RESTRICTED  
  
GPA/TN1994/1/Rev.1  
 
27 August 1997  
(24-2658) Page: 1/10 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994   
 
  
CHECKLIST OF ISSUES RAISED IN INFORMAL CONSULTATIONS   
REGARDING MODALITIES FOR THE REVIEW OF THE   
AGREEMENT ON  GOVERNMENT PROCUREMENT*,** 
Revision  
Table of Contents  
A. AREAS TO BE CONSIDERED  ................................ ................................ .......................  3 
1. Simplification and Improvement of the Agreement  ................................ ...........................  3 
(i) General  ................................ ................................ ................................ ....................  3 
(ii) Information technology  ................................ ................................ ..............................  3 
(a) General  ................................ ................................ ................................ ....................  3 
(b) Non-discrimination  ................................ ................................ ................................ .... 4 
(c) Publication requirements  ................................ ................................ ............................  4 
(d) Submission of tenders and other communications between the tenderer and the procuring 
entity  ................................ ................................ ................................ ..............................  5 
(e) Deadlines  ................................ ................................ ................................ .................  5 
(iii) Other Substantive Provisions of the Agreement  ................................ .............................  5 
(iv) Administrative Provisions of the Agreement  ................................ ................................ .. 6 
(v) Appendices to the Agreement  ................................ ................................ ......................  6 
2. Elimination of Discriminatory Measures and Practices which Distort Open  Procurement  .........  6 
(i) General  ................................ ................................ ................................ ....................  6 
(ii) Mutually Agreed Coverage of Services  ................................ ................................ ..........  6 
3. Expansion of the Coverage of the Agreement  ................................ ................................ .. 7 
B. INSTITUTIONAL/PR OCEDURAL POINTS  ................................ ................................ .... 7 
1. Work on Government Procurement in Other WTO Fora  ................................ .....................  7 
2. Institutional Arrangements for the Review  ................................ ................................ ...... 7 
3. Participation of WTO M embers in the Review  ................................ ................................ ... 7 
4. Next Steps  ................................ ................................ ................................ .................  7 
 
* English only.  
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: gpa32) was derestricted on 8 November 2023.  GPA/TN1994/1/Rev.1  
 
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  ATTACHMENT 1   SUGGESTED MODIFICATIONS TO THE AGREEMENT  INFORMATION 
TECHNOLOGY  ................................ ................................ ................................ ...................  9 
 GPA/TN1994/1/Rev.1  
 
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  1.  The following attempts to set out points made by Parties to the Agreement in the informal 
consultations held in February and May 1997 pursuant to the decision of the Committee in its 1996 
Report to the Ministerial Conference that it would "undertake an early review, starting in 1997 with 
an examination of modalities, with a view to the implementation of Article XXIV:7(b) and (c)" 
(GPA/8 , paragraph 22).  
2.  The list may not be exhaustive and will, of course, need to be amended and updated as further 
discussi on develops.  
A. AREAS TO BE CONSIDERED  
1. Simplification and Improvement of the Agreement  
(i) General  
3.  The point has been made that the key to the review lies with the issue of simplification and 
improvement of the Agreement and that, if this aspect were to be satisfactorily resolved, then the 
other two elements of the review would also largely have been addressed.  In this connection, it has 
been suggested that work on the improvement and simplification of the Agreement should be 
undertaken before tha t on the expansion of its coverage.  A simplified Agreement would be likely to 
result in a reduction in the number of exceptions to the Agreement and would therefore lead to a 
more uniform application.  On the other hand, a comment has been made that priorit y should be 
given to the review item on the elimination of discriminatory measures and practices which distort 
open procurement.  
4.  With regard to the Committee's stated aim that the review shall seek the expansion of 
membership by making the Agreement more a ccessible to non -Parties ( GPA/8 ), the point has been 
made that improving and simplifying the procedural provisions of the Agreement would increase its 
appeal to non -Parties.  Simplifying the Agreement would also help in promoting the common 
objective sought by the revi ew of the GPA, of the Working Group on Transparency in Government 
Procurement and of the Working Party on GATS Rules which is to establish a set of rules and 
principles that could ultimately be adopted on a multilateral basis.  
5.  It has been emphasized that s implifying and providing greater flexibility to the procedures under 
the Agreement should not lead to a weakening of commitments and thus result in less open markets.  
Rather, simplification should aim at obtaining effective but more easily applicable disci plines.  
Compatibility between the concepts of simplification and effective disciplines should be secured.  For 
example, any flexibility on the requirements on deadlines should be accompanied by the elaboration 
of objective criteria for providing sufficient time for bidding by domestic and foreign suppliers.  
6.  The point has been made that an approach of providing greater flexibility and more general 
principles may result in the need for a re -examination of the mechanisms aimed at ensuring the 
effective enforcem ent of the Agreement.  For instance, in addition to the bid challenge mechanism 
under Article XX and dispute settlement procedures between governments under Article XXII, 
independent enforcement agencies could be established in individual Parties to address  allegations 
of violations of the principles of the Agreement by aggrieved suppliers.  
7.  The point has been made that Parties should take into account the costs that may have to be 
borne by procuring entities and suppliers in adapting to new changes in the pr ocedures under the 
Agreement which has been in force for less than two years.  Simplification of the provisions should 
be limited to what is absolutely essential for the purposes of the efficiency of procurement regimes.  
(ii) Information technology  
 (a) General 
8.  It was suggested that, in accordance with the terms of Article XXIV:8, the Agreement should be 
adapted to take into account advances in the area of information technology since the conclusion of 
the Agreement.  GPA/TN1994/1/Rev.1  
 
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  9.  The text of the Agreement should be amended to provide flexibility and to clarify any ambiguities 
with respect to the use of information technology.  
10.  With respect to the Canadian proposal on information technology (Job No . 3887), it was said 
that information technology might have more far -reaching implications by creating new ways of 
procuring, for example through electronic commerce involving tendering of framework contracts and 
selection of off -the-shelf products from electronic catalogues.  These would have to be taken into 
account.  
11.  The need  to continue the information -gathering process in response to the revised questionnaire 
on information technology was referred to.1 
 (b) Non-discrimination  
12.  It was stated that information technology should be accommodated in such a way as to enhance 
rather  than undermine the basic objectives of transparency and non -discrimination in the Agreement 
and not to put at a disadvantage the suppliers of actual or potential Parties less well -equipped in 
information technology.  Concern has been expressed that, unless  appropriate safeguards are 
established, the use of information technology in government procurement may lead to de facto  
discrimination against foreign suppliers.  
13.  It has been suggested that  provisions should be developed which would take into account 
specific questions linked to electronic tendering systems (e.g. the question of compatibility, access 
to all, and ease of use by suppliers).  
14.  The point has been made that fears that technical and content -related compatibility issues in 
connection with the use o f information technology might lead to de facto  discrimination against 
foreign suppliers were largely resolved through the use of the Internet.  Nevertheless, Parties' 
willingness to accept electronic bids would proceed at different speeds because of consid erations 
related to security issues and feasibility for large and complex bids.  
15.  With respect to costs of using information technology, it has been mentioned that electronic 
publication of notices was both more cost -effective for suppliers than paper, as we ll as more timely 
and efficient.  
16.  The comment has been made that the Canadian proposal on information technology 
(Job No. 3887) did not treat the issue of non -discrimination satisfactorily.  Any provisions on the use 
of information technology which would all ow entities to favour only those suppliers who had access 
to information technology would be inconsistent with Articles VI:4 and VII:2 of the Agreement.  
 (c) Publication requirements  
17.  Some delegations have advocated or indicated their readiness to explore p roviding entities with 
a choice as to whether to use hard copy or information technology in all aspects of procurement 
practices, including tendering procedures and actual purchasing.  
18.  Suggestions  have been made concerning the provisions of the Agreement re lating to publication 
requirements (Article IX on invitation to participate regarding intended procurement;  Article XI on 
time-limits for tendering and delivery; Article XVII on transparency; and Article XVIII on information 
and review as regards obligatio ns of entities) and Appendices II and III to reflect the practice of 
electronic publication of notices (Job No. 3887).  These are reproduced in Attachment 1 to this note.  
19.  As regards the dissemination of information on tendering opportunities through the Int ernet, it 
has been mentioned that the Internet permits viewing of notices anywhere in the world, regardless 
of where those notices may have originated.  Technical and content -related compatibility issues for 
receipt of electronic bids could be resolved, par ticularly for routine transactions, through the use of 
the Internet.  Widely available (and free) readers, such as the Adobe Acrobat Reader would permit 
the sender and the recipient of a bid to be able to read and, if desired, print information in various 
 
1 Responses to the revised questionnaire ( GPA/W/24 ) were submitted by Norway ( GPA/W/24/Add.1 ), 
Canada ( GPA/W/24/Add.1 ) and Korea ( GPA/W/24/Add.3 ). GPA/TN1994/1/Rev.1  
 
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  word processing formats.  Using the Internet, "fill in the blanks" bids could be completed on -screen 
or downloaded and e -mailed by return to the procuring organization.  
20.  It has been suggested that Parties could be invited to provide addresses of any sites on the 
Internet that give information on procurement opportunities in their countries.  There was also need 
to examine how information was structured in national data bases.  Parties using information 
technology for tender notices were invited to describe their  relevant experience.  In this respect it 
was also mentioned that some national electronic tendering systems may not cover all procurement 
covered by the Agreement.  
 (d) Submission of tenders and other communications between the tenderer and 
the procuring e ntity  
21.  Suggestions have been made concerning the provisions of the Agreement relating to submission 
of tenders (Article XIII:1 and Article IX:6) and to communications between tenderers and the 
procuring entity (Article X:4) to allow entities to require elec tronic submission of bids and to allow 
electronic means for other communications (Job No. 3887).  These are reproduced in Attachment  1 
to this note.  
 (e) Deadlines  
22.  Some delegations have advocated or indicated their readiness to explore reducing minimum 
time-periods required in the various stages of the procurement process.  
23.  The point has been made that any reduction in time -periods should be linked to the time saved 
by using electronic means and should not lead to discrimination against distant su ppliers.  
24.  Suggestions were made concerning the deadlines set out in the Agreement  (Article XI) to take 
account of electronic tender and electronic bid receipt (Job No. 3887).  These are reproduced in 
Attachment 1 to this note.  
25.  In response to these suggestions, the point has also been made that the rationale underlying 
the specific deadlines in the GPA 1994 should be carefully considered before attempting any revision 
of the relevant provisions.  Some objective criteria would need to be developed in t his respect in 
order to ensure equal opportunity to bid to all suppliers, foreign or domestic.  It was also mentioned 
that the current deadlines had been set up to ensure that bidders were informed of the procuring 
opportunities well in advance of the time for submission of bids.  The deadlines in the present 
Agreement had been extended to 40 days from the 30 days set out in the Tokyo Round Agreement 
on Government Procurement of 1979.  Some countries voluntarily extended the deadlines to 50  days.  
(iii) Other  Substantive Provisions of the Agreement  
26.  The desirability of simplifying some of the substantive rules of the Agreement and providing 
greater flexibility where possible under those rules has been widely stressed.  It was suggested that, 
in doing this, Parties  should consider to what extent the provisions of the current Agreement actually 
contributed towards achieving its objectives.  
27.  It was suggested that consideration might be given to whether some provisions of the 
Agreement could be expressed in terms of mor e general principles, which are already implicit in the 
Agreement.  
28.  The following areas where improvements might be considered were mentioned:  
- providing flexibility in open and selective tendering procedures;  
 
- providing further clarity in the provisions  relating to some areas of tendering 
procedures;  
 
- adapting the contents of specific provisions to take account of new phenomena 
(partnerships between private and public sectors, multiplication of Build Operate GPA/TN1994/1/Rev.1  
 
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  Transfer (BOT) transactions), which were dif ficult to classify under the structure of the 
current Agreement;  
 
- improving the structure and presentation of the Agreement in such a way as to render 
it more logical and easier to follow by entities and suppliers.  This could be achieved by 
rearranging t he provisions so that they more closely followed the normal process of 
public purchasing and also by shortening certain articles through their sub division into 
several articles.  
 
(iv) Administrative Provisions of the Agreement  
29.  Statistical reporting requir ements is an area where simplification should be considered.  Those 
under the Agreement are unduly burdensome.  It might be possible to resolve problems faced by 
Parties in fulfilling the requirements of the Agreement by providing access to other Parties' st atistical 
data bases through the use of information technology.  Information technology might also open up 
other ways of monitoring the application of the Agreement in Parties.  
(v) Appendices to the Agreement  
30.  It was suggested that Appendix I to the Agreemen t might benefit from simplification,  including 
the possibility of presenting Annexes in the form of negative lists, starting with Annex 1.  The 
Committee could define the general principles that would guide the Parties in determining which 
entities should b e excluded from the coverage of the Agreement, for example for national security 
reasons.  This would also have the effect of reducing the residual exceptions and derogations under 
the General Notes to Appendix I of individual Parties.  
2. Elimination of Dis criminatory Measures and Practices which Distort Open  
Procurement  
(i) General  
31.  The point has been made that this element has prime importance for the review. Discriminatory 
measures and practices which distorted open procurement were incompatible with the objectives of 
the Agreement and represented a serious derogation from the WTO principles of non -discrimination 
which were also enshrined in Article III of the Agreement.  
32.  It was suggested that, under this element of the review, conside ration could be given to:  
- circumscription of derogations for small business and other set -aside programmes to 
provide an acceptable level of security of access to suppliers from all Parties;  
 
- elimination of current reciprocity -based exceptions and dero gations in the coverage of 
the Agreement;  
 
 - establishment of a mutually -agreed coverage of services.  
 
(ii) Mutually Agreed Coverage of Services  
33.  The point has been made that, while establishment of a mutually agreed coverage of services 
would have the effect of eliminating reciprocity conditions in various Parties, it was essential that 
Parties conducted negotiations in this area on the basis of the most -favoured -nation principle.  
34.  It was stated that the current coverage of services in the Agreement was the outcome of a 
perceived need for reciprocity in this area because various Parties had made diverse offers in the 
negotiations.  Future negotiations should aim at a uniform level of coverage among all Parties, at 
least in terms of the quality of the cover age of services.  
35.  It was suggested that an inventory of the current exemptions and discriminatory measures 
under the GPA would be a useful input to the future work on their elimination.  GPA/TN1994/1/Rev.1  
 
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  3. Expansion of the Coverage of the Agreement  
36.  It was suggested that the  coverage of the Agreement could be expanded with a view to 
achieving  a balance of market access commitments among Parties.  For this purpose the following 
specific areas that might be addressed were referred to:  
- identification of potential sectors for ex tended coverage.  Reference was made to include 
telecommunications and transportation sectors;  
 
- further expansion of the coverage of  services in the Agreement;  
 
- lowering of the thresholds values.  
 
37.  It was stated that expansion of the coverage of the Agre ement would require significant 
preparatory work.  It was also stated that any further expansion of the existing coverage of the 
Agreement at the sub -central levels of government would be dependent on progress in the 
simplification and improvement of the pr ovisions of the current Agreement.  
38.  In addition, the need to obtain adequate experience with the domestic implementation of the 
Agreement before expansion of its coverage was referred to.  
B. INSTITUTIONAL/PROCEDURAL POINTS  
1. Work on Government Procurement in Other WTO Fora  
39.  It was suggested that, in the process of the review of the Agreement, Parties should take 
account of the work on government procurement in the Working Group on Transparency in 
Government Procurement and in the Working Party on  GATS Rules. The point was also made that, 
while the level of obligations sought under each forum may not necessarily be the same, the overall 
outcome of work in these fora should be coherent and consistent.  However, the review of the 
Agreement should not be delayed by the pace of other discussions.  
2. Institutional Arrangements for the Review  
40.  The discussion of the review in February and May 1997 was carried out mainly in informal 
consultations.  One delegation suggested that an informal group should be esta blished to conduct 
the work on the review of the Agreement and that expert groups might be set up to handle specific 
topics such as information technology, simplification of statistical reporting, etc.  
3. Participation of WTO Members in the Review  
41.  It was n oted that an objective of the review was the expansion of the membership of the 
Agreement.  The review should serve the purpose of making the Agreement more attractive to other 
WTO Members as well as making accession of other WTO Members, including developi ng countries, 
easier.  For this purpose, interested WTO Members should be given the opportunity to participate 
actively in the Committee's discussions on the review of the Agreement by becoming observers to 
the Committee in accordance with the Committee's D ecision on Procedures for Participation of 
Observers ( GPA/1 ). 
42.  As agreed by the Committee at its February 1997 meeting, the Chairman sent a communication 
to the WTO Members, through the Chairman of the General Council, drawing the attention of WTO 
Members, as well as g overnments which are in the process of acceding to the WTO, to the review 
and inviting them to participate as observers in the meetings of the Committee in accordance with 
the Committee's Decision on the Participation of Observers ( WT/L/206 ). 
4. Next Steps  
43.  It was  agreed that:  
- the informal checklist of issues raised by Parties in the discussion of the review would 
be updated;  GPA/TN1994/1/Rev.1  
 
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  - during the course of its next formal meeting (29 September 1997), the Committee 
would hold further informal consultations on this item;  
 
- prior to those consultations, delegations were invited to come forward with proposals 
concerning the elements of the review; 2 further comments on the non -papers 
presented by the European Community dated 21 May 1997 (Job 3885) and by Canada 
on informati on technology dated 21 May 1997 (Job No. 3887) should also be submitted 
in advance of the next consultations.  
 
_______________  
 
 
 
 
2 A contribution from the European Community entitled "Information Technology and Public 
Procurement" was subsequently circulated in document GPA/W/50  of 8 August 1997.  GPA/TN1994/1/Rev.1  
 
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  ATTACHMENT 1  
 
SUGGESTED MODIFICATIONS TO THE AGREEMENT  
 
INFORMATION TECHNOLOGY  
Publishing methods  
 
Alternative 1  
 
• no wording changes to Articles IX, XI, XVII and XVIII  
 
• Parties agree to accept modifications to Appendices II and III to delete paper publications and 
replace with electronic publications, where the electronic publication is:  
 
 - on the Internet or in one l ocation; and  
 - accessible worldwide by telephone.  
 
Alternative 2  
 
• add a footnote  to the Agreement defining "publication" to include either electronic or paper 
publication of notices.  The definition would include the requirements in Alternative 1 above, 
where electronic publication is:  
 
 - on the Internet or in one location; and  
 - is accessible worldwide by telephone.  
 
• Parties would agree to accept modifications to Appendices II and III to delete paper 
publications and replace with electronic publicati ons 
 
Submission of tenders  
 
• amend Article XIII:1(a):  
 
- to add " electronic  means" to the list of possible methods of receiving bids (i.e. telex, 
telegram and facsimile) that are already listed;  
 
-  to delete the phrase "or by mail" in the first sentence; and  
 
- to delete the sentence "The tender must be confirmed promptly by let ter or by the 
despatch of a signed copy of the telex, telegram or facsimile."  
 
• add a provision to Article XIII to indicate that the means for submitting tenders can be 
specified by the procuring entity, provided such means shall not reduce access by fore ign and 
domestic suppliers  
 
• modify Article  IX:6 to obligate the procuring entity to include in the notice the means by which 
bids may be submitted  
 
Communications between tenderers and the procuring entity  
 
• modify Article  X:4 to add "electronic means, including e -mail" to the list of ways (e.g. telex, 
telegram and facsimile) that suppliers may use to request to participate in selective tendering  
 
• add to Article  X the provision that the means of communication can be speci fied by the 
procuring entity  
 
• modify Article IX:6 to obligate the procuring entity to include in the notice of proposed 
procurement the means by which requests to participate will be accepted  
 GPA/TN1994/1/Rev.1  
 
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  Deadlines  
 
Alternative 1  
 
• remove all of the "deadlines" identified in Article  XI 
 
• modify Article XI:1(a) to delete the words "by mail" from the last sentence  
 
Alternative 2  
 
• modify Article XI:3 so that when electronic tendering is used, all periods referred to in XI:2 
may be reduced to a minimum  of 15 days  
 
• modify Article XI:3 so that when electronic tendering and electronic bid receipt are used, 
second stage periods referred to in XI:2 (b) and (c) may be reduced to a minimum of one  day 
 
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