) Administrative Cooperation: U.S. Defense Department Cybersecurity for Unclassified Information Technology Cybersecurity Defense Non-USA? Chief Information Officer (CIO) Reviews and approves Competition and Award

Anti-Corruption: Four Paradigms Responsibility (Qualification) Only On a case-by-case basis In U.S. – done by contracting officer Allowed by new EU Directives Adjudicative Debarment for “Bad Acts” E.g., World Bank Court-Ordered Debarment, After Judicial Proceedings or Automatic Debarment After Conviction Discretionary Debarment – U.S. Federal Based on “present responsibility”: focus on present status Debarment is a cross-government “meta-qualification” determination Performance Risk Reputation Risk

Three “Pillars” to Sustainable Procurement Economy Society Environment The crucial milestone for the development of Sustainable Public Procurement in Europe was the Gothenburg European Council (June 2001)and the adoption of the EU Sustainable Development Strategy. The philosophy of this strategy is that economic, social and environmental objectives could be pursued simultaneously adding an environmental dimension to the Lisbon Process, launched in March 2000. (In the Lisbon Strategy, the EU aims to become ‘the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’ by 2010.)

Eco-Labels

Sustainability in Public Procurement: Trajectory Political Eco-Label Carbon Footprint as Evaluation Factor TRUMP

Conclusion Professor Christopher Yukins The George Washington University Law School Washington, D.C. +1 703 304 4773 (m) cyukins@law.gwu.edu