Legal Aspects of Public Procurement (Cornerstones of Public Procurement) by unknow

Author:unknow
Language: eng
Format: epub
ISBN: 9780367471729
Publisher: Taylor and Francis
Published: 2020-05-17T07:00:00+00:00

International Law and Time Permitted for Proposal/Bid Submission

More and more often, clients are asking their attorneys, “Can a foreign company submit an offer?” In an increasingly global economy, foreign companies seek business opportunities in the United States, including government contracts. Of course, sometimes domestic performance may be justified as a contract requirement. Many cloud solutions master agreements, for example, require data storage in the United States, possibly eliminating some foreign companies from participation.

Still, there are international laws that protect the right to compete in the global marketplace. Typically, these only apply at the state level and only when the state has agreed. An example is the World Trade Organization Government Procurement Agreement (GPA, alternatively AGP). The United States Trade Representative manages implementation of the GPA and publishes information describing it and other trade agreements. The nation-parties to the GPA (the United States and Canada both are) achieve some protection for their suppliers. The GPA has an annex of “sub-central” government entities, including some 40 states of the United States (and several large municipalities), although they identify some exclusions regarding GPA obligations.

As NASPO explains in its Guide to International Trade Agreements, the GPA and other trade agreements set various minimum requirements for certain government procurements, including explanations to suppliers about why they are not selected for award. Moreover, suppliers must have access to an impartial administrative or judicial authority to seek a review of a covered procurement.

Among the other requirements in the GPA are minimum time periods for submitting “tenders” (i.e., bids) above certain dollar thresholds. The GPA and other trade agreements generally require a 40-day period for large tenders (bids and proposals), with exceptions for some procurements where the time period may be reduced.

Dollar thresholds are periodically set by the United States Trade Representative with respect to obligations under trade agreements. Procurements over those thresholds are required to follow certain procurement requirements, such as the minimum publication periods.

Most covered states have procurement laws and practices that conform to the GPA and other trade agreement requirements, with the possible exception of the time permitted for submission of a bid or proposal. For example, Massachusetts policy states that the 40-day requirement may be satisfied by publishing a Notice of Intent to Procure on their eProcurement system prior to issuing the solicitation. For covered solicitations by states adopting the GPA or other trade agreements, the market research period is the time to plan needed adjustments to procurement practices to conform to international treaty obligations. Especially where international business interest is expected, close coordination with legal counsel is recommended.

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