A Tumultuous Year for Trade: Cybersecurity, the “Section 889” Huawei Ban, Trump and Biden on “Buy American,” and Emerging European Protectionism
This year has seen an unprecedented rise in trade barriers – both direct and indirect – involving public procurement. Join the Government Procurement Law Program for a discussion of emerging trade barriers affecting grants and procurement–including the U.S. Defense Department’s Cybersecurity Maturity Model Certification (CMMC), the Section 889 “Huawei” ban, Trump’s and Biden’s views on Buy American requirements, and emerging protectionism in the European Union.
- Cybersecurity Controls and the Section 889 “Huawei” Ban: Scott Sheffler (Feldesman Tucker) and Tom McSorley (Arnold & Porter) will discuss two important measures that the U.S. government is taking to address security risks – the U.S. Department of Defense’s Cybersecurity Maturity Model Certification (CMMC), and the government-wide interim procurement rule and final grants guidance banning Huawei and other Chinese companies under Section 889 of the National Defense Authorization Act for FY2019. These measures impose substantial compliance burdens on contractors and grantees, and in practical terms may make it very difficult – if not impossible – for foreign vendors to compete in U.S. markets.
- Trump Administration’s “Buy American” Order for Medicines–and the Biden Plan: In response to the COVID-19 pandemic, on August 6, 2020 President Trump issued an executive order for “on-shoring” the manufacture of essential medicines bought by the U.S. government. The order calls for limiting U.S. market-opening commitments under the World Trade Organization (WTO) Government Procurement Agreement (GPA) and free trade agreements – a process which could trigger months of renegotiations with trading partners and result in limiting U.S. access to foreign markets. Jean Heilman Grier, former procurement negotiator at the Office of the U.S. Trade Representative, has written on the Executive Order. Jean has also written on Democratic candidate Joe Biden’s own Buy American plan. She will join Robert Anderson, former lead at the WTO on GPA issues, to discuss trade, procurement and the upcoming U.S. elections.
- European Trade Measures: Roland Stein (of the BLOMSTEIN firm, Berlin) and Professor Michal Kania (University of Silesia/Poland) will discuss important developments in access to European procurement markets.
- White Paper--Possible Exclusion of Subsidized Foreign Firms: Following on 2019 guidance from the European Commission to member states on abnormally low bids from vendors from outside the European Union, in June 2020 the Commission issued a white paper on “levelling the playing field as regards foreign subsidies.” The white paper launches an EU-wide consultation on how to address foreign subsidies which distort EU procurement markets; among other measures under consideration, member states might exclude vendors that receive foreign subsidies. The white paper notes that the EU continues to assess the proposed International Procurement Instrument, a measure which has received cautious support from European industry and which would allow member states to raise new barriers against vendors from nations (including potentially the United States and China) that do not cooperate in EU efforts to open procurement markets.
- Exclusion for Non-Domestic Content: Article 85 of EU Directive 2014/25/EU, which governs utilities’ procurement, says that a bid may be rejected if more than 50% of the products being offered would come from nations that have not entered into a free trade agreement with the EU (such as China) – a rarely enforced restriction which, as codified in German law, was recently applied by an important German court, the Brandenburg higher regional court.
- White Paper--Possible Exclusion of Subsidized Foreign Firms: Following on 2019 guidance from the European Commission to member states on abnormally low bids from vendors from outside the European Union, in June 2020 the Commission issued a white paper on “levelling the playing field as regards foreign subsidies.” The white paper launches an EU-wide consultation on how to address foreign subsidies which distort EU procurement markets; among other measures under consideration, member states might exclude vendors that receive foreign subsidies. The white paper notes that the EU continues to assess the proposed International Procurement Instrument, a measure which has received cautious support from European industry and which would allow member states to raise new barriers against vendors from nations (including potentially the United States and China) that do not cooperate in EU efforts to open procurement markets.
Moderators
- Christopher R. Yukins, Lynn David Research Professor in Government Procurement Law, GW Law
- Laurence Folliot Lalliot, Université Paris Nanterre