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ROBERT L. EHRLICH, JR., Governor SB. 401
Senate Bill 401 prohibits the Governor, or any other State official, from binding the
State or giving consent to bind the State to the government procurement rules of an
international trade agreement, at the request of the federal government, without the
express consent of the General Assembly. More disturbingly, Senate Bill 401 also
invalidates any consent previously given by the Governor or a State official to bind
the State or give consent to bind the State to the government procurement of an
international trade agreement. There is scant evidence that the General Assembly
gave any serious thought to the legal ramifications of repudiating retroactively the
actions taken by a previous governor in 1993. From a legal perspective, the
retroactive feature of Senate Bill 401 is of questionable constitutionality. It is clear
from a policy perspective this action dangerously raises doubts about what, if any,
reliance one here or abroad can place on the actions of the government of the State of
Maryland. This is simply irresponsible.
As the Chief Executive Officer of the State of Maryland, duly elected by the citizens of
this great State, I have been entrusted with the responsibility to make prudent and
conscientious decisions that benefit all of the citizens of Maryland. The decisions that
this Administration makes are no different than any other Chief Executive has made.
In 1981, the Agreement on Government Procurement (GPA) was established to
address the issue of government procurements under the General Agreement on
Tariffs and Trade (GATT). The GPA is designed to ensure that government
procurement in member nations does not favor domestic products or suppliers, or
discriminate against foreign products or suppliers. The United States followed a
process under which each state would specify which, if any, of its procurement activity
would be subject to the GPA. Each state could also exclude aspects of its procurement
activities from coverage. Participation in the GPA would increase exports from the
State and create new jobs producing everything from the most basic commodities to
the highest technology equipment and machinery. When GPA was expanded to cover
procurement by local government entities in the early 1990's the United States Trade
Representative solicited governors across the nation to include state procurement in
GPA.
In 1993, Governor William Donald Schaefer sent a letter to the United States Trade
Representative authorizing it to include procurements by certain State entities under
the GATT Agreement on Government Procurement. Governor Schaefer excluded
certain agencies and provided for certain conditions to apply, including, but not
limited to minority business enterprise rules, recycled products preferences, small
business preferences, and preferences for State Use Industries and Blind Industries.
When negotiations were completed in 1996, GPA included the Maryland agencies
bound by the letter from Governor Schaefer and noted that conditions applied to
these procurements.
Subsequently, when the GPA was updated in 2003, I submitted a letter to the United
States Trade Representative authorizing Maryland's participation in the GPA. My
endorsement did not change the intent of the 1993 agreement, but simply consented
to the expansion of the agreement to include more trading partners. Maryland's
procurement laws are based on being fair and transparent. Participation in the GPA
affirms these principles. In nine years of participation, no State procurement law has
been preempted by the participation. Federal action is required to preempt the State
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