This blog will clarify the Trade Agreement Act (TAA) update on the countries that started out and remain on the list. Secondly, we will cover if India is a participant party of the TAA or an observer. First, my research took me to start looking in FAR 25, where there is a lot of guidance as to when and how the TAA applies to supplies, services, and construction requirements. In FAR 25.400 gets into the application, the exceptions, and the dollar thresholds.
The application of when the TAA is applicable starts in FAR 25.401 where it states, (1) The World Trade Organization Government Procurement Agreement (WTO GPA), as approved by Congress in the Uruguay Round Agreements Act (Public Law 103-465). (2) Free Trade Agreements (FTA), consisting of a long list of countries that are part of FTA. The WTO GPA participants and FTA countries are allowed to partake in supplying goods, services, and construction to the US. The TAA (FAR 25.402) provides the President authority to waive Buy American statue and other discriminatory provisions for eligible products from countries that are part of International Trade Agreement with the US or are within criteria as being a least developed country.
When reviewing a new requirement, it is important to know when exceptions are applicable and therefore the TAA does not have to be observed. In FAR 25.401 lists the exceptions of when the TAA does not apply and therefore can be excluded from the acquisition consideration. Some of the list is straight forward like acquisitions set aside for small business or acquisitions of arms, ammunition, or war materials, or purchases indispensable for national security or for national defense purposes. Other ones on the list are less likely to be known as acquisitions of end products for resale, acquisitions for Federal Prison Industries, Inc., or acquisitions from Nonprofit Agencies Employing People who are Blind or Severely Disabled. Additionally, acquisitions using other than full and open competition as well as goods and services specifically excluded under individual trade agreements as negotiated by the US Trade Representatives for certain agencies. Look under that agency’s specific supplementary regulations to see those exceptions.
The dollar thresholds of when the TAA are applicable are depicted in FAR 25.402(b) in Table 1, where the WTO GPA and the list of FTAs are present and can be observed with thresholds. For instance, WTO GPA: Supply Contract (equal to or exceeding) $174,00, Service Contract (equal to or exceeding) $174,000, and Construction Contract (equal to or exceeding) $6,708,000. Once you meet and exceed those thresholds then TAA applies. If the requirement meets the TAA threshold and no exceptions apply. Then FAR 25.408 will show you the procedures to follow for the acquisition.
Since India is not part of the FTA listing in FAR 25. Let us drill down further to see if India is either a participant party or an observer to the WTO GPA. For this let’s visit www.ustr.gov where the list of 21 Parties to the GPA are listed: Armenia, Australia, Canada, the European Union (and its 27 Member States — Austria, Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, and Sweden), Hong Kong China, Iceland, Israel, Japan, the Republic of Korea, Liechtenstein, the Republic of Moldova, Montenegro, the Netherlands with respect to Aruba, New Zealand, Norway, Singapore, Switzerland, Taiwan (Chinese Taipei), Ukraine, the United Kingdom, and the United States.
After reviewing the above list and noticing India is not listed there, let us look at another list of what is called Observers which lists thirty-five countries that included India who became a WTO member/observer on 10 February 2010. It appears they have not breached the negotiating accession part to become a participant member to the GPA.