This information sheet has been prepared in order to provide an overview of the recent Canada-U.S. Agreement on Government Procurement which dealt with the Buy American requirements of the American Recovery and Reinvestment Act (Recovery Act).
The American Recovery and Reinvestment Act of 2009 (“Recovery Act”) seeks to provide a significant stimulus to the U.S. economy, which has been going through a major downturn. Of concern to Canada has been the provision in the legislation that imposes a requirement that “all iron, steel and manufactured goods” used in the construction and repair of “public works and public buildings” funded by the Recovery Act be produced in the United States. Despite the requirement that the Buy American provisions be applied consistently with the United States’ international obligations, Canada remained concerned about the potential negative impact given the lack of international obligations at the sub-federal level between Canada and the United States and the fact much of the Recovery Act infrastructure spending is by way of transfers from the federal government to state and local governments. Prior to the Canada-U.S. Agreement on Government Procurement, Canada and the United States had government procurement commitments to each other at the federal level through NAFTA and WTO Government Procurement Agreement (GPA) meaning Canadian suppliers had access to federal-level procurement under this agreement. The new Agreement means that Canadian suppliers can now access many sub-federal programs, either on a permanent or temporary basis. The Canada-U.S. Agreement on Government Procurement provides the opportunity for U.S. sub-federal governments and contractors to continue to work with Canadian suppliers or renew those relationships.
The Governments of Canada and the United States initiated negotiations and succeeded in reaching an Agreement on Government Procurement, which came into effect on February 16, 2010. This Agreement has three major components:
The Agreement also includes a process for expedited consultation on future concerns related to procurement issues, such as new legislation. The Agreement does not change pre-existing rights of Canadian companies to participate in U.S. federal government procurement, established under the NAFTA and WTO GPA, or of American companies to participate in Canadian federal procurement.
The Canada-U.S. Agreement pertaining to Recovery Act exemptions and its provisions apply to all 50 U.S. states and all U.S. municipalities. The Agreement also covers, on a permanent basis, the 37 U.S. states subject to the WTO GPA in accordance with their respective undertakings.
The 37 states subject to the WTO GPA are:
Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New York, Nebraska, New Hampshire, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming.
These commitments extend to the procurement of goods, services and infrastructure construction projects (including non-Recovery Act). Consistent with WTO GPA general rules, the commitment applies to procurement by U.S. states above certain thresholds which are:
Additional information can be on the WTO Web site (DOC 79.0 KB).
The temporary part of the Agreement exempts Canadian companies from the Buy American requirements for many infrastructure projects funded under the Recovery Act. The seven programs covered under the Agreement are:
The exemption applies to infrastructure projects above the WTO GPA threshold (US$7,804,000).
The best overall source of information on the Recovery Act funds is the Recovery.gov website. This site indicates when funds are transferred to states and other recipients. For funds already "awarded", the Recovery.gov/transparency Web site should be consulted. Their "reporting" mechanism also shows contracts completed.
The site Recovery.gov/Accountability provides information on funding allocated (sent) by sending agency, as well as by recipient.
More information on the Canada- U.S. Agreement on Government Procurement is available on the USTR Web site.
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