An Introduction to U.S. Procurement�Days 1 and 2

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Professor Christopher Yukins

George Washington University Law School

Washington DC

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Monday-Wednesday

December 8-10, 2025

University of Paris Nanterre

Class Materials on publicprocurementinternational.com

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Introduce Yourself

Please send an email to Professor Yukins, cyukins@law.gwu.edu, with

1. your name and email address,
2. your academic program, and
3. a quick summary of your background and goals.

Professor Christopher Yukins George Washington University Law School

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Readings & Videos

• Christopher R. Yukins, The U.S. Federal Procurement System: An Introduction (UrT 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3063559.
• Video: An Introduction to U.S. Procurement, by Prof. Christopher Yukins
• Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law (PPLR 2002), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=304620
• Christopher R. Yukins, A Versatile Prism: Assessing Procurement Law Through the Principal-Agent Model (PCLJ 2010), https://ssrn.com/abstract=1776295
• Johannes Schnitzer & Christopher Yukins, Combatting Corruption in Procurement, in UNOPS: Future-Proofing Procurement 26-29 (2015), https://content.unops.org/publications/ASR/ASR-supplement-2015_EN.pdf?mtime=20171214185135
• Video: Fighting Corruption in Procurement (40:12) – in this video excerpted from GWU Law School’s “Foreign Government Contracting” course, Professor Christopher Yukins discusses common patterns and strategies in fighting corruption in public procurement around the world.
• Video: Corporate Compliance (7:50) – in this video excerpted from GWU Law School’s “Foreign Government Contracting” course, Professor Christopher Yukins discusses corporate compliance requirements and strategies, from around the world.
• Christopher Yukins & Allen Green, International Trade Agreements and U.S. Procurement Law (2018). Chapter 9 to The Contractor’s Guide to International Procurement (ABA 2018) (Erin Loraine Felix & Marques Peterson, eds.), https://ssrn.com/abstract=3443244 
• Video: Protectionism – Part I (20:14): In this excerpt from GWU Law’s “Foreign Government Contracting” seminar, Professor Yukins discusses the core concepts in protectionism, U.S. barriers to foreign vendors and key international agreements to open procurement markets.
• Video: Protectionism – Part II (13:27): In this excerpt, also from GWU Law’s “Foreign Government Contracting” seminar, Professor Yukins discusses key issues in U.S. protectionism, from the “walled garden” of the Trade Agreements Act to reciprocity and the U.S.-Mexico-Canada-Agreement (USMCA).
• Video: Protectionism – Part III (6:21): In this final excerpt, Professor Yukins discusses special issues in protectionism and national security, such as the Reciprocal Defense Procurement Agreements between the U.S. and its allies, and the deference afforded national security interests under international trade agreements on procurement.

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Reading List

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George Washington University�Law School

Government Procurement Law Program

Established 1960

Classroom and distance learning in public procurement law and policy, for students in law and business

Procurement Law Centers: 2000

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Washington, D.C.

Nottingham.

Procurement Law Centers Today

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Washington, D.C.

Beijing

Nottingham.

Paris

Munich

Aix-en-Provence

Turin

Stellenbosch

Stockholm

Copenhagen

Galicia

Rome

Vilnius

Moscow

Poland

Northern China

�What is Procurement: �Principles, Pathologies and Processes�

Principles: The Desiderata (Steven Schooner, 2002)

• Transparency
• Integrity
• Competition
• Uniformity
• Risk Avoidance
• Wealth Distribution -- Socioeconomic
• Best value
• Efficiency (administrative)
• Customer Satisfaction

See Reading

List

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Principal-Agent Model

Principal

Agent 1

CO

Purchase

MONITORING

BONDING (PUNISHING)

Agent 2

Contractor

See Reading

List

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Processes

Planning

Cost Reimb.

Competition - Methods

Qualification

Responsiveness

Rules

Contract

Provisions

The United States . . .

. . . Has Separate Procurement Systems

Federal Procurement

State

Local

U.S. Domestic Harmonization

• Model Law?
• Through Federal Grants?
• Cooperative Purchasing?

.. . . Has over US$750 billion in annual federal procurement

. . . Is Dominated by Defense

. . . Procurement is a High-Profile Political Issue

. . . Procurement Remains Political

Question: If President Trump did interfere with this procurement for his personal benefit, would this be:

• Petty corruption
• Grand corruption
• State capture?

. . . But Not Driven by Individual Politicians

Top 10 Congressional Districts for Federal Contracts, FY07

. . . Accessible

FY07 Contracts - Defense

. . . Is Transparent at Opportunity and Award

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. . . With exceptions to transparency

More Non-Transparency

See Next Page

. . . Prone to Scandal

Darleen Druyun

• Previously highest-ranking civilian official in Air Force procurement systems
• Convicted of improper job negotiations with Boeing during tanker procurement
• Admitted favoring Boeing in hundreds of millions of dollars in procurement
• Sentenced to prison
• $650M Boeing settlement

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More

Scandal

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Duke Cunningham��David Safavian

Ex-Aide To Bush Found Guilty

Safavian Lied in Abramoff Scandal

Washington Post,

Wednesday, June 21, 2006; Page A01

Congressman resigns after bribery plea

California Republican admits selling influence for $2.4 million

Monday, November 28, 2005

(CNN) -- Rep. Randy "Duke" Cunningham

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1984

. . . Has a Uniform Set of Regulations

. . . a Unified Regulatory System

. . . A Uniform Set of Regulations

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Defense Authorization Act = Annual vehicle for reform

Major methods of competition

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Historical Progression

Competitive Negotiations�(EU: “Competitive Dialogue” or “Competitive Procedures with Negotiations”)

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Competitive Negotiations:�Multiple Vendors, for Best Value

Contractor

Contractor

Contractor

Competitive Negotiations

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Frameworks emerged in the United States and elsewhere along parallel paths

Supplier Lists

Frameworks

Frameworks: Sample

Problems in U.S. Frameworks: 1990s

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Scandals

EU uses same methods – but in a different historical progression

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Do the EU Directives Impose Additional Principles?

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Author: Abby Semple

Source: Abby Semple, www.procurementanalysis.eu/

Patterns in U.S. Procurement

www.usaspending.gov

Defense Department Procurement – FY 2019

Access for Foreign Firms to Unitary Federal Procurement Market, Civilian and Defense

DoD Acquisition Workforce

The size of DoD’s civilian acquisition workforce has grown by some 20,000 employees over the past five years and now numbers about 135,000 personnel members, according to Stephanie Barna, acting assistant secretary of Defense for Readiness and Force Management.

Civilians make up 90 percent of the department’s total acquisition workforce. The military component of the acquisition workforce also ticked up by about 2,500 employees, reaching more than 16,000 employees, Barna said.

Typical Progress

Protectionism and the �Trump, Biden and Trump Administrations

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See Reading

List

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KEY CONCEPTS

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• “It is the maxim of every prudent master of a family, never to attempt to make at home what it will cost him more to make than to buy. . . . If a foreign country can supply  us with a commodity cheaper than we ourselves can make it, better buy it of them with some part of the produce of our own industry, employed in a way in which we have some advantage.
• Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776)

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What Is Goal of Protectionism?

• Protect Jobs
• Industrial policy
• Ensure security of supply

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Prewar Protectionism

• United States’ suggested charter for predecessor to World Trade Organization (1946)

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U.S. Trade Agreements Act: �A “Walled Garden”

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U.S. Domestic Preference Law: Supplies

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RECIPROCAL DEFENSE PROCUREMENT AGREEMENTS

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Defense – Memoranda of Understanding

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Authority for the defense MOUs rests in the “public interest” exception to the BAA. The agreements serve as a national security benefit, enhance alliance-wide security objectives, and serve as an underpinning for armaments cooperation. – Text § 2:21

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TRUMP ADMINISTRATION

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February 2017

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THE RECIPROCITY CONCEPT

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U.S. – Mexico – Canada Agreement (USMCA):

Procurement Chapter

End

Biden Administration

• President Joe Biden
• Nominated USTR Katherine Tai: “Trade as a Force of Good”
• “Made in America” policy
• Challenges
• “Huawei Ban” – Section 889 Interim Rule
• Cybersecurity Maturity Model Certification (CMMC)
• European Commission “White Paper” -- Foreign Government Subsidies
• Addressing global warming -- FAR 23.103, GSA 2010 report
• Regulatory Cooperation – what process and standards?

Regulatory Cooperation Strategies

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From: Correia de Brito, A., C. Kauffmann & J. Pelkmans, The Contribution of Mutual Recognition to International Regulatory Co-operation (OECD 2016), http://dx.doi.org/10.1787/5jm56fqsfxmx-en (citing OECD, International Regulatory Co-operation – Addressing Global Challenges (2013), http://dx.doi.org/10.1787/97892642004663-en).

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“Buy American” Provisions in Infrastructure Legislation

Infrastructure Investment and Jobs Act

Public Law 117-58 (Nov. 15, 2021)

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Infrastructure Legislation, Title IX:�“Build America, Buy America” Act (BABA)

• Part I: Infrastructure supported by federal financial assistance:
• All iron and steel products and construction materials must be produced in the United States (i.e., “all manufacturing processes” in U.S.)
• Manufactured products must be manufactured in U.S. and at least 55 % of component costs from U.S.
• Waivers (published for comment) available if preference (1) inconsistent with public interest, (2) iron, steel, manufactured products or construction materials not produced in U.S. in sufficient and reasonably available quantity or satisfactory quality, or (3) inclusion of domestic products or materials will increase overall project cost by 25 percent
• OMB guidance to grantees (2 CFR) may be amended re: Buy America
• To be applied consistently with international trade agreements
• Part II: “Make It In America” provisions (echo Biden Executive Order 14005)
• New “Made in America Office” in OMB, with more rigorous standards for Buy American Act (BAA) waivers
• Sense of Congress: 75% BAA domestic content requirement
• International trade agreements to be respected, but reviewed for impact; reciprocal defense procurement agreements to be assessed for “equal and proportionate” access by U.S. suppliers
• Exceptions for trade agreements, least-developed nations and reciprocal defense procurement agreements made explicit

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Context: International Procurement

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“At the EU level, it is estimated that import penetration in the private sector is about 10% higher than in the public sector. . . . There is no consistent indication of a domestic bias in public purchasing despite . . . the fact that overall import penetration in private purchasing is significantly higher than for the public sector. Higher import penetration in private sector purchasing appears to a large extent to be explained by the significant differences in the composition of purchases between the two groups.”

“ . . . the direct cross-border share in the number of awards remained under 5% in the majority of EU28 Member States.”

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U.S. has largest shares of indirect cross-border awards in the European Union

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EUROPEAN UNION INITIATIVES

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European Parliament on the International Procurement Instrument

Public procurement represents a substantial part of the EU economy and the economies of many countries around the world. The EU has opened its public procurement markets to a significant degree to competitors from third countries and has frequently advocated the need for more open public procurement markets, both within the context of the revised WTO Agreement on Public Procurement (GPA) and in its bilateral trade negotiations.

Many non-EU countries, however, are reluctant to open their public procurement markets to the EU. According to the Commission, while the EU opened some €352 billion of EU public procurement to bidders that came from member countries to the GPA in 2012, foreign bidders only had access to €178 billion of US procurement and €27 billion of Japanese procurement in that same year. In addition, only a fraction of Chinese procurement is open to foreign bidders.

In 2012, the Commission proposed the creation of an International Procurement Instrument (IPI). After a legislative deadlock, the Commission presented a revised proposal in 2016. In March 2019, in the context of a review of relations with China, the Commission called on the Council and Parliament to revive the trilogues based on the revised proposal, and adopt the IPI before the end of 2019. 

In June 2021, the EU Member States reached agreement for a mandate to negotiate with the European Parliament on the IPI.

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International Procurement Instrument

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Jean Grier on the �International Procurement Instrument

• “The proposed regulation will not affect procurement covered under the WTO Government Procurement Agreement (GPA). However, it could be applied to procurement of GPA parties that is not covered under the plurilateral agreement. That means it could be targeted at U.S. states and local entities that do not open procurement under the GPA or at Buy America preferences, which have long been subject to EU criticism for restricting access.”

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Regulation on Foreign Subsidies – Nov. 2022 - Summary

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RECIPROCAL DEFENSE PROCUREMENT AGREEMENTS

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Defense – Memoranda of Understanding

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Authority for the defense MOUs rests in the “public interest” exception to the BAA. The agreements serve as a national security benefit, enhance alliance-wide security objectives, and serve as an underpinning for armaments cooperation. – Text § 2:21

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Defense – Memoranda of Understanding – UK Example

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Discuss

Don’t discriminate

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SECURITY OF SUPPLY

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ANGELA MERKEL’S MOBILE PHONE

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Germany Canceled Verizon Contract

Thu Jun 26, 2014

German government cancels Verizon contract in wake of U.S. spying row

BERLIN

REUTERS/RICK WILKING

The German government has cancelled a contract with U.S. telecoms firm Verizon Communications Inc VZ.N as part of an overhaul of its internal communications, prompted by revelations last year of U.S. government spying.

Reports based on disclosures by former U.S. intelligence contractor Edward Snowden alleged Washington had conducted mass surveillance in Germany and had even eavesdropped on Chancellor Angela Merkel's mobile phone.

Berlin subsequently demanded talks with Washington on a "no-spy" deal, but these collapsed after the United States appeared unwilling to give the assurances Germany wanted.

Germany also launched an overhaul of its internal communications and secure government networks. This is one of the first actions involving a U.S. firm to result.

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GPA, Art. III Leaves Discretion To Discriminate Regarding Classified Work

1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.

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Trump Tariffs

Trump Administration Tariffs�Source: Atlantic Council

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WTO GPA

Trade Agreements on Tariffs

• Reciprocal Defense Procurement Agreements: examples
• UK: Sec. 4: “When allowed under national laws, regulations, and international obligations applicable to the Participants, the Participants commit that, on a reciprocal basis, they will not include customs, taxes, and duties in the evaluation of offers, and will use their best endeavours to waive their charges for customs and duties for procurements to which this MOU applies.”
• WTO Government Procurement Agreement
• Article IV.7 of the GPA generally exempts customs duties from the nondiscrimination obligations (“Paragraphs 1 and 2 [regarding non-discrimination] shall not apply to: . . . customs duties and charges of any kind imposed on, or in connection with, importation.”
• Free Trade Agreements: example
• Australia: Ch. 15: National treatment and nondiscrimination obligations “shall not apply to customs duties and charges . . . other than measures governing covered procurements.”

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Tariffs and U.S. Procurement�Starting Point: U.S. Procurements Bear Tariffs

• FAR 25.902 cross-references the U.S. Customs Service regulations and notes that “[e]xcept as provided elsewhere in the Customs Regulations … all shipments of imported supplies purchased under Government contracts are subject to the customs entry and examination requirements.”
• As a result, “[u]nless the agency obtains an exemption [citing FAR 25.903], those shipments are also subject to duty.”
• Standard clauses in the Government procurement regulations, such as FAR 52.212-4(k), similarly state that the price paid by the Government (the “contract price”) includes customs duties.
• The Customs Regulations echo the FAR and state that, except as exempted, “importations made by or for the account of any agency or office of the United States Government are subject to the usual Customs entry and examination requirements.” 19 CFR § 10.100.

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FAR 25.903: Exceptions

• FAR 25.903 notes that the Harmonized Tariff Schedule lists supplies for which exemptions from duty may be obtained when imported under a Government contract. Harmonized Tariff Schedule of the United States, Chapter 98, Subchapter VIII: Importations of the United States Government, including:
• Engravings and photos (all agencies)
• Sound recordings (Department of State)
• Emergency war supplies purchased abroad (all military departments)
• Strategic and critical materials for stockpiles (GSA)
• Materials for common defense and security (NRC / DOE)
• International launch materials (NASA)
• Supplies for government-operated vessels and aircraft may be withdrawn from customs warehouses duty-free
• FAR 52.225-8, Duty-Free Entry is to be inserted in any solicitations and contracts for supplies that may be imported into the U.S. and for which duty-free entry may be obtained in accordance with FAR 25.903.
• Contractors generally are not to include customs duties on supplies in the prices paid by the Government. Either the solicitation is to identify goods that are to be duty-free, or (if it does not) the contractor is to notify the contracting officer of purchased items (generally those worth over $15,000) to be imported under the contract, at least 20 days before the importation.
• The CO then is to determine if the identified supplies are to be accorded duty-free status and notify the contractor, and the contract price is to be reduced.
• No notice from the contractor is needed if the supplies are the same as those the contractor purchases commercially and segregating the “Government” items is not economical or feasible.
• The Government is to provide any required duty-free certificates and is to help the contractor in obtaining duty-free entry for supplies, using shipping documents which note that the supplies are for the contracting agency; the contractor must identify the supplies that will come from abroad

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DFARS 225.901 - Policy

• Unless the supplies are entitled to duty-free treatment under a special category in the Harmonized Tariff Schedule of the United States (e.g., the Caribbean Basin Economic Recovery Act or a Free Trade Agreement), or unless the supplies already have entered into the customs territory of the United States and the contractor already has paid the duty, DoD will issue duty-free entry certificates for—
• (1) Qualifying country supplies (end products and components);
• (2) Eligible products (end products but not components) under contracts covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement; and
• (3) Other foreign supplies for which the contractor estimates that duty will exceed $300 per shipment into the customs territory of the United States.

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PGI 225.902 Procedures.

(1) Formal entry and release.

(i) The administrative contracting officer shall—

(A) Ensure that contractors are aware of and understand any Duty-Free Entry clause requirements. Contractors should understand that failure by them or their subcontractors to provide the data required by the clause will result in treatment of the shipment as without benefit of free entry under Section XXII, Chapter 98, Subchapter VIII, Item 9808.00.30 of the Harmonized Tariff Schedule of the United States.

(B) Upon receipt of the required notice of purchase of foreign supplies from the contractor or any tier subcontractor—

(1) Verify the duty-free entitlement of supplies entering under the contract; and

(2) Review the prime contract to ensure that performance of the contract requires the foreign supplies (quantity and price) identified in the notice.

(C) Within 20 days after receiving the notification of purchase of foreign supplies, forward . . . information in the format indicated to the Commander, DCMA New York, ATTN: Customs Team, DCMAE-GNTF, 201 Varick Street, Room 905C, New York, NY 10014 . . . .

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Status of National Defense Authorization Act (NDAA) for Fiscal Year 2026

• House passed HR 3838 on September 10, 2025
• Senate Armed Services Committee passed S. 2296 on July 11
• Senate approved motion to consider, but did not pass S. 2296 before recess
• Now reportedly in informal House-Senate reconciliation

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From SASC Report 119-39 (July 15, 2025)

Sec. 874--Duty-free entry of supplies procured by Department of Defense

The committee recommends a provision that would require the Secretary of Defense to issue duty-free entry certificates in certain circumstances, and requires supply chain tracking.

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Reciprocal Defense Procurement Agreements

The committee emphasizes that defense-related acquisitions from qualified sources under Reciprocal Defense Procurement Agreements should remain exempt from any tariffs or trade restrictions. The committee urges the Department of Defense and relevant interagency stakeholders to preserve existing exemptions and ensure that future trade actions do not hinder defense procurement or compromise national security priorities.

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Proposed Senate National Defense Authorization Act (NDAA) Section 874

Included in Senate bill as reported by SASC and in Amendment 3748 (as Substitute) by SASC Chairman Roger Wicker and Ranking Member Jack Reed on Sept. 4, 2025

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SEC. 874. DUTY-FREE ENTRY OF SUPPLIES PROCURED BY DEPARTMENT OF DEFENSE.

(a) Issuance of Duty-free Entry Certificates.--

(1) In general.--Except as provided by paragraph (2), the Secretary of Defense shall issue a duty-free entry certificate for any of the following supplies imported pursuant to a procurement contract entered into by the Department of Defense:

(A) An end product or component imported from a country with which the United States has a memorandum of understanding for reciprocal procurement of defense items in effect under section 4851 of title 10, United States Code.

(B) A defense item that is an eligible product as defined in section 308 of the Trade Agreements Act of 1979 (19 U.S.C. 2518).

(2) Exceptions.--Paragraph (1) does not apply with respect to a product or component described in that paragraph if--

(A) the product or component is eligible for duty-free treatment under the column 1 special rate of duty column of the Harmonized Tariff Schedule of the United States; or

(B) the product or component has already entered the customs territory of the United States and the contractor already has paid the duty with respect to the product or component.

Explanations:

*19 U.S. Code § 2518 defines “eligible product” to include those covered by the WTO Agreement on Government Procurement (GPA), US-Mexico-Canada Agreement (USMCA), and various Free Trade Agreements (FTAs). FAR 25.003 defines “eligible product” as “a foreign end product, construction material, or service that, due to applicability of a trade agreement to a particular acquisition, is not subject to discriminatory treatment.” DFARS 225.003 is similar, designating certain supply categories as “eligible.”

[Section 874 language continues . . .]

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Section 874 (cont’d)

(b) Tracking of Supply Chain.--The Secretary shall--

(1) track the impact of economic fluctuations, include tariffs, supply chain disruptions and inflation, on all major prime contracts entered into by the Department of Defense;

and

(2) not later than January 30, 2026, submit to the congressional defense committees a report that includes--

(A) an assessment of cost increases to both the Department and contractors as a result of tariffs imposed under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) and section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862);

(B) an assessment of the effects of such tariffs on supply chains and lead times for major defense platforms; and

(C) a summary of agreements entered into under section 4851 of title 10, United States Code [Defense memoranda of understanding and related agreements], and an assessment of the application of those agreements to the defense supply chain.

(c) Report on Duty-free Entry Certificates.--Not later than January 30, 2026, and annually thereafter until January 30, 2030, the Secretary, acting through the Director of the Defense Contract Management Agency, shall submit to the congressional defense committees a report on articles classified under subheading 9808.00.30 of the Harmonized Tariff Schedule of the United States [“Materials certified to the Commissioner of Customs by the authorized procuring agencies to be emergency war material purchased abroad”] that includes--

(1) a summary of such articles for which the Secretary issued a duty-free entry certificate; and

(2) a summary of such articles for which a duty-free entry certificate was requested and denied.

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Open Questions

• What is the purpose of the NDAA provision?
• What is Congress’ view on imposing tariffs on Defense Department procurements?
• Should the same type of exemption be extended to civilian agency procurements?
• Could a tariff exemption be extended to state and local procurements, for example under:
• Federal grants?
• Cooperative purchasing (GSA or NASPO)?

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Electronic Marketplaces

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MAJ Abraham Young, USA

The Players

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MAJ Abraham Young, USA

The Problems

Vendor data – bid challenges – transparency –

competition -- socioeconomic goals (including Buy American) – no- standards security review -- fee to GSA – Most Favored Customer pricing

Current Status

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“According to GSA’s data, between August 2020 and July 2021, the participating agencies made nearly 24,000 purchases valued at $5.9 million through the commercial platforms.”

GSA 2019: “With a potential $6 billion addressable market for the e-commerce channel . . . “

Where GSA Commercial Platforms Initiative Stands

Convergence and Compliance

Convergence: Procurement Regulation

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CONVERGENCE

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EU 2014/24/EU: Self-Cleaning

Art. 57

6.   Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.

For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.

The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.

An economic operator which has been excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.

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Victim Compensation?

Conclusion

Christopher Yukins

cyukins@law.gwu.edu