|U.S. - Japan Agreement on Computer Products and Services|
Exchange of Letters
I. General Policies
II. Policies and Procedures
III. Unfair Bids
IV. Annex I and II
V. Annex III
THE UNITED STATES TRADE REPRESENTATIVE
Executive Office of the President Washington D.C. 20506
January 22, 1992
His Excellency Ryohei Murata
Ambassador of Japan
2520 Massachusetts Avenue, N.W.
Dear Ambassador Murata:
I am pleased to receive your letter of today's date concerning the procurement of computer products and services in the Japanese public sector market, and the "Measures Related to Japanese Public Sector Procurements of Computer Products and Services" ("Measures") attached thereto. I am pleased to learn that your Government has decided to initiate the Measures with the aim of expanding Japan's procurements of competitive foreign computer products and services.
I understand that the Measures will govern procurements of computer products and services by the entities covered by the GATT Agreement on Government Procurement and additional entities listed respectively in Annexes I and II. It is also my understanding that the Measures will become effective on April 1, 1992 with respect to procurements of computer products by entities listed in Annexes I, II-A, II-B, and II-C, and on October 1, 1992 with respect to procurements of computer services by entities listed in Annexes I and II-A. I am pleased to note that the Government of Japan will take steps so that all the entities listed in Annexes II-B and II-C will be covered by the Measures with respect to procurements of computer services by April 1. 1993.
I welcome your Government's decision to implement the above-mentioned Measures and willingness to review the Measures as technology changes and develops in the field of computer products and services. In this regard, I should also like to confirm that the Government of the United States will meet annually, or at any time upon request by either Government, to assess the implementation of the Measures, based upon the consideration of relevant information as specified in your letter of today's date, and to discuss upon request other Japanese public sector computer procurement issues. We would propose to hold the first such consultation in July, 1992.
I am of the view that the Measures represent substantial progress toward resolving problems related to Japanese Government procurements of computer products and services. I hope that the implementation of these Measures will give United States computer manufacturers and service providers full access to the government procurement market in Japan. We will continue to monitor this situation and look forward to increased sales of competitive computer products and services by United States firms under the Measures.
I also welcome your Government's reaffirmation with respect to computer distribution, and hope that the maintenance of the Japanese Government's policy of promoting fair and free competition will further increase market entry opportunities, including those of foreign companies. We also welcome your Government's decision to encourage the private sector, including computer manufacturers and distributors, to establish internal Antimonopoly Act compliance programs.
In addition, I am pleased to reconfirm that it is the policy of the Government of the United States to provide non-discriminatory, transparent, fair and open opportunities consistent with our obligations under the GATT Agreement on Government Procurement. My Government will consult with your Government upon request concerning such policies or procedures. We are also prepared to provide the Government of Japan with necessary information as requested concerning our procurements.
Carla A. Hills
EMBASSY OF JAPAN
WASHINGTON, D. C.
January 22, 1990
Dear Ambassador Hills:
With regard to procurement of computer products and services in the Japanese public sector market, I am pleased to inform you of the following The Government of Japan has decided to initiate the "Measures Related to Japanese Public Sector Procurement of Computer Products and Services" ("Measures") based on the principles of non-discrimination, transparency, and fair and open competition in the procurement of computer products and services as defined in the Measures, in the Japanese public sector market. The Government initiates these Measures with the aim of expanding Japanese procurements of competitive foreign computer products and services.
The Measures, the text of which is attached hereto, will govern procurements of computer products and services by the entities covered by the GATT Agreement on Government procurement and additional entities listed respectively in Annexes I and II. The Measures will become effective on April 1, 1992, with respect to procurements of computer products by entities listed in Annexes I, II-A, II-B and II-C, and on October 1, 1992, with respect to procurements of computer services by entities listed in Annexes I and II-A. The Government of Japan will take steps so that all the entities listed in Annexes II-B and II-C will be covered by the Measures with respect to procurements of computer services by April 1, 1993.
I understand that the Government of the United States continues and will continue to provide nondiscriminatory, transparent, fair and open opportunities consistent with its obligations under the GATT Agreement on Government Procurement. The Government of Japan welcomes these policies of the Government of the United States and undertakes the above Measures.
In light of rapid change and development of technologies in the field of computer products and services the Government of Japan will keep the Measures under continual review. In this regard, the Government of Japan will meet annually or at any time upon request by either Government with the Government of the United States to assess the implementation of the Measures based upon the consideration of relevant information and to discuss upon request other Japanese public sector computer procurement issues.
Relevant information includes, but is not limited to, annual purchasing data for all Japanese public sector procurements (including new installations, replacements, and upgrades) broken down by two categories (i.e., foreign computer manufacturers and domestic computer manufacturers) of computer products and services; similar such data publicly available for private sector procurements; the efforts by foreign computer manufacturers to increase their Japanese public sector participation in terms of availability of specifications, performance, users' evaluation of the products and services, the growth in the Japanese public and private sector markets and levels of foreign computer manufacturers' participation in the public and private sectors in Japan.
With respect to computer distribution, in accordance with its policy of promoting fair and free competition to increase new market entry opportunities including those of foreign companies the Government of Japan reaffirms its commitment to enforce effectively the Antimonopoly Act and related guidelines to address anticompetitive activities, if any, related to the distribution of goods including computers. The Government of Japan will encourage the private sector including computer manufacturers and distributors to establish internal Antimonopoly Act compliance programs.
Ambassador of Japan
MEASURES RELATED TO JAPANESE PUBLIC SECTOR PROCUREMENTS OF COMPUTER PRODUCTS AND SERVICES
I. General Policies
A. In the interest of expanding trade opportunities based on the principles of non-discrimination, transparency, and fair and open competition in public sector procurements of computer products* (including peripherals and packaged software) and computer services (operation and maintenance of computers input of data into computers; development of computer systems, including development of software and systems integration, maintenance of computer software and other related services) (collectively referred to as "computer products and services") the Government of Japan ("the Government") will strive actively to further improve its public sector procurement procedures. Accordingly, the Government will initiate these "Measures Related to Japanese Public Sector Procurements of Computer Products and Services" ("the Measures") set forth herein, with the aim of expanding procurements of competitive foreign computer products and services.
B. The Government reaffirms its commitment to the obligations of the General Agreement on Tariffs and Trade (GATT) and the Agreement on Government Procurement as amended ("the Code"). The Measures will be implemented while ensuring consistency with the requirements of the Code, including any amendments thereto.
C. In order to implement these policies fully and effectively, the Measures will govern all computer products and services procurements above the threshold of 100,000, SDRs or the Code threshold, as amended, whichever is lower, by entities covered by the Code and additional entities listed respectively in Annexes I and II attached ("the entities").
Supercomputer procurements will continue to be covered by the "1990 Procedures to Introduce Supercomputers," and will not be covered by the Measures.
[footnote] * Computer products include services incidental to the supply of products if the value of these incidental services does not exceed that of the products themselves. [End footnote]
D. The Government further reaffirms the policies and measures set forth in the 1985 Action Program for Improved Market Access with respect to government procurement, confirms that it will continue to implement such procurement policies in the area of procurements of competitive foreign computer products and services and welcomes efforts by foreign computer manufacturers to increase their sales in the Japanese public sector market.
The Measures will become effective on April 1, 1992 with respect to procurements of computer products by entities listed in Annexes I, II-A, II-B, and II-C and on October 1, 1992 with respect to procurements of computer services by entities listed in Annexes I and II-A. The Government will take steps so that all the entities listed in Annexes II-B and II-C will be covered by the Measures with respect to procurements of computer services by April 1, 1993.
II. Policies and Procedures
The Government herein clarifies certain existing policies and procedures and establishes and implements new policies and procedures with respect to public sector computer procurement. The Government undertakes these policies and procedures to fully ensure non-discriminatory, transparent, and free and open competitive opportunities, with the aim of expanding its procurements of competitive foreign computer products and services.
1. All potential foreign and domestic suppliers will be accorded equal access to pre-solicitation information, where available, and provided with equal opportunities to participate in such pre-solicitation phase, and no advantage of advance knowledge will be given to any potential suppliers.
2. Procuring entities will ensure that all potential suppliers are given the same opportunities to participate in technical reference committees, advisory groups, study councils, or any such groups, if established that discuss the technology, budget, specifications, functions or any other aspect of planned computer products and services procurements.
3. Information disseminated during this pre-solicitation phase will not be used to exclude or pre-qualify any potential suppliers.
4. Specifications will be formulated in an impartial manner. If the procurement will replace or interconnect with an existing system, these specifications will not be designed to preclude competition. Features not essential to the assigned task will not be required.
Any supplier directly involved in the development of final specifications in a procurement will not be allowed to participate in the tendering process, if such participation would result in an unfair competitive advantage except such cases where potential suppliers provide information or assistance to a procuring entity in preparing or refining specifications in a situation where the entity is controlling the process and conducting it in a fair and impartial manner and where a supplier provides, at the request of an entity, product specifications or data about a product it supplies. In such cases all potential suppliers will be provided with an opportunity to participate or provide such product specifications or data.
6 The Government will establish a program to centralize and to facilitate the dissemination of information and provision of training related to specifications-formulation efforts of entity procurement officials.
7. The entity will hold as necessary an explanation session with regard to the procurement of computer products and services, including the opportunity for direct technical and administrative interaction between potential suppliers and the procuring entity.
Tendering and Bidding Procedures
8. All potential suppliers will be accorded fair and equal opportunities to respond to the requirements of the procuring entity in the tendering and bidding phase.
9. Because competitive procurements are the foundation of the Government's procurement polices and practices, single tendering or sole sourcing will be used only in exceptional cases, justified in accordance with Code procedures, and will not be used to favor suppliers of domestic computer products or services. The entities will reduce their use of single tendering.
10. The tender documentation and evaluation criteria will be prepared in an impartial manner so as to ensure that equal opportunities are provided to all potential suppliers on a non-discriminatory basis.
11. The bidding system, including the designated bidder system, will not be used to favor suppliers of domestic computer products or services. Procuring entities may restrict the number of suppliers that may bid on a procurement only in a non-discriminatory manner.
Evaluation of Bids
12. Evaluation of offers will be conducted in a transparent manner that ensures equal treatment of all bidders.
13. Technical evaluations and system performance evaluations when used will be conducted under the same conditions for all potential suppliers in the tendering process and any testing criteria will be the same for all potential suppliers.
14. All evaluation factors will be clearly set forth in the tender documentation. Evaluation of bids will be conducted in accordance with Code-consistent procedures, and as described in (a) and (b) below. The particular tendering procedure will be chosen by the respective procuring entities on the basis of the objective and characteristics of the procurements.
(a) Bids will be evaluated on a pass/fall basis based upon the specific technical and other evaluation criteria stated in the specifications, and contracts will be awarded to the lowest-priced bid among those bids which have met the evaluation criteria. or
(b) Contracts will be awarded to the supplier with the bid which meets the evaluation criteria and also best meets the requirements of the specifications in terms of technical and functional as well as price/cost factors. Relative weights may be applied to the evaluation criteria, as necessary, and as specified in the tender documentation. The price/cost evaluation may be based on the total life cycle cost of the procurement.
Information on the Contract Award
15. After a final selection has been made procuring entities will publish information on the contract award and, upon request from an unsuccessful supplier who has submitted material, promptly provide such supplier with pertinent information concerning the reasons for not being selected including the name of the selected system as well as information on its relative advantages. However, the information may exclude such information as would prejudice the legitimate commercial interest of particular suppliers or might prejudice fair competition among suppliers.
Information on Future Plans
16. Information made available on a budget request to any potential suppliers will be made available on a non-discriminatory basis. Procuring entities will announce in the Kanpo any plans to introduce computer products and services that exceed 800,000 SDRs as early in the Japanese fiscal year (JFY) as possible, and issue a general invitation to potential suppliers for submission of materials and comments relevant to those plans.
Entity Specific Plans
17. Pursuant to the Measures, individual procuring entities are encouraged to adopt entity-specific plans that describe the efforts that the entity is making, or will make, to implement the policies and procedures set forth in the Measures. Such entity-specific plans are encouraged to be updated every fiscal year.
Bid Protest System
18. An impartial bid protest system, described in Annex III, will be maintained to provide equitable, timely, transparent, and effective bid challenge procedures for potential suppliers of computer products and services covered by the Measures.
19. The Government will inform prefectural and local governments of the Measures, and request their cooperation in following the purport of fully competitive procurement policies and procedures consistent with the Measures.
Multi-vendor Open Systems
20. An inter-ministerial group will be tasked to promote a multi-vendor open systems environment. Foreign and domestic computer companies will be invited on a fair and non-discriminatory basis to assist in the adoption of the multi-vendor open systems environment.
III. Unfair Bids
Given that it is the policy of the Government to procure computer products and services based on bids that are consistent with the Antimonopoly Act, including the prohibition against unjust low-priced sales, procuring entities will take appropriate actions to address anticompetitive practices.
A. Where a bid is submitted that, because of its price or other terms unlawfully impedes fair competition, the bid will be deemed void in its entirety and the procuring entity will not consider that bid in awarding the contract.
B. Any bidder that submits a bid referred to in Paragraph III A above will as a matter of principle be deemed ineligible to resubmit a bid in that computer product or service procurement and the name of such bidder will be announced publicly.
C. When a procuring entity obtains information indicating the existence of practices that may unlawfully impede fair competition in relation to its procurement, including the formulation of its procurement specifications, the entity will provide such information on a timely basis to the Fair Trade Commission so as to enable the Commission to take steps as it deems appropriate.
D. To this end the procuring entities will assign a contact person with the Fair Trade Commission to facilitate procedures for the detection of, and exchange of information concerning practices that may violate the Antimonopoly Act.
Annex I (Entities covered by the GATT Agreement on Government Procurement)
Annex II (Quasi-governmental Agencies covered by the Action Program)
Annex II (Other Quasi-governmental Agencies) [These annexes are simply lists of agencies covered by the Measures and are omitted from this text.]
ANNEX III COMPLAINT MECHANISM
In order to provide fair and open competition and to achieve consistency with the provisions of the Measures in procurements of computer products and services the following complaint process will become effective 30 days after the Measures go into effect.
2. Procurement Review Board
2.1 The Government will maintain a Procurement Review Board (Board) as an independent reviewing organ to review complaints by potential suppliers of any aspect of a procurement of a computer product or service subject to the Measures. The Board will have no substantial interest in the outcome of a computer products and services procurement subject to its review.
2.2 The Board will receive complaints in writing, conduct investigations of the facts and make recommendations with respect to any aspect of a procurement of a computer product or service by an entity.
2.3 The Board will be comprised of persons who have knowledge and experience related to public sector procurements. No member of the Board will participate in the review or a complaint in which that member has a conflict of interest.
3. Procurement Review Process
3.1 A Potential supplier may file a complaint with the Board when it believes the procurement has been carried out in a manner inconsistent with the intent or any provision of the Measures. It may also file a compliant based upon the allegation that the contract was awarded to a supplier that had submitted a bid in violation of the Antimonopoly Act. Potential suppliers are encouraged to seek resolution initially with the entity of any alleged inconsistency with these Measures.
3.2 Timing of Complaints
(l) A complaint may be filed at any time during the procurement process but no later than 10 days after the basis of the complaint is known or reasonably should have been known. The potential supplier will submit a copy of the complaint to the entity within one day of filing it with the Board.
(2) The Board may consider a complaint even though not timely filed if it finds that good cause is shown or that a complaint raises issues significant to the purpose of the Measures.
3.3 The Board will review a complaint within seven days of its filing and may in writing and with good reasons given dismiss any complaint found to be:
(1) not submitted in a timely manner;
(2) not subject to these Measures;
(3) frivolous or trivial on its face;
(4) not submitted by a potential supplier; or
(5) otherwise inappropriate for review by the Board.
3.4 Where the Board determines that a complaint has been filed properly it will notify in writing all potential suppliers within one working day of the complaint.
3.5 Suspension of award or procurement process
(1) Within 10 days of the filing of a pre-award complaint the Board will issue written requests for suspension of the procurement process pending resolution of the complaint.
(2) Within 10 days of the filing of a post-award complaint the Board will request in writing suspension of performance of the contract pending resolution of the complaint.
(3) The entity will, as a matter of principle suspend, the procurement process or performance of the contract immediately after it receives the Board request, unless the head of the entity determines that urgent and compelling circumstances do not allow the entity to follow the request, in which case he will immediately inform the Board of his determination.
(1) The Board will conduct an investigation of the complaint, which may include the filing of briefs, pleadings and other documentation by the complainant and entity.
(2) The Board may, on the request of the complainant or entity or on the Board's own initiative hold a hearing on the merits of a complaint.
3.7 Entity Report
(1) Within 25 days after the day on which a copy of the complaint was sent to the entity, it will file with the Board a complete written report on the complaint containing the following:
(a) the solicitation including the specifications or portions thereof relevant to the complaint;
(b) all other documents relevant to the complaint,
(c) a statement that sets out all findings, actions and recommendations of the entity and responds fully to all allegations of the complaint, and
(d) any additional evidence or information that may be necessary in order to resolve the complaint.
(2) The Board will forthwith after receiving the report referred to in (1) above, send a copy of the relevant material to the complainant and give the complainant an opportunity within seven days after it receives the relevant material, to file with the Board comments or request that the case be decided on the existing record. The Board will forthwith after receiving the comments, send a copy to the entity.
3.8 Participants: The entity and potential suppliers whose direct economic interest would be affected by the award of, or the failure to award, a contract may participate in a complaint proceeding.
4. Findings and Recommendations
4.1 The Board will make a report of its findings and recommendations within 90 days after the day on which the complaint is filed. Its findings in which the Board will grant or deny the complaint in whole or in part, will specify whether the procurement process or award was inconsistent with the intent or specific provisions of the Measures.
4.2 (1) Where the Board finds that there is a significant likelihood that a contract was awarded to a supplier that had submitted a bid that contravened the prohibition in the Antimonopoly Act against unjust low-priced sales, it will report the case to and request that the Fair Trade Commission (FTC) determine whether or not the Antimonopoly Act has been violated and take appropriate measures.
(2) Pending the notification by the FTC of its final findings the Board will request the entity to suspend performance of the contract. With this request, the entity, as a matter of principle, will suspend performance of the contract. Upon receipt of the FTC's notification the Board will complete its review of the complaint and where the FTC found a violation of the Antimonopoly Act, the Board will recommend that the entity adopt a remedy set forth in 4.4 below.
4.3 In making its findings and recommendations the Board will consider all the circumstances surrounding the procurement process or award including the seriousness of the deficiency in the procurement process, the degree of prejudice to all potential suppliers or to the integrity and effectiveness of the Measures, the good faith of the participants and the extent of performance of the contract to which the procurement relates.
4.4 Where the Board finds that the intent or any provision of the Measures has not been realized it may recommend an appropriate remedy, including one or more of the following:
(1) that a new tender package be issued;
(2) that new bids for the contract be sought;
(3) that the bids be re-evaluated;
(4) that the contract be awarded to another supplier, or
(5) that the Contract be terminated.
4.5 The Board will send its findings in writing with its recommendations to the complainant, the entity, and any other potential suppliers, within one working day after issuance. The Ministry of Foreign Affairs will respond to external inquiries concerning the findings.
4.6 Where the entity does not follow the Board's recommendation the entity will send a copy of its decision and the rationale for it to the Board within one working day after issuance. The Ministry of Foreign Affairs will respond to external inquiries concerning the decision.
7. Whenever the Board discovers evidence of misconduct, or behavior contrary to law or regulation, such evidence will be referred to law enforcement authorities for appropriate action.
5. Express Option
5.1 Where the complainant or entity requests in writing an expeditious handling of a complaint, the Board will consider the feasibility of using the procedure set out in this section, referred to herein as the express option.
5.2 The Board will determine whether to apply the express option within two working days after receiving a request therefore and will notify the complainant and entity as to whether the express option is to be applied.
5.3 Where the express option is applied, the time limits and procedures will be as follows:
(1) The entity will, within 10 days after the day on which it is notified by the Board that the express option is to be applied, file with the Board a complete report on the complaint as specified in Section 3.7. The Board will, forthwith after receiving the report, send a copy of the relevant material to the complainant. The Board will give the complainant five days to file with the Board comments on such material or request that the case be decided on the existing record. The Board will, forthwith after receiving the comments, send a copy to the entity.
(2) The Board will issue its findings and recommendations on the complaint in writing within 45 days after the day on which the complaint is filed.