United States - Procurement of a Sonar Mapping System
US Sonar Mapping (Source: GATT Analytical Index)
|Products at issue
Multibeam sonar mapping equipment
|Type of product
Machinery; electrical and electronic equipment
Key legal aspects
|William Rossier (Switzerland)
|Francois Nadeau (Canada), John Clarke (Hong Kong)
|Legal basis at issue
|Claims at issue
|Defences at issue
|No of Pages (total / legal reasoning)
|Request for consultations
|Request for establishment
|Outcome of the proceedings
|Background: The National Science Foundation (NSF) was required to follow Federal Acquisition Regulations (FARs), which included the so-called "Buy American Act" and Special Contract Requirements, such that contracts might only be awarded to United States firms and citizens.
GPR.DS1/R (23/04/1992) United States – Procurement of a Sonar Mapping System – Report of the Panel: The Panel decided to examine successively: (a) whether the acquisition of the sonar mapping system was a procurement of a product by a covered entity within the meaning of Article I:1(a), first sentence, of the Agreement on Government Procurement; and, if so, (b) whether the acquisition of the sonar mapping system was nonetheless excluded from the scope of the Agreement through the operation of Article I:1(a), second sentence, and was therefore exempt from the disciplines of the Agreement. While not intending to offer a definition of government procurement within the meaning of Article I:1(a), the Panel felt that in considering the facts of any particular case the following characteristics, none of which alone could be decisive, provide guidance as to whether a transaction should be regarded as government procurement within the meaning of Article I:1(a): payment by government, governmental use of or benefit from the product, government possession and government control over the obtaining of the product. The Panel concluded that, in the light of the Government's payment for, ownership and use of the sonar mapping system and given the extent of its control over the obtaining of the system, the acquisition of the sonar mapping system was government procurement within the meaning of Article I:1(a), first sentence, and not "private" procurement outside the Agreement as proposed in the alternative by the European Community. The Panel then considered whether the procurement of the sonar mapping system, found to be within the scope of Article I:1(a), first sentence, was nonetheless excluded from the Agreement by virtue of Article I:1(a), second sentence. The Panel concluded that the exclusion of "service contracts per se" cannot be taken to mean the exclusion of any products above threshold procured through them by covered entities. Consequently, the procurement of the sonar mapping system, whether or not it was to take place under a service contract, was covered by the Agreement. The Panel therefore concluded that the procurement of a sonar mapping system falls within the scope of the Agreement on Government Procurement and is thus subject to the provisions contained therein, and recommended that the Committee request the United States to conduct the proposed procurement consistently with its obligations under the Agreement.
The adoption of the Panel Report was requested, but not adopted, at these meetings:
GPR/M/46 (26/07/1992) Minutes of the Meeting of the Committee on Government Procurement (13/05/1992)
GPR/M/47 (17/08/1992) Minutes of the Meeting of the Committee on Government Procurement (26/06/1992)
GPR/M/48 (06/10/1992) Minutes of the Meeting of the Committee on Government Procurement (13/11/1992)
GPR/M/49 (25/05/1993) Minutes of the Meeting of the Committee on Government Procurement (29/03/1993)
GPR/M/51 (09/02/1994) Minutes of the Meeting of the Committee on Government Procurement (17/01/1994): US: "panel's findings were fatally flawed (...) inconsistent with the clear language of the Agreement and (...) contradicted the intent of the negotiators. (...) [N]ot agreed to adopt [the Panel Report] fundamental disagreement with the content of that Report. (...) In response to a question from the Chairman, seeking clarification as to whether the subcontract had been awarded to a US firm, the representative (...) replied that he did not have that information. The only information he had was that as far as his delegation was aware, the subcontract in question had been awarded in accordance with the restriction in the solicitation."
L/7564 Committee on Government Procurement - Report of the Committee presented to the Contracting Parties at their Fiftieth Session (BISD 41S/454-456): "At its June 1994 meeting, the Committee considered the Report of the Panel on the Procurement of a Sonar Mapping System (GPR.DS1/R of 23 April 1992) but was not in a position to adopt it."
C/190 (31/10/1994) Status of Work in Panels and Implementation of Panel Reports - Report by the Director-General to the Council (10/11/1994) Dispute reported at the panel stage.