RESTRICTED  
  
GPA/TN1994/2/Rev.12  
1 August 2002  
(24-2696) Page: 1/235 
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   
 
  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT*,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of 3 0 May 2002, it was agreed that the note by the Secretariat on the 
article -by-article examination of the Agreement at the informal meetings held from February  1999 
to February  2002 (Job No. 3576) would be updated to reflect the discussions and proposals made 
at that meeting.  
 
The views expressed so far regarding the simplification a nd improvement of the Appendices are 
summarized on the attachment.  
 
 
_______________  
 
 
 
 
* English only . 
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023) ), this document (informal document symbol: negs65) was derestricted on 8 November 2023.  GPA/TN1994/2/Rev.12  
- 2 - 
  TABLE OF CONTENTS  
PREAMBLE  ................................ ................................ ................................ .......................  3 
DEFINITIONS  ................................ ................................ ................................ ...................  6 
ARTICLE I: SCOP E AND COVERAGE  ................................ ................................ ....................  15 
ARTICLE II: VALUATION OF CONTRACTS  ................................ ................................ .............  24 
ARTICLE III: NATIONAL TREATMENT AND NON -DISCRIMINATION  ................................ ...........  33 
ARTICLE IV: RULES OF ORIGIN  ................................ ................................ ..........................  38 
ARTICLE V: SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  ................  39 
ARTICLE VI: TECHNICAL SPECIFICATIONS  ................................ ................................ ..........  58 
ARTICLE VII: TENDERING PROCEDURES  ................................ ................................ .............  70 
ARTICLE VIII: QUALIFICATION OF SUPPLIERS  ................................ ................................ ..... 79 
ARTICLE IX: INVITATION TO PARTICIPATE REGARDI NG INTENDED PROCUREMENT  ...................  98 
ARTICLE X: SELECTION PROCEDURES  ................................ ................................ ..............  118 
ARTICLE XI: TIME -LIMITS FOR TENDERING AND DELIVERY  ................................ .................  121 
ARTICLE XII: TENDER DOCUMENTATION  ................................ ................................ ...........  141 
ARTICLE XIII: SUBMISSION, RECEIPT AND OPENING OF TENDERS AND AWARDING OF 
CONTRACTS  ................................ ................................ ................................ ..................  147 
ARTICLE XIV: NEGOTIATION  ................................ ................................ ...........................  157 
ARTICLE XV: LIMITED TENDERING  ................................ ................................ ...................  161 
ARTICLE XVI: OFFSETS  ................................ ................................ ................................ .. 177 
ARTICLE XVII: TRANSPARENCY  ................................ ................................ ........................  179 
ARTICLE XVIII: INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  ...........  181 
ARTICLE XIX: INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  ...............  189 
ARTICLE XX: CHALLENGE PROCEDURES  ................................ ................................ ............  198 
ARTICLE XXI: INSTITUTIONS  ................................ ................................ ..........................  209 
ARTICLE XXII: CONSULTATIONS AND DISPUTE SETTLEMENT  ................................ ...............  210 
ARTICLE  XXIII: EXCEPTIONS TO THE AGREEMEN T ................................ ..............................  214 
ARTICLE XXIV: FINAL PROVISIONS  ................................ ................................ ..................  215 
ATTACHMENT  ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS REGARDING 
THE SIMPLIFICATION AND IMPROVEMENT OF THE APPEN DICES TO THE AGREEMENT  ..............  234 
 
Comment  
 
• The table of contents facilitates reference to the text and is more presentable.  
[Hong  Kong,  China]  GPA/TN1994/2/Rev.12  
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  PREAMBLE  
Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Parties to this Agreement  (hereinafter 
referred to as "Parties"),  
  Parties to this Agreement (hereinafter 
referred to as "Parties"),  
 
 Recognizing  the need for an effective 
multilateral framework of rights and obligations 
with respect to laws, regulations, procedures and 
practices regarding government procurement 
with a view to achieving greater liberalization 
and expansion  of world trade and improving the 
international framework for the conduct of world 
trade;  
  Recognizing  the need for an effective 
multilateral framework of rights and 
obligations with respect to measures 
regarding government procurement, with a 
view to achieving greater liberalization and 
expansion of world trade and improving the 
international framework fo r the conduct of 
world trade;  
[US – Job No. 2867]  
 
 Recognizing that laws, regulations, 
procedures and practices regarding 
government procurement should not be 
adopted or applied so as to afford 
protection to domestic suppliers, products 
or services or discriminate among foreign 
suppliers, products or services;  
[EC; Job No. 4312]  
 
 
Comment  
 
• In the US proposal, "measures" is used instead of "laws, regulations, procedures and 
practices" . The word "measures" is too general and not defined in Article 1 . Therefore, it may 
be subject to different interpretation . The implications of the use of this term instead of the 
current terminology needs to be considered . The wording in the existing Agreement seems 
better.  [Hong  Kong, China]  
 
 Recognizing  that it is desirable to 
provide transparency of laws, regulations, 
procedures and practices regarding 
government procurement;  
  Recognizing  that the transparency, 
integrity and predictability of government 
procurement systems are integral to the 
efficient and effective management of 
public resources, the overall quality of 
governance, the economic performance of 
the Parties ' societies, and the functioning of 
the multilateral trading system;  
 
 Recognizing  that the procedural 
commitments under this Agreement should 
be sufficiently flexible to accommodate the 
specific circumstances of each Party and 
limited to what is necessary to achieve the 
Parties ' objectives of this Agreement;  
[US – Job No. 2867]  
 
 
Comment  
 
• It is not clear how "procedural commitments" would be related to "flexibility to accommodate 
the specific circumstances of each Party" ? [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 4 - 
  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Recognizing  that laws, regulations, 
procedures and practices regarding government 
procurement should not be prepared, adopted or 
applied to foreign or domestic products and 
services and to foreign or domestic suppliers so 
as to afford protection to domesti c products or 
services or domestic suppliers and should not 
discriminate among foreign products or services 
or among foreign suppliers;  
  Recognizing the need for an effective 
multilateral framework for government 
procurement with a view to achieving 
great er liberalization and expansion of 
international trade and improving the 
framework for the conduct of international 
trade ; [EC; Job No. 4312]  
 Recognizing  the need to establish 
international procedures on notification, 
consultation, surveillance and dispute settlement 
with a view to ensuring a fair, prompt and 
effective enforcement of the international 
provisions on government procurement and to 
maintain th e balance of rights and obligations at 
the highest possible level;  
  
 Recognizing  the need to take into account 
the development, financial and trade needs of 
developing countries, in particular the 
least-developed countries;  
  
 Desiring , in accordance with 
paragraph  6(b) of Article IX of the Agreement on 
Government Procurement done on  
12 April 1979, as amended on 2  February  1987, 
to broaden and improve the Agreement on the 
basis of mutual reciprocity and to expand the 
coverage of the Agreement to include service 
contracts;  
  
 
Comments  
 
• Clarification is needed in relation to the rationale regarding the US proposal to drop the 
5th paragraph of the current preamble, which refers to special and differential treatment and 
the 6th paragraph, which refers to the need to broaden and improve the Agreement on the 
basis of mutual reciprocit y. [Canada ; EC; Israel]  
• Since one of the aims of the review is to encourage and to create a situation where developing 
countries will be more motivated to become a Party to the Agreement, the importance of 
development and the needs of developing countries is an issue that deserves recognition in 
the preambular language.  [Israel]  
• Developing countries would prefer to see concrete provisions in the text of the Agreement 
rather than a general statement of interest or intent where it is unclear what is meant by such 
statements . It is more important to consider what the Agreement does as compared to what 
it says it does in the Preamble . It is necessary to make sure that the preambular paragraphs 
make sense and there is not necessarily a need to carry a paragraph o ver to the new 
agreement just because it is contained in the existing Agreement . However, it is true that the 
fact that a paragraph in the existing agreement is dropped could send a signal and that fact 
should be taken into account.  [US] GPA/TN1994/2/Rev.12  
- 5 - 
  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Desiring  to encourage acceptance of and 
accession to this Agreement by governments not 
party to it;  
  Desiring  to encourage acceptance of 
and accession to this Agreement by 
governments not party to it;  
 
 Having  undertaken  further negotiations in 
pursuance of these objectives;  
  Having undertaken  further 
negotiations in pursuance of these 
objectives;  
 
 Hereby agree as follows:  
 Hereby agree  as follows:  
[US – Job No. 2867]  
 
 
General Comments  
 
• It is doubted whether the review of the Agreement should attempt to revamp the Preamble . 
The original Preamble covers a much wider perspective and adheres more closely to the 
fundamental principles of the WTO . In particular, the language on non -discrimination is the 
cornerstone of the Agreement and should not be removed or undermined.  [Hong Kong, China ; 
EC] 
• All the issues that have been removed from the existing preamble are addressed in the text 
of the Agreement itself . To what extent is it necessary to make a general statement in the 
Preamble for every element contained in the text of the Agreement ? [US] 
 
 GPA/TN1994/2/Rev.12  
- 6 - 
  DEFINITIONS  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article I  
Definitions  
 
 For purposes of this Agreement:  
 
 build -operate -transfer contracts and public 
works concession contracts mean any 
contractual arrangement the primary 
purpose of which is to provide for the 
construction or rehabilitation of physical 
infrastructure, plant, buildings, facilities or 
other government -owned works and under 
which, as consideration for a supplier's 
execution of a contract, an entity grants to 
the supplier, for a spec ified period of time, 
temporary ownership or a right to control 
and operate, and demand payment for  the 
use of such works for the duration of the 
contract;  
 [US – Job No. 1051]  
 
 
Comments  
 
• The language in the US proposal is broad and is intended to reflect that, in some systems, 
works that are constructed under a BOT contract or public works concession contract are often 
publicly owned as soon as they exist or shortly thereafter. [US] 
• Regarding the reference in the US definition to "public works concession contracts, " details 
are required as to how these concessions would operate. [Switzerland ; Jordan]  Given the 
broad range of public works, does this term include contracts for the maintenance of public 
works ? [Jordan]  
• Explanatory Note with example s of BOT "Contracts and Concessions for Public Works" 
(Job 1043) seeks to clarify the various types of contractual modalities that would fall within 
the definition that has been proposed. [US] 
• The US list of contractual modalities that would fall within th e definition of BOT contracts refers 
to some elements of the definition of government procurement but does not constitute a 
comprehensive definition of government procurement . A comprehensive definition of 
"government procurement" does not currently exist.  [Switzerland]  
Comments regarding whether a definition is necessary  
 
• Although Parties may not have the same understanding of what is meant by 
build-operate -transfer contracts, a simple text defining such contracts is not necessarily an 
appropriate solution . A dilemma exists in choosing between having a simple, streamlined text 
and seeking to clarify the situation in a particular area.  [EC, Switzerland ] 
• While there is a broad range of range of contractual arrangements and it is necessary to clearly 
understan d what Parties' expectations are with respect to the GPA, the US paper seeks to 
make a first step in considering what should be included and what should be excluded from a 
definition of BOT contracts.  [US] 
• Among the Parties to the GPA and also outside the Agreement, there has been a significant 
increase in the use of BOT contracts . The use of such contracts appears to be for the purpose 
of replacing traditional contractual procurement . Governments that do not have sufficient GPA/TN1994/2/Rev.12  
- 7 - 
  funds are increasingly using BOT  contracts for the same purpose as traditional methods, 
although they involve different procedures, particularly in relation to compensation of the 
contractor . If this issue is not dealt with in the Agreement, there may be more uncertainty or 
a reduction i n the effective coverage of the Agreement, particularly with respect to 
construction services.  [US] 
Comments regarding characteristics of concessions for public works and BOT contracts  
 
• The US proposal focuses on determining whether the primary purpose of the contract is the 
acquisition or use of a public work by the government . If the primary purpose of the contract 
from the point of view of the government is the acquisition of a public work, it would fall within 
the definition of a BOT contract . In some cases, the contractor that performs a construction 
service may have commercial considerations in mind and there may be incidental commercial 
activities associated with the contract, particularly when a concession is involved . However, 
any private  sector contractor that enters into a contract with the government will be doing so 
for commercial reasons . Accordingly, it is necessary to consider what the commercial activity 
is and who is undertaking that activity.  [US] 
• If the primary purpose of a cont ract is the acquisition of ownership by the government after 
a certain period of time, there is a strong presumption that such a transaction should be 
considered to be government procurement, even if such acquisition involves the granting of a 
short-term c oncession instead of direct payment for acquisition.  [US] 
• Public work contracts and BOT contracts are not the same, even if it is recognised that there 
are similarities . In particular, the level of economic risk that the private contractor bears differs 
under the two different types of contracts.  [EC] The issue of the degree of risk assumed by 
the private contractor is of interest and should be explored in more detail.  [US] 
• If the underlying purpose of a contract is not the acquisition of a public work - e.g. the granting 
of a concession to operate a commercial facility on government property or on government 
land where the government does not obtain anything through such a contract - that would not 
be considered to be a BOT contract, nor would it be conside red to be government procurement.  
[US] 
• There may be cases in which services contracts or concessions may involve some incidental 
improvement of public facilities . In such cases, it is necessary to focus on the primary purpose 
of a contract . If the primary purpose is the construction or rehabilitation of public works, it 
should be considered to be a construction services contract or a BOT contract . However, if the 
primary purpose was to grant a concession or to award a services contract and in either case 
there is some incidental improvement of public facilities, such incidental improvement should 
not be considered to be defining in terms of how the contract should be categorized.  [US] 
• The term "BOT" includes a large variety of contracts . Experience has indic ated that some 
contracts that have been labelled as BOT contracts are actually public work contracts, 
concessions of public works or public services concessions.  [EC] 
• Concrete examples are needed to determine how the proposed definition would work, under 
what conditions BOT contracts are used, and the conditions under which the public work is 
returned to the government.  [Switzerland ; EC; US] 
See the explanatory note by the US on Job No. 1043.  
 
• See also the communication from the United States in Job No. 6800.  
• How can BOT contracts and services contracts be distinguished ? The Explanatory Note 
(Job No.6772) indicates that there is an emphasis on the creation of fixed assets or public 
works. [Canada]  
• There are a number of features that distinguish procur ement from concessions for public works 
or BOT contracts . First, the concessionaire does not receive a sum of money in exchange for 
the building works performed but, rather, receives the right to operate the infrastructure . GPA/TN1994/2/Rev.12  
- 8 - 
  Secondly, concessions or BOT con tracts may involve funds being transferred from the private 
sector to the public sector . Thirdly, a concession or BOT contract which entails the right to 
operate infrastructure is, in substance, a transfer or delegation of power from the entity that 
would have ordinarily carried out the activity . These differences mean that it is necessary to 
separate the concept of procurement from concessions and BOT contracts . Further, the issue 
of coverage of concessions and BOT contracts relates more to the issue of th e expansion of 
the coverage of the Agreement and is not merely a clarification of the existing text.  [EC] 
• Contracts other than concessions for public works, including procurement contracts, may 
entail a delegation of powers that entities would ordinarily p ossess.  [Canada]  
• The awarding of public works contracts usually entails delegations of power over long periods 
of time . During such periods, the private concessionaire operates the infrastructure in the 
place of the public authority.  [EC] 
• The GPA is not co ncerned with the content and terms of procurement contracts but rather 
with the procurement process . However, the distinctions made by the EC such as those 
relating to the allocation of risk or financing, concern more the content of procurement of 
contract s and the allocation of risk between the government entity/buyer and the private 
sector supplier rather than the procurement process . Contracts where the government 
essentially acquires a public construction for its own use and its own purposes has the 
characteristics of procurement within the expression "procurement by any contractual means " 
in the GPA. [US] 
• While the comments that have been made relate to the content of the contract, they are 
relevant to the process adopted by the public authority in choo sing a private contractor. [EC] 
• The proposal suggests that management contracts and the sale of government shares in public 
companies are covered under the Agreement . However, neither is mentioned in the definition 
of "build -operate -transfer".  [Jordan]  
• Paragraph 11 of the Explanatory Note in Job No. 1043 indicates that contracts for the 
management and operation of facilities are a form of "PPP" or public -private partnership that 
is separate from BOT . Are contracts for the management and operation of facilit ies considered 
to be services contracts within the context of the GPA ? [Canada] . 
• Such management and operation contracts would not be BOT contracts or construction 
services contracts . They are management contracts which entail the provision of services. 
[US] 
Other comments  
 
• What would the situation be when the government contracts, for example, for cafeteria 
services that are provided on government land ? [Canada ] Such contracts are services 
contracts and do not involve the construction of any public works , facilities etc. T herefore, 
they are unlikely to be categorised as BOT contracts.  [US] 
• In cases whether the central or local government procures land or buildings but nothing more, 
would the GPA apply ? [Japan ] 
• In cases where the central or local governmen t provides subsidies for suppliers but nothing is 
procured from suppliers, would the GPA apply ? [Japan ] It is important to avoid defining BOT 
contracts too broadly in the GPA so that it would include transactions that are not government 
procurement, such a s subsidies.  [US] 
• There are an increasing number of variations of BOT contracts and it is likely that more 
varieties will emerge in the future . Since how and to what extent the government is involved 
in BOT projects depends on the type of BOT, there is nee d for more discussion on what types 
of BOT are appropriately treated as government procurement . It is unclear whether future 
forms of BOT contracts would be caught by the definition contained in the US proposal.  [Japan ] GPA/TN1994/2/Rev.12  
- 9 - 
  • The US definition attempts to clarif y the meaning of the term "BOT" in a way that ensures 
that it is not too wide.  [US] 
• Is the scope of procurements covered by the GPA likely to expand in accordance with the 
definition of the BOT contracts and the public works concession contracts under the U.S. 
proposal ? [Country]  
• Are contracts subject to the GPA in the cases where : projects are conducted independently in 
terms of financing (i.e. all project costs are fully covered by fees charged by the private sector 
contractor and paid by the users of the facilities) ; and facilities are transferred to public entities 
without compensation ? In the affirmative, how should the value of the contract be determined  
 [Japan ; Job No. 5474] 
• See also the comments on the proposed amendments to Article I:2 on Scope and Coverage.  
 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 international standard means a standard 
that is developed in a manner consistent 
with the decisions of the WTO Committee 
on Technical Barriers to Trade, as 
elaborated in "Decisions and 
Recommendations adopted by the 
Committee since 1 January  1995, 
"GB/TBT/ 1/Rev7, 2 8 November  2000, 
Section IX ("Decision of the Committee on 
Principles for the Development of 
International Standard, Guides and 
Recommendations with relation to 
Article s 2, 5 and Annex 3 of the 
Agreement").  
[US – Job No. 1051]  
 
 
• Document GB/TBT/1/Rev.7 contains guidelines for entities or institutes that are responsible 
for developing international standards . There is a risk that international standards that are 
being developed do not conform to that document . How would procuring entities k now which 
international standards conform ? [Japan]  
• The GPA committee is not the body to decide international standards . However, some 
reference point is needed and the most logical one is the TBT document to which reference 
has been made.  [US] 
 GPA/TN1994/2/Rev.12  
- 10 - 
   
AGREEMENT  ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 construction services contract means a 
contract that has as its objective the 
realization by whatever means of civil or 
building works, in the sense of Division 51 
of the Central Product Classification (CPC);  
[US – Job No. 2867]  
 
 country or countries  include any separate 
customs territory Party to this Agreement . 
In the case of a separate customs territory 
Party to this Agreement, where an 
expression in this Agreement is qualified by 
the term "national", such expression shall 
be read as pertaining to that customs 
territory, unless otherwise specified;  
[US – Job No. 2867]  
 
 government  is deemed to include the 
competent authorities of the European 
Communities;  
[US – Job No. 2867]  
 
 in writing or written means any expression 
of information in words, numbers or other 
symbols, including electronic expressions, 
that can be read, reproduced, and stored;  
[US – Job No. 2867]  
 
 
Comments  
 
• The definition of "in writing" or "written" is contained in a proposed revision to the US Federal 
Acquisition Regulation (FAR), which was published in the US Federal Register on 
1 November  2000. As of 3 0 March  2001, the Civilian Agency Acquisition Council and the 
Defense Acquisition Regulations Council  continue to review this regulatory proposal . The 
United States reserves its right to modify the language of this submission, based on ongoing 
internal consultations.  [US] 
• We support the definition of "in writing or written" as it recognizes electronic exp ressions, that 
can be read, reproduced, and stored.  [Hong Kong, China]  
 
  GPA/TN1994/2/Rev.12  
- 11 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
  
limited tendering procedures are those 
procedures that the entity makes no public 
invitation for participation in the tendering 
exercise;  
[Hong Kong, China]  
 
 
 
  GPA/TN1994/2/Rev.12  
- 12 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procurement means the process by which a 
government obtains the use of or acquires 
goods or services, or any combination 
thereof, for governmental purposes and not 
with a view to commercial sale or resale, or 
use in the production or supply of goods or 
services for commercial sale or resale  
[US – Job No. 1051]  
 
 
Comments concerning a definition of government procurement  
 
• The proposed definition of procurement is based upon the Agreement 's existing definition of 
scope and definitions of government procurement contained in the GATT and the GATS . It is 
considered useful to define "procurement " in the G PA so that all Parties understand their 
specific commitments. [US] 
• There is a risk that if a definition of "government procurement" is included in the GPA, the 
scope and coverage of the current GPA offers could be expanded or, at least, that impression 
could be conveyed to outsiders.  [EC] 
• Including a definition in the GPA would be useful to non -Parties who may be considering 
accession in so far as it might assist them to understand what the major commitments under 
the Agreement would be.  [US] 
• This Article s hould contain a definition of the term "government procurement" which focuses 
on the status of the end -users rather than on the purchasing agent.  [Hong Kong, China ] Some 
specific suggestions with respect to this comment should be provided . [US; Canada]  
• The proposed US text uses four terms, seemingly interchangeably – namely, "contract", 
"procurement", "procurement contract" and "intended procurement" . "Procurement" is the 
process of procurement which results in one or more contracts being entered into . Therefore, 
the term "procurement" should be used in relation to the procurement process . In turn, 
"contract" should be used in relation to the outcome of the process of procurement . It is 
unclear how the term "measures" fits in relation to the other terms that  have been referred 
to. [Canada]  
• Further examination may be needed of the EC's decision to withdraw its proposed definition 
of "government procurement ." It may be necessary to determine whether the EC's concerns 
are addressed in the definition of "governme nt procurement" that has been proposed by the 
US. [US] 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 measure means any law, regulation, 
procedure, requirement, administrative 
guidance or practice  
[US – Job No. 1051]  
 
 
• The proposed definition of "measure " is deliberately intended to be broad.  [US] 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procuring entity means an entity covered 
under Annexes 1, 2 and 3 of Appendix I of 
each Party;  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.12  
- 13 - 
   
Comment  
 
• If "procuring entity" is a defined term, it should be consistently used throughout the text 
instead of using the term "entity" or "entities" elsewhere in the text.  [Hong Kong, China]  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 services includes construction services 
contracts, unless otherwise specified;  
[US – Job No. 2867]  
 
Comments  
 
• Clarification is sought as to why "services" has been defined to include construction service 
contracts "unless otherwise specified ." Where should reference be made to determine whether 
something has been "otherwise specified" as per this definition ? [Japan]  
• Most of the Annexes already contain the definition of "services" that has been included in the 
definition that has been proposed by the US . In the interests of consolidating the Agreement 
and making it easier to understand, the definition has been included in the proposed article 
on definitions that it can be referred to when interpreting the Agreem ent and the Annexes.  
[US] 
  GPA/TN1994/2/Rev.12  
- 14 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 supplier means a natural person or 
enterprise that has provided or could 
provide goods or services in response to a 
procuring entity's call for tenders ; and 
[US – Job No. 2867]  
 
 technical specification means a tendering 
requirement that lays down the 
characteristic of goods to be procured or 
their related processes and production 
methods or the characteristics of services 
to be procured or their related operating 
methods, including any applicable 
administrative provisions . It may also 
include or deal exclusively with 
terminology, symbols, packaging, marking 
or labelling requirements as they apply to a 
good, process, or production or operating 
method.  
[US – Job No. 2867]  
 
 
General comments on a new article in the Agreement on definitions  
 
• An article containing definitions may be useful to ensure that all Parties understand the terms 
that are being used in making commitments vis-à-vis other Parties.  [US] 
• We have no strong view on whether to have an article on definitions or to define terms 
individually by means of footnotes or otherwise . However it is done, the terms to be defined 
should be kept to the minimum necessary, e.g. confining definitions to technical terms or 
terms having a meaning other than the literal one . In this regard, we have  doubts on whether 
"construction services contract", "procuring entity" and "supplier" need to be defined.  [Hong 
Kong, China]  
 GPA/TN1994/2/Rev.12  
- 15 - 
  ARTICLE I:  SCOPE AND COVERAGE  
Article I:1  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I.  
 
Footnote 1 : 
 
1. For each Party, Appendix I is divided into 
five Annexes:  
 
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contains all other entities that 
procure in accordance with the provisions 
of this Agreement.  
- Annex 4 specifies services, whether list ed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction 
services.  
Relevant thresholds are specified in each Party's 
Annexes.   
 
 1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement by entities covered by this 
Agreement, as specified in Appendix I, 
except procurements with a view to 
commercial resale or with a view to use in 
the production of goods or supply of 
services for commercial sale.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Would the elimination of the footnote listing the Annexes in Appendix I and its replacement 
by the words "as specified in Appendix I", imply a different structure for Appendix I ? [Canada]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. This Agreement applies to any measure 
specifically governing an entity' s 
procurement, by any contractual means , 
including purchase ; lease ; rental or hire 
purchase, with or without an option to buy ; 
and build -operate -transfer and concessions 
for public works contracts.  
[US – Job No. 1051]  
 
 
 GPA/TN1994/2/Rev.12  
- 16 - 
  Comments on "entity"  
 
• The definition of "procurement " in the proposed definition section is a broad one that is not 
specifically related to the scope of the Agreement . In particular, it defines procurement 
regardless of whether or not it is covered under the Agreement. [US] 
• The proposed Article I refers to an "entity " but not to Appendix I.  "Entity " is defined in the 
proposed definitions section as an entity listed in Appendix I.  Therefore, Article I would 
effectively refer to Appendix I through the reference to "entity ." The objective of this change 
is to simplify language through the incorporation of some concepts into the proposed 
definitions section.  [US] 
• Article I ref ers to "entity " whereas the definition of "procurement " refers to the term 
"government " which, in turn, is defined to mean central and local government entities . The 
entities listed in Annex 3 of Appendix I are not government agencies and, therefore, do no t 
fall within the definition of "government. " [Japan]  
 
Comments on "any measure"  
 
• Paragraph 1(a) of the US proposal seems to suggest that the scope of the Agreement should 
be both measures -based and procurement -based . Perhaps a measures -based approach is 
more consistent with other trade obligations . Will the Agreement apply to "measures" and to 
"procurement" ? The Agreement should apply to one or the other.  [Canada]  
• It is understood that the term "measure" includes "laws, regulations, procedures or practices " 
and that "practices" can mean almost any decision that a government takes during a 
procurement process . For example, a contract award decision would be a "practice" as well as 
a "measure" that would be governed by the GPA.  [US] 
• Given the explanation prov ided in relation to the meaning of the word "measure" in the US 
proposal, it may be preferable to include a definition of that term referring to "laws, 
regulations, procedures or practices" in the proposed Article containing definitions since the 
word "mea sure" may be defined more broadly in other jurisdictions.  [Hong Kong, China]  
• Do some Parties consider that some "measures" that have not been included in the list 
currently contained in the GPA should not be made subject to the GPA ? [US] 
• What kind of "meas ures" does the US have in mind ? In addition to the measures that are 
covered under the existing Agreement, does the US proposal seek to cover any additional 
measures ? If so, such an approach might affect the mutually agreed coverage under the 
existing Agre ement. [Japan]  
• The word "measure" has often been used in many WTO agreements . The term "measure" is 
much broader than "law, regulation, procedure or practice" . If this term is to be used, 
clarification is needed as to whether a definition similar to the word "measure" in Article 
XXVIII(a) of the GATS is preferred ? [Hong Kong, China]  
• Why is there no reference to procuring entities specified in Appendix I in paragraph 1 of it 's 
the US proposal given that there is such a reference in paragraph 2 of the propo sal? [Japan]  
Comments on GATT and GATS definitions  
 
• A reference to definitions contained in the GATT and GATS is necessary to ensure that the 
inclusion of a definition of "government procurement" in the GPA does not lead to a situation 
in which government procurement is not covered by any WTO rules.  [EC] 
• In terms of covered procurement, it is necessary to avoid the possibility of there being any 
gaps between what is covered by GATT Article III:8 and GATS Article XIII and what is covered 
under the GPA.  [EC; US] GPA/TN1994/2/Rev.12  
- 17 - 
  • What are the potential gaps between the GPA on the one hand and the GATT and GATS on 
the other ? [Switzerland]  
• Consideration should be given to whether the current definitions in the GATT and the GATS 
are adequate or whether a further definition of "gov ernment procurement" should be 
developed in the Agreement.  [US] 
• If a definition of "government procurement" is to be developed, such a definition should be 
included in a multilateral instrument otherwise there is a risk that there will be two definitions 
of government procurement - one in the exceptions to the GATT and the GATS and the other 
in the GPA.  [EC] 
• Is it necessary to cover procurement excluded from the GATT and the GATS ? [Canada]  
• What is covered in the GPA Annexes is within the framework of the ge neral exceptions to the 
GATT and GATS, otherwise there would be no point in coverage under the GPA.  [EC] 
• It is necessary to look at the significance of the term "commercial sale" in the definition in 
GATT Article  III:8. The term "commercial" is intended to  narrow the exception to the definition 
of government procurement.  
Other Comments  
• It is unclear whether the reference to build -operate -transfer contracts in this Article is merely 
a clarification of the existing article . The proposal could be considered to be an extension of 
coverage.  [EC] 
 
 
  GPA/TN1994/2/Rev.12  
- 18 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement by entities 1 covered by 
this Agreement , as specified in 
Appendix  I.2 
 
Note 1 : For the purpose of this Agreement, 
"entities" are understood to exclude those 
entities for which government control or 
influence has been effectively eliminated 
through privatization. [Korea, Job No. ?? ?] 
  
Note 2 : For each Party Appendix I is divided 
into 
five Annexes:  
 
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central 
government entities.  
- Annex 3 contains all other entities 
that procure in accordance with the 
provisions of this Agreeme nt. 
- Annex 4 specifies services, whether 
listed positively or negatively, 
covered by this Agreement.  
- Annex 5 specifies covered 
construction services.  
Relevant thresholds are specified in each 
Party's Annexes . 
 
• With respect to Korea's proposed amendment to Articles I and XXIV:6(b) of the GPA, Korea 
considers that applying the GPA to privatized entities is neither legally consistent nor 
practically desirable . Therefore, Korea's proposed amendment seeks to exclude privatized 
entities from the scop e of the GPA . The proposal involves the insertion of a new note – 
Note 1 - to Article I in addition to an amendment of Article XXIV:6(b).  [Korea]  
• With respect to the use of the term "eliminated through privatization" in the proposed Note1 , 
guidance is needed as to what is meant by "privatization".  [US; EC] 
• Should "privatization" be defined in terms of the level of competition in the area in which the 
privatized  entity will be operating ? Alternatively, what other criteria would apply ? 
[Switzerland]  
• The r elevant Chinese Taipei law states that if the government owns less than 50 % of a 
formerly government -owned enterprise, the enterprise is considered to be privatized.  [Chinese 
Taipei]  
 
 GPA/TN1994/2/Rev.12  
- 19 - 
  Article I  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. For each Party, Appendix I shall be 
divided into five Annexes:  
 
(a) Annex 1 specifies the central 
government entities whose 
procurement is covered by this 
Agreement;  
(b) Annex 2 specifies the sub -central 
government entities whose 
procurement is covered by this 
Agreement;  
(c) Annex 3 specifies all other entities 
whose procurement is covered by 
this Agreement;  
(d) Annex 4 specifies the services 
covered by this Agreement ; and 
(e) Annex 5 specifies the  construction 
services covered by this Agreement.  
[US – Job No. 2867]  
 
 
Comments  
 
• Paragraphs 1(a) and (b) of the US proposal are considered to be cumulative and together 
constitute a definition of government procurement, paragraph (a) addressing measures and 
paragraph (b) addressing the entities that take those measures. [US] 
 GPA/TN1994/2/Rev.12  
- 20 - 
  Article I:2 
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by 
any contractual means, including through such 
methods as purchase or as lease, rental or hire 
purchase, with or without an option to buy, 
including any combination of products and 
services.  (see definition of procurement under 
"definitions").  
 
 
Comments on reference to BOT contracts  
 
• A reference to forms of procurement under new phenomena (partnerships between private 
and public sectors, multiplication of "Build Operate Transfer" (BOT) operations, joint ventures) 
should be included in this paragraph with an exact definition of these terms given in the text 
of the Agreement or in footnotes.  [Korea ] 
• To wha t extent should public procurement contracts that are based upon public/private 
partnerships be covered by the GPA ? [Japan ] 
• The note by the Secretariat on "Concessions and BOT Contracts" ( JOB(00)/5657 ) points out 
that there may be a relationship between B OT-type contracts and the definition of government 
procurement in the GATT and the GATS.  [US] 
• The existing Agreement refers to procurement by "any contractual means" . Therefore, the 
question arises as to whether a build -operate -transfer contract constitutes a "contractual 
means" . The US considers that it does . Therefore, the next question is whether such contracts 
constitute procurement . The US tends to the view that it does . There are many different types 
of contractual relationships that governm ents have with the private sector beyond 
build-operate -transfer contracts and including other types of procurement contracts . For 
example, there are a series of contracts including BOT, BOOT and BOO contracts, that are 
contractual means, some of which do n ot involve ownership of any property by the 
government and some of which may be very similar to licensing or other types of operations . 
The reference to build -operate -transfer contracts does not necessarily mean that those types 
of contractual means are co nsidered to be procurement . The reference to BOT contracts is a 
fairly narrow range of contractual means and there is a much broader range of government 
activities that would not be covered by that term.  [United States ] 
• Reservations exist regarding the ext ension of coverage of the Agreement to BOT contracts 
because it is unclear whether such contracts can be regarded as government procurement . 
They are a hybrid of "concessions" (whereby the government gives an exclusive right to an 
entity to operate a servi ce) and "procurement" ; and BOT contracts often last for many years 
and may involve some kind of franchise arrangement . Concern exists regarding the 
implications of this extension as parties may later request further extension of the Agreement 
to cover othe r concessions such as franchise and licensing agreements which are currently 
not covered under the GPA.  [Hong Kong China ; EC] 
• See also the US' communication on Job No. 6800 and the proposed definition of BOT in the 
proposed new article on definitions.  
• Why is there a need to insert BOT as a form of contractual means ? The US explanatory note 
has not explained the rationale for including BOT contracts.  [Hong Kong, China]  
• The illustrative list of contractual means contained in the current Article I:2 of the 
GPA - namely, purchase, lease, rental or hire purchase – refers to transactions of a general 
nature applicable to procurement of any types of goods or services . However, the revised 
definition of BOT contracts indicates that it now refers to particular types of works contracts . 
Is such a restricted application possible ? [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 21 - 
  • There is a grey area between what constitutes a clarification of the existing text and what 
amounts to an addition to the existing text.  [EC] 
• The issue of whether or not BOT contracts should be covered under the GPA is relevant to the 
issue of coverage and should be preceded by identification and clarification of the relevant 
issues in order to come to a common understanding as to what should be covered by the GPA.  
[EC] 
• Does t he US proposal regarding BOT contracts represent a new approach to the issue of 
coverage ? [Canada ] The question posed by Canada is a broad one and does not specifically 
relate to BOT contracts but is more related to the issue of definitions and how the GPA  relates 
to the WTO system as a whole.  [US] 
• It is unclear whether proposed subparagraph 1(b) is needed since it extends the definition 
contained in the GATT, which is essentially captured in proposed subparagraph (a).  [EC] 
 GPA/TN1994/2/Rev.12  
- 22 - 
  Article I:3, 4  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in the context of 
procurement covered under this Agreement, 
require enterprises not included in Appendix I to 
award contracts in accordance with particular 
requirements, Article  III shall apply mutatis 
mutandis  to such requirements.  
 3. Where procuring entities, in the 
context of procurement covered by this 
Agreement, require enterprises not 
included in Appendix I to award contracts 
in accordance with particular requirements, 
Article III of this Agreement shall apply 
mutatis mutandis  to such  requirements.  
[US – Job No. 2867]  
 
4. This Agreement applies to any procurement 
contract of a value of not less than the relevant 
threshold specified in Appendix I.  
 4. This Agreement applies to any 
procurement contract for which the value of 
the contract is estimated, at the time of 
publication of the notice of intended 
procurement, in accordance with Article V 
of this Agreement, to equal or exceed the 
relevant threshold specified in Appendix  I. 
The value of a contract shall be estimated 
in accord ance with the provisions of 
paragraph 5 of this Article.  
[US – Job No. 2867]  
 
 4. Without prejudice to Article  XXIII, 
this Agreement applies to any procurement 
contract:  
 
(a) of central government entities of a 
value of not less than  
- 130,000 SDR  for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(b) of sub -central  government entities of 
a value of not less than  
- 200,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR  for contracts for 
public works  
(c) of entities according to Appendix  I, 
Annex 3 of a value of not less than  
-  400,000 SDR for contracts for 
supply of product s and services  
-  5,000, 000 SDR for contracts for 
public works  
[EC – GPA/W/87 ] 
 
 GPA/TN1994/2/Rev.12  
- 23 - 
  Comments on common thresholds  
 
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmonization of thresholds should not be stipulated in the Agreement . It would be 
inappropriate to include harmonized thresholds in the main body of the Agreement in view of 
the balance of commitments in Appendix I between Parties in relation to the cover age of 
entities, goods and services as well as thresholds.  [Japan ; Korea] Nevertheless, the 
introduction of common thresholds in the text of the Agreement may be acceptable at a later 
stage in the light of the outcome of the work regarding the elimination of discriminatory 
measures.  [Korea]  
• While harmonization of thresholds furthers the Committee's aim to streamline the Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices and cannot be  dealt with simply through amendments to the text.  
[US] 
• The adoption of common thresholds should not inhibit Members' ability to tailor their offers to 
maintain a balance of interests.  [Canada]  
• Common thresholds would make the Agreement more readable and u nderstandable by third 
parties.  [EC] 
• Although there may be a link between thresholds and coverage, there is not necessarily a 
clear effect on the balance of offers that have been negotiated because offers relate more to 
the entities that are covered and no t necessarily to the thresholds.  [EC] 
• The adoption of common thresholds is consistent with attempts to expand coverage of the 
Agreement in the future and to make the Agreement more user -friendly.  [EC] 
Other comments  
 
• "Public works" is merely another way of  naming "construction services" . There is no 
substantive difference between the terms used in the proposal.  [EC in response to clarification 
sought by Japan and Canada]  
 GPA/TN1994/2/Rev.12  
- 24 - 
  ARTICLE II:  VALUATION OF CONTRACTS  
Article II:1  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes 
of implementing this Agreement.  
 5. In determining whether a contract is 
covered under this Agreement, procuring 
entities shall apply the following 
provisions:  
[US – Job No. 2867]  
 
 
Drafting suggestion  
 
• It is too broad to say that the provisions of paragraph 5 of the US proposal shall apply in 
determining whether a contract is covered under the Agreement . There are other elements 
which affect whether or not a contract is covered . It is for the purpose of determining the 
value of a contract that one should apply paragraph  5. Hence, it is suggested that the chapeau 
should be reworded as follows : "In determining the value of a contract for the purpose of 
ascertaining whether that contract is covered under this Agreement, procuring entities shall 
apply the following provisions. " [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOS ED MODIFICATIONS  
  
This Agreement shall apply to any 
procurement contract for which the 
contract value is estimated to equal or 
exceed the threshold at the time of 
publication of the notice in accordance with 
Article IX or, in cases where such notice is 
not required, at the moment at which the 
procuring entity commences the 
procurement procedure.  
[EC; Job No. 4312]  
 
Comments  
 
• Clarification is sought as to why reference is made to a "moment" in time in relation to cases 
where an Article IX notice is not required (i.e. in cases of limited tendering) since the 
Agreement only requires the publication of a contract award notice in those cases . At the time 
of publication of such a notice, the value of the contract is already known . Further, why h as 
reference been made to the "moment at which the procuring entity commences the 
procurement procedure." [Canada]  
• The intention underlying the EC proposal was to cover limited tendering . There was a concern 
that limited tendering for which there is no pub lication might not be covered by the 
Agreement.  [EC] 
• Why is there a reference to "equal or exceed" rather than just to "exceed" ? [Jordan]  
• Given that the objective of the review of the Agreement is to extend coverage, a reference t o 
"exceed" would limit cov erage rather than extend it although in practice it is unclear whether 
a reference to "equal or exceed" rather than just "exceed" would not make a significant 
difference. [EC] GPA/TN1994/2/Rev.12  
- 25 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Footnote 2:  
 
2 This Agreement shall apply to any procurement 
contract for which the contract value is estimated 
to equal or exceed the threshold at the time of 
publication of the notice in accordance with 
Article IX.   
 
2 This Agreement shall apply to any 
procurement c ontract for which the 
contract value is estimated to equal or 
exceed the threshold at the time of the 
publication of the notice in accordance with 
Article  IX or at the time of first contact with 
the supplier in the case of limited tendering.  
[Japan]  
 
 
Comment  
 
• What is meant by the term "first contact" and what is the rationale for the approach proposed 
by Japan in the case of limited tendering ? [Canada]  
 GPA/TN1994/2/Rev.12  
- 26 - 
  Article II:2, 3  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFI CATIONS  
2. Valuation shall take into account all forms 
of remuneration, including any premiums, fees, 
commissions and interest receivable.  
 2. Valuation shall take into account all 
forms of remuneration, including any 
premiums, fees, commissions and interest 
to be paid.  
[Chinese Taipei – Job No. 3193]  
 
 (b) In calculating the value of a 
contract, an entity shall take into 
account all forms of remuneration, 
including premiums, fees, 
commissions, interest, other 
revenue streams provided for under 
the contract and the value of the 
maximum permissible options 
provided for by the contract.  
[US – Job No. 2867]  
 
3. The selection of the valuation method by 
the entity shall not be used, nor shall any 
procurement requirement be divided,  with the 
intention of avoiding the application of this 
Agreement.  
 (a) Procuring entities shall not divide an 
intended procurement into separate 
contracts or otherwise use a 
particular method for estimating the 
value of a contract for the purpose 
of avoid ing the application of this 
Agreement.  
[US – Job No. 2867]  
 
 Procuring entities shall neither divide a 
procurement nor select or use a valuation 
method in order to circumvent the 
application of the Agreement.  
[EC; Job No. 4312]  
 
Comments  
 
• Do Parties include "value -added" tax in calculating the contract value ? Should the bidder also 
include value -added tax in its bid ? [Chinese Taipei]  
• Further consideration is needed in relation to the issue of whether value -added tax should be 
included in deter mining the contract value.  [US] 
• The meaning of "other revenue streams provided for under the contract" in paragraph 2(b) is 
not clear . The meanings of "intention" and "purpose" seem interchangeable and both imply a 
subjective element . Clarification is soug ht from the US as to why it has been proposed to 
replace "with the intention of" with "for the purpose of".  [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 27 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Valuation shall take into account all forms 
of remuneration, including any premiums, 
fees, commissions, interest and, where the 
procurement provides for the possibility of 
option clauses, the total value of the 
maximum permissible procurement, 
inclusive of optional purchases.  the 
calculation of the val ue of framework 
agreements or similar arrangements shall 
be based on the maximum estimated value 
of all the contracts envisaged for the total 
term of the framework agreement or 
arrangement.  
[EC; Job No. 4312]  
 
 Procuring entities shall neither divide a 
procurement nor select or use a valuation 
method in order to circumvent the 
application of the Agreement.  
[EC; Job No. 4312]  
 
Comments  
 
• It is important to incorporate provisions on valuations that relate to the many new modalities 
of procurement that are being increasingly used by the GPA Parties and have been discussed 
extensively in the Committee . At the same time, these provisions must be as simple as 
possible, understandable, and flexible enough to apply to a wide range of emerging  
procurement modalities.  [US] 
 GPA/TN1994/2/Rev.12  
- 28 - 
  Article II:4  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. If an individual requirement for a 
procurement results in the award of more than 
one contract, or in contracts being awarded in 
separate parts, the basis for valuation shall be 
either:  
 (c) Except as provided for in 
subparagraph (d) of this Paragraph, 
a procurement that is conducted in 
multiple parts, that is for an 
indefinite quantity, that may result 
in the award of contracts to more 
than one supplier, or that may result 
in the awarding of recurring 
contracts to a single supplier, shall 
be valued at the total estimated cost 
of the procurement over its entire 
duration.  
[US – Job No. 1051]  
 
 
Comments  
 
• In relation to construction projects that can be regarded as one procurement but may be 
procured pursuant to more than two contracts spanning several years, it may be impossible 
to estimate the value of the contract at the point when the first co ntract is entered into . 
Accordingly, the current text contained in paragraphs 4(a) and (b) is preferable to the 
language proposed by the US.  [Japan]  
• Article II:4 of the GPA refers to an "individual requirement" being awarded in separate parts 
whereas the U S draft talks about "contracts" . It is fair to take into account the value of 
recurring contracts if an individual requirement is awarded in separate parts . However, the 
scope of the word "contracts" in the US proposal is so wide that it can encompass contracts 
for different requirements . Why should contracts that are awarded to more than one supplier 
be valued at the total estimated value if these contracts are for different requirements or in 
relation to different subject -matters ? [Hong Kong , China]  
• The use of the word "procurement" would appear to be more appropriate than the term 
"contract" since valuation takes place before the procurement process commences . It is 
impractical to revisit the results of the valuation exercise once the procur ement process has 
been completed and contracts have been issued . In order to ensure consistency with the 
current wording of the Agreement and in light of the fact that a contract will not actually exist 
at the time when the valuation takes place, except in  the case of limited tendering, the term 
"procurements" rather than "contracts" should be used.  [Canada]  
• How would the proposed provision apply to low -value contracts, for example those entered 
into by small local authorities ? Under such contracts, even ov er a period of several years, the 
threshold values stipulated in the Agreement may not be exceeded.  [Norway ; Canada]  
• It might be possible to make a determination that the total estimated value of small -value 
contracts would not exceed the GPA thresholds.  [US] 
• In response to a suggestion for further simplification of paragraph (c) [Canada],  there may 
be some situations where more detail is necessary, for example in the case of multiple award 
or framework contracts.  [US; EC] 
• Japan is concerned about the defin ition of, "a (i.e. single) procurement", which is not clear, 
especially as the U.S. proposal provides that "a procurement…… shall be valued at the total 
estimated cost of the procurement over its entire duration" . Concrete examples illustrating 
our concern s are as follows : With respect to the construction of a facility, there are cases 
where a considerable portion of the work for this facility is expected to be procured pursuant GPA/TN1994/2/Rev.12  
- 29 - 
  to another contract in the future, at an interval of more than two or three yea rs. Thus, the 
contract amount for this portion (to be procured in the future) is difficult to estimate at the 
time of the initial contract.  (This case may arise when a part of the facility can perform its 
function to some extent. ) If "a procurement" refers  to "procurement of a whole facility", 
procuring entities would face some practical difficulties . Regarding the timing of the future 
procurement of the portion mentioned, and where the estimated contract amount is small 
(less than the threshold), if "a pro curement" means "procurement of a whole facility", then 
the procurement costs should be valued according to the amount totalled in past contracts . 
Such contracts with a small amount of procurement would fall under the coverage of the 
current GPA, thus impo sing a heavy administrative burden on procurement entities . Certain 
types of maintenance and repair services (painting, planting, corrosion/deterioration 
inspection, etc.) are often procured in adjacent areas, one after another, over the years, or 
are repe atedly executed in the same area at an interval of several years . If these types of 
arrangements correspond to "a procurement that is conducted in multiple parts", as 
mentioned in the U.S. proposals , similar difficulties will arise.  [Japan ; Job No. 5474] 
 
  GPA/TN1994/2/Rev.12  
- 30 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
(a) the actual value of similar recurring 
contracts concluded over the previous fiscal year 
or 12 months adjusted, where possible, for 
anticipated changes in quantity and value over 
the subsequent 12 months ; or 
  
 
 
(b) the estimated value of recurring contracts 
in the fiscal year or 12  months subsequent to the 
initial contract.  
  
 (d) Contracts for which the duration is not 
known shall be valued at the actual value of 
similar previous contracts awarded over 
the most recent two -year period, adjusting 
for any anticipated changes in the quantity 
and prices of the goods or services to be 
supplied.  
[US – Job No. 2867]  
 
 
Comments  
 
• What is meant by the reference in the current Agreement to a 12 month period ? If the final 
value of a contract which runs for more than one year, for example, a road maintenance 
contract, is unknown until the works have been completed, should the basis of coverage be 
the estimated value for one year o r the value for the full period of the contract ? Should the 
contract be broken down into one -year periods because of the reference to 12 months in 
subparagraphs (a) and (b) ? [Hong Kong, China]  
In relation to paragraph 5(d) of the US proposal:  
 
• Paragraph (d ) of the US proposal is unclear . It appears to narrow the application of 
subparagraphs (a) – (c). Is such a provision necessary ? [Canada]  
• This valuation method is problematic if there are no "previous contracts awarded over the 
most recent two -year period" . [Hong Kong, China]  
• The proposed subparagraph (d) refers to similar previous contracts that have been awarded . 
Therefore, there would not necessarily be cases where valuation was based on a contract that 
was identical to the current contract . An entity ma y need to identify a contract that was 
previously awarded that was similar in nature and use that as a basis for valuation.  [US] 
• The GPA covers a wide variety of activities . Therefore, it is necessary to strike the right balance 
between specificity and bre adth without describing valuation procedures for each and every 
type of contract covered by the Agreement.  [US] 
• See also the Explanatory Notes in Job No. 6772, page 3.  
• The deletion of sub -paragraphs (a) and (b) would cause problems in some types of 
procure ment. For instance with respect to the construction of a large -scale facility when a half 
or considerable portion of the works is to be procured at an interval of more than two years . 
This case may arise where part of the facility fulfils its function to s ome extent and the entity 
will procure the remaining works when the demand increases . Under Article II of the current 
GPA, if separate contracts for one procurement have been awarded at long intervals (more 
than 12 months, etc.), there are practical reasons that these contracts could not be put 
together into one contract, and that such a case is not regarded as division of contracts with 
the intention of avoiding the application of  the GPA . It is very difficult for procuring entities to GPA/TN1994/2/Rev.12  
- 31 - 
  estimate the contract value of the portion executed in the distant future even though the 
works of this portion of the contractare also for the same facility.  [Japan ] 
• In the US proposal, the value of the remote past contract(s) should be added together with 
small contracts (less than the threshold) for the same facility to be executed in future . If we 
apply this rule, such small contracts become subject to the GPA . This would impose too much 
of an administrative burden on procurement entities, as compared with the provisions of 
Article II of the current GPA . Other examples are certain types of maintenance and repair 
services (painting, planting, corrosion/deterioration inspection, etc.) . These services are often 
procured in adjacent areas one after another over years or repeatedly procured in the same 
area at an interval of some years . Such services contracts should be regarded as different 
procurements with considerably different timings of the contract . However, the US proposal, 
which does not contain provision s like 4(a) and (b) of Article II of the current GPA, causes 
concern that the basis of judgement on the period, in which the contract value should be 
added together, would become unclear with regard to these kinds of procurements.  [Japan ] 
 
 
AGREEMENT ON GO VERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 In the case of procurement which is regular 
in nature or which is intended to be 
renewed within a given period, the 
calculation of the estimated contract value 
shall be based on the following:  
 
(i) either the total actual value of 
successive contracts with similar 
characteristics awarded during the 
preceding twelve months or financial year, 
adjusted where possible to take account of 
anticipated changes in quantity or value 
over the subsequent twelve months 
following the initial contracts ; or 
 (ii) the total estimated value of successive 
contracts awarded during the twelve 
months following the first delivery, or 
during the financial year if that is longer 
than twelve months.  
  
Where a proposed procurement may result 
in contracts being awarded at the same 
time in the form of separate parts, account 
must be taken of the total estimated value 
of all such parts.  
[EC; Job 4312]  
 GPA/TN1994/2/Rev.12  
- 32 - 
  Article II:5, 6  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental 
or hire purchase of products or services, or in the 
case of contracts which do not specify a total 
price, the basis for valuation shall be:  
  
(a) in the case of fixed -term contracts, 
where their term is 12  months or 
less, the total contract value for 
their duration, or, where their term 
exceeds 12 months, their total value 
including the estimated residual 
value;  
 (a) in the case of fixed -term 
contra cts, where their term is 12 
months or less, the total or 
estimated total contract value 
for their duration, or, where 
their term exceeds 12  months, 
their total or estimated total 
value;  
[Chinese Taipei – Job No. 3193]  
 
(b) in the case of contracts for an 
indefinite period, the monthly 
instalment multiplied by 48.  
 (b) in the case of contracts for an 
indefinite period, the monthly 
instalment or estimated value of 
monthly procurement multiplied 
by 48.  
[Chinese Taipei – Job No. 3193]  
 
If there is any doubt, the second basis for 
valuation, namely (b), is to be used.  
  
  
6. In cases where an intended procurement 
specifies the need for option clauses, the basis 
for valuation shall be the total value of the 
maximum permissible procurement, i nclusive of 
optional purchases.  
  
 
 
 GPA/TN1994/2/Rev.12  
- 33 - 
  ARTICLE III : NATIONAL TREATMENT AND NON -DISCRIMINATION  
Article III  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  
 Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the 
procurement of its covered entities takes 
place in a transparent, reasonable and 
non-discriminatory manner, treating any 
supplier of any Party equally, and ensuring 
the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The thrust of the proposed obligations appear to be inconsistent with the contents of 
Appendix  I. Would the proposed provision still allow for the reciprocity provisions in Annex  1? 
The existing provisions of Article III should be fully implemented before introducing new 
obligations.  [Hong Kong, China]  
• It is important to include a reference to the principle of "open and effective competition" in 
the Agreement even though this principle is not reflected in all the Annexes to the Agreement . 
The principle of " open and effective competition" is not a new concept but, rather, is implicit 
in the GPA . The fact that there are many such exceptions contained in the Annexes makes it 
necessary to spell out the basic objectives of the Agreement . The proposal makes it cle ar that, 
unless there is an explicit exception, the general principles of transparency and open 
competition should be applied.  [EC] 
• The principle of "open and effective competition" needs to be applied broadly rather than in a 
selective way to avoid underm ining principles underlying the agreement such as the principle 
of non -discrimination and to avoid a contrario  interpretations.  [EC] 
• Selectively citing the principle of non -discrimination in other provisions of the Agreement 
might create interpretation dif ficulties.  [US] 
• The principle of "open and effective competition" should be applied in a general manner.  [US] 
• The reciprocity provisions would not be affected as implied by the wording "treating any 
supplier of any Party equally".  [EC] 
• The rationale behind  the reference to the general principles of "open and effective competition" 
is that market forces are working and that suppliers can openly compete.  [EC in response to 
clarification sought by Japan ; the US ; Canada ; and Hong Kong, China]  
• The consistency of  term "open and effective competition" with the use of selective and limited 
tendering procedures should also be clarified . Would any adjustments need to be made in 
other specific provisions of the Agreement ? [US] 
• Article XV is an exception to the general principle of open and effective competition . There 
may be other exceptions to the operation of the principle.  [EC] GPA/TN1994/2/Rev.12  
- 34 - 
  • The terms "reasonable", "non -discriminatory" and "open competition" are not intended to be 
precise rules . Rather, they are general principles  that should influence the application of the 
provisions of the GPA . The meaning of these terms will vary depending upon the procedures 
to which they are applied.  [EC in response to a question from Canada requesting clarification 
of the term "reasonable"]  
• It may be useful to clearly state the principles that underlie the Agreement . This would, for 
instance, help address issues such as non -discrimination in the context of framework 
contracts . The proposal merely increases the visibility of the core principle s of the Agreement.  
[EC in response to a question from Canada]  
Drafting suggestion  
 
• Perhaps the words "Except otherwise provided for in the Agreement," should be added to the 
beginning of the EC proposal to take account of the exceptions to the general principle of open 
and effective competition.  [Chinese Taipei]  
 
 GPA/TN1994/2/Rev.12  
- 35 - 
  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article III  
Non-discrimination  
 
 Basic Principles  
 
1. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall provide immediately and 
unconditionally to the products, services and 
suppliers of other Parties of fering products or 
services of the Parties, treatment no less 
favourable than:  
 1. With respect to any measure 
specifically governing procurement covered 
by this Agreement, each Party shall accord 
to the goods and services of another Party 
and to the suppliers of another Party 
offering the goods or services of another 
Party, treatment no  less favorable than the 
most favorable treatment the Party accords 
to: 
 
(a) that accorded to domestic products, 
services and suppliers ; and 
 (a) its own goods, services and 
suppliers ; and 
 
(b) that accorded to products, services 
and suppliers of any other Party.  
 (b) goods, services and suppliers of 
another Party.  
 
[US – Job No. 2867]  
 
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
 2. With respect to any measure 
governing procurement covered by this 
Agreement, each Party shall ensure that:  
 
(a) that its entities shall not treat a 
locally -established supplier less 
favourably than another 
locally -established supplier on the 
basis of degree of foreign affiliation 
or ownership ; and 
 (a) its entities do not treat a locally 
established supplier less 
favorably than another locally 
established supplier on the 
basis of degree of foreign 
affiliation or ownership ; and 
 
(b) that its entities s hall not 
discriminate against 
locally -established suppliers on the 
basis of the country of production of 
the good or service being supplied, 
provided that the country of 
production is a Party to the 
Agreement in accordance with the 
provisions of Article  IV. 
 (b) its entities do not discriminate 
against a locally established 
supplier on the basis that the 
goods or services offered by 
that supplier for a particular 
procurement are goods or 
services of another Party.  
 
[US – Job No. 1051]  
 
Comments  
 
In relation to the US proposal:  
 
• The title "National Treatment" should be retained since it is an important aspect of WTO rules.  
[Switzerland]  
• The reference to "measure" should be replaced with the reference to "laws, regulations etc.", 
which is contained in the existing text, since the latter formulation is more comprehensive.  
[Switzerland]  GPA/TN1994/2/Rev.12  
- 36 - 
  • It is not obvious that the word "measure" is narrower than the existing text, which lists specific 
measures in an exhaustive fashion . In fact, "measures" might be a broade r term.  [US] 
• Clarification is sought as to whether there are measures that have not been referred to in the 
existing text, which might be a vehicle for discrimination.  [US] 
• Clarification is sought as to the reason for and significance of the replacement of the word 
"products," which appears in the current text, with the word "goods," which is contained in 
proposed paragraph 1(a) ? [Switzerland]  
• The word "products" is ambiguous and can often mean services as well as goods.  [US; Canada]  
• The refer ence to "products" should be replaced with a reference to "goods." [EC] 
• What is meant by "own goods, services and suppliers" and how does that differ from the 
reference in the existing text to "domestic products, services and suppliers" ? [Switzerland]  
Gene ral comments  
 
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership" in paragraph 2(a).  [Hong Kong, China ; US] This term seems to apply both to 
Parties and non -Parties to the Agreement . The consistency of the scope of this provision with 
that of paragraph 1 should be reviewed.  [Hong Kong, China]  
• Clarification is sought in relation to Hong Kong, China's concerns in relation to the meaning of 
"foreign affiliation or ownership" in paragraph 2(a). [Canada]  
• There may be scope for inclusion of a provision on denial of benefits to non -Parties similar to 
that contained in Article 11 of the NAFTA Agreement . It could be useful to clarify Members' 
obligations under the Agreement in relation to benefits to be accorded t o non -Parties.  [US] 
More detail is required in this respect.  [EC] Article 11 of the NAFTA Agreement merely clarifies 
parties' rights.  [US] 
• GATS Article XXVII deals with the denial of benefits in relation to services.  [Secretariat]  
• Given that the GPA is a p lurilateral agreement, it is implicit that a non -signatory cannot avail 
itself of its benefits under the GPA.  [Singapore]  
• It is necessary to consider whether, because of the plurilateral nature of the GPA, it is 
necessary to adopt a different approach from , for example, the GATS.  [US] GPA/TN1994/2/Rev.12  
- 37 - 
  Article III:3  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall 
not apply to customs duties and charges of any 
kind imposed on or in connection with 
importation, the method of levying such duties 
and charges, other import regulations and 
formalities, and measures affecting trade in 
services other than laws, regulations, procedures 
and practices regarding government  
procurement covered by this Agreement.  3. This Article shall not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations and formalities, 
and mea sures affecting trade in services 
other than laws, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 Measures Not Specific to Procurement  
 
 6. The provisions of paragraphs 1 and 2 
of this Article do not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations or formalities, and 
measures affecting trade in services other 
than measure s specifically governing 
procurement covered by this Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 38 - 
  ARTICLE IV:  RULES OF ORIGIN  
Article IV:1, 2  
 
Rules of Origin  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to 
products or services imported or supplied for 
purposes of government procurement covered 
by this Agreement from other Parties, which are 
different from the rules of origin applied in the 
normal course of trade and at the time of the 
transaction i n question to imports or supplies of 
the same products or services from the same 
Parties.  
 3. For purposes of procurement covered 
by this Agreement, no Party may apply 
rules of origin to goods imported from 
another Party that are different from or 
inconsis tent with the rules of origin the 
Party applies in the normal course of trade.  
[US – Job No. 2867]  
 
2. Following the conclusion of the work 
programme for the harmonization of rules of 
origin for goods to be undertaken under the 
Agreement on Rules of Origin in Annex 1A of the 
Agreement Establishing the World Trade 
Organization (hereinafter referred to as "WTO 
Agreement") and negotiations regarding trade in 
services, Parties shall take the results of that 
work programme and those negotiations into 
accou nt in amending paragraph  1 as 
appropriate.  
  
 
Comment  
 
• Since the negotiations on harmonization of rules of origin will take more time, the relevance 
of Article IV:2 is questionable.  [US] 
 GPA/TN1994/2/Rev.12  
- 39 - 
  ARTICLE V: SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  
Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 Upon accession to the Agreement, a 
developing country shall enjoy all the 
benefits of the Agreement.  
It shall be obliged to comply with the 
obligations under this Agreement:  
- at central government level X 
years after accession  
- at sub -central government 
level  Y years after accession  
- as far as entities under 
Appendix  I, Annex 3 are 
concerned Z years after 
accession.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
Regarding the EC proposal:  
 
• The EC proposal represents a new approach , which attempts to facilitate the entry of 
developing countries into the GPA by simplifying and making less technical what is currently 
a complicated set of provisions.  [EC] 
• A possible effect of the proposed amendment, in particular the reference to transitional 
periods, could be that developing countries are deterred from acceding to the Agreement.  
[Korea ; Hong Kong, China]  
• The provisions of the existing Article are complicated and the Article has not served its 
intended purpose . The current text of Article V is more likely to deter developing countries 
from joining the Agreement.  [EC] 
• The reference to compliance with "the obligations under this Agreement" might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in  time. 
[US] It should mean that only the negotiated coverage would come into effect at that point in 
time. [US; EC] 
• Transitional periods are simply a way of accommodating developing country concerns as far 
as possible without putting the logic of the Agreement at risk . The provisions on developing 
countries should not lead to the creation of two or three types of Members in the long term . 
At the end of the day, all Parties to the GPA should be full Parties and should have similar 
levels of obligations,  taking into account their circumstances.  [EC] 
• Would the same transitional period apply to all developing countries regardless of their specific 
circumstances ? Providing a generic transitional period for central or sub -central government 
coverage for every  developing country Party might not be appropriate.  [US] 
• How long should the transitional periods be ? [US] GPA/TN1994/2/Rev.12  
- 40 - 
  • Would the Annex 2 and Annex 3 commitments be negotiated and finalized prior to accession 
of a developing country or would the implementation of those  commitments be simply 
delayed ? [US] 
• Obligations in relation to central government entities of developing countries that join the GPA 
would start from the date of accession . However, in the case of sub -central entities as well as 
entities under Annex 3, th ere is a link to the provisions on "financial, trade and development" 
objectives of those countries, which are currently contained in paragraphs (a), (b), (c) and 
(d) of Article V:1.  [Switzerland]  
 GPA/TN1994/2/Rev.12  
- 41 - 
  Article V:1  
 
Special and Differential Treatment for Devel oping Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
 Article ZZI  
 
Treatment for non -parties developing and  
least -developed countries  
 
1. Parties shall, in the implementation and 
administration of this Agreement, through the 
provisions set out in this Article, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least-developed countries, in their need to:  
 ZZI:1.  Parties shall, in the 
implementation an d administration of this 
Agreement, duly take into account the 
development, financial and trade needs of 
developing countries, in particular 
least -developed countries.  
[Switzerland – Job No. 1274]  
 
(a) safeguard their 
balance -of-payments position and 
ensure a level of reserves adequate 
for the implementation of 
programmes of economic 
development;  
  
(b) promote the establishment or 
development of domestic industries 
including the development of 
small-scale and cottage industries in 
rural or backward ar eas; and 
economic development of other 
sectors of the economy;  
  
(c) support industrial units so long as 
they are wholly or substantially 
dependent on government 
procurement ; and 
  
(d) encourage their economic 
development through regional or 
global arrangements among 
developing countries presented to 
the Ministerial Conference of the 
World Trade Organization 
(hereinafter referred to as the 
"WTO") and not disapproved by it.  
  
 
General Comments  
 
In relation to the Swiss proposal:  
 
• Paragraph ZZI  of the Swiss proposal attempts to consolidate existing GPA provisions dealing 
with non -Parties, developing and least -developed countries that were previously spread 
throughout the Agreement.  [Switzerland]  
• Support was expressed for simplifying the current provisions relating to developing countries . 
The Swiss proposal aims to clarify issues that are important to developing and least -developed GPA/TN1994/2/Rev.12  
- 42 - 
  countries . The proposal also seeks to streamline, re -organize and delete existing provisions 
that have proven not to  be of particular use.  [Switzerland]  
• The existing Article V:1 is lengthy and contains a number provisions that probably do not have 
as much practical relevance as hoped for . For example, in relation to the reference to 
balance -of-payments, it might not be easy to identify cases where Swiss procurement has an 
impact on the balance -of-payments of some developing or least -developed countries . It might 
be more appropriate to replace the existing provisions with fewer words that refer to the 
development, financi al and trade needs of developing countries.  [Switzerland]  
• Aruba, as a very small economy, is subject to heavy fluctuations in foreign exchange incomes . 
Therefore, sub -paragraph 1(a) should not be deleted. [The Netherlands with respect to Aruba]  
• Changes tha t are made should be consistent with the objectives of the Agreement . They 
should also be realistic and operational.  [US] 
• The existing Article V does not make clear how or whether it addresses non -Parties whereas 
the Swiss proposal applies specifically to non-Parties.  [US] 
• Article ZZI is applied to non -Parties in response to the fact that the existing text of Article V 
contains a few sentences that refer to non -Parties but it is difficult to clearly establish the 
position in relation to such non -Parties.  [Switzerland]  
• With regard to accessions, it is important to provide flexibility to developing countries as 
appropriate in order to encourage and facilitate their participation in the Agreement as 
extensively as possible . Flexibility should come in  the form of market -access commitments 
and transitional periods rather than procedural flexibility . In order to enjoy the benefits of the 
Agreement, it is necessary to have transparent procedures, due process and competition etc. 
Therefore, any exceptions to those basic procedural commitments need to be considered 
carefully.  [US] 
In relation to the US Proposal (Job No. 1235):  
 
• The US proposal seeks to make the language used in Article V more precise and operational 
and seeks to make Article V more flexible so as to allow the specific needs of developing 
countries to be addressed, taking into account the specific circumstances or needs of a 
particular country . The objective of the proposal is to ensure that developing countries are 
able to fully participate i n and benefit from the GPA. [US] 
• The existing Article V contains provisions that are favourable to LDCs . Caution should be 
exercised with respect to the deletion of such provisions from the new GPA. [Switzerland]  
• The US proposal shortens, simplifies and cl arifies the provision relating to developing 
countries.  [Switzerland]  
• The US shares the objective of responding to the needs, in particular, of LDCs  and of doing 
everything possible to provide opportunities for such countries . Existing Parties have already 
fulfilled the current GPA provisions relating to LDCs . Therefore, it is questioned whether the 
current provision in the GPA needs to be retained or  is part of a more general issue of more 
favourable treatment for LDCs. [US] 
• It is difficult to establish criteria regarding how treatment should differ as between developing 
and least developed countries. [EC] 
• The US proposal does not deal with adaptation  of existing legislation to bring it into conformity 
with the GPA.  [Switzerland]  
 
 
  GPA/TN1994/2/Rev.12  
- 43 - 
  Article V:2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and 
procedures affecting government procurement, 
facilitate increased imports from developing 
countries,  
 ZZI:2.  Consistently with the provisions 
of thi s Agreement, each Party shall, in the 
preparation and application of laws, 
regulations and procedures affecting public 
procurement facilitate access to 
information on tendering opportunities for 
developing and least -developed countries.  
[Switzerland – Job No. 1274]  
 
bearing in mind the special problems of 
least-developed countries and of those countries 
at low stages of economic development.  
 ZZI:3.  Bearing in mind the economic 
development needs of developing and 
least -developed countries, the Parties shall 
facilitate increased imports for products 
representing particular export interests to 
these countries.  
[Switzerland – Job No. 1274]  
 
 
Comments  
 
In relation to the Swiss proposal:  
 
• Subparagraph 3 of Article ZZI  may violate the principle of non -discrimination, which underlies 
the Agreement.  [EC] 
• The idea underlying this proposed provision is to enable potential suppliers from developing 
or least -developed countries to, for instance, have a much better access to t ender notices and 
contracts that are going to be awarded . This will help to increase imports from such countries . 
However, the language needs to be further sharpened to ensure that there is no ambiguity 
regarding treatment that ought to be given to non -Parties, developing and least -developed 
countries.  [Switzerland]  
 
 
 
 GPA/TN1994/2/Rev.12  
- 44 - 
  Article  V:3 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing 
countries are able to adhere to this Agreement on 
terms consistent with their development, financial 
and trade needs, the objectives listed in 
paragraph  1 shall be duly taken into account in 
the course of negotiations with respect to the 
procure ment of developing countries to be 
covered by the provisions of this Agreement.  
 
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procuring products and services of export interest 
to developing countries.  
 ZZII:3.  In the course of accession 
negotiations, due account shall be taken of 
the development, financial and trade 
situation of acceding countries.  
[Switzerland – Job No. 1274]  
 
Comments  
 
• With regard to the issue of granting developing countries non -reciprocal access to 
procurement markets of Parties, should there be flexibility in offers of coverage by prospective 
Parties or should there be special provisions associated with the evaluation of offers under 
individual procurements by Parties ? [Canada]  GPA/TN1994/2/Rev.12  
- 45 - 
  Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article ZZII  
 
Accession by developing and 
least -developed countries  
 
 1. Parties shall encourage countries 
acceding to the WTO as well as non -Parties 
developing and least -developed countries 
to accede to the Agreement on Government 
Procurement (GPA) and establish 
competitive public procurement regimes 
based on t ransparency, non -discrimination 
and national treatment.  
 
 2. Upon accession to the Agreement, an 
acceding country shall enjoy all the benefits 
of the Agreement on the basis of 
reciprocity.  
 
 3. In the course of accession 
negotiations, due account shall be taken of 
the development, financial and trade 
situation of acceding countries.  
 
 4. An acceding country shall adapt its 
national legislation on public procurement 
to make it compatible with this Agreement 
with, if necessary, transitional periods and 
review provisions linked with economic 
development.  
 
 5. An acceding country shall submit to 
the Agreement its central level government 
entities upon accession for goods and 
services under Appendix I, Annex 1.  
 
 6. An acceding country shall submit to 
the Agreement its sub -central level 
government entities for goods and services 
under Appendix I, Annex 2, and its entities 
covered under Appendix I, Annex 3 for 
goods and services with, if necessary, 
transitional periods an d review provisions 
linked with economic development.  
 
 
Comments  
 
• The objective of the Article ZZII  is to articulate concisely some key elements associated with 
accession and to invite developing and least developed countries to seek membership.  
[Switzerland]  
• Proposed subparagraph 4 suggests that transitional periods apply in relation to substantive 
provisions of the Agreement, rather than just coverage . The flexibility provided should be 
more in terms of coverage.  [EC] GPA/TN1994/2/Rev.12  
- 46 - 
  • Subparagraph 4 of the proposal is intended to be linked to coverage . If a country needs to 
retain domestic preferences for a certain per iod of time because of the existence of 
development programmes, it is possible to achieve that by not listing entities involved in such 
development programmes.  [Switzerland]  
• A number of the proposed provisions send some interesting signals but may have lim ited legal 
impact.  [EC] 
• It is hoped that there are some non -Parties who may consider acceding to the Agreement who 
are not necessarily developing or least -developed countries . It is unclear whether having a 
separate provision on accessions is intended in a ny way to address such countries since the 
title refers to accession by developing and least -developed countries . Article ZZIII refers to 
developing or least -developed countries which seems to confirm the impression that 
Article  ZZII applies only to those types of countries.  [Canada]  
• It is proposed that the provision on accessions will be contained in the part of the Agreement 
that deals with developing and least developed countries . This part clearly will not apply to 
developed countries that wish to acced e to the Agreement.  [Switzerland]  
• There are a wide range of circumstances in which developing countries find themselves and 
they have a wide range of needs and capabilities . It is necessary to consider whether it is 
possible or appropriate to develop speci fic provisions that apply equally to that very broad and 
diverse group of countries.  [US; Canada]  
• While it is appropriate to acknowledge that there are circumstances where special and 
differential treatment is warranted, the specifics for special and diffe rential treatment for 
acceding countries should be a matter of negotiation and the Agreement should not become 
too prescriptive in this respect . Given the scope of paragraph 7, it is questioned whether the 
level of detail in paragraphs  4, 5 and 6 is necess ary. [Canada]  
• It is unclear what paragraph 2 is intended to mean and how this paragraph will work in 
conjunction with negotiated provisions.  [Canada]  
 GPA/TN1994/2/Rev.12  
- 47 - 
  Article V:4  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with 
other participants in negotiations under this 
Agreement mutually acceptable exclusions from 
the rules on national treatment with respect to 
certain entities, products or services that are 
included in its coverage lists, having regard to the 
particular circumstances of each case . In such 
negotiations, the considerations mentioned in 
subparagraphs  1(a) through 1(c) shall be duly 
taken  into account.  
 
A developing country participating in regional or 
global arrangements among developing countries 
referred to in subparagraph  1(d) may also 
negotiate exclusions to its lists, having regard to 
the particular circumstances of each case, taking 
into account, inter alia, the provisions on 
government procurement provided for in the 
regional or global arrangements concerned and, 
in particular, products or services which may be 
subject to common industrial development 
programmes.  
 ZZII:7.  Mutually acceptable tempor ary 
exclusions from the rules on national 
treatment with respect to certain entities, 
products or services that are included in the 
coverage lists of an acceding country can be 
negotiated in particular circumstances 
linked with economic development.  
[Switz erland – Job No. 1274]  
 
 GPA/TN1994/2/Rev.12  
- 48 - 
  Article V:5, 6, 7, 8  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
5. After entry into force of this Agreement, a 
developing country Party may modify its 
coverage lists in accordance with the provisions 
for modification of such lists contained in 
paragraph  6 of Artic le XXIV, having regard to its 
development, financial and trade needs, or may 
request the Committee on Government 
Procurement (hereinafter referred to as "the 
Committee") to grant exclusions from the rules 
on national treatment for certain entities, 
product s or services that are included in its 
coverage lists, having regard to the particular 
circumstances of each case and taking duly into 
account the provisions of subparagraphs  1(a) 
through 1(c) . After entry into force of this 
Agreement, a developing country  Party may also 
request the Committee to grant exclusions for 
certain entities, products or services that are 
included in its coverage lists in the light of its 
participation in regional or global arrangements 
among developing countries, having regard to 
the particular circumstances of each case and 
taking duly into account the provisions of 
subparagraph  1(d). Each request to the 
Committee by a developing country Party 
relating to modification of a list shall be 
accompanied by documentation relevant to the 
request or by such information as may be 
necessary for consideration of the matter.  
  
Article ZZIII  
 
Temporary exemptions to coverage for 
developing and least -developed countries 
Parties and further negotiations  
 
ZZIII:1.  In accordance with paragraph 6 
of article XXIV, a developing or 
least -developed country Party may modify 
its coverage lists or may request the 
Committee on Government Procurement to 
grant temporary exemptions from the rules 
on national treatment for certain entities, 
product s or services that are included in its 
coverage lists, having regard to the 
particular circumstances of each case and 
taking duly into account its development, 
financial and trade situation.  
[Switzerland – Job No. 1274]  
6 Paragraphs 4 and 5 shall apply mutatis 
mutandis  to developing countries acceding to 
this Agreement after its entry into force.  
  
7. Such agreed exclusions as mentioned in 
paragraphs 4, 5 and 6 shall be subject to review 
in accordance with the provisions of 
paragraph  14 below.  
 ZZIII:2.  Temporary exemptions shall be 
temporary, reviewed every two years, 
subject to compensations negotiations with 
other Parties and eliminated with the 
re-establishment of the previous situation.  
[Switzerland – Job No. 1274]  
 
 
Comments  
 
• Proposed paragraph ZZIII refers to temporary exemptions to coverage, such as those that 
can be sought during the implementation of the Agreement . It consolidates and simplifies 
elements contained in Article V:7, 14 and 15 of the existing text.  [Switzerland ] 
 
 
 
 
  GPA/TN1994/2/Rev.12  
- 49 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In negotiations on accession to this 
Agreement and in the implementation and 
administration of this Agreement, the 
Parties shall take due account of developing 
countries' particular needs and 
circumstances, recognizing that such needs 
and circumstances may differ significantly 
from country to country . In this context, the 
Parties shall give due consideration to a 
request by a developing country to 
incorporate wit hin its market -access 
commitments in Appendix I of this 
Agreement a transitional measure that 
addresses its particular needs and 
circumstances in relation to:  
(a) goods or services sectors in 
which the commercial viability 
of it's domestic suppliers of such 
goods and services depends on 
their competitiveness in the 
country' s procurement markets ; 
and 
 
(b) procurement by entitie s whose 
procurements are not regulated 
by the procurement measures of 
the country's central 
government.  
[US – Job No. 1235]  
 
 
Comments  
 
In relation to paragraph 1of the US proposal:  
 
• Paragraphs 1 and 2 refer to "transitional measures ." The intention is to ensure that in cases 
where exceptions are negotiated, there should be a transitional mechanism which allows for 
a country 's particular needs to be addressed within a particular time -frame, but that such a 
country should fully participate as soon as possible . The paragraph describes two situations in 
which such transitional measures might be appropriate . The first, des cribed in 
sub-paragraph  (a), is similar to the situation described in Article V:1(c) which concerns the 
commercial viability of domestic suppliers in developing country markets . The second attempts 
to accommodate systems where there are differences in the organisation of entities at all 
levels. [US] 
• Paragraph 1 combines language from Article V:I and 3 so that it would apply both to the 
implementation of the Agreement and to accession negotiations whereas those issues are 
dealt with separately in the existin g Article. [US] 
• With respect to paragraph 1(a), any company 's commercial viability depends upon 
competitiveness in the market. [Switzerland]  
• The reference to "viability " in paragraph 1(a) is intended to relate to the existence or 
non-existence of a company  rather than its level of commercial success . Paragraph 1(a) is 
intended to deal with a situation where, for example, there is a rapid increase of competition 
in a market that might threaten to put a large proportion or all suppliers in the market out of 
business. [US] GPA/TN1994/2/Rev.12  
- 50 - 
  • With respect to paragraph 1(b), given that the GPA has been successful in stimulating open 
procurement between internal states, it might not be advisable to allow for the creation of a 
special regime for such procurement. [Switzerland]  
• This a spect of the proposal is closely related to Article ZZI:6 of the Swiss proposal . It envisages 
flexibility for entities covered by the proposal. [US] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 2. For least developed countries, 
Article  III:I(a) of this Agreement 
notwithstanding, such requests for 
transitional measures may include a 
request to apply procurement price 
preferences in favour of domestic suppliers 
in goods or services sectors identified in 
subparagraph 1(a)  of this Article . Any such 
transitional measure shall be applied for a 
limited period of time which, taking into 
account the acceding country's particular 
needs and circumstances, shall in no case 
exceed ten years . Where the Parties agree 
to such a transit ional measure:  
(a) all provisions of this Agreement 
except Article III:1(a) shall 
apply to procurement affected 
by such measures, and  
 
(b) in particular, the acceding 
country shall ensure that such 
transitional measures are 
applied to all other Parties to 
this Agreement in accordance 
with Article III:1(b) of this 
Agreement.  
 [US – Job No. 1235]  
 
Comments  
 
In relation to paragraph 2 of the US proposal:  
 
• Paragraph 2 of the US proposal, which relates to LDCs, is an extension of paragraph 1 and 
contains exceptions to the principle of national treatment . The proposal states explicitly that 
Parties may consider price preferences in favour of LDC enterprises during transitional periods 
to address specific needs in situations where the domestic suppliers  may be vulnerable to 
rapid changes in the competitive situation . Paragraph 2 also tries to make the relationship 
between this Article and the Article of the Agreement on national treatment more explicit. 
[US] 
• The allowance of price preferences is not a su bstantial deviation from what is already 
envisaged in Article V:7 . Given the departures from commitments in the GPA that may 
potentially be allowed under the GPA, the transitional application of price preferences may be 
preferable to other types of excepti ons and may also be more transparent. [US] 
• Price preferences is amongst the most transparent mechanisms with which to introduce 
flexibility into this Article. [EC] 
• Why is paragraph 2 limited to LDCs and not extended to developing countries ? [Switzerland ; 
EC] GPA/TN1994/2/Rev.12  
- 51 - 
   
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where, in the course of accession 
negotiations, the Parties agree to a 
transitional measure provided for in 
paragraphs 1 or 2 of this Article, each Party 
shall give due consideration to the 
possibility of applying this Agreement, 
immediately upon accession, to the goods, 
services and suppliers of the acceding 
country with respect to all procurement 
covered by Appendix I of the Agreement . 
However, taking due account of the  scope 
of any transitional measures requested and 
with a view to maintaining appropriate 
reciprocal trade opportunities under this 
Agreement, any Party may agree with the 
acceding country to limit the scope of 
coverage of that Party's Appendix I that is 
provided to the acceding country during the 
agreed transition period . A ny such 
limitations shall be clearly identified in the 
Committee's relevant accession decision 
and in each Party's relevant annexes or 
notes to Appendix I.  
[US – Job No. 1235]  
 
 4. A request for a transitional measure 
provided for under paragraphs 1 or 2 of this 
Article may be made by a developing 
country during negotiations on accession to 
this Agreement or by a developing country 
Party after the Agreement has entered into 
force for t hat Party.  
[US – Job No. 1235]  
 
 
Comment  
 
• Paragraph 3 of the US proposal addresses the issue reflected in part by Article ZZII:2 of the 
Swiss proposal which contains a reference to reciprocal treatment . Notwithstanding any 
transitional measures that may be agreed to, Parties should consider the possibility of offering 
their entire existing coverage to the relevant acceding country . However, there should also be 
the possibility for appropriate reciprocal arrangements to maintain a balance of interests 
during the transitional period.  [US] 
 
 
  GPA/TN1994/2/Rev.12  
- 52 - 
   5. Upon accession, a Party benefiting 
from a transitional measure provided for 
under paragraphs 1 or 2 of this Article shall 
take such steps as may be necessary, 
including notifying the Committee of any 
specific te chnical cooperation needs, to 
ensure that the particular needs and 
circumstances warranting the transitional 
measure are appropriately addressed 
during the agreed transition period.  
[US – Job No. 1235]  
 
 
 
Technical Assistance for Developing Country 
Parties   
Article ZZIV  
 
Technical assistance and information 
centres  
 
8. Each developed country Party shall, upon 
request, provide all technical assistance which it 
may deem appropriate to developing country 
Parties in resolving their problems in the field  of 
government procurement.  
 ZZIV:1.  Each Member shall, upon 
request, provide all technical assistance 
which it may deem appropriate to acceding 
Parties and upon request to Parties which 
demonstrate need for capacity building.  
[Switzerland – Job No. 1274]  
 
Comments  
 
In relation to the US proposal : 
 
• Paragraph 4 of the US proposal is a streamlined version of GPA Articles V:5 and 6.  [US] 
• Paragraph 5 of the US proposal specifically states that countries that benefit from exceptions  
to the Agreement should take steps to ensure that their needs are being met during the 
transitional period . This is to reflect the more general discussion that transitional measures 
should be needs -based.  [US] 
• While technical cooperation is important, it is unclear what technical cooperation can do in 
circumstances where the transitional measure is linked to the competitiveness of a part of an 
industry that may one day be able to become more through an increase in technological levels 
or beco ming more price competitive.  [Switzerland]  
• The provision on technical assistance in the US proposal is a restatement of Article V:8.  [US] 
In relation to the Swiss proposal:  
 
• Paragraph ZZIV contains elements from Article V:8, 9, and 11 of the existing Agree ment. The 
proposed paragraphs contains a number of additions in relation to tender procedures and 
documentation.  [Switzerland]  
 GPA/TN1994/2/Rev.12  
- 53 - 
  Article V:9, 10, 11  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on 
the basis of non -discrimination among 
developing country Parties, shall relate, 
inter alia, to: 
 ZZIV:2.  Technical assistance shall 
relate, inter alia , to: 
 
- the so lution of particular 
technical problems relating to 
publications of tender and 
award notices, tender 
procedures, tender 
documentation, award 
procedures, remedy systems;  
 
- training of local purchasing 
entities.  
 
[Switzerland – Job No. 1274]  - the solution of particular technical 
problems relating to the award of a 
specific contract ; and 
 
- any other problem which the Party 
making the request and another 
Party agree to deal with in the 
context of this assistance.  
 
10. Technical assistance referred to in 
paragraphs  8 and 9 would include translation of 
qualification documentation and tenders made 
by suppliers of developing country Parties into an 
official language of the WTO designated by the 
entity, unless developed country Partie s deem 
translation to be burdensome, and in that case 
explanation shall be given to developing country 
Parties upon their request addressed either to 
the developed country Parties or to their entities.   
 6. During a developing country's 
accession process or after the entry into 
force of this Agreement for a developing 
country Party, the Parties shall give due 
consideration to any request by such a 
developing country for technical 
cooperation to address that country's 
specific needs and circumstance s in 
relation to the implementation of this 
Agreement and the exercise of the rights 
under this Agreement, including drawing on 
the benefits of such participation.  
[US – Job No. 1235]  
 GPA/TN1994/2/Rev.12  
- 54 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to 
respond to reasonable requests from developing 
country Parties for information relating to, 
inter alia, laws, regulations, procedures and 
practices regarding governm ent procurement, 
notices about intended procurements which have 
been published, addresses of the entities 
covered by this Agreement, and the nature and 
volume of products or services procured or to be 
procured, including available information about 
future tenders . The Committee may also set up 
an information centre.  
 ZZIV:3.  Developed country Parties shall 
establish, individually or jointly, 
information centres to respond to 
reasonable requests from all Parties for 
information relating to, inter alia , laws,  
regulations, procedures and practices 
regarding government procurement, 
notices about intended procurements which 
have been published, addresses of the 
entities covered by this Agreement, and the 
nature and volume of products or services 
procured or to be  procured, including 
available information about future tenders . 
The Committee may also set up an 
information centre.  
[Switzerland – Job No. 1274]  
 
 7. Each Party shall establish an 
information centre to respond to 
reasonable requests from developing 
country Parties for information related to 
those Parties' efforts to fully enjoy the 
benefits of participation in this Agreement . 
Such information may include information 
relating to procurement plans, procedures 
or requirements with respect to 
procurement covered by this Agreement.  
[US – Job No. 1235]  
 
 
Comments  
 
In relation to paragraph 6 of the US proposal:  
 
• How will this paragraph be implemented given that the provision of technical assistance will 
take time and that there are many countries that would like to expedite their accession to the 
GPA? [Jordan]  
• The application of paragraph 6 would depend upon the particular needs of specific acceding 
countries . It is difficult to anticipate what needs might exist in order to fully participate in the 
Agreement.  [US] 
  GPA/TN1994/2/Rev.12  
- 55 - 
  In relation to paragraph 7 of the US proposal:  
 
• What is the purpose of the changes to the existing Article V:11, namely : changing the 
reference to developed country Parties with "each Party; " deleting the last sentence relating 
to the establishment of an information center ; and deleting the words "independently or 
jointly. " [Japan]  
• With respect to the establishment of an information center by Parties, a developing country 
would be just as likely to be interested in procu rement opportunities in another developing 
country as procurement opportunities in a developed country . Therefore, it would be useful 
for developing and developed countries alike to establish information centers . This might be 
an issue to be addressed in t he context of the provision of technical assistance in some cases.  
[US] 
• With respect to the establishment of an information center by the GPA Committee, this has 
not yet been created although it is an existing obligation under Article V:11 of the GPA . If the 
Parties intend to create the center, then it should be created . However, if there is no intention 
to do so, such an obligation should be removed from the Agreement. [US] GPA/TN1994/2/Rev.12  
- 56 - 
  Article V:12, 13  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed Countries  
  
12. Having regard to paragraph  6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28  November  1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), special treatment shall be 
granted to least -developed country Parties and 
to the suppliers in those Parties with respect to 
products or services originat ing in those Parties, 
in the context of any general or specific 
measures in favour of developing country 
Parties.  
  
A Party may also grant the benefits of this 
Agreement to suppliers in least -developed 
countries which are not Parties, with respect to 
products or services originating in those 
countries.  
 ZZI:4.  Having regard to paragraph 6 of 
the Decision of the CONTRACTING PARTIES 
to G ATT 1947  of 2 8 November  1979 on 
Differential and More Favourable 
Treatment, Reciprocity and Fuller 
Participation of Dev eloping Countries 
(BISD  26S/203 -205), a Party may grant the 
benefits of this Agreement to suppliers in 
least -developed countries, with respect to 
products or services originating in those 
countries.  
[Switzerland – Job No. 1274]  
 
13. Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in 
least-developed countries in submitting their 
tenders and selecting the products or services 
which are likely to be of interest to its e ntities as 
well as to suppliers in least -developed countries, 
and likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended 
procurement.  
 ZZI:5.  Each developed country Par ty 
shall, upon request, provide assistance 
which it may deem appropriate to potential 
tenderers in least -developed countries in 
submitting their tenders and selecting the 
products or services which are likely to be 
of interest to its entities as well as to  
suppliers in least -developed countries, and 
likewise assist them to comply with 
technical regulations and standards 
relating to products or services which are 
the subject of the intended procurement.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.12  
- 57 - 
  Article V:14, 15  
 
Speci al and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Review  
 Article ZZV  
 
Review  
 
14. The Committee shall review annually the 
operation and effectiveness of this Article and, 
after each three years of its operation on the basis 
of reports to be submitted by Parties, shall carry 
out a major review in order to evaluate its effects . 
As part of the three -yearly reviews and with a 
view to achieving the maximum implementation 
of the provisions of this Agreement, including in 
particular Article  III, and having regard to the 
development, financial and trade situation of the 
developing countries concerned, the Committee 
shall examine whether exclusions provided for in 
accordance with the  provisions of paragraphs  4 
through 6 of this Article shall be modified or 
extended.  
 ZZV:1.  The Committee shall review on a 
two-year basis the operation and 
effectiveness of Articles ZZI to ZZIV and, 
after each four years of its operation on the 
basis of reports to be submitted by Parties, 
shall carry out a major review in order to 
evaluate its effects . As part of the four -year 
reviews and with a view to achieving the 
maximum implementation f the provisions 
of this Agreement, including in particular 
Articl e III, and having regard to the 
development, financial and trade situation 
of the developing countries concerned, the 
Committee shall examine whether 
exclusions provided for in accordance with 
the provisions of Articles ZZII and ZZIII 
shall be modified or extended.  
[Switzerland – Job No. 1274]  
 
15. In the course of further rounds of 
negotiations in accordance with the provisions of 
paragraph  7 of Article  XXIV, each developing 
country Party shall give consideration to the 
possibility of enlarging its coverage lists, having 
regard to its economic, financial and trade 
situation.  
 ZZIII:3.  In the course of further 
negotiations in accordance with 
paragraph  7 of Article XXIV, each 
developing and least -developed country 
Party shall give consideration to the 
possibility of enlarging its coverage lists, 
having regard to its development, financial 
and trade situation.  
[Switzerland – Job No. 1274]  
 
 
Comment  
 
• The proposed paragraph ZZV  deals with reviews of the provisions on special and differential 
treatment . Provisions dealing with review of the whole Agreement could be placed elsewhere 
in the Agreement.  [Switzerland]  GPA/TN1994/2/Rev.12  
- 58 - 
  ARTICLE VI:  TECHNICAL SPECIFICATIONS  
Article VI:1  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symb ols, terminology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformity assessment 
procedures prescribed by procuring entities, shall 
not be prepared, adopted or applied with a view 
to, or with the effect of, creating unnecessary 
obstacles to international trade.  
 1. Technical specifications laying down 
the characteristics of the products or 
services to be procured, such as quality, 
performance, safety and dimensions, 
symbols, terminology , packaging, marking 
and labelling, or the processes and methods 
for their production and requirements 
relating to conformity assessment 
procedures prescribed by procuring 
entities, shall not be prepared, adopted or 
applied with a view to, or with the effe ct of, 
creating unnecessary obstacles to 
international trade.  
[EC – Job No. 876]  
 
 
Comments  
 
In relation to paragraph 1 of the EC proposal:  
 
• Is the word "unnecessary" needed in relation to "obstacles to international trade" . If open 
competition is sought to be achieved, any obstacle is unnecessary.  [Switzerland]  
 
 
 GPA/TN1994/2/Rev.12  
- 59 - 
  Article VI:2  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in terms of performance and 
functional requirements rather than 
design or descriptive 
characteristics ; and/or  
 
(b) be based on international 
standards, where such exist ; 
otherwise, on national technical 
regulations3, recognized national 
standards4, or buil ding codes.  
 
 3For the purpose of this Agreement, a technical 
regulation is a document which lays down 
characteristics of a product or a service or their related 
processes and production methods, including the 
applicable administrative provisions, with whi ch 
compliance is mandatory . It may also include or deal 
exclusively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
4For the purpose of this Agreement, a standard is a 
document approved by a recognized body, that 
provides, for common and repeated use, rules, 
guidelines or characteristics for products or services or 
related processes and production methods, with which 
compliance is not mandatory . It may also include or 
deal exclusively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in terms of performance 
rather than design or 
descriptive characteristics ; and 
 
(b) be based on international 
standards, where such exist ; 
otherwise, on technical 
regulations3, recognized 
national standards4, or building 
codes.  
 
3 For the purpose of this Agreement, a technical 
regulation is a document which lays down 
characteristics of a product or a service or their 
related processes and production methods, 
including the applicable administrative 
provisions, with which compliance is mandatory . 
It may also include or deal exclusively with 
terminology, symbols, packaging, marking or 
labeling requirements as they apply to a product, 
service, process or production method.  
4 For the purpose of this Agreement, a standard 
is a document ap proved by a recognized body, 
that provides, for common and repeated use, 
rules, guidelines or characteristics for products 
or services or related processes and production 
methods, with which compliance is not 
mandatory . It may also include or deal 
exclusiv ely with terminology, symbols, 
packaging, marking or labeling requirements as 
they apply to a product, service, process or 
production method.  
[EC – Job No. 876]  
 
 
Comments  
 
• The EC proposal refers to technical specifications in terms of performance standar ds and 
international standards and this is a warranty for the competitive use of specifications . Any 
departure from those standards should be fully justified . However, since an overly formalistic 
approach could also be restrictive and impose an unnecessary  burden on entities, technical 
specifications that are not fully compatible with all the details of international standards that 
nevertheless meet the "essential requirements" of the procuring entity should also be 
considered in the tendering process . Such an approach strikes a fair balance between the need 
to facilitate competition and the need to allow for innovative solutions while preserving what 
has been achieved in the field of international standardisation.  [EC] 
• The current text of the Agreement prom oting the use of performance -based specifications 
where possible, provides scope for procuring organisations to seek innovation solutions . 
Performance specifications that focus on the purpose or outcomes sought by government could 
be sufficiently broad to permit suppliers to propose innovative solutions . It is unclear that any 
change to the Article is needed to achieve that objective.  [Canada]  
 GPA/TN1994/2/Rev.12  
- 60 - 
  • The difficulty is how to make sure that the provision that is already in the Agreement on the 
promotion of performance -based standards is implemented.  [EC] 
• "Technical specifications" are not the same thing as "technical standards" . The former is the 
complete definition of the entity's requirements that are needed for the procuremen t. In the 
majority of procurements, especially high dollar value procurements that are covered by the 
GPA, purpose -built specifications would be relevant rather then choosing amongst different 
standards off -the-shelf although those could be used for parts of a technical specification . 
However, it would be rare that there would be something off -the-shelf for everything 
associated with a covered procurement . On that basis, when the requirements for 
procurement are being defined, it is a question of whether th ose requirements are defined on 
the basis of the performance that is needed for that particular requirement rather than pulling 
out some sort of defined requirement for a particular product.  [Canada]  
• The EC does not associate "technical specifications" wit h "technical standards" . In its view, 
technical specifications could be achieved in different ways and one possibility is that an 
existing standard could be used for the whole of a technical specification . In most cases, the 
Party would define technical sp ecification for its own purposes and this is precisely the 
objective of having a reference to performance -based standards . This Article exists because 
Parties recognize that, because of inertia or tradition, when a Party uses traditional solutions 
there is  a risk that that might block innovative solutions and might also block participation by 
suppliers from other Parties . The basis for the solution to a real problem is already contained 
in the Agreement . The challenge is how to make the provision effective without unnecessarily 
restricting the freedom of the entities.  [EC] 
• Unlike the EC proposal, the US proposal excludes references to mandatory regulations and 
building codes as it is unclear whether it is necessary to state that a procurement has to be 
consistent with mandatory requirements.  [US] 
• It is important that technical specifications are developed in a way that ensures, to the extent 
possible, that they focus on the end -needs of the procuring entity rather than use 
designed -based specifications which would limit competition.  [US] 
• The EC proposal states that specifications should be based on international standards, where 
they exist . The US had previously suggested that there should be a reference to international 
standards that are applicable to a Part y. [US] 
• The implication of the hierarchy in paragraph 2(b) of the EC proposal, and more specifically, 
the use of the words "otherwise, on " is that technical specifications would be based on 
international standards . If such standards do not exist, then the specifications would be based 
on national,  technical regulations and recognised national standards of building codes . It is 
unclear whether such a hierarchy makes sense in practice since national technical regulations 
are usually mandatory and there would be an expectation that entities would base any 
specification on technical regulations that are mandatory in the system in which they are 
operating.  [US] 
• The phrase "recognised national standards " may cause some difficulty because in the US, 
standards are n ot "recognised. " [US] 
• Standards change and evolve rapidly . Usually, existing standards do not cover all technical 
aspects of a good that is to be purchased . The objective of the proposal is to oblige the 
procuring entity to announce at the outset of the procurement process, the details of the good 
on the basis that it will accept and assess any solution provided the quality is the same as the 
quality it is has prescribed.  [EC] 
• With respect to proposed paragraph 2(a) of the EC proposal, the objective of di scouraging the 
use of complicated government specifications - particularly, design -based specifications – is 
shared . This paragraph should make it clear that performance standards should be used unless 
a government specification is needed [US]. 
 GPA/TN1994/2/Rev.12  
- 61 - 
  With respe ct to international standards:  
 
• Reference to international standards may place excessive restrictions on procuring entities' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambiguity associated wit h what constitutes an "international standard" and the 
procedures according to which those standards are set.  [Korea ; US] The objections that have 
been raised regarding the definition of "international standards" also apply in relation to the 
current provi sions.  [EC] 
• Clarification or elaboration is needed as to what is meant by "international standards" to avoid 
different interpretations among Members.  [Japan]  
• The reference to international standards is contained in the original text . The intention is to 
get a clearer view as to what is already contained in the Agreement.  [EC] 
• The issue of international standards is currently being discussed in the context of the triennial 
review of the TBT Agreement.  [EC; Canada ] Also, the GPA Committee should not duplicate  
the work being undertaken in the TBT Committee.  [EC; US] 
• Given that the GPA currently provides for a hierarchy with international standards taking 
precedence over national standards, what is the rationale for treating all standards as having 
equal footing , as appears to be the case under the US proposal ? [Canada]  
• If a standard is developed in an appropriate way, whether international or domestic, it should 
be considered to be a legitimate standard and, therefore, there is not a need to establish a 
hierarch y amongst standards.  [US] 
• Subparagraph (b) of the Agreement should make reference to voluntary compliance with 
market -based standards instead of international standards.  [US] 
• The proposal should be clarified whether an implication of a requirement on procu ring entities 
to accept specifications that comply with international standards would be the delegation of 
the certification process to an independent expert.  [Japan]  
 GPA/TN1994/2/Rev.12  
- 62 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Each Party shall ensure that its 
entities do not prepare, adopt or apply any 
technical specification with the purpose or 
the effect of creating unnecessary 
obstacles to trade.  
[US – Job No. 2867]  
 
 3. In establishing the technical 
specifications for each good or service 
being procured, each Party shall ensure 
that its entities specify, whenever available 
and applicable to that Party, an existing 
domestic or international consensus 
standard, except where th e use of a 
consensus standard would fail to meet the 
entity 's program requirements or would 
impose more burdens than the use of a 
government -unique standard.  
[US – Job No. 2867]  
 
 4. Each Party shall ensure that, 
wherever appropriate, any technical 
specif ication prescribed by its entities is 
specified in terms of performance 
requirements for the good or service being 
procured rather than design or descriptive 
characteristics.  
[US – Job No. 2867]  
 
 
Comments  
 
With respect to consensus standards:  
 
• The concept of consensus standard was introduced as an attempt to ensure that a standard 
is not used or given a special status under the Agreement if it has not been adopted through 
a process that is transparent and that takes into account the views of all par ties. The proposal 
addresses the process for development of such standards rather than specifying the type of 
body that would be involved in developing the standards.  [US in response to a request for 
further clarification from the EC]  
• Disagreements can arise as to what is an appropriate standard and whether or not a standard 
is an international standard . There are situations where the use of standards that are described 
as being international could be used to restrict competition in ina ppropriate ways . The concept 
of consensus standards ensures that standards are developed through an open and 
transparent process and enable all Parties to participate in the setting of standards.  [US] 
• How long would a consensus standard be considered a con sensus standard ? For example, if a 
consensus exists at the time of the development of a standard but a long time elapses without 
review, would the consensus be considered to continue to exist ? [Canada]  
• A standard could not be considered to be a consensus s tandard if only domestic interests 
participate in the development of the standard . The US expects that the process of 
development of a domestic consensus standard by, for example, a domestic standard setting 
body, would be open to participation by supplier s from other Parties or other standard setting GPA/TN1994/2/Rev.12  
- 63 - 
  bodies . The term "domestic" refers to the location or the status of the body but not necessarily 
to the process.  [US in response to a question by Canada]  
• Should the body that develops the consensus standard be  independent of government ? Would 
a standard be a consensus standard only if it is developed in a manner that produces a result 
independent of government ? [Canada]  
• A consensus standard does not necessarily need to be a non -governmental standard . A 
governme ntal standard -setting body could set standards in an open and transparent process 
and those standards could be considered to be consensus standards . The US proposal related 
more to the process of setting standard.  [US] 
• The concept of consensus standards wi ll complicate the debate in the GPA and TBT contexts . 
There should not be two sets of characterisations of standards in an area that is already very 
complicated . Since international standards are already being used in the WTO, reference to 
them should not be changed unless there are good reasons for doing so.  [EC] 
• The US proposal allows an entity to use an existing consensus standard regardless of whether 
or not it conflicts with another consensus standard . The relevant provision would only apply 
when an en tity has available to it one or more consensus standards and, nevertheless, chooses 
to use a government -unique standard.  [US] 
• National standards may directly conflict with those in another country . The existing 
formulation of this Article allows the procur ing entity to choose between conflicting national 
standards.  [Singapore]  
• It is important to refer to use technical specifications that have been agreed by the largest 
possible number of potential users and buyers . The use of traditional techniques for 
standardization may not be sufficient or optimal in some cases . Accordingly, some flexibility 
has to be provided.  [EC] 
• A standard should be openly and fairly developed with input from any interested Party.  
[Canada]  
With respect to "wherever appropriate":  
 
(NB, the following comments were made in relation to an EC proposal that has subsequently been 
amended . However, they may be relevant in relation to paragraph 4 of the US proposal)  
 
• The proposal tries to clarify the meaning of what is meant by the term "where appropriate" in 
the current text . The proposal allows some flexibility for procuring entities when setting up 
technical specifications while ensuring compliance with the non -discrimination principle.  
[Japan]  
• The words "where appropriate"  in the chapeau paragraph are too flexible and have been 
deleted in order to clarify what is meant by the exception.  [EC] 
• Further consideration of the meaning of "appropriate" is required . Deletion of the words 
"where appropriate" may raise the question of  burden of proof in terms of what is and what 
is not appropriate . Should flexibility be restricted further by defining more clearly what 
situations are "appropriate" and which are not ? [US] 
 GPA/TN1994/2/Rev.12  
- 64 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would 
not apply when the procuring entity may 
objectively demonstrate that this would be 
ineffective or inappropriate for the 
fulfilment of the legitimate objectives 
pursued . Procuring entities relying on this 
exception shall maintain an official record 
explaining why these conditions apply.  
[EC – Job No. 876]  
 
 
Comments  
 
• The proposed paragraph 3 makes it clear that when the requirements in paragraph 2 of the 
proposal are departed from, an entity should be prepared to provide an objective justification 
for such a departure.  [EC] 
• Would this requirement raise the burden of proof on procuring entities in relation to use of the 
exception and, if so, what would the implications of that be ? [US; Hong Kong, China]  
• The priority accorded to performance -based standards and international standards is already 
contained in the GPA . The EC proposal attempts to clarify what that hierarchy means in 
practice . An exemption mechanism is not being proposed where entities have to first ask for 
permission . However, it is necessary to impose a minimum requirement in the Agreement to 
entities who consider it necessary to depart from the relevant principles t o provide an objective 
explanation.  [EC] 
• Should records of why a particular available standard was not used in relation to every single 
procurement decision be kept or would it be possible to keep records of the decision taken as 
a general matter, that a p articular standard would not meet an entity's needs ? Would it be 
possible to record that once and not have the administrative burden of going through that 
process every time a procurement decision is made ? [US] 
• If the explanation given in the broader decis ion applies to a specific procurement, then there 
is not a significant difference between having a record of the broad decision and having records 
of decisions that are made every time a procurement is made.  [EC] 
• Repeated references to record -keeping in ot her Articles of the Agreement could call into 
question its interpretation in this Article.  [Canada]  
• The requirement on record -keeping is midway between the current situation which is flexible 
and the compulsory use of a certain specification which might be  counterproductive in some 
cases.  [EC] 
• With respect to the requirement to maintain official records, does this mean that entities are 
required to record why they use design or descriptive specifications as opposed to 
performance -based specifications ? If so, it is unclear whether this is necessary or appropriate. 
[US] 
 GPA/TN1994/2/Rev.12  
- 65 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. In all the cases procuring entities 
shall consider bids which do not comply 
with the provisions of the technical 
specifications but do demonstrably meet 
the essential requirements thereof and are 
fit for the purpose intended . The reference 
to the technical specifications in the tender 
documents must include words such as "or 
equivalent".  
[EC – Job No. 876]  
 
 
Comments  
 
• The EC proposal attempts to introduce the notion of flexibility . Technical specifications, either 
when defined in terms of performance standards or defined in terms of international 
standards, should not be absolute requirements but rather a benchmark against which 
solutions have to be measured.  [EC; Japan]  
• The distinction between essential requirements, that is, the basic objectives of a procurement, 
and items that are ancillary should be integrated into the Agreement . If suppliers are required 
to comply with every detail contained in a technical specification, this could be considered to 
be a barrier to trade in most cases.  [EC] 
• How will bids which do not comply with the technical specifications but do de monstrably meet 
the essential requirements be treated ? [Jordan]  
• Bids that meet the essential requirements will be treated on an equal footing with all other 
bids. The solutions that will be accepted must be indicated at the inception of the tendering 
proce dure.  [EC] 
• Bids that fulfil the "essential requirements" of international standards should be considered 
equally with other bids . Further, bids that are based on international standards should be 
considered even when technical specifications are formulated  as performance requirements, 
provided that the bids fully address the essential requirements of the specifications.  [EC] 
• What would be the implications of proving that a bid meets the "essential requirements" ? [US] 
• The reference to "essential requirements " is a reference to core objectives underlying technical 
specifications irrespective of whether they were based on an international standard or a 
domestic standard . This principle achieves a balance between providing competitive conditions 
and allowing the  procuring entity to achieve its objectives . The burden of proof involved would 
only require the supplier to show that its solution can work.  [EC] 
• The current language could potentially allow an entity to construe the term "essential 
requirements " narrowly  and award a contract to a supplier that offers a product that appears 
to be inferior to other offered products . There is a concern that contracts would not be awarded 
in a transparent way. [US] GPA/TN1994/2/Rev.12  
- 66 - 
  • If a tenderer would like to offer an alternative solution, th at is, a solution that does not meet 
the requirements of the tender documents, or is not in conformity with the tender documents, 
the supplier should request the procurement entity to revise the documents . If the 
procurement entity does not accept such a s uggestion, then the supplier should use the 
challenge procedure mechanism to ask for a revision to the tender documents instead of 
submitting a proposal or offer that is not in conformity with the tender documents.  [Chinese 
Taipei]  
• There is a concern that the tender documents should be clear and legally certain . It would be 
unacceptable to allow a party to submit any offer, regardless of what is contained in the 
technical specification . Any solution has to fulfil the essential needs of the enti ty but there is 
also the possibility for new suppliers to submit alternative proposals that perhaps the 
contracting entity is not accustomed to or aware of . Such flexibility preserves legal certainty 
and allows for new opportunities within the framework of  the Agreement.  [EC] 
• Is Article VI the appropriate location for the consideration of the issues related to the 
evaluation of bids ? Is the proposal consistent with the existing provisions in the Agreement 
relating to the evaluation of bids ? [Canada ] The pro posed paragraph could be placed in 
another part of the Agreement as long as an agreement on the substance can be reached . 
However, since the existing Article deals with technical specifications as does the proposed 
paragraph, this is probably the appropria te place for its inclusion.  [EC] 
• The words "or equivalent " may cause difficulties for those that have to assess whether a bid 
is "equivalent " to another. [Japan]  
• The first sentence of paragraph 4 appears to entail an evaluation process and, further, to 
suggest that the specifications or the criteria that have been prescribed in advance could be 
changed during the evaluation process . It is also unclear whether this paragraph is consistent 
with the requirement in another EC proposal concerning the treatment o f tenders and contract 
awards that "To be considered for an award, a tender must be in writing and must at the time 
of opening conform to the essential requirements of the notices and tender documentation. " 
[Canada]  
• The first sentence of paragraph 4 is pro blematic since it may be subject to a subjective 
interpretation . It would also result in uncertainty which, in turn, could be abused by 
unsuccessful suppliers.  [Hong Kong, China]  
• The reference to "or equivalent " is intended to address the issue of performance versus 
design -based specifications . It is unclear what the equivalent of a performance -based 
specification would be since a performance -based specification would state what should be 
achieved by a particular  good or service without specifically stating how . Accordingly, an 
alternative should not be offered in relation to performance -based specifications. [US] 
• This Article seeks to ensure that the procuring entity keeps an open mind and considers bids 
that com ply with all the "essential requirements ." This provision does not impose upon entities 
the obligation to lower its requirements nor to accept designs of a lower quality . Rather, all 
solutions must be assessed and evaluated on an equal footing.  [EC] 
 
  GPA/TN1994/2/Rev.12  
- 67 - 
  • It is an ideal conception to add the expression, or "equivalent", to each technical specification 
and to consider equivalent specifications in all tenders in accordance with Article VIII:4 of the 
EU proposal . However it would be difficult to decide the extent  to which equivalent 
specifications should be considered . Furthermore, problems, such as the possible conflict of 
opinions between procuring entities and suppliers on the measures to recognize the 
equivalence, the possible delay in contracting procedures w hen the judgment of the 
equivalence takes some time, and the possible increase in burden to the procuring entities, 
could arise . What solutions does the EU envisage to overcome these problems ? [Country?]  
• While there are cases where it is generally feasible  to consider equivalent specifications, there 
are, for example, cases where : complete conformance to the technical specifications is 
indispensable in order to secure safety and durability at a high level ; and where the purposes 
of the procurement, which include the test on specific material(s) or method(s) of 
construction, are not fulfilled unless complete conformance to the technical specifications is 
secured . Taking into account the above cases, it is possible to apply the EU proposal  to all 
procurements . Moreover, if one of the purposes of the EU proposal is to enhance the 
opportunities for new firms and foreign firms to participate in the tendering procedures, there 
would appear to exist, however, different approaches to improve tran sparency in the process 
for determining specifications . Among the approaches could be the system where the 
procuring entity finalizes the technical specifications, which are to be included in the tender 
documentation after giving all the interested supplie rs an advance opportunity to present their 
opinions on, or the material for, technical specifications, provided that there is enough time 
and that it is technically feasible.  [Japan ; Job No. 5474]  
 
 GPA/TN1994/2/Rev.12  
- 68 - 
  Article VI:3  
 
Technical Specifications  
 
AGREEMENT ON GO VERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and provided that words such as 
"or equivalent" are included in the tender 
documentation.  
 5. There shall be no requirement or 
reference to a particular trademark or trade 
name, patent, design or type, specific 
origin, producer or supplier, unless there is 
no sufficiently precise or intelligible way of 
describing the procurement requirements 
and provided that words such as "or 
equivalent" are included in the tender 
documentation.  
[EC – Job No. 876]  
 
 5. Each Party shall ensure that the 
technical specifications prescribed by its 
entities do not require or refer to a 
particular trademark or trade name, patent, 
design or type, specific origin or producer 
or supplier unless there is no sufficiently 
precise or intelligible way of otherwise 
describing the procurement requirements 
and provided that, in such cases, words 
such as "or equivalent" are included in the 
tender documentation.  
[US – Job No. 2867]  
 
 
Comments  
 
• The words "or equivalent" seem to suggest that a government can authorize the manufacture 
of a product of a similar design as the one specified . Would the words "or equivalent" have 
any implications under intellectual property law ? [Hong Kong, China]  
• The notion of "equivalence" is already contained in the existing paragraph 3 of Article VI and 
is aimed at ensuring that when contracting entities refer to a particular trademark in technical 
specifications because there is no other practical way of defining what is being sought, they 
should fo resee the possibility of providing an opportunity to alternatives that do not infringe 
intellectual property rights but, nevertheless, provide the same kind of solution to the  needs 
of the contracting entity.  [EC] 
• The words "or equivalent" deal with a real  practical problem, are necessary and should be 
retained . Whereas theoretically, there may be a perception that there is an intellectual 
property problem, it is not a problem in practice.  [US] 
 
 GPA/TN1994/2/Rev.12  
- 69 - 
  Article VI:4  
 
Technical Specifications  
 
AGREEMENT ON GOVERN MENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a 
manner which would have the effect of precluding 
competition, advice which may be used in the 
preparation of specifications for a specific 
procurement from a firm that may have a 
commercial interest in the procurement.  
 6. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may 
be used in the preparation of specifications 
for a specific procurement from a person 
that may have a commercial interest in the 
procurement.  
[EC – Job No. 876]  
 
 6. Each Party shall ensure that its 
entities do not seek or accept, in a manner 
that would have the effect of precluding 
competition, advice that may be used in the 
preparation or adoption of any technical 
specification for a specific procurement 
from a person that may have a commercial 
interest in that procurement.  
[US – Job No. 2867]  
 
 
Drafting suggestion  
 
• Suggest replacing the word "person" by "supplier" as it is already defined to include both 
natural persons or enterprises . It would be very difficult and sometimes not practically feasible 
to identify a person as the person who actually provides advice on technical specifications.  
[Hong  Kong, C hina] 
 
 
 GPA/TN1994/2/Rev.12  
- 70 - 
  ARTICLE VII:  TENDERING PROCEDURES  
Article VII:1  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VII  
 
Tendering Procedures  
 Article VII  
 
Methods of Procurement  
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a 
non-discriminatory manner and are consistent 
with the provisions contained in Articles  VII 
through XVI.  
 1. Each Party shall ensure that the 
tendering procedures of its entities are 
applied in a non -discriminatory manner and 
are consistent with the provisions 
contained in Articles VII through XVI.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Because Article VII and all other provisions of the Agreement are subject to Article III, the 
repetition of the non -discriminatory rule in Article VII:1 does not appear to be necessary . 
Selective repetition of this rule may in fact raise unintended interpretative questions.  [US; 
Canada]  
• The provisions on tendering procedures should be reviewed to a ccommodate the use of 
two-stage tendering and electronic catalogues.  [Singapore]  
General comments in relation to the EC Proposal (Job No. 876):  
 
• The proposal refers to the term "procurement process ." For reasons of coherence, this term 
should be used throughout the text of the Agreement. [EC] The US proposal uses the term 
"procurement " throughout its text but defines "procurement " as a process.  [US] 
• The proposal does not attempt to alter the substance o f Article VII . Rather, it suggests changes 
to the definitions of the three main categories of tendering procedures . These changes are 
aimed at explaining more clearly how the procurement process works.  [EC] 
• The changes regarding selective procurement attem pt to focus attention on the essence of 
the selective tendering process . In particular, a selective tendering process involves a 2 -stage 
process . The first stag e involves the qualification of suppliers . The second stage involves the 
submission of tenders b y the suppliers that have successfully qualified during the first stage.  
[EC] 
• The definition of limited procurement should focus on the main feature of limited procurement, 
being the fact that the procuring entity contacts a supplier/s of its choice and th e entity may 
or may not choose not to publish a notice. [EC] 
• The EC proposal appears to alter the most important terms in the GPA, that is the names 
given to different kinds of tendering procedure . From a practical perspective, is there a need 
to amend tho se names ? [Hong Kong, China]  
• The proposal retains reference to the three main categories of tendering procedures . It is 
useful to retain the three categories since this familiarises users with the categorisation and 
enables countries to choose their own pr ocurement methods. [EC] GPA/TN1994/2/Rev.12  
- 71 - 
  General comments in relation to US Proposal (Job No. 1051):  
 
• The proposal seeks to remove references to specific types of procedures – i.e. open, selective 
and limited tendering . The objective of this change is based primarily on a perception that 
seems to be prevalent among non -Parties to the Agreement that the GPA appears to dictate 
the kind of procedures that can be used in particular circumstances . Accordingly, the US 
proposal seeks to establish a basic framework of rules within the GPA that will apply to all 
covered procurement, regardless of the method of procurement used . Parties ' entities are free 
to choose the appropriate method of procurement provided that any given procurement is 
within the framework of rules set out in the GPA. [US] 
• Selective tendering is useful, for example, in relation to design consulting procurements for 
public works, where it is important to select a fixed, limited number of suppliers to submit 
bids after qualification to reduce the burden on the procurement officials . Therefore, the 
removal of a reference to selective tendering is of concern.  [Japan ] 
• It is not being suggested that the GPA should be amended to disallow the use of selective 
tendering . However, it is not considered necessary to specifically state in the GPA that 
selective tendering is allowed . Further, it may not be appropriate or efficient t o specify in the 
Agreement the various types of procurement procedures that may be allowed within the 
framework of the GPA since that could potentially lead to reference to a long list depending 
upon how tendering or procurement procedures are defined. [US] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article VII  
 
Methods of Procurement  
 1. Each Party shall ensure that the 
procurement methods of its procuring 
entities comply with the principles of 
equality of treatment, transparency and 
non-discrimination, and are consistent with 
the provisions contained in Articles VII 
through XVI.  
 
[EC – Job No 876]  
 
 
Comments  
 
• Article VII of the EC proposal restates the principle of non -discrimination . There are a number 
of other instances in the EC proposal where the principle is restated or interpreted . This should 
not be necessary in a streamlined and simplified text. [Canada]  
• Paragraph 1 above and other provision contain references to the principle of 
non-discrimination to ensu re that the principle applies to or is reflected in those provisions . 
Such references may not be necessary, depending upon how Article III which, contains the 
general obligation on non -discrimination is revised.  [EC] 
• EC proposed paragraphs 1 an d 2 dealing with treatment of tenders and contract awards and 
4 dealing with the qualification of suppliers contain various formulations of the principle on 
non-discrimination . The principle of non -discrimination is an overriding obligation and should 
apply to all of the Articles without qualification.  [Canada]  GPA/TN1994/2/Rev.12  
- 72 - 
  • All references to the principle of non -discrimination will be re -examined . Specific references 
have been made in cases where the principle is considered to play a more critical role . For 
instance, the short -listing of qualified suppliers is a critical phase of the procurement process . 
Therefore, references to non -discrimination have been made in that sense. [EC] 
 GPA/TN1994/2/Rev.12  
- 73 - 
  Article VII:2  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall not provide to any supplier 
information with regard to a specific 
procurement in a manner which would have the 
effect of precluding competition.  
 2. Entities shall not provide to any 
supplier information with regard to a 
specific procurement in a manner which 
would have the effect of negatively 
affecting competition.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The reference to "negatively affecting competition" in paragraph 2 of the Singaporean proposal 
is a useful concept.  [EC] 
• Should information with regard to a specific procurement be provided to all suppliers 
participating in a tender or only to those suppliers who have reached a certain stage in the 
procurement process ? [EC] 
• The EC proposal appears to have deleted paragraph 2 of the existing text . That paragraph 
permits the procuring entities to provide information to prospective suppliers, provided that 
they do not do so in a manner which would have the effect of precluding compe tition.  
[Hong  Kong, China]  
• The EC proposal has provisionally deleted this provision . While the provision of information to 
suppliers in way that does not harm competition is considered to be important, the provision 
should perhaps have a more general scope  and perhaps should be located in a place other 
than Article VII. [EC] 
 
 GPA/TN1994/2/Rev.12  
- 74 - 
  Article VII:3  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
(a) Open tendering procedures are 
those procedures under which all 
interested suppliers may submit a 
tender.  
 (a) Open tenders are those which 
are posted in a medium which is 
[in the public domain] [readily 
available to both local and 
foreign suppliers], and which all 
interested suppliers may submit 
a tender.  
[Singapore – Job No. 3772]  
 
 2. For the purposes of this Agreement:  
 
 (a)  Open procedures are those 
procurement processes under 
which all interested suppliers 
may submit a tender.  
[EC – Job No. 876]  
 
 
Comments  
 
• The phrase "in the public domain" in the proposal by Singapore is not necessary.  [Korea]  
• Does the EC proposal attempt to alter the classification of open tendering procedures and 
selective tendering procedures ? [Japan] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Selective tendering procedures are 
those  procedures under which, 
consistent with paragraph 3 of 
Article  X and other relevant 
provisions of this Agreement, those 
suppliers invited to do so by the 
entity may submit a tender.  
 (b) Selective tenders are those 
which, consistent with 
paragraph  3 of Ar ticle X and 
other relevant provisions of this 
Agreement, selected suppliers 
are invited to do so by the 
entity, and the information on 
the tender is not posted in a 
medium which is [in the public 
domain] [readily available to 
both local and foreign 
supplie rs]. 
[Singapore – Job No. 3772]  
 
 
Comment  
 
• It may not be appropriate to define the procedure in terms of the medium through which 
information on selective tendering opportunities is provided . In most cases, notices of 
selective tendering are published in the same way as for open tendering procedures . For 
transparency purposes, requirements for publication of notices of invitation to tender should 
also apply to selective tendering procedures.  [US] GPA/TN1994/2/Rev.12  
- 75 - 
  • With regard to the absence of a reference to se lective tendering procedures in the US proposal, 
selective procedures may occur separately and independently of the qualification of suppliers 
(GPA Article VIII) . The US assumes that selective tendering is feasible under the qualification 
provision of Arti cle VIII without preparing separate provisions for selective tendering . Would 
the selection of a fixed number of participants (e.g. 10 participants), based on the Article X of 
the current GPA, be consistent with Article VIII:(b) of the current GPA or Artic le VIII:4 of the 
US proposal if the conditions for qualification provided in Article VIII were applied to selective 
tendering procedures as well ? While simplification of the provisions of the GPA should be 
pursued, selective tendering procedures should be allowed, as under the current GPA, even if 
the provisions are reviewed and subsequently revised for the purpose of the simplification.  
[Japan ] 
• The US proposal does not include an equivalent to Article X because the US does not consider 
that it is necessary  to list and define different types of tendering procedures in the Agreement.  
[US] 
• Article VII:3(b), which relates to selective tendering, refers to suppliers "invited" to submit 
tenders . However, the EC proposal does not refer to this . Did the EC intend t o change the 
nature of selective tendering through its proposal ? [Japan]  
• What is the link between Article VII, VIII and X ? Is selective tendering essentially a 
qualification process ? [Japan]  
• For the EC, selection is related to qualification in that selecti on is based upon qualification . 
Selection pursuant to Article X must occur in a fair and non -discriminatory manner . It is 
difficult to see how selection can be a fair and non -discriminatory selection without the 
occurrence of a qualification procedure.  [EC] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 
 (b) Selective procurements are 
those procurement processes 
under which, in accordance with 
paragraphs 4 and 7 of Article XVI 
and other relevant provisions of 
this Agreement, only suppliers 
satisfying qualification 
requirements are invited by the 
procuring entity to submit a 
tender.  
 
[EC – Job No. 876]  
 
Comments  
 
• Does selective procurement mentioned in the EU proposal have the same scope of 
procurement as the selective tendering procedures mentioned in the current GPA or did the 
EC intend to change the scope of the Agreement in this respect . Is the relationship between 
qualification and open/selective tendering procedures under the current GPA the same as that 
between qualification and open/selective procurement under the EU proposal ? [Japan ; Job 
No. 5474]  
 
 GPA/TN1994/2/Rev.12  
- 76 - 
  Article VII  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Limited tendering procedures are 
those procedures where the entity 
contacts suppliers individually, only 
under the conditions specified in 
Article  XV. 
 (c) Limited tenders are those where 
the entity contacts suppliers 
individually, only under the 
conditions specified in 
Article  XV. 
[Singapore – Job No. 3772]  
 
 (c) Limited procurements are those 
procurement processes where 
the procuring entity contacts 
suppliers of its choice, only 
under the conditions specified in 
paragraph 4 of Article IX.  
[EC – Job. No.  876]  
 
 
Comments  
 
• The proposed inclusion of the words "of its choice " in the EC proposal is desirable. [Hong  Kong, 
China]  
  GPA/TN1994/2/Rev.12  
- 77 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of 
Suppliers  
 In the process of qualifying suppliers, 
entities shall not discriminate among suppliers of 
other Parties or between domestic suppliers and 
suppliers of other Parti es. Q ualification 
procedures shall be consistent with the following:  
 1. Entities maintaining permanent lists 
of qualified suppliers shall not discriminate 
among suppliers of other Parties or 
between domestic suppliers and suppliers 
of other Parties . Qualification procedures 
shall be consistent with the following:  
 
  
 
General Comments  
 
• The rules regarding qualification systems should be simplified and clarified . However, first, it 
is necessary to determine whether Parties have a common understanding of qualification 
systems.  and what is meant b y "qualification procedures" . The current GPA primarily relates 
to situations involving pre -qualification - that is, situations where complex procurement is 
involved and there is a need to preview the abilities of suppliers to determine whether they 
are able to fulfill the conditions of the contract . The pre -qualification or pre -selection of 
suppliers might cause problems and, therefore might deserve particular attention under the 
GPA. [EC] 
• The US p roposal may send a signal encouraging increased use of qualification systems . 
Qualification should remain a possibility but it is necessary to strike the right balance.  [EC] 
• The US does not want to encourage the use of a qualification procedure when it is not 
appropriate . When appropriate and necessary, qualification procedures should be available . 
However, in other cases, the unnecessary use of qualification procedures might violate the 
basic obligations underlying the Agreement . The Agreement should addre ss this concern.  [US] 
• Regarding the issue of whether there is a common understanding of what is meant by 
qualification procedures, it appears that sometimes references are made to "qualification 
procedures" whereas other times references are made to "pre -qualification" procedures . Some 
governments refer to those two terms as if they are synonymous . However, the US 
understands "qualification" to include any requirement that establishes the ability of the 
supplier to fulfil a contract . These requirements may be very complex in some cases, such as 
for construction projects and major consulting projects, so that pre -qualification is necessary 
to ensure an efficient process . At the same time, there are often situations where qualification 
requirements may be rela tively simple so that pre -qualification is not required . Rather, 
tenderers may be required, as part of the tendering process itself, to indicate that certain 
qualification criteria have been fulfilled . There may be a range of qualification procedures . The 
most restrictive may involve lists of pre -qualified suppliers and the most liberal may involve 
situations where an open tendering procedure is used that requires demonstration of fulfilment 
certain "qualification" criteria in the tender documents.  [US] 
• Qualification is a crucial part of the tendering procedure, both when it takes place separately 
from the tendering procedure and when it takes place as part of a larger procurement 
procedure . In particular, qualification may take place simultaneously with the  submission of 
tender offers or prior to the submission of offers . Some degree of detail is required in order 
to guarantee that qualification can take place without harming competition . The US proposal 
is not sufficient to guarantee that selective procedur es can take place in a non -discriminatory 
and competitive manner.  [EC] GPA/TN1994/2/Rev.12  
- 78 - 
  • The interpretation that a notice is not required in relation to selective tendering is not shared, 
although the relevant Articles in the existing GPA are somewhat confusing . Streamlinin g is 
necessary . Qualification is important . Therefore, it is necessary to have appropriate disciplines 
for qualification regardless of the point when qualification actually occurs - whether it occurs 
in one or two stages or it occurs as part of the process  of choosing between tenders in an 
open tendering situation.  [Canada]  
• The US proposal apparently does not reflect two stages that may be associated with a 
qualification procedure – namely, stage one which involves pre -qualification and stage two 
which may involve the application of additional selective procedures such as the application 
of non -discriminatory criteria such as the financial state of the company in question and its 
technical capabilities.  [Japan]  
General comments in relation to the revised US Proposal on qualification (Job No. 1051):  
 
• The new US proposal attempts to clarify the scope of the application of Article VIII . The 
existing Article VIII is entitled "Qualification " whereas it might be more a ppropriate to refer to 
the broader term of "conditions for participation ." For example, in many countries, including 
in the United States, there may be situations in which suppliers may be required to be included 
in a registry in order to participate in pr ocurement . The normal purpose of a registry is to 
verify certain generic qualifications such as financial and legal status . Registration would seem 
to fall within the meaning of the term "conditions for participation ." The new proposal repeats 
the phrase "registration, qualification or any other conditions for participation " to be as clear 
as possible . However, the final draft may include a definition of the term "conditions of 
participation " as meaning "registration, qualification or any other conditions f or participation. " 
[US] 
• Registration lists appear to be a form of qualification for which the qualification requirements 
are not particularly significant, such as a requirement to register interest and/or certain 
minimum information . It is questioned wheth er a distinction should be drawn between 
minimum requirement qualification and more onerous forms of qualification.  [EC] 
General comments in relation to the EC Proposal (Job No. 876):  
 
• Qualification may occur in the context of open, selective and limited t endering procedures . For 
example, it may occur as part of a single process of awarding a contract . Other times 
qualification may occur separately from the contract award process . The EC proposal attempts 
to reorganise Article VIII to make this distinction clear. The general rules are found in the first 
sub-paragraph and apply every time an entity has to verify that the conditions for participation 
are met by actual or potential bidders in the case of open procurement . A separate 
sub-paragraph has been propo sed to deal with the use of a permanent list of qualified 
suppliers . A new provision has been inserted, which is based on the existing Article that deals 
with selective tendering, to deal with the case where selective tendering entails a two -stage 
procedur e. During the first stage, qualification is verified . During the second stage, only 
qualified suppliers are allowed to submit bids. [EC] 
• With respect to two -stage selective tendering, selection should be based upon criteria that are 
known in advance through publication in the notice of intended procurement.  [EC] 
• Regarding the use of permanent lists of qualified suppliers, this list must be open at all times 
so that any interested bidder is able to request inclusion in the list at any time even in cases 
where  such lists are used in connection with a particular award process . Subsequent inclusion 
in the list should not be dependent upon whether or not the entity has time to qualify since 
this would make it too easy for the entity to say that it had n o time.  [EC] 
• The proposal maintains the possibility to use permanent lists as a closed system for Annex 3 
entities because it is believed that these entities are different in important respects from 
Annex  1 and Annex 2 entities. [EC] 
• The EC 's proposal help s to clarify the relationship between Article VIII and X of the existing 
GPA. [US]   GPA/TN1994/2/Rev.12  
- 79 - 
  ARTICLE VIII : QUALIFICATION OF SUPPLIERS  
Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) any conditions for participation in 
tendering procedures shall be 
published in adequate time to 
enable interested suppliers to 
initiate and, to the extent that it is 
compatible with efficient operation 
of the procurement process, 
complete the qualification 
procedures;  1. Procuring entities shall ensure that 
any conditions for participation in a 
procurement covered by this Agreement 
are limited to those that are essential to 
ensure a potential supplier's ability to 
execute the contract in question.  
[EC – Job No. 876]  
 
 7. Suppliers requesting to participate in 
a given intended procurement who are not 
on the permanent list of qualified suppliers 
shall be given the possibility to participate 
in the procurement by presenting the 
equivalent certifications and other means 
of proof requested from suppliers who are 
on the list,  
[EC – Job No. 876]  
 
 
Comments  
 
• Consultations among the GPA Parties suggest there may not be consensus on the meaning, 
in GPA Article VIII, of the term "conditions for participation" . It may be useful to clarify how 
the provisions of that Article apply to "conditions for participation" other than qualification 
requirements, such as supplier registries . This issue may be of particular importance to some 
countries who are in the process of acceding to the GPA or who may consider it in the future . 
Revision of the initial US proposed Article VIII would require technical modifications (mostly 
of terminology) elsewhere in the text.  [US] 
• The criteria for selectio n under Article X are not covered under Article VIII(a) . The GPA should 
make clear that the Article X selection criteria is covered under Article VIII(a). [Japan]  
In relation to paragraph 7 of the EC proposal:  
 
• Paragraph 7 of the EC proposal is perhaps too  ambitious in that it obliges entities to consider 
every new supplier that wants to be included in the list . The EC proposal should be modified 
to take account of the burden that would be imposed upon procuring entities. [Japan]  
• It is important to ensure t hat suppliers are given the possibility to participate in a procurement 
even if they are not included in a permanent list and even if they are not registered on 
condition that they can prove that they are as capable and competent as those that have been 
included on the list . This ability is particularly important in cases where registries are used . In 
the EC 's internal experience, registration should not be used as an exclusive means of deciding 
whether or not a supplier should be allowed to submit a bid . Further, there may be situations 
where suppliers are interested in a particular contract but are not necessarily interested in 
being included in a  permanent list or registry, for instance in registries of local chambers of 
commerce which sometimes requires payment of sums and may entail cumbersome 
processes. [EC] 
• The relationship between paragraph 7 and paragraph 4 of the EC proposal should be 
determined. [US] GPA/TN1994/2/Rev.12  
- 80 - 
  • The EU proposal provides that procuring entities, other than those listed in Annex 3, shall 
always consider those suppliers not listed in the permanent list . However, in this case, the 
procuring entities need time to examine an applicant's eligibility . It would, therefore, seem 
clear that procurement entities, being short of time necessary to examine, c annot deal with 
applicants having applied just prior to the deadline for submitting tenders . In Japan, the 
entities listed in Annex 1 and Annex 2 have been using permanent lists in most procurement 
cases, and all central government entities have been using  the common permanent lists for 
procurement of goods and general services . The possibility of application by email  for 
enrolment in the lists has, for example, been made available for the convenience of suppliers . 
Regarding the procurement of construction services, enrolment in the lists is also executed 
reasonably and promptly . As long as a prompt enrolment in the pe rmanent list is secured, it 
is not necessary to oblige procuring entities to consider those suppliers not listed in the 
permanent list.  [Japan ; Job No. 5494] 
• The concern underlying the EC's proposal is that such lists will effectively operate in a closed 
way. The EC proposal seeks to ensure that the participation of foreign companies that may 
not have the resources to be on all the lists for all entities in a given area or country is not 
prevented.  [EC] 
 
  GPA/TN1994/2/Rev.12  
- 81 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Registration, Qualification and Other 
Conditions for Participation  
 
1. Where an entity requires suppliers to 
satisfy registration or qualificatio n 
requirements or any other conditions for 
participation in a procurement, the entity  
shall publish a notice inviting interested 
suppliers to apply for inclusion in a registry, 
qualification, or recognition of satisfaction 
of any other conditions for participation and 
shall provide no less than 15 calendar days 
prior to the final date for the submission of 
tenders for such suppliers to submit their 
applications . This notice may be the same 
as the notice of intended procurement 
required under Article V of this Agreement 
or a separate notification relating to such 
requirements or conditions.  
[U.S. – Job No. 1051]  
 
 2. Where, at any time within the 15 -day 
period referred to in paragraph 1 of this 
Article, a supplier  that has not previously 
registered, qualified or satisfied any 
conditions for participation submits an 
application, the entity shall promptly start 
the relevant procedures and shall allow 
such supplier to participate in the 
procurement, provided there is sufficient 
time to complete the procedures within the 
time-period established for the tendering 
process.  
[US – Job. No.  1051]  
 
(b) any conditions for participation in 
tendering procedures shall be 
limited to those which are essential 
to ensure the firm's capability to 
fulfil the contract in question.  
  
 
Comments  
 
• With respect to Article VIII:(b) of the Agreement, ways should be found to reduce 
administrative burdens on suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  [Korea]  
• In relation to Article VIII(b) of the Agreement, is it possible to have "blacklists" of suppliers 
and to provide for procedures that allow such lists to be passed between concerned entities ? 
[Jordan] 
• The Agreement allows each Party to disqualify suppliers that may, for some reaso n (for 
example fraud) warrant the use of a blacklist . However, it seems that Jordan is suggesting 
something beyond what is currently available under the Agreement.  [US] GPA/TN1994/2/Rev.12  
- 82 - 
  In relation to the reference to "registration" in paragraphs 1 and 2 of the US proposal:  
 
• With respect to the introduction of the new concept of a "register, " since qualification precedes 
registration, it is questioned whether reference to registration is nee ded and whether it helps 
to clarify. [Switzerland]  
• While registration is normally based upon a qualification process, in some non -GPA countries, 
the registration process appears to entail more of a simple, administrative process without 
any clear relations hip to qualification . Further, in some cases, it can constitute a serious barrier 
to trade . Therefore, the motivation for including this concept was to clarify that registration 
should serve the purpose of qualification. [US] 
• The EC has an open mind with regard to a reference to registration requirements . The way in 
which the registry is used in the procurement process should be compatible with the EC 
proposal in paragraph 7. [EC] 
In relation to paragraph 2 of the US proposal:  
 
• Article VIII currently requires that a qualification process be open, including cases when a 
permanent list of suppliers is created under Article IX . There should be an opportunity for 
suppliers at all times to request qualification and if there is sufficient time during the ten dering 
process, to qualify and participate in the procurement process . That principle should continue 
to apply in cases of open and selective tendering as currently defined in the Agreement . 
Paragraph 2 of the US proposal provides that if closed list of pr e-qualified suppliers are used, 
that principle will not apply.  [US] 
• There may be cases where local knowledge or experience is important . Article VIII should be 
retained . The phrase "provided there is sufficient time to complete the qualification procedure 
within the time -period established for the tendering process" is problematic . Apart from 
creating operational difficulties, it will likely lead to dispute and bid challenges because a 
deadline is not set . To be fair to both procuring entities and suppliers  and in order to be 
predictable as mentioned in paragraph 2 of the Preamble, it is strongly recommended that the 
phrase be amended as follows : "provided the qualification procedures can be completed by 
the final date for the submission of tenders, or a lat er date specified by the procuring entity 
in the notice referred to in paragraph 1 of this Article. " [Hong Kong, China]  
• Warranties should be introduced into the system to avoid the closing of qualification systems 
to newcomers . This could be a critical poi nt in adapting the GPA to new electronic procurement 
methods . The new means offered by electronic systems to increase opportunities and to 
increase transparency should be taken into accoun t [EC] 
• Is it practically possible to qualify new suppliers while the tendering process is under way ? 
Suppliers who fail to abide by the time -limits would have another opportunity to qualify, which 
seems unfair . If all suppliers have equal opportunity to participate, the practicality of including 
new suppliers in a n ongoing qualification would be a secondary issue . There would be a rolling 
deadline so that suppliers could qualify at any time.  [Singapore]  
• An important provision contained in the GPA and in the US proposal is that even in the case 
where a pre -qualifica tion process occurs and an invitation is sent to pre -qualified suppliers to 
submit tenders, the Agreement still requires publication of the invitation notice and requires 
entities to consider the possibility of qualifying suppliers who did not pre -qualify in time.  [US] 
• At some point in a qualification process for a particular procurement, an entity may establish 
a time -limit beyond which it will no longer accept applications . Both under the GPA and the 
US proposal, there should be an opportunity for interes ted supplies who are not qualified to 
apply for qualification during the procurement process . However, at some point in time, the 
entity might state that it is no longer practical to receive applications.  [US] 
  GPA/TN1994/2/Rev.12  
- 83 - 
  Comments concerning the 15 -day period  
 
• Fifteen calendar days for the submission of an application for qualification might be too short 
a period for suppliers to estimate costs after they receive notices of the result of the 
qualification process.  [Switzerland ; Japan]  
• While 15 days may be too short for many types of procurement, the reference to 15 days in 
paragraph 1 does not mean that there should be 15 days up until the final date for the 
submission of tenders but, rather, that the entity should ensure that there is at least 15 days 
provided for suppliers to submit applications for qualification and have the applications for 
qualification processed. [US] 
• If, for example, a notice requesting submission of tenders states that there will be 90 days 
between the date of is sue of the notice and the final date for the submission of tenders, the 
entity must provide at least 15 days for the submission of applications for qualification . The 
remaining 75 days after the submission of the applications for qualification should be le ft open 
for the submission and processing of tenders . The initial period could be longer . However, the 
US proposal suggests that that period should be a minimum of 15 days.  [US] 
• In the case of construction works contracts, open tendering procedures may be used in 
conjunction with a pre -qualification procedure, including demonstration of relevant technical 
skills and experience . In light of this, with respect to the reference to the completion of a 
15-day period in paragraph 1 of the US proposal, to which pe riod does this refer ? Does this 
refer to the last day of the tender period or the first day on which suppliers can apply for 
qualification or neither of these ? The GPA should provide a sufficiently long period between 
the day when the supplier knows whethe r or not it is qualified and the day by which tenders 
must be received . In the case of contracts for construction works, suppliers want to commence 
detailed cost estimation after they have been informed that they have qualified for a particular 
tender . The current GPA provides that similar considerations apply in relation to selective 
tendering . However, the US proposal does not include such considerations.  [Japan]  
• The US proposal seeks to create a provision (paragraph 1) that would apply to situations in 
which there is one notice of intended procurement which includes qualification requirements 
that must be satisfied . In that case, the qualification period would exist within the same 
time-frame as the tendering period . It is also intended to cover the situa tion in which there 
may be two different notices, the first of which invites interested suppliers to apply for 
qualification and the subsequent notice relates to the invitation to tender . In the latter case 
where there are two separate notices, the time -period envisaged could be fulfilled before the 
tendering process begins . In other words, if 15 days were the appropriate time -period (as 
compared to 25 days in Article VIII(b) of the current text), that could apply to the qualification 
period and upon expira tion, a notice inviting tenders could be issued . The proposal attempts 
to encompass both situations in order to make the provisions flexible enough to cover the full 
range of possibilities.  [US] 
• In relation to construction works, qualification requirements  relating to experience of similar 
construction works and availability of necessary qualified engineers for each individual 
construction work is widely used . How would Article VIII:1 and 2 of the US proposal deal with 
this type of qualification.  [Japan ] 
• In the case of construction works involving this type of qualification, all suppliers who wish to 
participate in tendering procedures shall be subject to the qualification procedures . In the case 
of construction works involving qualification where suppliers are registered in the list of 
qualified suppliers, qualification procedures are necessary only for suppliers who have not 
been registered in the list . Therefore, suppliers (i.e. construction companies) would begin cost 
estimates for the calculation of bid price only after they have been informed of the result of 
qualification . In other words, suppliers need a period long enough for cost estimation after 
they have received notices of the qualification result . The current GPA takes this point into 
considerati on for selective tendering ( cf. Article XI:2(b)). [ Japan ] 
 GPA/TN1994/2/Rev.12  
- 84 - 
  • As for construction work projects in Japan, the qualification of a supplier occurs on the basis 
of their experience gained from similar construction works, and on the ability to secure 
necessary qu alified engineers for each individual construction work, as well as on whether the 
supplier is registered in the permanent list . We understand that the first set of criteria 
(experience and availability of qualified engineers) is also widely used for const ruction works 
in many other countries . If a construction work project requires this kind of qualification, Japan 
notes that all suppliers (i.e.  construction companies) would only be willing to engage in 
estimating the bidding price after having been inform ed of the result of the qualification, given 
that this involves substantial costs . Therefore, suppliers need a period that is long enough to 
prepare the cost estimation after having received notice of the qualificatio n result . The "15 
days" rule in Article  VIII:1 and 2 of the U.S. proposal might have an effect of reducing 
flexibility, in that the period might not be long enough to prepare the cost estimation after 
receiving notice of the qualification result.  [Japan ; Job No. 8474] 
 
 GPA/TN1994/2/Rev.12  
- 85 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information 
necessary for establishing the 
financial, commercial and technical 
capacity of suppliers, as well as the 
verification of qualifications, shall be 
no less favourable to suppliers of 
other Parties than to domestic 
suppliers and shall not discriminate 
among suppliers of ot her Parties.  
 
 The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory 
of the procuring entity, taking due 
account of the legal  relationship 
between the supply organizations;  
 2. Procuring entities shall evaluate the 
financial, commercial and technical 
capacity of a supplier on the basis of that 
supplier's global business activities, and 
shall not impose the condition that, in ord er 
for a supplier to participate in a 
procurement process, the supplier has 
previously been awarded one or more 
contracts by an entity of a given Party or 
that the supplier has prior work experience 
in the territory of a given Party  
[EC – Job No. 876].  
 
Entities shall:  
 
(a) limit any registration or 
qualification requirements, or 
other conditions for 
participation in a procurement, 
to those requirements or 
conditions that are essential to 
ensure that a potential supplier 
has the legal, technical and 
financi al abilities to fulfill the 
requirements and technical 
specifications of the 
procurement;  
 
(b)  evaluate the financial, 
commercial and technical 
abilities of a supplier on the 
basis of that supplier's global 
business activities, including 
both its activity  in the territory 
of the Party of the supplier, and 
its activity, if any, in the 
territory of the Party of the 
entity.  
[US – Job No. 1051]  
 
 
Comment  
 
• Many multinational enterprises, large or small, have slightly different company names in 
different regions or economies . Some are wholly owned subsidiaries, others are joint venture 
or other kinds of commercial arrangement . Unless the supplier uses exactly the same name 
in pursuing its global business, it is difficult to access or prove the su pplier's global business 
and legal relationship between the companies in different territories.  [Hong  Kong, China]  
 GPA/TN1994/2/Rev.12  
- 86 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) the process of, and the time 
required for, qualifying suppliers 
shall not be used in order to keep 
suppliers of other Parties off a 
suppliers' list or from being 
considered for a particular intended 
procurement.  
 8. When a procuring entity in Annex 3 
uses the notice regarding  the permanent 
list of qualified suppliers as a notice of 
intended procurement, as provided in 
Article IX, paragraph 3, suppliers 
requesting to participate who are not on the 
permanent list of qualified suppliers shall 
also be considered for the procuremen t 
provided there is sufficient time to 
complete the qualification procedure ; in 
this event the procuring entity shall 
promptly start procedures for qualification 
and the process of, and the time required 
for, qualifying suppliers shall not be used in 
order  to keep suppliers of other Parties off 
the suppliers' list.  
[EC – Job No. 876]  
 
 
Comments  
 
• Paragraph 8 of the EC proposal seems to be overly narrow in tha t it only seems to apply when 
a particular type of notice is used . At the very least, this provision should probably apply even 
when an entity publishes a notice regarding a permanent list and further, notices concerning 
specific procurements.  [US] 
• The flexibility provided for in paragraph 8 in the EC proposal is important in that it allows for 
suppliers to be subsequently qualified provided that sufficient time exists . However, the 
paragraph should be amended so as to ensure that it is not more binding and strict for an 
entity as compared to paragraph 4 of the EC proposal. [Switzerland]  
• Paragrap hs 4 and 8 are not incompatible and should possibly be combined . Paragraph 4 entails 
a situation where an additional selection is made after a first decision on qualification is made 
at which point the qualified suppliers are ranked . This additional select ion is made on the basis 
of criteria that have been published.  [EC] 
• The current drafting of paragraphs 4 and 8 suggests that paragraph 8 would only apply to the 
use of permanent lists by Annex 3 entities . A question arises as to whether a similar 
requirement to that contained in paragraph 8 should also apply to a selection process 
involving, for example, the evaluation of qualification requirements in a ranking of suppliers. 
[US] 
  GPA/TN1994/2/Rev.12  
- 87 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4.(c) base their decisions on applications 
for registration, qualification or any other 
conditions for participation solely on the 
information they have specified in advance 
in notices or tender documentation ; [US Job 
No. 1051]  
 
Comment  
 
• Regarding "the information" referred to in this provision, procuring entities should be able to 
use, not only information from each participant concerning the tender, but also information 
from other persons or organizations.  [Japan ; Job No. 5474] 
  GPA/TN1994/2/Rev.12  
- 88 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) recognize the registration, qualification 
or satisfaction of any other conditions of 
participation of any supplier that satisfies 
the relevan t requirements or conditions ; 
and 
 
(e) allow any supplier that they have 
recognized as registered, qualified or as 
having satisfied any other conditions for 
participation to participate in the relevant 
procurement. [U.S. – Job. No.  1051]  
 
Entities shall recognize as qualified suppliers such 
domestic suppliers or suppliers of other Parties 
who meet the conditions for participation in a 
particular intended procurement.  
 
Suppliers requesting to participate in a particular 
intended procurement who may not yet be 
qualified shall also be considered, provided there 
is sufficient time to complete the qualification 
procedure;  4. Procuring entities shall recognize as 
qualified suppliers all domestic suppliers 
and suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement . Entities shall base 
their qualification decisions solely on the 
conditions for participation that have been 
specified in advance in notices or tender 
documentation.  
[EC – Job No. 876] 
 
 Procuring entities may limit the number of 
qualified suppliers they will invite to 
tender, provided that they select the 
maximum number of domestic suppliers 
and suppliers of other Parties, consistent 
with the efficient operation of the 
procurement process, and make the 
selection in a fair and non -discriminatory 
manner and on the basi s of the criteria 
indicated in the notice of intended 
procurement or in tender documents.  
[EC – Job No. 876]  
 
 The process of, and the time required for, 
qualifying suppliers to permanent lists 
maintained by the entity shall not be used 
in order to keep suppliers of other Parties 
off a suppliers' list or from being considered 
for a particular intended procurement . 
Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  [Suppliers 
requesting to participate in a particular 
intended procurement who may not yet be 
qualified shall als o be considered, provided 
there is sufficient time to complete the 
qualification procedure.]  
[Singapore – Job No. 3772]  
 
  GPA/TN1994/2/Rev.12  
- 89 - 
  Comments  
 
• Who is expected to take the initiative to respond to a tender ? Is the tender an open invitation 
and interested suppliers t ake the initiative as to whether or not to respond to a tender ? 
Alternatively, does the procuring entity make the decision to invite particular suppliers and 
not others ? [Singapore]  
• The selective tendering method covers two types of procedures . One type is  for a specific 
procurement such as construction of highways for which interested suppliers submit 
qualification documents within the time -limit set out in the qualification documents . If the 
qualification documents cannot be submitted within the time -limit or the document submitted 
is not in conformity with the tender documentation, the qualification application would be 
rejected . The other type is the establishment of permanent lists of qualified suppliers, which 
allows suppliers to apply for qualificatio n at any time . Any modification to Article VIII should 
take into account the difference between these two types of methods of selective tendering.  
[Chinese  Taipei]  
• It is preferable to separate the rules regarding permanent lists of qualified suppliers and those 
regarding qualification for an individual procurement . This approach is reflected in 
paragraphs  1 to 3 of the Singaporean proposal.  [Hong Kong, China]  
• With respect to the second part of the paragraph 4 of the EC proposal, procuring entities 
should have more discretion to set the maximum number of suppliers allowed to submit a bid 
consistent with the efficient operation of the procurement process as well as the 
non-discrimination principle of the GPA and on the basis of the criteria set out in  the notice of 
intended procurement . This is a more realistic way of balancing efficiency with the interests 
of open competition than the current Article X:1.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 90 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a notice inviting applications 
for inclusion in a registry, qualification, or 
recognition of satisfaction of any other 
conditions for participation in a 
procurement process is issued separately 
from the  notice of intended procurement 
required under Article V of this Agreement, 
such notice shall be published in the same 
manner as the notice of intended 
procurement and shall contain at least the 
following information:  
 
 (a) a description of the intended 
procurement;  
[US – Job no. 1051 ; EC – Job No. 876]  
 
 (b) the registration or qualification 
requirements and any other 
conditions for participation  
[US – Job No. 1051];  
 
 (c) The name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain all 
relevant documents relating to 
the procurement;  
[US – Job No. 1051 ; EC – Job No. 876]  
 
 (d) The time limits, if any, for the 
submission of applications ; and 
[US – Job. No.  1051 ; EC – Job No. 876]  
 
 (e) an indication that the 
procurement is covered by this 
Agreement.  
[US – Job No. 1051 ; EC – Job No. 876]  
 
 
Comments  
 
• Do the words "separately from the notice of intended procurement " mean that the US no 
longer recognises the qualification notice as a notice of intended procurement ? Under the 
current GPA, an Annex 3 entity is able to issue a notice of qualification which may also function 
as a notice of intended procurement. [Switzerla nd] 
• The proposal does not deal with the separate question of whether Annex 3 entities should 
have flexibility with respect to the publication of notices . The aim of this proposal is to 
recognise various options . The first is the option is to publish a sing le notice in which both the 
qualification requirements and the tendering requirements are made available through the 
notice . The second option is to have two separate notices for instance with respect to 
qualification for a  permanent list and subsequent no tices relating to specific procurements 
conducted among the supplies included in the list . This is the case with which the proposal 
deals. [US] GPA/TN1994/2/Rev.12  
- 91 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) any supplier may apply for 
qualification at any time ; and all 
qualified suppliers so 
requesting are included in the 
lists within a reasonably short 
time;  
[Singapore – Job No. 3772]  
 
 Permanent list of qualified suppliers  
 
5. Procuring entities maintaining 
permanent lists of qualified suppliers shall 
ensure that suppliers may apply for 
qualification at any time ; and that all 
suppliers that so request and that meet the 
qualification requirements are included in 
the lists within a reasonably short time.  
[EC – Job. No.  876]  
 
(d) entities maintaining permanent lists 
of qualified suppliers shall ensure 
that suppliers may apply for 
qualification at any time ; and that 
all qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
 (d) each Party shall ensure that:  
 
(i)  each entity and its 
constituent parts follow a 
single qualification 
procedure, except in cases 
of duly substantiated need 
for a different procedure, 
and 
 
(ii) efforts be made to 
minimize differences in 
qualification procedures 
between entities;  
[Singapore – Job No. 3772]  
 
 
Comment  
 
• It would be difficult to comply with subparagraph (d)(ii) of the Singapore proposal given the 
differences in scope and nature of procurement undertaken by different entities.  [Hong  Kong, 
China]  
  GPA/TN1994/2/Rev.12  
- 92 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) if, after publication of the notice 
under paragraph 1 of Article  IX, 
a supplier not yet qualified 
requests to participate in an 
intended procurement, the entity 
shall promptly start procedures 
for qualification;  
 (b) if registration as a permanent 
qualified supplier is a 
pre-requisite for participation  in 
an intended procurement, and a 
supplier not yet qualified 
requests to participate in the 
intended procurement, the 
[entity shall promptly start 
procedures for qualification] 
[supplier shall not be denied the 
opportunity to participate 
simply on the basis that the 
supplier is not on the entity's 
permanent list of q ualified 
suppliers];  
[Singapore – Job No. 3772]  
 
 (c) any supplier having requested 
to become a qualified supplier 
shall be advised by the entities 
concerned of the decision in this 
regard . Q ualified suppliers 
included on permanent lists by 
entities shall also be notified of 
the termination of any such lists 
or of their removal from them;  
[Singapore – Job No. 3772]  
 
  GPA/TN1994/2/Rev.12  
- 93 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Information on Qualification Decisions  
 
(f) any supplier  having requested to 
become a qualified supplier shall be 
advised by the entities concerned of 
the decision in this regard.  
 5. Entities shall not impose the condition 
that, in order for a supplier to participate in 
a procurement, the supplier has previous ly 
been awarded one or more contracts by an 
entity of that Party or that the supplier has 
prior work experience in the territory of 
that Party.  
[US – Job No. 1051]  
 
6. A procuring entity shall promptly 
advise any supplier that requests 
qualification of its decision as to whether 
that supplier is qualified.  
[EC – Job No. 876]  
 
 Qualified suppliers included on 
permanent lists by entities shall also 
be notified of the termination of any 
such lists or of their removal from 
them;  
 Informatio n on Entities' Decisions  
 
7. Where a supplier applies for inclusion 
in a registry, qualification, or recognition 
that it has satisfied the conditions for 
participation in a procurement, the entity 
shall promptly advise such supplier of its 
decision with re spect to the application.  
[US – Job No. 1051]  
 
8. Where an entity rejects supplier's 
application to qualify, or ceases to 
recognize a supplier as registered, qualified 
or as having satisfied the conditions for 
participation, the entity shall inform the 
supplier and, on request of the supplier, 
promptly provide the supplier with a 
written explanation of the reasons for its 
decision.  
[US – Job No. 1051 ; EC – Job No 876 ] 
 
 
Comments  
 
In relation to the EC proposal:  
 
• Paragraphs 5 – 8 of the EC proposal only apply to the use of permanent lists . However, some 
of these provisions should have more general application to all procurement covered by the 
GPA. This is particularly clear with respect to paragraph 6 of the EC proposal which addresses 
some basic transpar ency issues.  [US] 
In relation to the US proposal:  
 
• With respect to paragraph 5 of the US proposal, the question arises as to whether the details 
in that proposed paragraph are necessary since there are many conditions that could be added 
which the entity s hould not be able to impose upon a supplier in order for that supplier to 
participate in a procurement such as prior work experience in the territory.  [Switzerland]  
• This proposal can be a useful in ensuring that the objectives of the GPA are achieved where as 
a requirement that an entity might require any supplier that wishes to participate in a 
procurement to have had previous experience in the territory of that Party could constitute a 
serious barrier to new entrants and an obstacle to achieving the object ives of the Agreement . GPA/TN1994/2/Rev.12  
- 94 - 
  The phrase "shall not impose the condition that a supplier has been previously awarded one 
or more contracts " does not necessarily exclude the possibility that experience should be taken 
into account but that that should not result i n automatic exclusion. [US] 
 GPA/TN1994/2/Rev.12  
- 95 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(g) each Party shall ensure that:  
  
(i) each entity and its constituent 
parts follow a single 
qualification procedure, 
except in cases of duly 
substantiated need for a 
different procedure ; and 
  
(ii) efforts be made to minimize 
differences in qualification 
procedures between entities.  
  
(h) nothing in subparagraphs (a) 
through (g) shall preclude the 
exclusion of any supplier on grounds 
such as bankruptcy or false 
declarations, provided that such an 
action is consistent with the national 
treatment and non -discrimination 
provisions of this Agreement.  3. Nothing in this Article shall preclud e 
the exclusion of any supplier on grounds 
such as bankruptcy or false declarations or 
conviction for serious criminal 
organizations.  
[EC – Job No. 876]  
 6. Nothing in this Article shall preclude 
the exclusion of a supplier on grounds such 
as bankruptcy or false declarations.  
[US – Job No. 1051]  
 
 (e) nothing in subparagraphs (a) 
through (d) shall preclude the 
exclusion of any supplier on 
grounds such as bankruptcy or 
false declarations, provided that 
such an action is consistent with 
the nati onal treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 
Comment  
 
• The US proposal appears to omit the existing subparagraph (g), which deals with single 
qualification procedures . Clarification is sought as to why this change has been made.  [Korea]  GPA/TN1994/2/Rev.12  
- 96 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers for 
participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreement, ensure that their 
procedures are consistent with the following:  
 (a) the invitation to be considered for 
pre-qualification shall be published in 
adequate time to enable interested 
suppliers to submit proper 
documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to 
those which are essential to ensure 
the firm's capability to fulfil the 
contract in question . Any conditions 
for participa tion required from 
suppliers, including financial 
guarantees, technical qualifications 
and information necessary for 
establishing the financial, commercial 
and technical capacity of suppliers, as 
well as the verification of 
qualifications, shall be no less  
favourable to suppliers of other 
Parties than to domestic suppliers and 
shall not discriminate among 
[against] suppliers of other Parties . 
The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory of 
the procuring entity, taking due 
account of the legal relationship 
between the [supply organizations] 
[business units of the supplier in 
different territories].  
[Singapore – Job No. 3772] 
 
 
Comments on the proposal by Singapore  
 
• The reference to "other provisions in this Agreement" in subparagraph 3 of the Singaporean 
proposal should be made more specific or it should be deleted as it appears to be unnecessary.  
[Hong Kong, China]  
• The existing wording of Article VIII(a) is preferred to the proposed wording in 
subparagraph  3(a). [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 97 - 
  • Subparagraph 3(b) of the proposal is, in principle, desirable, particularly in relation to SMEs, 
since it purports to reduce administrativ e burdens on suppliers . However, more details of the 
proposal are required.  [Hong Kong, China]  
• The last sentence of paragraph 3(b) of the Singaporean proposal should be deleted given that 
it is difficult to assess a suppliers' global business and legal rel ationship between business 
units that are located in different territories.  [Hong Kong, China]  
 
 
 GPA/TN1994/2/Rev.12  
- 98 - 
  ARTICLE IX : INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  
Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  Article V - Publication of Notice of 
Intended Procurement  
 
1. For each contract covered by this 
Agreement, except as provided for in Article 
[IX of this Agreement] procuring entities 
shall publish a notice inviting interested 
suppliers to submit tenders for that 
contract . The notice shall be published in 
the appropriate publication listed in 
Appendix II . Such publications shall be in 
electronic or paper media which are widely 
disseminated  and readily accessible to the 
general public.  
[US – Job No. 2867]  
 
Comments  
 
• A question by Hong Kong, China ( No. 21) regarding the term "widely disseminated" and the 
response by the United States are contained in Job . No. 5595.  
• There is a tension between the aim of simplifying the Agreement and maintaining useful 
aspects of the Agreement . Perhaps a number of items that have been eliminated in the US 
proposal should be retained. [EC] 
• The supplier should be able to make a decision as to whether they are interested in the 
procurement and, therefore, whether to make a request for tender documents . In addition, it 
should be possible to rely upon the principle of non -discrimination to ensure that information 
provided to one supplier is provided in a non -discriminatory way to all interested suppliers . It 
is not necessary to list everything of potential interest in a notice provided that suppliers who 
are interested in participating in a tender procedure receive all the information that is 
necessary to submi t a tender and they receive that information in a non -discriminatory way. 
[US] 
• It is important to have agreement on a predictable set of core requirements that is no more 
than necessary for suppliers to make a decision as to whether or not to submit a tend er in a 
given case.  [Canada]  
• The information required in the US proposal is considered to be the core necessary for notices 
because it is considered sufficient for a supplier to make a decision as to whether they are 
interested in the procurement and, ther efore, whether to make a request for tender 
documents . In addition, it should be possible to rely upon the principle of non -discrimination 
requirement to ensure that information provided to one supplier is provided in a 
non-discriminatory way to all intere sted suppliers . It is not necessary to list everything of 
potential interest in a notice provided that suppliers who are interested in participating in a 
tender procedure receive all the information that is necessary to submit a tender and they 
receive tha t information in a non -discriminatory way.  [US] 
• Publication in electronic media is transitory by nature . An important element of transparency 
is the ability to obtain information for the relevant period of time – that is, the entire period 
for which a tend er is open and not merely the day that the tender notice is issued . How can it 
be ensured that that occurs if electronic media are used ? [Canada]  GPA/TN1994/2/Rev.12  
- 99 - 
  • The existing Article IX identifies a number of different type of notices, leaving it unclear which 
notices sho uld be used by particular entities . Is it necessary to list in the Agreement every 
type of notice that might be used or is it preferable to refer to a certain basic set of 
commitments that will apply to the various types of notices that might be used to en sure an 
adequate level of transparency ? [US] 
 
  GPA/TN1994/2/Rev.12  
- 100 - 
  Article IX:1  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article  XV (limited 
tendering) . The notice shall be published in the 
appropriate publication listed in Appendix  II. 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering) . The 
notice shall be published through means 
which offer the widest possible a nd 
non-discriminatory access to interested 
suppliers and service providers from all 
Parties to this Agreement ; these means 
shall be accessible through a single point of 
access.  
Each Party shall notify to the other Parties 
this single point of access . Entities shall not 
charge for access to invitations to 
participate  
[Singapore – Job No. 5271]  
 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering) . The 
notice shall be published in the appropriate 
publication listed in Appendix II . Such 
appropriate publication may be electronic 
or paper.  
[Canada – Job No. 3483]  
 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV . The notice shall be 
published in the appropriate publication or 
website listed in Appendix II.  
[Chinese Taipei – Job No. 3193]  
 
 
  GPA/TN1994/2/Rev.12  
- 101 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 Article IX – Notice of intended procurement  
 
1. For each intended procurement 
covered by this Agreement, except as 
provided for in paragraph 4, procuring 
entities shall publish a notice inviting 
interested suppliers to submit tenders or, 
where appropriate, requests for 
participation.  
[EC – Job No. 876]  
 
 The notice shall be published in the 
appropriate publication listed in 
Appendix  III. Such publ ications shall be in 
electronic or paper media which offer the 
widest possible and non -discriminatory 
access to interested suppliers from all 
Parties of this Agreement and shall be 
accessible free of charge through a single 
point of access.  
[EC – Job No. 876] 
 
 
Comments  
 
General comments in relation to the EC Proposal (Job No. 876):  
 
• The proposal attempts to restructure and reorganise the provisions on publication 
requirements with a view to simplifying the Agreement . The proposal includes a general, 
universal obligation to publish a notice of intended procurement which applies to each entity 
that intends to award a contract . The proposal then lists the mandatory content of such a 
notice . The proposal foresees the possibility of having a separ ate notice for the invitation of 
applications for qualification . Further, the proposal lists circumstances that allow the entity 
not to publish the notice of intended procurement . The obligation to publish a summary notice 
has been retained since it is con sidered to be important in the interests of transparency and 
access to information . Further, the proposal regroups the provisions concerning notices for 
permanent lists of qualified suppliers, which should only be published by entities who maintain 
those k inds of lists . An additional article has been proposed regarding notices of planned 
procurement . The possibility has been maintained in that Article to use the notice of planned 
procurement to reduce the general time limits that would ordinarily apply . Annex 3 entities 
may still use notices of permanent lists and of planned procurement as an equivalent for a 
notice of intended procurement . The peculiarities of these Annex 3 entities justify additional 
flexibility. [EC] 
• The proposed approach may be confusing  for suppliers . Further, it is not really clear that it is 
necessary to specify a list of different notices with  different labels or names . Further 
simplification could be achieved by focusing on the acts that require notification and the 
appropriate timin g for such notification.  [Canada]  
Comments in relation to the proposed requirement that procurement notices should be 
provided "free of charge"  
 
• This proposal raises concerns.  [Hong Kong, China ] Would there be a benefit by shifting the 
costs of publication from suppliers to taxpayers ? [Canada]  GPA/TN1994/2/Rev.12  
- 102 - 
  • The intent of the additional wording by Singapore is to explicitly state what is provided free of 
charge, as opposed to a blanket free of charge formulation . The telephone line, the computer, 
the Internet S ervice Provider fees are not free of charge . The current subparagraph 6(g) of 
Article  IX also refers to "the amount and terms of payment of any sum payable for the tender 
documentation" . Hence, it would be better to explicitly state what is provided free o f charge.  
[Singapore – Job No. 5271]  
• The principle of "reasonableness" might be relevant in this respect to ensure that barriers are 
not created through the imposition of excessive costs . Any charge that is imposed should be 
non-discriminatory and closely linked to the actual cost of providing the information . Fees 
charged for access to information should not be regarded as a source of revenue.  [EC; US] 
• The proposal to make the notice of intended procurement accessible at no cost through a 
single point of a ccess is theoretically ideal for the convenience of local and foreign suppliers . 
However, in many countries, subscription fees are charged for the National Gazette . Although 
it has become common for procuring entities to publish their notices via the Inter net, it does 
seem that only a limited number of Parties have ensured that notices made by all procuring 
entities are available through a single point of access . It will thus take some a considerable 
period of time before all Parties are ready to implement such a system . Therefore, a 
progressive approach, for example a system including appropriate transitional periods, might 
be necessary.  [Japan ; Job No. 5474]  
Comments in relation to single point of access  
 
• The establishment of "a single point of access" for  electronic publications of tender notices 
under the GPA, as suggested by Korea, is technically feasible . However, it is questionable 
whether the benefits would be worth the significant cost and undue burden associated with 
introducing this system for Part ies with decentralized systems and for developing countries.  
[US] 
• Korea has a central procurement system from which all relevant information on government 
procurement can be obtained . A single contact point does not mean that masses of information 
need to be accumulated . Rather, that point would merely connect interested Parties to the 
right point.  [Korea]  
• Information should be as easily accessible as possible provided that providing suc h access 
does not impose unnecessary burdens on Parties . Having all the information available at a 
single point of access may not be practically possible and could defeat the aim of transparency 
since it could be very difficult to filter through all the in formation provided at the point.  [US] 
• It would be ideal to have a single Internet address where all relevant information could be 
obtained . However, this could be difficult to arrange in cases where procurement systems are 
highly decentralized.  [EC] 
• A sing le point of entry may not be workable or necessary . It may be easier to have information 
at a single point of entry on how to access information throughout a given system . However, 
it may not be practical to have too much detailed information at the single  point of entry . The 
difficulties may be particularly pronounced in the case of Members with decentralized 
procurement systems.  [US] 
Comments in relation to what is meant by "widest possible access"  
 
• The term "widest possible access" has been used to avoid referring to the Internet in 
recognition of the fact that other technological advances may emerge which also promote 
transparency.  [EC] 
• The reference to the term "widest possible access" suggests that the publication of 
procurement notices must be pu blished through the use of information technology . The use 
of information technology should be optional.  [Japan ; Korea]  GPA/TN1994/2/Rev.12  
- 103 - 
  • The intention underlying the proposed text is not to make the use of information technology 
mandatory . Traditional means of publication can also be used provided that they are easily 
accessible . The EC proposal is intended to encourage the use of information technology as far 
as is possible and to facilitate its use.  [EC] 
• The reference to "widest possible access " may be too strong . This wo uld mean that any notice 
that did not give the widest possible access would be contrary to this requirement and a 
potential source of dispute . "Widest possible " implies that there is only one choice, namely 
that a Party must, for example, publish on the In ternet since any other option would not be 
as wide.  [US] 
• Given the aim to streamline the Agreement and encouraging broader participation, the 
proposed provision on the use of the Internet may not be appropriate.  [US] 
• A further question is whether technical  specifications remain unchanged from procurement to 
procurement . There may be a risk that, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
• Technology offers possibilities that are not always ful ly exploited . There could be Internet 
pages with links . A stronger commitment is required to use the various possibilities of 
electronic procurement to allow businesses to easily access at least information as to where 
further information can be obtained.  [EC] 
 
 
 GPA/TN1994/2/Rev.12  
- 104 - 
  Article IX:2, 3  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the 
form of a notice of proposed procurement, as 
provided for in paragraph  6. 
 2. The invitation to participate may take 
the form of a notice of intended 
procurement, as provided for in 
paragraph  6. 
[Chinese Taipei – Job No. 3193]  
 
 
Comment  
 
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a 
notice containing the types of information as provided for in paragraph 6 . The present use of 
the word "may" might be interpreted to suggest otherwise . [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROP OSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a 
notice of planned procurement, as provided for 
in paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9, as an invitation to participate.  
 3. Procuring entiti es in Annex 3 may use 
a notice of planned procurement, as 
provided for in paragraph 2, as a notice of 
intended procurement provided that it 
contains in addition the statement that 
interested suppliers should express their 
interest in the procurement to the  
procuring entity.  
[EC – Job No. 876]  
 
3. Entities may use a notice of intended 
procurement, as provided for in 
paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9 as an invitation to participate.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
• While the EU proposal indicates that each party shall encourage its procuring entities to publish 
procurement plans, considering the burden to procuring entities, it would be desirable to 
consider an amendment, providing, for example that only procurements above a certain value 
are encouraged for publication.  [Japan ; Job No. 5474]  
 
  GPA/TN1994/2/Rev.12  
- 105 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Procuring entities in Annex 3 may 
use a notice, regarding permanent lists of 
qualified suppliers, as provided for in 
paragraph 1, as a notice of intended 
procurement.  
 
 When such a notice is used as a 
notice of intended procurement it shall, in 
addition to what is provided for in 
paragraph 1, include the following 
information:  
 
 (d) the nature of the products or 
services concerned;  
 
 (e) a statement that the notice 
constitutes a notice of intended 
procurement and that no further 
notices will be published.  
[EC – Job No. 876]  
 
• While the US agrees with the substance of paragraph 3 of the EC proposal, the question arises 
as to whether it is better placed in the general provision on notices or in an article on conditions 
for participation.  [US] GPA/TN1994/2/Rev.12  
- 106 - 
  Article IX:4, 5  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate shall 
subsequently invite all suppliers who have 
expressed an interest to confirm their interest on 
the basis of information which shall include at 
least the information referred to in paragraph  6. 
 3. Each Party  shall encourage its 
procuring entities to publish as early as 
possible in each fiscal year information 
regarding entities ' future procurement 
plans . Such information should include the 
subject matter of the procurement and the 
planned date of the publicat ion of the notice 
of intended procurement . W hen the 
published information is in accordance with 
Article VI:2(a) of this Agreement, entities 
may apply Article VI:2 for the purpose of 
establishing more flexible time periods for 
tendering of procurements covered by this 
Agreement.  
[US – Job No. 2867]  
 
5. Entities which use a notice regarding a 
qualification system as an invitation to participate 
shall provide, subject to the considerations 
referred to in paragraph 4 of Article XVIII and in 
a timely manner, information which allows all 
those who have expressed an interest to have a 
meaningful opportunity to assess their interest in 
participating in the procurement . This information 
shall include the information contained in the 
notices referre d to in paragraphs 6 and 8, to the 
extent such information is available . Information 
provided to one interested supplier shall be 
provided in a non -discriminatory manner to the 
other interested suppliers.  
 4. Procuring entities in Annex 3 that use 
a notice  regarding permanent lists of 
qualified suppliers as a notice of intended 
procurement shall provide, in a timely 
manner, information which allows all those 
who have expressed an interest to have a 
meaningful opportunity to assess their 
interest in particip ating in procurement . 
This information shall include the 
information contained in the notice of 
intended procurement referred to in 
Article  IX paragraph 2, to the extent such 
information is available . Information 
provided to one interested supplier shall b e 
provided in a non -discriminatory manner to 
the other interested suppliers.  
[EC – Job. No.  876]  
 
 
Comments  
 
• While Parties should encourage their procuring entities to publish their future procurement 
plans, it is unclear whether procuring entities are ready to do so as entities may not want to 
commit themselves with their procurement plans or give false expectations to suppliers . With 
the deletion of Article  IX:3 of the GPA, entities under different Annexes are subject to the 
same procedure s in making known their notice of intended procurement.  [Hong Kong, China]  
 
  GPA/TN1994/2/Rev.12  
- 107 - 
  Article IX:6  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Each notice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 2. Entities shall include the following 
information in each notice of intended 
procurement:  
[US Job No. 1051 ; EC Job . No.  876]  
 
(a) the nature and quantity, including 
any o ptions for further procurement 
and, if possible, an estimate of the 
timing when such options may be 
exercised ; in the case of recurring 
contracts the nature and quantity 
and, if possible, an estimate of the 
timing of the subsequent tender 
notices for the p roducts or services 
to be procured;  
 (a) A description of the intended 
procurement, including the 
nature of the goods or services 
to be procured and, where 
applicable, the quantity of goods 
or services to be procured and 
any registration or qualification 
requirements or other 
conditions for participation in 
tendering for the procurement;  
[US Job No. 1051]  
 
(b) whether the procedure is open or 
selective or will involve negotiation;  (e) whether the procurement 
method is open or selective and 
whether it will involve 
negotiation, and where, 
pursuant to Article XVI(4), an 
entity intends to limit the 
number of qualified suppliers 
invited to tender, the minimum 
and maximum number of 
suppliers that may be invited to 
tender and the criteria that will 
be used to  select them;  
[EC Job No. 876]  
 (b) the name and address of the 
procuring entity  and other 
information necessary to 
contact the entity and obtain all 
relevant documents relating to 
the procurement;  
[US Job No. 2867 ; EC Job No. 876]  
(c) any date for starting delivery or 
completion of delivery of goods or 
services;  (c) The procurement method that 
will be used and whether it will 
involve negotiation;  
[US – Job No. 2867]  
 
 
Comments  
 
• Article IX:6 should be modified to require procuring entities to include the means by which 
bids may be submitted/the means of communication to be used (e.g. mail, electronic means, 
telex, telegram or facsimile) in tender notices.  [Canada, Job No.3481]  
 GPA/TN1994/2/Rev.12  
- 108 - 
  In relation to the US proposal:  
 
• With regard to paragraph 2(a), the reference to the "quantity of goods and services to be 
procu red" has been moved from the first to the second sub -clause of the sentence . This takes 
into account procurement modalities in which the duration of the contract and the quantity of 
the goods or services t o be provided may not be known at the time of the p rocurement. [US] 
• With regard to paragraph 2(c), clarification is sought on the meaning of "procurement 
method. " [Japan]  
• The term "procurement methods" is intentionally left undefined in the US proposal since, for 
example, selective tendering procedures may  be regarded as something different in the US as 
compared to in Japan . Presumably, this would mean that each entity would identify in tender 
notices, the methods that apply to the relevant domestic context or system . The alternatives 
would be to either lis t every type of procurement method that any Party may use or to state 
that the information provided in the tender notice need not refer to the procurement method 
to be used . However, the latter may cause problems, for example, if a notice does not tell 
suppliers that pre -qualification is needed.  [US] 
• The words "where applicable " have been included in paragraph (a) of the US proposal given 
that the quantity to be procured may not always be known at the time the notice is issued, 
for example in cases involvin g indefinite quantity contracts or in cases involving a two -stage 
process. [US] 
In relation to the EC proposal:  
 
• With respect to sub -paragraph (e) of the EC proposal, the maximum number of suppliers is 
sometimes difficult to determine in cases where, for e xample, a points system is used and this 
results in a tie . It may be difficult choose between the tied suppliers in such cases . Modification 
may be necessary to take account of this situation. [Japan]  
• Sub-paragraph (e) may be simplified by not suggesting t hat there are particular types of 
tendering procedures but rather focusing on the type of information that should be provided 
in notices. [US] 
• The information referred to in sub -paragraph (e) should be included in the tender 
documentation . For example, the  criteria used to select suppliers cannot be easily reduced to 
a few lines, which may be necessary given that the notices of intended procurement are 
usually quite short. [Switzerland ; Japan] 
• Any selection or elimination of suppliers must be based on crite ria that are very clear and 
provided in advance . It is preferred that such information be included in the notices although 
it is acknowledged that this might not be feasible in all circumstances. [US] 
• Regarding selective procurement in the EU proposal IX:2(e), procuring entities shall decide 
the minimum and maximum numbers of suppliers that may be invited to tender . However if, 
for example, an entity uses the point system for qualification, there may arise cases where 
two or more participants h ave the same number of points and, as a result, more suppliers 
than intended are selected . Therefore, the phrase in the EU proposal should take into 
consideration such cases (for example, indicating a target with a permissive range may be 
appropriate). [ Japan; Job No. 5474] 
 
 
 
 
 GPA/TN1994/2/Rev.12  
- 109 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the address and final date for 
submitting an application to be 
invited to tender or for qualifying for 
the suppliers' lists, or for receiving 
tenders, as well as the language or 
languages in which they must be 
submitted;  
 (d) The time limits set for the 
submission of tenders and, 
when appropriate, any time 
limits for the submission of 
applications to qualify for 
participation in the intended 
procurement and the dates for 
starting or completing delivery 
of goods and services ; and 
[US – Job No. 1051]  
 
(e) the address of the entity awarding 
the contract and providing any 
information necessary for obtaining 
specifications and other documents;  
 (f) the address and the time -limits 
set for submission of an 
application to be invited to 
tender or for qualifying for the 
suppliers' lists, or for 
submission of tenders, as well 
as the language or languages in 
which they must be submitted.  
[EC – Job No. 876]  
(f) any economic and technical 
requirements, financial guarantees 
and information required from 
suppliers;  
  
(g) the amount and terms of payment 
of any sum payable for the tender 
documentation ; and 
 (g) the amount and terms of 
payment of any sum payable for 
the tender documentation ; and 
[EC – Job No. 876]  
 
(h) whether the entity is inviting offers 
for purchase, lease, rental or hire 
purchase, or more than one of these 
methods.  
 (e) An indication that the 
procurement is covered by this 
Agreement.  
[US – Job No. 2867]  
 
Comments  
 
• Article IX:6(f) of the current GPA is useful, particularly in the case of procurement of 
construction services, not only for suppliers to obtain essential and helpful information to avoid 
unnecessary preparation, but also to enable procuring entities to execute procurement 
procedures in an efficient manner . The US proposal should include a similar provisions to 
Article IX:6(f) of the current  GPA. [ Japan ] 
• The information contained in Article IX:6(g) of the current GPA should be published as a part 
of the administrative services sector . For example, in the case of the procurement of 
construction services in Japan, suppliers cannot usually disre gard the price for the tender 
documentation, since this price is often set high enough to cover the actual expenses . These 
expenses mainly consist of the cost incurred by the procuring entity in relation to the 
preparation of a large volume of documents.  [Japan ; Job No. 5474] 
• The US proposal should not eliminate Article IX:6(g) of the current Agreement since the 
information provided under that provision is provided as part of normal administrative 
services.  [Japan]  GPA/TN1994/2/Rev.12  
- 110 - 
  • With respect to the comments made in relat ion to Article IX:6(f) and (g), it may not be 
necessary to include such information in notices notifying the original tender opportunity, 
although that information may need to be provided to suppliers who request tender 
documents . The essential question is : what information is necessary in a notice in order for a 
supplier to evaluate whether they have an interest in the procurement and whether they want 
to request tender documents ? It is considered that with respect to (f), it is not necessary for 
a supplie r to have that information to determine whether it is interested . That information 
could be provided in tender documents . With respect to (g), any supplier that requests tender 
documents would be told what the cost of the tender documents would be.  [US] 
 
 
  GPA/TN1994/2/Rev.12  
- 111 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) a description of the intended 
procurement includin g [EC – Job 
No. 876]  
 
-  the nature of and quantity of the 
goods or services to be procured 
and,  
[EC – Job No. 876]  
 
 -  whether the entity is inviting 
offers for purchase, lease, rental 
or hire purchase, or more than 
one of these methods and,  [EC – 
Job No. 876]  
 
 -  where applicable, any options 
for further procurement and the 
related estimated timing when 
such options can be exercised as 
well as,   
[EC – Job No. 876]  
- for recurring contracts, the 
nature and quantity of the goods 
or services and, if possible, an 
estimate of the timing of 
subsequent notices of intended 
procurement;   
[EC – Job No 876]  
 
 -  for framework agree ments, the 
duration of the agreement, the 
estimated volume of purchases 
during the agreement and, if 
available, the volume and the 
expected frequency of the 
purchases;   
[EC – Job No. 876]  
 
 (c) duration of the contract and/or any 
date for starting or completing 
delivery of goods or services;  
[EC – Job No. 876]  
 
 (d) any qualification requirements and 
other conditions for participation of 
suppliers, and any documents and 
information required from suppliers.  
[EC – Job No. 876]  
 
Comment  
 
• With respect to "framework agreements" reference is made to the work of the Committee on 
this subject and to the non -paper of the EC of 9 March  2000 (Job No. 1469) [EC] 
 GPA/TN1994/2/Rev.12  
- 112 - 
  • There may be possibilities to simplify some of the specific information requirements that a re 
suggested in the EC proposal, particularly, in paragraph in 2 (b).  [US] 
• The term "framework agreements " would have to be defined in the Agreement because, for 
example, that term is not used in the US system.  [US] 
 GPA/TN1994/2/Rev.12  
- 113 - 
  Article IX:7, 8  
 
Invitation to Partici pate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement 
referred to in paragraph 3 shall contain as much 
of the information referred to in paragraph  6 as 
is available . It shall in any case include the 
information referred to in paragraph 8 and:  
 1. Each Party shall encourage its 
procuring entities to publish as early as 
possible in each fiscal year information 
regarding entities' future procurement 
plans . Such information should include the 
subject -matter of the procurement and the 
planned date of the publication of the notice 
of intended procurement.  
[EC – Job No. 876]  
 
(a) a statement that interested 
suppliers should express their 
interest in the procurement to the 
entity;  
 2. Procuring entities may apply 
Article  XIV, paragraph 4, for the purpose of 
establishing shorter time -periods for 
procurements covered by this Agreement, 
when the notice of planned procurement 
contains as much of the informatio n 
referred to in paragraph 2 of Article IX as is 
available and the address from which 
documents relating to the procurement 
may be obtained.  
[EC – Job No. 876]  
(b) a contact point with the entity from 
which further information may be 
obtained.  
  
8. For each case of intended procurement, 
the entity shall publish a summary notice in one 
of the official languages of the WTO . The notice 
shall contain at least the following information:  
 8. For each case of intended 
procurement, procuring entities shall 
publish a summary notice in one of the 
official languages of the WTO . The notice 
shall contain at least the following 
information:  
 
(a) the subject matter of the contract;  
 (a) the subject -matter of the 
procurement;  
 
(b) the time -limits set for the 
submission of tenders or an 
application to be invited to tender ; 
and 
 (b) the time -limits set for the 
submission of tenders or, where 
applicable, of applications to be 
invited to tender or for 
qualifying for the supplies lists ; 
and 
 
(c) the addresses from which 
documents relating to the contracts 
may be requested.  
 (c) the addresses from which 
documents relating to the 
procurement may be requested.  
[EC – Job No. 876] 
 
 
Comments  
 
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
• Clarification is sought as to why the US proposal excludes the requirement that is currently 
contained in Article IX:8 for a summary notice in a WTO language.  [Korea]  GPA/TN1994/2/Rev.12  
- 114 - 
  • That requirement could be a significant obstacle, particularly for many non -Parties . Further, 
as a general matter, it does not seem necessary to achieve the objectives of the Agreement.  
[US] 
• Paragraph 8 of the EC proposal could constitute a significant obs tacle for countries that do not 
have one of the WTO languages as its national language . Problems that arise include undue 
resource burdens to undertake the translation of documents and incorrect translation of 
documentation . Such countries should be allowe d to operate their procurement procedures in 
their own national language.  [Chinese Taipei]  
• Japan's experience is that Article VIII does not constitute a significant obstacle and that 
inaccurate translation is not a real problem. [Japan]  
• The US proposal doe s not include a requirement to publish the summary notice in one of the 
WTO languages . This decision was made after taking into consideration, on the one hand, that 
if foreign suppliers are going to work in a foreign market, they need to be able to underst and 
the local language and, on the other hand, that foreign suppliers may have to rely upon local 
representatives for information on local procurement opportunities. [US] 
• Experience suggests that many foreign suppliers obtain information regarding procurem ent 
opportunities from local agents rather than, for example, referring to the summary notices on 
the relevant website.  [Chinese Taipei]  
• The EC publishes summary notices in 11 languages . It has been found that this does enhance 
transparency . The EC has tak en initiatives to make it easier for companies to rely less on local 
agents and to increasingly conduct research themselves in relation to procurement 
opportunities.  [EC] 
• Perhaps acceding countries should be allowed to phase -in the obligation to publish th e 
summary notice in a WTO language given that it might be difficult for acceding countries to 
comply with this obligation initially.  [US] 
 
 GPA/TN1994/2/Rev.12  
- 115 - 
  Article IX:9  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering 
procedures, entities maintaining permanent lists 
of qualified suppliers shall publish annually in one 
of the publications listed in Appendix  III a notice 
of the following:  
 Article XI – Notice regarding permanent 
lists of qualified suppliers  
 
1. Procuring entities maintaining 
permanent lists of qualifie d suppliers shall 
publish annually in one of the publications 
listed in Appendix III a notice of the 
following:  
 
(a) the enumeration of the lists 
maintained, including their 
headings, in relation to the products 
or services or categories of products 
or services to be procured through 
the lists;  
 (a) the enumeration of the lists 
maintained, including their 
headings, in relati on to the 
products or services or 
categories of products or 
services to be procured through 
the lists;  
 
(b) the conditions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which each of 
those condit ions will be verified by 
the entity concerned ; and 
 (b) the conditions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which 
each of those conditions will be 
verified by the entity concerned ; 
and 
 
(c) the period of validity of the lists, and 
the formalities for their renewal.  (c) the period of validity of the lists, 
and the formalities for their 
renewal.  
[EC – Job No. 876]  
 
 2. However, when the duration of the list 
is three years or less, and if the duration of 
the list is made clear in the notice and it is 
also made clear that further notices will not 
be published, it shall be sufficient to publish 
the notice once only, at the beginning of the 
validity of the list . Such a sy stem shall not 
be used in a manner which circumvents the 
provisions of this Agreement.  
 
In relation to the EC proposal (Job No. 876):  
 
• It is unclear whether it is necessary to have a separate notice requirement for permanent lists. 
[US] 
• The EC 's proposed articles on notices of permanent lists and notices of planned procurement 
provide particular flexibility for Annex 3 entities . It is unclear whether that type of flexibility 
is necessary.  [US] GPA/TN1994/2/Rev.12  
- 116 - 
  Article IX:10, 11  
 
Invitation to Participate Regarding Intende d Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to 
participate in accordance with paragraph 3, the 
notice shall, in addition, include the following 
information:  
  
(d) the nature of the products or 
services concerned;  
  
(e) a statement that the notice 
constitutes an invitation to 
participate.  
  
However, when the duration of the qualification 
system is three years or less, and if the duration 
of the system is made clear in the notice and it 
is also made clear that further notices will not be 
published, it shall be sufficient to publish the 
notice once only, at the beginning of the system . 
Such a system shall not be used in a manner 
which circumvents the provisions of this 
Agreement.  
  
10. If, after publication of an invitation to 
participate in any case of intended procurement, 
but before the time set for opening or receipt of 
tenders as specified in the notices or the tender 
documentation, it becomes necessary to amend 
or re-issue the notice, the amendment or the 
re-issued notice shall be given the same 
circulation as the original documents upon which 
the amendment is based . Any significant 
information given to one supplier with respect to 
a particular intended procurement shall be given 
simultaneously to all other suppliers concerned 
in adequate time to permit the suppliers to 
consider such information and to respond to it.  
 5. If, after publication of a notice of 
intended procurement, but befo re the time 
set for opening or receipt of tenders as 
specified in the notices or the tender 
documentation, it becomes necessary to 
amend or re -issue the notice, the 
amendment or the re -issued notice shall be 
given the same circulation as the original 
docum ents upon which the amendment or 
re-issued notice is based . Any significant 
information given to one supplier with 
respect to a particular intended 
procurement shall be given simultaneously 
to all other suppliers concerned in adequate 
time to permit the su ppliers to consider 
such information and to respond to it.  
[EC – Job No. 876]  
 
Comments  
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC paragraph 5 is probably better placed before the proposed paragraph 4. [US] 
 
  GPA/TN1994/2/Rev.12  
- 117 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Modifications  
 
7. If, during the course of a procurement 
process, an entity modifies the criteria or  
technical requirements set out in previous 
notices and information provided to 
participating suppliers, it shall transmit all 
such modifications in writing:  
 
(a) to all the suppliers that are 
participating at the time the 
information is amended, if 
known, and in all other cases, in 
the same manner as the original 
information ; and 
 
(b) in adequate time to allow such 
suppliers to modify and 
re-submit their initial tenders, 
as appropriate.  
[US – Job No. 2867]  
 
11. Entities shall make clear, in the noti ces 
referred to in this Article or in the publication in 
which the notices appear, that the procurement is 
covered by the Agreement.  
 (h) an indication that the 
procurement is covered by the 
Agreement.  
[EC – Job No. 876]  
 
Comments  
 
• The US proposal suggests that procuring entities need to provide amended information to all 
participating suppliers . In cases of procurement conducted over the Internet, the procuring 
entity will not know which suppliers have downloaded or viewed the tender documentation 
and, in many instances, procuring entities will publish the amendment in the same medium . 
The onus should be on the supplier to look at amended information in such cases . Perhaps the 
proposal should be amended to state that it is sufficient to make the ame nded information 
publicly available.  [Singapore]  
• What would be the position under the US proposal when, at some point in the process when 
only a few potential suppliers remain, there is a change in the published conditions, some of 
which could be substanti al and could affect those suppliers that have already been 
disqualified ? [EC] 
• It is important to consider what the situation would be if there is a two -stage competition and 
a change in information occurs that affects the criteria on which the initial comp etition was 
based . In cases where information is changed during the second stage of the process, perhaps 
it would not be reasonable or necessary to share it or disseminate it to all the suppliers that 
initially expressed an interest in the procurement.  [US] 
• This paragraph provides that if an entity modifies the criteria or technical requirements, such 
modifications shall be transmitted to all suppliers . Are the two categories, namely, "criteria" 
and "technical requirements" comprehensive enough ? The usage o f the term "significant 
information" in Article  IX:9 of the GPA is preferred.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.12  
- 118 - 
  ARTICLE X:  SELECTION PROCEDURES  
Article X:1, 2, 3  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering 
procedures, entities shall, for each intended 
procurement, invite tenders from the maximum 
number of domestic suppliers and suppliers of 
other Parti es, consistent with the efficient 
operation of the procurement system . They shall 
select the suppliers to participate in the 
procedure in a fair and non -discriminatory 
manner.  
  
2. Entities maintaining permanent lists of 
qualified suppliers may select suppliers to be 
invited to tender from among those listed . Any 
selection shall allow for equitable opportunities 
for suppliers on the lists.  
  
3. Suppliers requesting to participate in a 
particular intended procurement shall be 
permitted to submit a tender and be considered, 
provided, in the case of those not yet qualified, 
there is sufficient time to complete the 
qualification procedure under Articles  VIII and 
IX. The number of additional suppliers permitted 
to participate shall be limited only by the efficient 
operation of the procurement system.  
  
 
Comments relating to the absence of selective tendering procedures in the US proposal  
 
• The fact that the US proposal does not include a specific reference to selection procedures 
does not mean that such procedures cannot be used and are not appropriate . Pursuant to 
paragraph 1 of the existing Article  X, entities must decide whether the maximum level of 
competition has been ensured . However, it is questionable whether such a provision requiring 
entities to decide this is necessary.  [US] 
• There may be some variety among countries in relation to the way in which the tendering 
procedures referred to in the Agreement are applied . One of the ways the Agreement can be 
made more accessible to new Parties and t o reflect some of the different ways in which the 
current Parties may interpret the Agreement is to define the fundamental concepts and 
framework that all Parties can work within that still meet the objective of providing predictable 
and stable market acce ss for both domestic and foreign suppliers . It is not considered 
necessary to have the same level of precision as to when qualification procedures take place 
in a given procurement as the current Agreement provides . The current provisions are overly 
comple x. The US proposal moves in the right direction in that it establishes the necessary 
framework.  [Canada]  
• A distinction should be drawn between the use of particular procedures and the disciplines 
contained in the Agreement as they apply to specific procedu res. The GPA does not dictate 
that a government should use a particular procedural process for procurement . It merely sets 
out the requirements that apply to whatever procedure a government chooses to use . 
Therefore, it is preferable to eliminate the distinction between open and selective tendering 
since many governments have the erroneous perception that the GPA dictates how 
governments can operate including what type of qualification should be used, when it  can be GPA/TN1994/2/Rev.12  
- 119 - 
  used, when selection occurs etc. T his may be an obstacle to Parties' collective efforts to expand 
participation in the Agreement . Accordingly, the US proposal suggests elimination of the 
reference to the various types of procedures . Providing that a certain procedure is allowed to 
the extent that it is explicitly permitted under the GPA could lead to the establishment of a 
much longer Agreement since different Parties use different procedures in different situations . 
Removal of the reference to sele ctive tendering does not mean that the use of selective 
tendering is inappropriate in certain circumstances.  [US] 
• The provisions dealing with tendering procedures are at the heart of the Agreement . Further, 
the Agreement will form the basis for acceding co untries that do not yet have legislation on 
government procurement . It may be necessary to make obvious the possibility to use various 
tendering procedures, including selective procedures, without going into too much detail or 
mandating the use of particul ar procedures in a given set of circumstances . The GPA should 
contain a requirement that the various tendering procedures must comply with certain 
requirements.  [Switzerland]  
• The US proposal maintains the existing content of the GPA with respect to tenderi ng 
procedures . However, the US proposal does not attempt to apply that content to specific 
processes . In particular, the GPA contains rules in relation to transparency, publication and 
content of notices and technical specifications etc. T hose rules apply equally to any type of 
tendering procedure that is used . There are many ways in which procurement may be 
conducted . Some of the various procedures may be inconsistent with the requirements of the 
GPA. It is not considered efficient or desirable to recognis e the various procedures that 
countries may use in undertaking government procurement . Further, the GPA should not be 
converted into a model law . That could prove to be more of an obstacle than a benefit from 
the perspective of new countries wishing to acc ede. It may be useful to more explicitly produce 
an explanation regarding how the various disciplines contained in the Agreement would relate 
to the various types of procedures . Such an explanatory document may be useful to existing 
Parties as well as othe r Members that are considering acceding to the GPA . The GPA would 
become too cumbersome if that was done in the Agreement itself.  [US] 
Comments relating to the clarification of the existing Article X  
 
• With respect to Article X:1 of the current Agreement, r eference is made to selection of 
"suppliers to participate in the procedure in a fair and non -discriminatory manner" . It is 
understood that there is no need to publicise beforehand under this Article . Therefore, this 
selection rule is different from pre -qualification . Further clarification is sought in relation to 
the difference between the selective tendering rules and the rules relating to pre -qualification.  
[Japan]  
• Paragraph 2 of the existing Article X states that permanent lists may be used, which is no t 
particularly useful . In addition, the paragraph refers to "equitable opportunities", the meaning 
of which is unclear . If it means non -discriminatory, a non -discrimination obligation already 
exists in the Agreement . Therefore, the question arises as to wh ether paragraph 2 is 
necessary.  [US] 
• In relation to paragraph 3 of Article X, the US proposal contains an equivalent provision in its 
proposed Article VIII:2 . The idea is that if there is a pre -qualification process using a 
permanent list or some other met hod, even if independent of the tendering process, there 
may be a need to provide the opportunity for new suppliers to participate, if there is time to 
complete the qualification procedure.  [US] 
See also the Explanatory Notes by the US in Job No. 6772, page 4.  GPA/TN1994/2/Rev.12  
- 120 - 
  Article X:4  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile.  
 4. Requests to participate in selective 
tendering procedures may be submitted by 
telex, telegram or facsimile, electronic 
means, including email.  [Canada – Job 
No. 3481 ; 1998 Proposal]  
 
 
 
Comments  
 
• Should the above definition of the term "writing" apply across -the-board in the Agreement or 
only to the provisions on selective tendering ? [US] 
• The US proposal does not contain an equivalent for paragraph 4 of the existing text hence it 
is unclear whether it is nece ssary to specify how documents may be submitted.  [EC] 
 GPA/TN1994/2/Rev.12  
- 121 - 
  ARTICLE XI:  TIME -LIMITS FOR TENDERING AND DELIVERY  
Article XI:1  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
General  
 General  
1.(a) Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers to 
prepare and submit tenders before the 
closing of the tendering procedures . In 
determining any such time -limit, entities 
shall, consistent  with their own reasonable 
needs, take into account such factors as 
the complexity of the intended 
procurement, the extent of subcontracting 
anticipated and the normal time for 
transmitting tenders by mail from foreign 
as well as domestic points.  
 1.(a)  Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers 
to prepare and submit tenders, and 
where appropriate, applications to be 
invited to tender or applications for 
qualifying . In determining any such  
time-limit, procuring entities shall, 
consistent with their own reasonable 
needs, take into account such factors 
as the complexity of the intended 
procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting tenders 
from fore ign as well as domestic 
points.  
[EC – Job 876 ; Singapore Job No. 3772]  
 
 
Comments  
 
General comments in relation to the EC Proposal (Job No. 876):  
 
• The suggestion for modification of this Article is based mainly on the need to simplify and 
avoid going into  many details with different deadlines for different events and situations . With 
respect to the main deadlines, an attempt has been made to consolidate them . With respect 
to the circumstances that allow entities to reduce the normal time periods, the EC ha s taken 
an approach stating that time periods could be reduced and to fix just the minimum number 
of days, being 10 calendar days, and to list all the circumstances allowing this reduction 
without fixing different deadlines for each one of them . At the end  of the proposal, a suggestion 
has been made for the reduction of time -limits because of the use of electronic means . The 
reduction for the use of electronic means in the EU proposal applies not only when the notice 
is published using electronic media but also when the complete tender documentation is made 
available electronically . It is considered that only if these two circumstances prevail, there is 
a real advantage in terms of time for potential bidders.  [EC]. 
 
  GPA/TN1994/2/Rev.12  
- 122 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting the 
final date for receipt of tenders or of 
applications to be invited to tender.  
 (b) Each Party shall ensure that its 
entities shall take due account 
of publication delays when 
setting the final date for receipt 
of tenders or of applications to 
be invited to tender or for 
qualifying for the suppli er's list.  
[EC – Job No. 876; Singapore Job No. 3772]  
 
 (c) Where, as a result of a need to 
amend information  provided to 
suppliers during the 
procurement process, a 
procuring entity must extend 
the time -period for qualification 
or tendering, such entity shall 
permit all participating 
suppliers to submit final tenders 
in accordance with a common 
deadline.  
[EC – Job No. 876]  
 
 2. Under the following circumstances, 
entities may establish a time -period for 
tendering that is shorter than 40 days, 
provided that such time -period is 
sufficiently long to enable suppliers to 
prepare and submit responsive tenders and 
is in no case less than 10 calendar days 
prior to the final date for the submission of 
tenders;  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.12  
- 123 - 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Deadlines  
 Deadlines  
2. Except in so far as provided in 
paragraph  3: 
 2. Except insofar as provided in 
paragraph 3,  
 
(a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in 
paragraph  1 of Article  IX; 
 (a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 40 days from 
the date of publication referred 
to in paragraph 1 of Article IX;  
[Singapore – Job No. 3772]  
 
 2. 2. Except in so far as provided in 
paragraphs [4] and [5] procuring entities 
shall provide no less than 40 calendar days 
between the date on which the notice of 
intended procurement is published and the 
final date for the submission of tenders.  
[EC – Job No. 876]  
 
 2.(a)  in open procedures, the period for the 
receipt of tenders shall not be less 
than 28 days from the date of 
publication referred to in paragraph 1 
of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• The suppliers of products, the prices of which are subject to frequent changes, question the 
rationale for the extended time -periods in the Agreement.  [Singapore]  
• Further discussion is required in relation the reduction of time -limits 
when  electronic  procurement methods are used.  [EC] 
 
  GPA/TN1994/2/Rev.12  
- 124 - 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Time Periods for Tendering  
 
 1. Except as provided for in 
paragraphs  2 and 3 of this Article, 
procuring entities shall provide no less than 
40 calendar days between the date on 
which the notice of intended procurement 
is published and the final date for the 
submission of tenders.  
[US – Job No. 2867]  
 
(b) in selective procedures not involving 
the use of a permanent list of 
qualified suppliers, the period for 
submitting an application to be 
invited to tender shall not be less 
than 25 days from the date of 
publication referred to in 
paragraph  1 of Article  IX; the period 
for receipt of tenders shall in no case  
be less than 40  days from the date 
of issuance of the invitation to 
tender;  
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less t han 25  days from the date 
of publication referred to in 
paragraph  1 of Article IX ; the 
period for receipt of tenders 
shall in no case be less than 
40 days from the date of 
issuance of the invitation to 
tender;  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.12  
- 125 - 
  Article XI:2 
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less than 14 days from the date 
of publication referred to in 
paragraph  1 of Article IX ; the 
period for receipt of tenders 
shall in no case be less than 28 
days from the date of issuance 
of the invitation to  tender;  
[Chinese Taipei – Job No. 3193]  
 
 GPA/TN1994/2/Rev.12  
- 126 - 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a procuring entity requires 
suppliers to satisfy qualification 
requirements in order to participate 
in a procurement, the entity shall 
provide no less than 25 calendar 
days between the date on which the 
notice of intended procurement is 
published and the final day to 
submit their application to be 
invited to tender an d no less than 
40 calendar days between the day 
of issuance of the invitation to 
under and the final date for 
submission of tenders.  
[EC – Job No. 876]  
 
(c) in selective procedures involving the 
use of a permanent list of qualified 
suppliers, the period for receipt of 
tenders shall not be less than 
40 days from the date of the initial 
issuance of invitations to tender, 
whether or not the date of initial 
issuance of invitations to tender 
coincides with the date of the 
publication referred to in 
paragraph  1 of Article  IX. 
 (c) in selective procedures 
involving the use of a 
permanent list of qualified 
suppliers, the period for receipt 
of tenders shall not be  less than 
40 [30] days from the date of 
the initial issuance of invitations 
to tender, whether or not the 
date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
[referred to in paragraph 1 of 
Article IX].  
[Singapore – Job No. 3772]  
 
 (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers , the period 
for receipt of tenders shall not be 
less than 28 days from the date 
of the initial issuance of 
invitations to tender, whether or 
not the date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
referred to in paragraph 1 of 
Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• The proposal attempts to consolidate paragraphs (b) and (c) of the existing text . This is linked 
to the proposed modification to allow the use of permanent lists . It is considered that both 
time-limits are needed . The first – 25 days – relates to the qualification stage whereas the 
second, 40 days, relates to the submissi on and evaluation of bids.  [EC] 
• The reference to 25 calendar days which are required for qualification results in a long process 
because 40 days still remain for invitations to tender . Could the deadline of 25 days be reduced 
under certain circumstances.  [Switzerland]  GPA/TN1994/2/Rev.12  
- 127 - 
  • In some circumstances, reduction of the 25 and 40 day time limits are allowed whereas in 
other cases, only the 40 day time -limit may be reduced. [EC] 
• According to the EC proposal, the current provision of the current GPA which deals with cases 
where a procuring entity uses a permanent list (Article XI 2(c)), has been deleted . Under the 
EC proposal, entities now need to secure 25 days between the date on which the notice of 
intended procurement is published and the final date to submit the application for 
participation, even if the entity uses a permanent list . Thus, Japan believes it more appropriate 
to maintain the rule that currently exists in the GPA . Why is the EC in favor of applying the 
65-day rule (25 days plus 40 days) to  cases where a permanent list is used ? [Japan ; Job 
No. 5474]  
• Sufficient time for completion of the qualification process should exist . Twenty -five days has 
been proposed because some qualification procedures may be lengthy ; shortening this period 
may limit  access to procurement opportunities, particularly for foreign suppliers in cases where 
translation of documents is necessary. [EC] 
• A balance needs to be struck between the need to ensure that a sufficient period of time is 
available to qualify and the ass ociated costs . It should also be borne in mind that many 
projects are middle -sized projects rather than large projects ; a longer period would not seem 
necessary for such projects.  [Japan]  
 
  GPA/TN1994/2/Rev.12  
- 128 - 
  Article XI:3  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The periods referred to in paragraph 2 may 
be reduced in the circumstances set out below:  
 3. The periods referred to in paragraph 2 
may be reduced in the circumstances set out 
below:  
 
(a) if a separate notice has been 
published 40 days and not more than 
12 months in advance and the notice 
contains at least:  
 (a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
(i) as much of the information 
referred to in paragraph 6 of 
Article  IX as is available;  
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 
(ii) the information referred to in 
paragraph 8 of Article  IX; 
 (ii) the information referred to 
in paragraph 8 of 
Article  IX; 
 
(iii) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity ; and 
 (iii) a statement that 
interested suppliers 
should express their 
interest in the 
procurement to the entity ; 
and 
 
(iv) a contact point with the entity 
from which further information 
may be obtained,  
 
 the 40 -day limit for receipt of tenders 
may be replaced by a period 
sufficiently long to enable responsive 
tendering, which, as a general rule, 
shall not be less than 24 days, but in 
any case not less than 10 days;  
 (iv) a contact point with the 
entity from which further 
information may be 
obtained, the 40 -day limit 
for receipt of tenders may 
be repl aced by a period 
sufficiently long to enable 
responsive tendering, 
which, as a general rule, 
shall not be less than 
24 days, but in any case 
not less than 10 days;  
[Singapore – Job No. 3772]  
 
 
Comment  
 
 
 
  GPA/TN1994/2/Rev.12  
- 129 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Under the following circumstances, 
procuring entities may establish a 
time-period for tendering that is shorter 
than the periods referred to in paragraphs 
2 and 3, provided that such time -period is 
sufficiently long to enable suppliers to 
prepare and submit responsive tenders 
and is in no case less than 10 calendar 
days prior to the final date for the 
submission of tenders:  
 
 (a) where a notice  of planned 
procurement under Article XII, 
paragraph 2 has been published 
40 days and not more than 12 
months in advance;  
 
 (b) in the case of the second or 
subsequent publications 
dealing with contracts of a 
recurring nature;  
 
 (d) where a state of urgency duly 
substantiated by the procuring 
entity renders impracticable the 
periods specified in paragraphs 
2 and 3.  
 
 (e) when the period for the 
submission of tenders referred 
to in paragraph 3, for 
procurements by procuring 
entities in Annex 3, be fixed by 
mutual agreement between the 
entity and the selected 
suppliers . In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering.  
[EC – Job No. 876]  
 
 
Comments  
 
• The need for sub -paragraph (e)  of the EC proposal is questioned. [US] 
 
  GPA/TN1994/2/Rev.12  
- 130 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 5. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article IX of this 
Agreement in an electronic media listed in 
Appendix III, and the complete tender 
documentation is made available 
electronically since the beginning of the 
publication of the notice, such entity may 
reduce the time -periods for tendering by 
up to 12 calendar days . The use of this 
provision, however, shall in no case result 
in the reduction of those time periods to 
less than 10 calendar days from the date 
on which the notice of intended 
procurement is published.  
[EC – Job No. 876]  
 
Comments  
 
• The reduction of time when electronic means are used applies not only when the notice is 
published in electronic media but also when the complete tender documentation is made 
available electronically . It is considered that only if these two circumstances prevail , there is 
a real advantage in terms of time for potential bidders. [EC] 
• The EC proposal only concerns time reductions for notice publication using electronic means . 
For this reason, the EC is not proposing that time -limits should be reduced in the GPA  context 
where only the notice is published using electronic means. [EC] 
• The proposal regarding electronic tendering is a useful one and will facilitate the application 
of the Agreement. [Switzerland]  
• It is interesting to note that the time -period may be reduced by up to 12 da ys if a procuring 
entity publishes a notice of intended procurement in an electronic medium and if the complete 
tender documentation is made available electronically . However, some Japanese suppliers are 
of the opinion that a 12 -day reduction is excessive,  even if the tender documentation is 
available electronically . Such reduction might be disproportionate from a supplier's point of 
view. What is the reason for allowing reduction by up to 12 days ? What is the relationship 
between this new 12 -day reduction provision and Article XIV:4 of the EU  proposal, which 
enables a general reduction of the time -period . For example, what if both provisions are 
applied at the same time?  [Japan ; Job No. 5474]  GPA/TN1994/2/Rev.12  
- 131 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) where a separate notice, 
including a notice under 
[Article  V:3] of this Agreement, 
has been published at least 
40 calendar days and not more 
than 12 months in advance, and 
such notice contains : a  
description of the intended 
procurement ; the time limits for 
the submission of tenders or, 
when appropriate, applications 
for qualification ; a nd the 
address from which documents 
relating to the procurement may 
be obtained;  
[US – Job No. 2867]  
 
 
Comments  
 
• Elements required under the proposed paragraph (a) of the US proposal relating to prior notice 
are not as comprehensive as those contained in Article XI:3 of the GPA . The US  proposal only 
prescribes elements which are contained in Article XI:3(a) (ii) of the GPA . Information such 
as economic or technical requirements or completion date is not prescribed . However, such 
information is essential to enable a supplier to determine whether he or she should bid for 
that tender.  [Hong Kong,  China]  
• The Agreement currently recognises the possibility that there may be two public notices 
relating to a single tendering procedure . There may be an advance notice which contains a 
certain minimum amount of information followed by a subsequent notice which would still be 
required to have all the information that is required for a notice for an intended procurement . 
The existence of a prior notice that contains a certain amount of information may be a reason 
to reduce the time -period to less than 40 day s because some information is already available 
to suppliers . When the second notice is issued, the tendering procedure can, perhaps, proceed 
more quickly.  [US] 
 GPA/TN1994/2/Rev.12  
- 132 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The periods referred to in paragraph 2 
may be reduced in the circumstances set 
out below:  
 
 (a) if a separate notice has been 
published 28 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 (ii) the information referred to 
in paragraph 8 of 
Article  IX; 
 
 (iv) a contact point with the 
entity from which further 
information may be 
obtained;  
 
  the 28 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to 
enable responsive tendering, 
which as a general rule, shall 
not be less than 14 days, but in 
any case not less than 10 days;  
[Chinese Taipei – Job No. 3193]  
 
 
Comment  
 
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim of simplifying and improving the Agreement.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 133 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring nature 
within the meaning of paragraph 6 
of Article  IX, the 40 -day limit for 
receipt of tenders may be reduced 
to not less than 24 days;  
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph 6 of Article IX, the 
40-day [30 -day [EC]] limit for 
receipt o f tenders may be 
reduced to [not less than 
24 days][24 days [EC]];  
[Singapore – Job No. 3772 ; 
EC – GPA/W/87 ] 
 
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph  6(a) of Article IX, the 
28-day limit for receipt of 
tenders may be reduced to not 
less than 14 days;  
[Chinese Taipei – Job No. 3193]  
 
 (b) in the case of the second or 
subsequent  publication of 
notices dealing with contracts of 
a recurring nature;  
[US – Job No. 2867]  
 
Comment  
 
• The meaning of "contracts of a recurring nature" is not clear . Clarification is sought as to 
whether this reference includes contracts which are recurrently required . For example, there 
may be an annual contract or contract for longer periods, say three years, and renewal is 
necessary before expiration.  [Hong Kong, Chi na] GPA/TN1994/2/Rev.12  
- 134 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Under the following circumstances, entities 
may establish a time -period for tendering 
that is shorter than 40 days.  
 
(c) in the case of procurement of 
commercially available off -the-shelf 
goods and services, except that a 
procuring entity shall not reduce time 
periods for this reason if the entity 
requires that potential suppliers be 
qualified for participation in the 
procureme nt before submitting 
tenders, in accordance with 
Article  [IX] of this Agreement ; and 
[US – Job No. 1051]  
 
 (e) where the subject -matter of a 
procurement is an off -the-shelf 
product or service, or agricultural or 
mineral product, the period shall not 
be less than 10 days;  
[Chinese Taipei – Job No. 3193]  
 (c) in the case where the procuring entity 
procures off -the-shelf goods (goods 
with the same technical specifications 
as those of goods that are sold or 
offered for sale to, and customarily 
purchased by non -governmental 
buyers for non -governmental 
purposes) ; the procuring entity shall 
not reduce time periods for this 
reason if the entity requires that 
potential suppliers be qualified for 
participation in the procurement 
before submitting tenders;  
[EC– Job No. 876]  
 
Comments  
 
In relation to the US proposal:  
 
• It is an open question whether it would be useful to define "commercially available off the 
shelf" goods and services (a lengthy definition is incorporated in the US Federal  Acquisitio n 
Regulation) . It is appropriate to allow for shorter time -periods where entities procure goods 
and services that are normally bought and sold outside the public sector and where entities 
do not establish government -unique specifications for suc h goods and services. [US] 
• Clarification is sought as to the aim, purpose of and necessity for Article VI:2(c) of the 
US proposal . It appears that this Article governs the procurement of commercially available 
goods and services that are commonly procured by non -governmental buyers, such as pens 
and pencils . Under Article  XV:1(h) of the existing GPA and Article IX:3(e) of the US  proposal, 
procurement of products purchased on a commodity market may involve limited tendering 
procedures.  [Hong  Kong, China]  
 GPA/TN1994/2/Rev.12  
- 135 - 
  • Article XV:1(h) dealing with commodity markets relates to bulk commodities like wheat and 
grains and would not necessarily have application to as broad a range of goods as "commercial 
off-the-shelf" goods . The latter term does not necessarily relate to a par ticular product 
category but rather indicates whether a particular product that the government buys is 
essentially the same as the product that is being sold in the general market.  [US] 
• The US proposal provides for greater flexibility in reducing time peri ods below the standard 
40-day time -period in cases including those concerning procurement of commercial goods and 
services, referred to in ArticleVI:2(c) of the US proposal . In some cases, governments 
purchase "off -the-shelf" products or commercial product s, which are products that are not 
distinguishable from products that are purchased by non -governmental users . Such products 
can be purchased from anywhere and the government does not have any specific technical 
specifications for such products . Therefore,  the procurement can be undertaken in an open 
and competitive way, more quickly than, for example, a major public construction project.  
[US] 
• The idea of "off-the-shelf services " does not sound appealing but will be considered.  [EC] 
In relation to the EC proposal:  
 
• With respect to sub -paragraph (c) of the EC proposal, the question arises as to whether the 
Parties would have a common understanding of the meaning of "commercially available 
off-the-shelf goods " or whether it is necessary for the text to provi de further detail as to what 
that means. [US] 
• The definition of that expression is in brackets in the EC proposal because the EC is considering 
whether this term should be defined in a separate place or in the same provision.  [EC] 
• The EC and equivalent US proposal regarding off -the-self goods are welcome . One of the 
concerns regarding the implementation of the existing GPA is that the existing time -limits may 
not be realistic, especially when they are applied to simple and very straightforward 
procurements such as for paper and stationery when they exceed the GPA thresholds. 
[Singapore]  
• It would also be useful to insert some standard services into this paragraph, such as the 
cleaning of buildings or the provision of security for buildings, since these could also be treated 
in the same way as off -the-shelf goods to make the Agreement more attractive to non -Parties. 
[Switzerland]  
 GPA/TN1994/2/Rev.12  
- 136 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in 
question, the periods specified in 
paragraph  2 may be reduced but 
shall in no case be less than 10  days 
from the date of the publication 
referred to in paragraph  1 of 
Article  IX; or 
 (c) where a state of urgency duly 
substantiated by the entity 
renders impracticable the 
periods in question, the periods 
specified in paragraph 2 may be 
reduced but shall in no case be 
less than 10 days from the date 
of the publicatio n referred to in 
paragraph 1 of Article IX ; or 
[Singapore – Job No. 3772]  
 
 (d) when, for duly substantiated 
reasons of extreme urgency 
brought about by events 
unforeseeable by the entity, the 
use of a 40 -day time period 
would result in serious injury to 
the entity or the relevant Party ; 
however, concerns relating to 
the amount of funds available to 
an entity within a particular 
period of time shall not be 
considered to be a reason of 
extreme urgency for these 
purposes.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 137 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed in 
Annexes  2 and 3, be fixed by mutual 
agreement between the entity and 
the selected suppliers . In the 
absence of agreement, the entity 
may fix periods which shall be 
sufficiently long to enable 
responsive tendering and shall in 
any case not be less than 10 days.  
 (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed 
in Annexes 2 and 3, be fixed by 
mutual agreement between the 
entity and the selected 
suppliers . In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering an d shall 
in any case not be less than 10 
days.  
[Singapore – Job No. 3772]  
 
 (d) the period referred to in 
paragraph  2(c) may be fixed by 
mutual agreement between the 
entity and the selected 
suppliers . In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering and shall 
in any case not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (f) where an electronic tender 
documentation is available from 
a website indicated in the notice 
of paragraph  6 of Article IX, the 
period may be further reduced 
by 5 days.  
[Chinese Taipei – Job No. 3193]  
 
 GPA/TN1994/2/Rev.12  
- 138 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article V of this Agreement 
in an electronic media listed in 
Appendix  III, the entity may reduce the 
time periods provided for in this Agreement 
by up to 10 calendar days . The use of this 
provision, however, shall in no case result 
in the reduction of those time periods to 
less than 10 calendar days from the date on 
which the notice of intended procurement 
is published.  
[US – Job No. 2867 ] 
 
 4. Where, as a result of a need to amend 
information provided to suppliers during 
the procurement process, a procuring 
entity must extend the time period for 
qualification or tendering procedures, such 
entity shall permit all participating 
suppliers t o submit final tenders in 
accordance with a common deadline.  
[US – Job No. 2867]  
 
 
Comments  
 
• It is not clear how this section is proposed to apply to a case where the intended procurement 
is published in both paper and electronic media . The following two cases need to be considered 
and properly addressed:  
• If a procuring entity publishes a notice of intended procurement in an electronic medium, the 
entity is entitled to shorten the time for submission of tenders . However, if a procuring entity  
chooses to publish a notice in both paper and electronic media, those suppliers who can only 
access the paper version will suffer a reduced period for submission of tenders.  
• The publication of a notice of intended procurement in an electronic medium does not 
necessarily mean that such procuring entity will accept the submission of tenders via electronic 
transmission . As such, a period of 10 calendar days may seem too short for a foreign supplier 
who still needs to submit his tender by post or by courier.  [Hong Kong, China]  
• When procurement notices are published electronically rather than through traditional paper 
means, the efficiency that results may allow for a reduction in the time -period of 10 days, 10 
days representing the potential gain in efficiency by using electronic means . Depending upon 
the circumstances, time -periods could be reduced to a minimum of 10 days.  [US] 
• It is interesting to note that the time -period may be reduced by up to 10 days when a procuring 
entity publishes a notice of intended p rocurement in an electronic medium . However, some 
Japanese suppliers are of the opinion that a 10 -day reduction is excessive, even if the tender 
documentation is available electronically . Such reduction might be disproportionate from a 
supplier's standpoin t. At the same time, Japan would like to know the reason for allowing a 
reductio n by up to 10 days . The US proposal only requires, as a condition for a reduction of 
the time -period, a notice of intended procurement to be made available via electronic media , 
while a similar provision of the EU proposal requires that the complete tender documentation 
be available through electronic media . What is the relationship between this 10 -day reduction 
provision and Article VI:2 of the U.S. proposal, which enables a ge neral reduction of the GPA/TN1994/2/Rev.12  
- 139 - 
  time-period . For example, what if bot h provisions are applied at the same time ? [Japan ; Job 
No. 5474]  
• Ten days is the minimum period to which the time -limits could be reduced. [US] 
• Article VI(3) of the US proposal states that the reduction of time -limits by 10 days can only 
be based on the publication of a notice of intended procurement whereas Article XIV:5 of the 
EC proposal states that the documentation must be provided electronically . Different reduction 
of time limits should b e available for all tender documentation, rather than in relation to tender 
notices only . If a procurement entity publishes a tender notice electronically, can such 
circumstances warrant a reduction of time limits for tendering ? If this is the case, it is proposed 
that the time limits should be reduced to 5 days instead of 7 days . In the case where all the 
tender documentation is made available electronically, it is considered that 10 days is 
acceptable. [Chinese Taipei]  
Drafting suggestion  
 
• Adding a phrase  "irrespective of whether such notice is also published in paper media" after 
Appendix III in the first sentence.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 140 - 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Consistent with the entity's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of 
the intended procurement, the extent of 
subcontracting anticipated and the realistic time 
required fo r production, de -stocking and 
transport of goods from the points of supply or 
for supply of services.  
 (d) Consistent with the procuring entity's 
own reasonable needs, any delivery date 
shall take into account such factors as the 
complexity of the intended  procurement, 
the extent of subcontracting anticipated 
and the realistic time required for 
production, de -stocking and transport of 
goods from the points of supply or for 
supply of services.  
[EC – Job No. 876]  
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which is [in the public domain] 
[readily available to both local and foreign 
suppliers] its overall policy on the 
time-limits for intended procurement to be 
followed by its e ntities.  
 
 Clause (b)  
 
 Consistent with the provisions in 
Article  XX, entities shall provide for rapid 
and immediate measures to address 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• With respect to sub -paragraph (d) of the EC proposal and the reference to delivery dates, it 
might be more appropriate for that provision to be included in an article on technical 
specifications . The delivery date is seen as one of the specifications or requirements for 
evaluation of offers. [US] 
• While Article XI is perhaps not the most appropriate place to discuss delivery dates, it is 
unclear whether the proposed provision should be moved into the  section on technical 
specifications.  [EC] GPA/TN1994/2/Rev.12  
- 141 - 
  ARTICLE XII:  TENDER DOCUMENTATION  
Article XII:1, 2  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity 
allows tenders to be submitted in several 
languages, one of those languages shall be one 
of the official languages of the WTO.  
 4. If a procuring entity allows tenders to 
be submitted in more than one language, 
one of those languages shall be one of the 
official languages of t he WTO.  
[EC – Job. No.  876]  
 
Comments  
 
General Comments in relation to the EC Proposal:  
 
• The EC proposal attempts to simplify and streamline the Article . Some of the current 
requirements for inclusions in the tender documentation are not necessary either because 
they are more appropriately included in the notice of intended procurement or because it is 
considered that they involve information that is not needed at the tendering stage. [EC] 
Other:  
 
• Why has the requirement regarding the use of a WTO language  been omitted from the 
US proposal ? [Japan]  
• The US considers that it is not necessary to deal with that issue in the Agreement.  [US] 
  GPA/TN1994/2/Rev.12  
- 142 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to 
suppliers shall contain all information necessary 
to permit them to submit responsive tenders, 
including information required to be published in 
the notice of intended procurement, except for 
paragraph 6(g) of Article  IX, and the following:  
 1. Procuring e ntities shall provide to 
suppliers tender documentation that 
includes all information necessary to permit 
suppliers to prepare and submit responsive 
bids. Unless already provided in the notice 
of intended procurement, such 
documentation shall include a com plete 
description of:  
[US – Job No. 2867, EC – Job No. 876]]  
 
(a) the address of the entity to which 
tenders should be sent;  
  
(b) the address where requests for 
supplementary information should 
be sent;  
  
(c) the language or languages in which 
tenders and tendering documents 
must be submitted;  
  
(d) the closing date and time for receipt 
of tenders and the length of time 
during which any tender should be 
open for acceptance;  
  
(e) the persons authorized to be 
present at the opening of tenders 
and the date, time and place of this 
opening;  (d) the date, time and place for the 
opening of tenders;  
[US – Job No. 2867]  
 
 (d) the date, time and place for the 
opening of tenders ; and persons 
authorized to be present ; and 
[EC – Job No. 876]  
 
 
Drafting suggestion  
 
• Suggest replacing the word "opening" by "lodging" in the US' proposal.  [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 143 - 
  Article XII  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) any economic and technical 
requirement, financial guarantees 
and information or documents 
required from suppliers;  
 (b) any conditions for participation 
in the procurement, including 
any financial guarantees, 
information and documents that 
suppliers are required to 
submit;  
[US – Job No. 2867, EC – Job No. 876]  
 
(g) a complete description of the 
products or services required or of 
any requirements including 
technical specifications, conformity 
certification to be fulfilled, 
necessary plans, drawings and 
instructional materials;  
 (a) the intended procurement, 
including the nature and 
quantity of the goods or services 
to be procured and any 
requirements to be fulfilled, 
including any technical 
specifications, conformity 
certification, plans, drawings or 
instructional mat erials;  
[US – Job No. 2867, EC – Job No. 876]  
 
(h) the criteria for awarding the 
contract, including any factors other 
than price that are to be considered 
in the evaluation of tenders and the 
cost elements to be included in 
evaluating tender prices, such as 
transport, insurance and inspection 
costs, and in the case of products or 
services of other Parties, customs 
duties and other import charges, 
taxes and currency of payment;  
 (c) all criteria, including all cost 
factors, to be considered in the 
awarding of the contract, and 
the weights that will be 
assigned to such criteria in 
evaluating tenders;  
[US – Job No. 2867, EC – Job No. 876]  
(i) the terms of payment;  
 (e) any other terms or conditions, 
including terms of payment.  
[EC – Job No. 876]  
(j) any other terms or conditions;  
  
(k) in accordance with Article XVII the 
terms and conditions, if any, under 
which tenders from countries not 
Parties to this Agreement, but which 
apply the procedures of that Article, 
will be entertained.  
  
 
Comments  
 
• With respect to sub -paragraph (c) of the EC and US proposals, it is a good idea for relative 
weightings to be published in advance . However, there is a probability that the relative 
weighting may not be confirmed in advance or may have not yet been decided, for example, 
in complicated cases such as procurement for BOT o r concession contracts . Further, the US 
proposal regarding limited tendering deletes the reference to design contests which means 
that normal procureme nt procedures should apply to design contests . The relative weighting 
for design contests at the notice stage would be difficult to anticipate since these are normally 
determined by a jury of specialists after receiving the proposals . There may be a need f or an 
exceptional clause to deal with these situations.  [Japan ; Switzerland ] It may be also be 
possible to list criteria in order of importance.  [Switzerland]  GPA/TN1994/2/Rev.12  
- 144 - 
  • It is important to include the relative weighting of evaluation criteria in the tender notices or  
the documentation to ensure transparency of the process and to ensure that suppliers and 
others can understand the bases for decisions that are made in the procurement process.  [US] 
• Deliberation is necessary as to whether it is practical to include in the  tender documentation 
for all procurements the relative weightings assigned to criteria for the awarding of the 
contract in addition to the criteria themselves . It is important to analyze som e concrete 
examples of the use of relative weightings which satis fy this provision, for instance, 
procurements of design and consulting services relating to construction.  [Japan ; 
Job No. 5474]  
 GPA/TN1994/2/Rev.12  
- 145 - 
  Article XII:3  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the 
Entities  
  
3.(a) In open procedures, entities shall 
forward the tender documentation 
at the request of any supplier 
participating in the procedure, and 
shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
 2. Procuring entities shall forward the 
tender documentation at the requests of 
any suppliers participating in the 
procurement.  
 
[EC Job No. 876]  
(b) In selective procedures, entities 
shall forward the tender 
documentation at the request of any 
supplier requesting to participate, 
and shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
  
(c) Entities shall reply promptly to any 
reasonable request for relevant 
information submitted by a supplier 
participating in the tendering 
procedure, on condition that such 
information does not give that 
supplier an advantage over its 
competitors in the procedure for the 
award of the contract.  
 3. Procuring entities shall reply 
promptly to any reasonable request for 
relevant information submitted by a 
supplier participating in the procurement , 
on condition that such information does not 
give that supplier an advantage over its 
competitors in the procurement process.  
 
[EC – Job No. 876]  
 Third Countries  
 
Each Party shall encourage its entities to 
make tender documentation available on 
the internet at the time of publication of the 
notice of intended procurement or as soon 
as possible thereafter, with access thereto 
being either free of charge or at a 
reasonable cost, having regard to the actual 
cost to the entity of making such 
information available in this way.  [EC; Job 
No. 4312]  
 
 
Comments  
 
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount and terms of payment of any sum payable for the tender documentation" . Parties 
should be given the flexibility to impose a reasonable charge, even for technical specifications 
and tender documents which are downloaded from the I nternet.  [Country ? Job No. 5074]  
• Some form of charges may be necessary to ensure that documents are not downloaded 
indiscriminately . Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore ; Canada]  
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs associated with providing the documents by mail . Providing GPA/TN1994/2/Rev.12  
- 146 - 
  documents free of charge will increase transparency and, in particular, will benef it small and 
medium enterprises seeking opportunities in procurement markets.  [EC] 
• The fee charged should be strictly linked to actual cost incurred in the provision of information.  
[EC] 
 GPA/TN1994/2/Rev.12  
- 147 - 
  ARTICLE XIII:  SUBMISSION,  RECEIPT  AND OPENING  OF TENDERS  
AND AWARDI NG OF CONTRACTS  
Article XIII:1  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of 
tenders and awarding of contracts shall be 
consistent with the following:   
(a) tenders shall normally be submitted 
in writing directly or by mail . If 
tenders by telex, telegram or 
facsimile are permitted, the tender 
made thereby must include all the 
information necessary for the 
evaluation of the tender, in particular 
the definitive price proposed by the 
tenderer and a statement that the 
tenderer agrees to all the terms, 
conditions and provisions of the 
invitation to tender . The tender must 
be confirmed promptly by letter or by 
the despatch of a signed copy of the 
telex, telegram or facsimile . Tenders 
presented by telephone shall not be 
permitted . The content of the telex, 
telegram or facsimile shall prevail 
where there is a difference or conflict 
between that content and any 
docum entation received after the 
time-limit; and (a) tenders shall normally be 
submitted in writing . If tenders 
by telex, telegram or facsimile or 
electronic means are permitted, 
the tender made thereby must 
include all the information 
necessary for the evaluat ion of 
the tender, in particular the 
definitive price proposed by the 
tenderer and a statement that 
the tenderer agrees to all the 
terms, conditions and provisions 
of the invitation to tender . 
Tenders presented by telephone 
shall not be permitted . The 
content of the telex, telegram or 
facsimile shall prevail where 
there is a difference or conflict 
between that content and any 
documentation received after 
the time -limit; and 
[Canada - Job No. 3481 – Alternative 1]  
 
 (a) tenders shall normally be 
submitted in  writing, directly or 
by mail . Tenders must include all 
the information necessary for 
the evaluation of the tender, 
however submitted . A procuring 
entity may require that the 
tender b e confirmed promptly by 
letter or by the despatch of a 
signed copy of the  telex, 
telegram or facsimile or 
electronic document.  
[Canada - Job No. 3481 – Alternative 2]  
 
 
 
  GPA/TN1994/2/Rev.12  
- 148 - 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) tenders shall normally be 
submitted in writing directly or 
by mail . If tenders by telex, 
telegram, facsimile or electronic 
transmission are permitted, the 
tender made thereby must 
include all the information 
necessary  for the evaluation of 
the tender . The tender must be 
confirmed promptly by letter or 
by the despatch of a s igned copy 
of the telex, telegram, facsimile 
or electronic transmission, if 
required . Tenders presented by 
telephone shall not be 
permitted . U nless otherwise 
specified in the tender 
documentation, the content of 
the telex, telegram, facsimile or 
electronic  transmission shall 
prevail where there is a 
difference or conflict between 
that content and any 
documentation received after 
the time -limit; and 
[Chinese Taipei – Job No. 3193]  
 
Comments  
 
• Parties need to agree whether electronic communications can be considered to be "in writing" ? 
[Japan]  
• The expression "in writing" could include the use of electronic means to the extent that the 
rest of the rules of the Agreement are respected . Paper bids should be kept as a warranty of 
transpare ncy and equal treatment.  [EC] 
• There are two aspects to the phrase "in writing" . One is the physical aspect . The meaning of 
"in writing" has changed over time . Now that an electronic medium has been invented, the 
reference to "writing" could mean electronic  writing . The other aspect is the legal aspect . In 
most cases, tenders are firm undertakings to carry out a contract . For the purposes of the 
GPA, the more important aspect is the second aspect.  [Singapore]  
• A provision should be added to indicate that the means for submitting tenders may be specified 
by the procuring entity, provided the requirement to use such means does not reduce access 
by foreign and domestic suppliers.  [Canada – Job No. 3481]  
• The proposals do not make it clear who is responsible and to  what extent, for the accuracy of 
data in tender documents and ensuring the protection of confidentiality of tender information . 
There should be limits on the burden imposed upon procuring entities as regards the protection 
of the confidentiality of data t ransmitted electronically.  [Japan]  
• What is the rationale for the elimination of the phrase "in particular the definitive 
price…invitation to tender" in the second sentence of the proposal for Article XVIII:1(a) by 
Chinese Taipei ? [Korea]  
 GPA/TN1994/2/Rev.12  
- 149 - 
  • Since some Partie s are already using electronic procurement, a consensus is needed to the 
effect that electronic procurement procedures are not inconsistent with the basic objective of 
the GPA, that is, non -discrimination and transparency of procurement.  [Japan]  
• Even thoug h the EC has put forward proposals favouring the submission of bids by electronic 
means, this does not mean that the current wording does not allow for the use of such means.  
[EC] 
 GPA/TN1994/2/Rev.12  
- 150 - 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) integrity of data and 
confidentiality of tenders must 
be preserved . Tenders shall not 
be opened until after the 
deadline set by the contracting 
entity for receipt of tenders;  
 
 (c) whatever means of 
communication or exchange of 
information chosen they shall 
not cause a discrimination and 
be consistent with the principles 
laid down in Article 3 hereof ; and 
 
(b) the opportunities that may be given 
to tenderers to correct unintentional 
errors of form between the opening 
of tenders and the awarding of the 
contract shall not be permitted to 
give rise to any discriminatory 
practice.  
 (d) the opportunities that may be 
given to tenderers to correct 
unintenti onal errors of form 
between the opening of tenders 
and the awarding of the contract 
shall not be permitted to give 
rise to any discriminatory 
practice.  
[EC – GPA/W/87 ] 
 
 4. When procuring entities provide 
suppliers with opportunities to correct 
unintentional errors of form between the 
opening of tenders and the awarding of the 
contract, they shall provide the same 
opportunities to all participating suppliers.  
[US – Job No. 2867 ; EC – Job No. 876]  
 
 
Drafting comment  
 
• Would like to seek clarification on the meaning of "unintentional errors of form" as it has 
significant implications for the implementation of the Agreement. [Country?]  GPA/TN1994/2/Rev.12  
- 151 - 
  Article XIII:2, 3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contract s 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender 
is received in the office designated in the tender 
documentation after the time specified because of 
delay due solely to mishandling on the part of the 
entity . Tenders may also be considered in other 
exceptional circumstances if the procedures of the 
entity concerned so provide.  
 2. Procuring entities shall not penalize 
any supplier whose tender is received aft er 
the time specified for receiving tenders if 
the delay is due solely to mishandling on 
the part of the entity.  
[US – Job No. 2867 ; EC – Job No. 876]  
 
 
Opening of Tenders  
  
3. All tenders solicited under open or selective 
procedures by entities shall be received and 
opened under procedures and conditions 
guaranteeing the regularity of the openings . The 
receipt and opening of tenders shall also be 
consistent with the national treatment and 
non-discrimination provisions of this Agreement . 
Informati on on the opening of tenders shall 
remain with the entity concerned at the disposal 
of the government authorities responsible for the 
entity in order that it may be used if required 
under the procedures of Articles  XVIII, XIX, 
XX and XXII.  
 1. Procuring en tities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process.  
[US – Job No. 2867]  
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process . In particular, 
integrity of data must be preserved . 
Tenders shall not be opened until after the 
deadline set by the procuring entity for 
receipt of tenders.  
[EC – Job No. 876]  
 
 5. Where an entity requires suppliers to 
satisfy registration or qualification 
requirements or any other conditions for 
participation in a procurement, it may, 
subject to the other provisions of this 
Agreement, limit the receipt of tenders to 
those suppliers that sati sfy such 
requirements and conditions.  
[US – Job No. 1051  
 
Comments  
 
• The US proposal responds to informal consultations in the GPA Committee regarding the 
implications of the initial US proposal for "selective tendering" procedures . The new paragraph, 
which is permissive rather than prescriptive, would confirm that tendering may be limited to 
suppliers that meet any conditions for participation . At the same time, it would clarify that the 
use of "selective tendering" must be understood in the  context of the GPA's other 
requirements, including those regarding registration, qualification and other conditions of 
participation, and that the use of selective tendering procedure does not permit departure 
from those requirements. [US] GPA/TN1994/2/Rev.12  
- 152 - 
  Article XIII:4  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Award of Contracts  
 Awarding of Contracts  
4.(a) To be considered for award, a tender 
must, at the time of opening, 
conform to the essential 
requirements of the notices or tender 
documentation and be from a 
supplier which complies with the 
conditions for participation . If an 
entity has received a tender 
abnormally lower than other tenders 
submitted, it may enqu ire with the 
tenderer to ensure that it can comply 
with the conditions of participation 
and be capable of fulfilling the terms 
of the contract.  5. To be considered for award, a tender 
must be in writing and must, at the time of 
opening, conform to the esse ntial 
requirements of the notices and tender 
documentation that have been provided in 
advance to all participating suppliers, and 
be from a supplier that satisfies any 
registration or qualification requirements 
or any other conditions for participation.  
[US – Job No. 1051]  
 
  
5. To be considered for award, a tender 
must be in writing and must, at the time of 
opening, conform to the essential 
requirements of the notices and tender 
documentation and be from a supplier 
which complies with the conditions for 
participation, including any specified time 
periods . Procuring entities shall base 
contract award decisions solely on the 
requirements and evaluation criteria that 
have been specified in the notices and 
tender documentation provided in advan ce 
to all participating suppliers . If a procuring 
entity receives a tender abnormally lower 
than other tenders submitted, it may 
enquire with the tenderer to ensure that it 
can comply with the conditions of 
participation and be capable of fulfilling the 
terms of the contract.  
[EC – Job No. 876]  
 
 
(b) Unless in the public interest an entity 
decides not to issue the contract, the 
entity shall make the award to the 
tenderer who has been determined 
to be fully capable of undertaking the 
contract and whose tend er, whether 
for domestic products or services, or 
products or services of other Parties, 
is either the lowest tender or the 
tender which in terms of the specific 
evaluation criteria set forth in the 
notices or tender documentation is 
determined to be the m ost 
advantageous.   
6. Entities shall award the contract to 
the tenderer who has been determined to 
be fully capable of undertaking the contract 
and whose tender is determined to be the 
most advantageous on the basis of the 
requirements and evaluation crite ria set 
forth in the notices or tender 
documentation.  
[US – Job No. 1051]  
 GPA/TN1994/2/Rev.12  
- 153 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. Unless a procuring entity determines 
that it is not in the public interest to award 
a contract, procuring entities shall award 
the contract to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose tender 
is either the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the requirements 
and evaluation criteria set forth in the 
notices or tender do cumentation.  
[EC – Job No. 876]  
 
 7.  A procuring entity may determine 
that it is not in the public interest to award 
a contract.  
[US Job No. 1051]  
 
Comments relating to the existing paragraph (a)  
 
• For the purpose of simplifying the Agreement, the following test should apply in connection 
with the elimination of the last sentence of Article XIII:4(a) . If there is anything in the 
Agreement that calls into question the right of the entity to enquire abnormally low tenders, 
it may be necessary to state  such a right . Otherwise, the sentence should be eliminated.  [US] 
• The US proposal does not contain a reference to "abnormally low bids" . The examination of 
how abnormal the lowest bid may be can be an important part of the award process, 
particularly if th ere is a high level of competition in the relevant market.  [Japan]  
• Regarding the proposed deletion of the current provision on abnormally low offers, would it 
still be possible for the contracting entity to make the necessary checks and investigations ? It 
would be preferable to have an explicit provision unless that provision has been abused . 
However, there is no evidence that that has been the case.  [EC] 
• There is nothing to prevent entities from examining abnormally low bids at any time the entity 
consider s it to be appropriate, provided that such an examination is conducted in a 
non-discriminatory fashion.  [US] 
• The provision for "enquiry into abnormally lower tenders" in the second sentence of 
Article  XIII:4(a) of the current GPA is not included in the U.S . proposal . However, the number 
of abnormally lower tenders has recently been on the increase in the procurement of services, 
such as computer system design, in Japan, and procuring entities have been making such 
enquiries more and more frequently . Regarding construction work projects, this enquiry is 
most important in order to exclude an improper execution of the works and to secure public 
interest. [Japan ; Job No. 5474]  
Comments relating to the existing paragraph (b)  
 
• The wording "a procuring entity  determines that it is not in the public interest …" in paragraph 
6 of the EC proposal  involves a subjective assessment by the procuring entity . How does 
paragraph 7 interplay with paragraph 6 ? If a procuring entity determines that a procurement 
exercise s hould be cancelled in the light of public interest, how is paragraph 7 invoked to 
allege that the procurement process is cancelled in a manner that circumvents the obligations 
of the Agreement ? [Hong Kong, China]  
• If contract award information is available electronically, it should be made available for a 
certain period of time so that suppliers are not required to regularly check the electronic site 
where that information is located.  [Canada]  GPA/TN1994/2/Rev.12  
- 154 - 
  • Even though procuring entities can determine that it is not in th e interest of the public to 
award a contract to a certain bidder based on Article X:6 of the US proposal, the right of 
enquiry should be provided, specifically in the Agreement, in a case where a supplier rejects 
such enquiry or does not cooperate . Moreove r, an explicit provision for such an enquiry is an 
important basis for a supplier to enable the latter to request the relevan t procuring entity to 
conduct such enquir y when confronted with abnormally lower tenders from competitors . 
Japanese suppliers have expressed their desire that this provision should continue to exist.  
[Japan ; Job No. 5474]  GPA/TN1994/2/Rev.12  
- 155 - 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 7. Entities shall not cancel a 
procurement , or terminate or modify 
awarded contracts in a manner that 
circumvents the obligations of this 
Agreement.  
[US – Job No. 1051]  
 
 
Comments  
 
• Clarification is sought in relation to what is meant by "circumvention of the Agreement" in 
proposed paragraph 7 of the US proposal . The concept appears to be overly broad.  [Korea]  
• Is proposed paragraph 7 necessary since it seems to apply across the board to many 
provisions of the Agreement ? [Switzerla nd] 
• Proposed paragraph 7 responds to a concern that while tendering procedures may be fully 
compliant with the GPA, an unpopular award may be cancelled, the contract may not be 
awarded at all, or it may be awarded at some time in the future using a differe nt procedure . 
The US proposal aims to avoid such circumvention of the Agreement.  [US] 
• In response to a question on the rationale for paragraph 7 [ Canada ], in a number of major 
procurement situations, suppliers have encountered situations where entities hav e cancelled 
award procedures at the last moment . There can be an impression among the suppliers that 
the entities had taken their decision relating to the technical merits of the tenders and that 
the cancellation of the procedures close to the award decisi on was for some other reasons 
which might be contrary to the objectives of the Agreement.  [US] 
• With respect to the US proposal regarding circumvention of tendering procedures, it allows 
cancellation of an award after the contract has been granted but was n ot popular . However, 
if a tender had already been awarded, the procuring entity would be contractually bound to 
perform the contract . The supplier could have an action for breach of contract if the procuring 
entity had terminated the contract otherwise tha n in accordance with the terms of the 
contract . There may not be a need to insert this paragraph so as to complicate the matter . A 
more stringent condition is proposed by the US on the cancellation of a procurement process 
in Article X:7 . Reservations exis t about doing away with the escape clause on "public interest" 
as Parties may be left with little leeway in genuine cases.  [Hong  Kong, China]  
 GPA/TN1994/2/Rev.12  
- 156 - 
  Article XIII:5  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Awards shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a 
manner which circumvents the provisions of the 
Agreement.  
 5. Procuring entities shall not use option 
clauses in a manner that circumvents the 
provisions of this Agreement  
[US Proposal – Job No. 2867]  
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agreement in 
the light of developments in the use of 
electronic tendering with a view to 
developing criteria for discontinuation of 
paper -based tenders, such as the 
experience of the entity in conducting 
electronic tendering and the readiness of 
potential suppliers of a particular 
procurement to use electronic tendering, if 
appropriate.  
[Hong Kong, China – Job No. 3436]  
 
 GPA/TN1994/2/Rev.12  
- 157 - 
  ARTICLE XIV:  NEGOTIATION  
Article XIV:1, 2, 3, 4  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994 ) PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
 1. A Party may provide for its procuring 
entities to conduct negotiations:  
(a) in the context of procurements in 
which they have indicated such 
intent, namely in the notice referred 
to in paragraph 2 of Article IX (the 
invitation to suppliers to participate 
in the procedure for the proposed 
procurement) ; or 
 (a) in the context of procurements 
in which they have indicated 
such intent in the notice of 
intended procurement referred 
to in paragraph 2 of Article IX,  
[EC – Job No. 876]  
(b) when it appears from evaluation that 
no one tender is obviously the most 
advantageous in terms of the specific 
evaluation criteria set forth in the 
notices or tender doc umentation.  
  (b) when it appears from evaluation 
that no one tender is obviously 
the most advantageous in terms 
of the specific evaluation 
criteria set forth in the notices 
or tender documentation ; or 
[EC – Job No. 876]  
 (c) when, for a limited procurement 
a notice of intended 
procurement has not been 
published in accordance with 
Article IX, paragrap h 4. 
[EC – Job No. 876]  
 
2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in tenders.  
 2. Procuring entities shall treat tenders 
in confidence . In particular, they shall not 
provide information to particular suppliers 
that might prejudice fair competition 
between suppliers.  
[US – Job No. 2867]  
 
3. Entities shall treat tenders in confidence . In 
particular, they s hall not provide information 
intended to assist particular participants to bring 
their tenders up to the level of other participants.  2. Negotiations shall primarily be used 
to identify the strengths and weaknesses in 
tenders.  
[EC – Job No. 876]  
 
 2. Procuring entities shall treat tenders 
in confidence . In particular, they shall not 
provide information to particular suppliers 
that might prejudice application of the 
principles of transparency and 
non-discrimination between suppliers.  
[EC – Job No. 876]  
 
4. Entities shall not, in the course of 
negotiations, discriminate between different 
suppliers . In particular, they shall ensure that:  
 3. Procuring entities shall not, in the 
course of negotiations, discriminate 
between different suppliers . In particula r, 
they shall ensure that:  
 GPA/TN1994/2/Rev.12  
- 158 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994 ) PROPOSED MODIFICATIONS  
(a) any elimination of participants is 
carried out in accordance with the 
criteria set forth in the notices and 
tender documentation;  
 (a) any elimination of participants 
is carried out in accordance with 
the criteria set forth in the 
notices and tender 
documentation;  
 
(b) all modifications to the criteria and to 
the technical requirements are 
transmitted in writing to all 
remaining participants in the 
negotiations;  (b) all modifications to the criteria 
and to the technical 
requirements are transmitted in 
writing to all remaining 
participants in the negotiations;  
 
 (c) on the basis of the revised 
requirements and or when 
negotiations are concluded, all 
remaining participants are 
afforded an opportunity to 
submit new or amended tenders 
in accordance with a common 
deadline.  
[EC – Job No. 876]  
   
 
Comments  
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC proposal adds sub -paragraph (c) to the list of circumstances that may lead to 
negotiations to clarify that this circumstance is implicit in the GPA but, perhaps, better dealt 
with in a stand -alone provision. [EC] 
• The US proposal does not include a specific Article on negotiations . Rather the US proposal 
takes certain provisions out of the existing Article on negotiations and incorporates them into 
other elements of the proposal. [US] 
• There is a question as to whether it is necessary or appropriate to have a separate Article 
specifically related to negotiations . The EC and US proposal s and the GPA all say that any 
Party can use negotiations whenever they state in their notice of intended procurement that 
they will do so. [US] 
• Paragraph 2 contains a general statement about the objective of negotiation but it is unclear 
whether that stat ement has much effect operationally . Paragraph 3 of the EC proposal is 
merely an elucidation of specific measures or steps related to ensuring that there is 
non-discrimination . Sub-paragraph 3(a) is similar to a provision that has been included in the 
US and EC proposals on qualifications or conditions for participation . Further, sub -paragraphs 
(b) and (c) appear to be potentially applicable to a broader range of procurement than just 
negotiated procurements. [US] 
• A provision on negotiation is seen to be ex ceptional . Negotiations usually take place in an 
unstructured environment . It is strongly believed that a provision explaining what is possible 
and what is not possible in relation to negotiations is important and necessary. [EC] 
 GPA/TN1994/2/Rev.12  
- 159 - 
  Article XIV  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) all remaining participants are 
afforded an opportunity to submit 
new or amended submissions on the 
basis of the revised requirements ; 
and 
  
(d) when negotiations are concluded, all 
participants remaining in the 
negotiations shall be permitted to 
submit final tenders in accordance 
with a common deadline.  
  
 
Comments  
 
• It may not be necessary to identify a separate framework given that negotiations can be a 
part of other procurement procedures . It would be sufficient to apply the basic principles in 
the Agreement to negotiations . This Article should be removed from the Agreement.  [US] 
• There should be certain parameters in this respect, given the role that negotiation s often play 
in the tendering process . [EC] 
• While the US proposal allows for negotiation if that has been indicated in the tender 
documentation or when it appears that there is not necessarily a single most advantageous 
tender, it does not contain a requir ement that the tender notice should indicate that 
negotiations will occur . Why has this requirement been omitted from the US proposal ? [EC] 
• The possibility for an entity to use negotiations should not be limited . Nevertheless, there is a 
need to have some basic rules in order to provide a framework and guidelines that should be 
followed when negotiations are being conducted.  [EC] 
• Article XIV of the GPA is deleted without replacement . It seems that negotiations are allowed 
under the present draft as Article V:2(c) of the United States' proposal provides that each 
notice of intended procurement should disclose whether the procurement will involve 
negotiations . Does it mean that under the draft agreement, procuring entities are entitled to 
conduct whatever type s of negotiations they wish ? On the other hand, the last sentence of 
Article X:5 of the US proposal provides that procuring entities shall base contract award 
decisions solely on the requirements and evaluation criteria that have been specified in the 
notices and tender documentation provided in advance to all participating suppliers . Does this 
mean that procuring entities are not allowed to conduct negotiations and to let remaining 
participating suppliers submit final tenders on the basis of the revised re quirements (see 
Article XIV:4 of the GPA) ? [Hong Kong, China]  
• Article XIV:1 states that negotiations are allowed when a Party has indicated in its notice that 
it will provide for negotiations . Article V:2(c) of the US proposal states that if negotiations a re 
to be used, that information must be provided in the notice . If an entity holds negotiations 
but that has not been referred to in the notice, Article V of the US  proposal will not have been 
complied with . Similarly, Article XIV:4(c) of the existing Agreement provides that when 
requirements for a project have been revised, all remaining participants in a tendering process 
should have an opportunity to submit amended submissions on the basis of the revisions . 
Article VII:7 of the US proposal r equires that if there are changes in the requirements during 
the process, that information must be provided to all suppliers that are participating.  [US] 
• It is important that the Agreement appropriately addresses the issue of negotiations . However, 
given t hat the use of negotiations needs to be appropriately disciplined, the question is GPA/TN1994/2/Rev.12  
- 160 - 
  whether the general commitments and obligations contained in the Agreement adequately 
address that need or whether there is a need for additional commitments that specifical ly 
relate to the use of negotiations . There are many provisions contained in the GPA apart from 
Article XIV that are relevant to the use of negotiations and discipline such use in some way.  
[US] 
• See also the Explanatory Note by the US in Job No. 6772, page s 3 and 4.  
 GPA/TN1994/2/Rev.12  
- 161 - 
  ARTICLE XV:  LIMITED TENDERING  
Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Provided that it does not use this 
possibility for the purposes of avoiding 
competition among suppliers or in a 
manner that discriminates against 
suppliers of the other Parties, or that 
protects domestic suppliers, a procuring 
entity may choose not to publish a notice of 
intended procurement in the following 
circumstances and, subject to the follow ing 
conditions, where applicable.  
[EC – Job No. 876]  
 
1. The provisions of Articles  VII through XIV 
governing open and selective tendering 
procedures need not apply in the following 
conditions, provided that limited tendering is not 
used with a view to av oiding maximum possible 
competition or in a manner which would 
constitute a means of discrimination among 
suppliers of other Parties or protection to 
domestic producers or suppliers:  
 1. An entity may choose not to publish a 
notice of intended procurement prior to the 
award of a contract in the following 
circumstance s and subject to the following 
conditions, where applicable:  
[US – Job No. 1051]  
 
 
Comments  
 
General comments in relation to the US Proposal (Job No. 1051):  
 
• The US proposal clarifies that the exception to normal GPA rules allowed by this Article is 
limited to the publication of advance notices . In the US view, the elimination of the term 
"limited  tendering" from the text would not detract from the clarity of the rules . Rather, it 
would further contribute to the objective of streamlining the GPA text and emphasizing that 
the GPA provides a framework of disciplines without unnecessarily imposing det ailed 
procedural requirements on current and future Parties.  [US] 
• The US proposal seeks to avoid reference to particular types of tendering procedures, including 
limited tendering . The proposal begins by clarifying that limited tendering constitutes an 
exception to the obligation to publish a notice in advance of an intended procurement . This 
approach is similar to what has been proposed by the EC.  [US] 
General comments in relation to the EC Proposal (Job No. 876):  
 
• The EC proposal introduces the list of ci rcumstances where the use of limited tendering is 
permitted under the Article concerning notices of intended procurement . For the sake of 
coherence and clarity, the provision allowing entities not to publish a notice might be better 
placed close to where t he obligation to publish a notice of intended procurement is contained . 
The substance of the list of circumstances allowing deviation from the obligation to publish 
has not been modified since it is believed that the current circumstances are still needed . 
However, the proposal attempts to make it easier to understand those circumstances . It is 
difficult to strike the right balance between detail which allows for more security and greater 
guarantees and the necessity to render this provision less cumbersome  and less difficult to 
understand. [EC] 
• It is a good idea to include the provisions on limited tendering as an exception to the provisions 
on publication. [Switzerland]  GPA/TN1994/2/Rev.12  
- 162 - 
  • The chapeau of paragraph 4 of the EC proposal is well -drafted, effectively incorporates  the 
substance of Article XV and, in some respects, is similar to the US proposal with respect to 
limited tendering. [US] 
• It might be useful to introduce a reference to "limited tendering " in the chapeau. [Switzerland]  
• Is the intention of the EC and US pro posals that procuring entities be required to issue tender 
documentation and to follow all other procedures that were formerly provided for in Article 
VII-XVII in urgent situations ? [Canada]  
• When a limited procedure is used and a contract is awarded to one supplier, it would still be 
useful to state that Articles VII – XIV do not apply in order, for example, to avoid some other 
disgruntled firms going to court in search of remedies. [Switzerla nd] 
Comments relating to the existing subparagraph (a)  
 
• Regarding the proposed deletion of the exception in relation to collusive tendering, there may 
be cases of collusive tendering in particular markets and, therefore, procuring entities should 
have inst ruments to react in those situations.  [EC] 
• Normally, the absence of competition in cases of collusive tendering should not necessarily 
lead to the restriction of competition by the entity . If collusive tendering occurs, suppliers 
should be excluded . Furthe r consideration of tendering procedures is needed in markets where 
it is difficult to introduce or maintain competition.  [US] 
 
 
 
  GPA/TN1994/2/Rev.12  
- 163 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) in the absence of tenders in response 
to an open or selective tender, or 
when the tenders submitted have 
been collusive, or not in conformity 
with the essential requirements in 
the tender, or from suppliers who do 
not comply with the conditions for 
participation provided fo r in 
accordance with this Agreement, on 
condition, however, that the 
requirements of the initial tender are 
not substantially modified in the 
contract as awarded;  (a) when no tender or request to 
participate or no suitable 
tenders or requests to 
participat e have been submitted 
in response to a prior 
procurement, on condition that 
the requirements of the initial 
procurement are not 
substantially modified;  
[EC – Job No. 876]  
  (a) in the absence of tenders that 
conform to the essential 
requirements in the tender 
documentation provided in a 
prior tendering procedure, on 
condition that the requirements 
of the initial procurement are 
not substantially modified in the 
contract as awarded;  
[US – Job No. 1051]  
 
 (b) in the absence of tenders from 
suppliers which satisfy the 
registration, qualification or 
other conditions for 
participation established for a 
prior tendering procedure;  
[US – Job No. 1051]  
 
 (b) when, for technical or artistic 
reasons, or for reasons 
connected with protection of 
exclusive rights, the goods or 
services can be supplied only by 
a particular supplier and no 
reasonable alternative or 
substitute exists;  
[EC – Job No. 876]  GPA/TN1994/2/Rev.12  
- 164 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) when, for works of art or for reasons 
connected with protection of 
exclusive rights, such as patents or 
copyrights, or in the absence of 
competition for technical reasons, 
the products or services can be 
supplied only by a particular supplier 
and no reasonable alternative or 
substitute exists;  
 (c) where, for works of art , or for 
reasons connected with the 
protection of exclusive rights, 
such as patents, copyrights or 
proprietary information or 
where there is an absence of 
competition for technical 
reasons, the goods or services 
can be supplied only by a 
particular supplie r and no 
reasonable alternative or 
substitute exists;  
[US – Job No. 1051]  
 
 (b) when, for works of art or for 
reasons connected with 
protection of exclusive rights, 
such as patents or copyrights, or 
in the absence of competition 
for technical reasons, the 
products or services can be 
supplied only by a particular 
supplier or group of suppliers 
and no reasonable alternative or 
substitute exists;  
[Hong Kong, China – Job No. 1333]  
 
 GPA/TN1994/2/Rev.12  
- 165 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in so far as is strictly necessary 
when, for reasons of extreme 
urgency brought about by events 
unforeseeable by the entity, the 
products or services could not be 
obtained in time by means of open or 
selective tendering procedures;  (f) in so far as is strictly necessary 
where, for reasons of extreme 
urgency brought about by 
events unforeseeable by the 
entity, the goods or services 
could not be obtained in time 
under tendering procedures 
consist ent with Articles  [V] and 
[VI] of this Agreement, and the 
use of such procedures would 
result in serious injury to the 
entity, the entity's programme 
responsibilities, or the 
responsible Party;  
[US – Job No. 1051]  
 
 (d) for additional deliveries by the 
original supplier that are 
intended either as replacement 
parts, extensions, or continuing 
services for existing equipment, 
software, services or 
installations, where a change of 
supplier would compel the 
entity to procure goods or 
services not meeting 
requirements of 
interchangeability with existing 
equipment, software, services, 
or installations;  
[EC – Job No. 876] 
 
(d) for additional deliveries by the 
original supplier which are intended 
either as parts replacement for 
existing supplies, or installations, or 
as the extension of existing supplies, 
services, or installations where a 
change of supplier would compel the 
entity to procure equipment or 
services not meeting requirements of 
interchangeability with already 
existing equipment or servic es5; 
 (d) for additional deliveries by the 
original supplier that are 
intended either as replacement 
parts, extensions, or continuing 
services for existing equipment, 
software, services or 
installations, where a change of 
supplier would compel the 
entity to procure goods or 
services not meeting 
requirements of 
interchangeability with existing 
equipment, software, services, 
or installations;  
[US – Job No. 1051]  
 GPA/TN1994/2/Rev.12  
- 166 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) when an entity procures prototypes 
or a first product or service which are 
developed at its request in the course 
of, and for, a particular contract for 
research, experiment, study or 
original development . When such 
contracts have been fulfilled, 
subsequent procurements of 
products or services shall be subject 
to Articles  VII thr ough XIV6; 
 
5 It is the understanding that "existing equipment" 
includes software to the extent that the initial 
procurement of the software was covered by the 
Agreement.  
 
6 Original development of a first product or service may 
include limited production or supply in order to 
incorporate the results of field testing and to 
demonstrate that the product or service is suitable for 
production or supply in quantity to acceptable quality 
standards . It does not extend to quantity production or 
supply to establish  commercial viability or to recover 
research and development costs.  (e) when an entity procures 
prototypes or a first product or 
service which are developed at 
its request in the course of, and 
for, a particular contract for 
research experiment, study or 
original development;  
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.12  
- 167 - 
  Comments relating to the existing subparagraph (c)  
 
• While paragraph 3(f) of Article IX of the US proposal provides that extreme urgency is a 
condition under which limited tendering can be used, paragraph 2 states that a procuring 
entity cannot use limited tendering because of a lack of advance planning . If a procuring entity 
needs to purchase vaccines as a result of a sudden outbreak of epidemic, can a procuring 
entity make use of limited tendering under Art icle IX:3(f) or will the procuring entity by 
accused of a "lack of advance planning" ? On many occasions it is difficult to say whether an 
extreme urgency is due to an unforeseen emergency or due to a lack of advance planning . 
How advanced should planning b e? [Hong Kong, China]  
• There have been a number of situations where trading partners have used limited tendering 
procedures merely because money that had been allocated for a fiscal year had to be used 
quickly and there had not been enough time to use an open tendering procedure . That 
situation cannot necessarily be categorized as an emergency situation, allowing an exception 
to be made to the general transparency and competitive requirements of the Agreement.  [US] 
• The US Explanatory Note (Job No. 6772) in dicates that the US was concerned about some 
Parties' use of the exception for extreme urgency on the ground that these Parties only had a 
few days before the close of fiscal year for the tendering although they had a long time for 
planning . Clarification is sought as to whether the US' concern are met by arguing that these 
Parties' claim does not fall within Article XVI:1(c) of the existing GPA since such situations are 
not an extreme urgency because they are not brought about by "events unforeseeable by t he 
entity" . Such Parties could have definitely foreseen when the close of fiscal year would take 
place.  [Hong Kong, China]  
Comments relating to the existing subparagraph (d)  
 
• Subparagraph (d) which relates to additional deliveries is used to a reasonable e xtent. If 
anything, this subparagraph should be strengthened rather than deleted since the 
circumstances referred to in subparagraph (d) could be used to circumvent competition.  
[Switzerland]  
Comments relating to the existing subparagraph (e)  
 
• Purchasing e ntities do use some of the provisions contained in Article XV, such as 
subparagraph  (e). In relation to the circumstances referred to in subparagraph (e), it would 
be difficult to conduct an open competition since the relevant entity will develop the proto type 
with the selected supplier over time.  [Switzerland]  
• The issue of prototypes is connected with designs . The prototype may be needed to validate 
the design . Continuity may be needed in relation to the design and the subsequent 
development of a prototype . [Canada]  
• Experience in the US suggests that when a contract is awarded for the development of a 
prototype, the compensation for that development is normally incorporated into the price of 
that contract and that there is no need for an additional incentiv e of a guaranteed follow -on 
contract for limited tendering in order to attract interest in the development of a prototype.  
[US] 
• It is not clear why a fully open and competitive tendering process cannot be used in 
circumstances involving the use of prototyp es or design contests or why a limited tendering 
process could not be used on the basis of another provision contained in Article XV, such as 
that relating to interchangeability . Clarification is sought as to whether Parties opposing the 
deletion of the pa ragraphs relating to prototypes and design contests are concerned that the 
contract for construction of the prototype itself should not be competitive or that in the case 
of both prototypes and design contests, the subsequent contract for the construction of the 
prototype or the design should not involve competition for some reaso n [US] 
• In relation to design contests, once a design had been chosen pursuant to the contest, there 
could be a competition to build the relevant design . However, that would defeat the purpose GPA/TN1994/2/Rev.12  
- 168 - 
  of the design contest . In practice, there would probably not be many applicants for the design 
contest since the contest is viewed by, at least some, a form of qualification . Further, the 
applicants would not be willing to invest in preparing a  design for the design contest unless 
they are guaranteed the subsequent construction contract and would be reluctant to enter the 
contest if they are subsequently forced to give up rights to their designs . It is questionable 
whether limited tendering coul d be used on the basis of interchangeability in such 
circumstances.  [Canada]  
• Clarification is sought as to whether, in the United States, limited tendering is used in cases 
of, for example, design contests and prototypes.  [Canada]  
• It is doubted as to wheth er a design contest can be conducted in a way that would not involve 
limited tendering.  [Canada]  
 
  GPA/TN1994/2/Rev.12  
- 169 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additional construction 
services which were not included in 
the initial contract but which were 
within the objectives of the original 
tender documentation have, 
through unforeseeable 
circumstances, become necessary 
to complete the construction 
services described therein, and the 
entity needs to awar d contracts for 
the additional construction services 
to the contractor carrying out the 
construction services concerned 
since the separation of the 
additional construction services 
from the initial contract would be 
difficult for technical or economic 
reasons and cause significant 
inconvenience to the entity . 
However, the total value of 
contracts awarded for the additional 
construction services may not 
exceed 50 % of the amount of the 
main contract;  
 (f) when additional services which 
were not included in th e initial 
procuremen t but which were 
within the objectives of the 
original tender documentation 
have, through unforeseeable 
circumstances, become 
necessary to complete the 
services described therein, and 
the procuring entity needs to 
award contracts for th e 
additional services to the 
contractor carrying out the 
services concerned since the 
separation of the additional 
services from the initial 
procurement would be difficult 
for technical or economic 
reasons and cause significant 
inconvenience to the procuri ng 
entity . However, the total value 
of contracts awarded for the 
additional services may not 
exceed 50 % of the amount of 
the main procurement;  
[EC – Job No. 876]  
 
(g) for new construction services 
consisting of the repetition of similar 
construction services which conform 
to a basic project for which an initial 
contract was awarded in accordance 
with Articles  VII through XIV and for 
which the entity has indicated in the 
notice of intended procurement 
concerning the initial construction 
service, that limited tendering 
procedures might be used in 
awarding contracts for such new 
construction services;  
 (g) for new services consisting of 
the repetition of similar services 
which conform to a basic project 
for which an initial contract was 
award ed following an open or 
selective procuremen t method 
and for which the procuring 
entity has indicated in the notice 
of intended procurement 
concerning the initial service, 
that a limited procurement 
method might be used in 
awarded contracts for such new 
services;  
[EC – Job No. 876]  
 
 
Comments relating to the existing subparagraph (f)  
 
• Subparagraph (f) of the existing provision may be necessary, although there may be 
opportunities for simplifying and clarifying that provision.  [US] 
• With respect to the EC proposal regarding modification of construction services, such a 
modification may entail a change in the existing contract but not a new or different contract . 
Therefore, there will be no need for a notice in respect of such a change.  [Japan]  GPA/TN1994/2/Rev.12  
- 170 - 
  Comments rela ting to the existing subparagraph (g)  
 
• Regarding the proposed deletion by the US of the exception relating to additional construction 
services, clarification is necessary as to whether such cases are covered by other exceptions 
such as the additional deliv ery of goods or services.  [EC] GPA/TN1994/2/Rev.12  
- 171 - 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) for products purchased on a 
commodity market;  
 (h) for goods purchased on a 
commodity market and for 
purchases of goods made under 
exceptionally advantageous 
conditions which only arise in 
the very short term in the case 
of unusual disposals and note 
for routine purchases from 
regular suppliers;  
[EC – Job No. 876]  
 
(e) for goods purchased on a 
commodity market;  
[US – Job No. 1051]  
 
(i) in the case of contracts award to 
the winner of a design contest 
provided that the contest has 
been organized in a manner 
which is consistent with the 
principles of this Agreement , 
notably as regards the 
publication of a notice of 
intend ed procurement, and 
provided that the participants 
shall be judged by an 
independent jury with a view to 
design contracts being awarded 
to the winners.  
[EC – Job No. 876]  (i) for purchases made under 
exceptionally advantageous 
conditions which only arise in the 
very short term . This provision is 
intended to cover unusual disposals 
by firms which are not normally 
suppliers, or disposal of assets of 
businesses in liquidation or 
receivership . It is not intended to 
cover routine purchases from regular 
suppliers;  
 
 
Comments relating to the existing subparagraphs (h) and (i)  
 
• The Agreement's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of subparagraphs (h) and (i).  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(j) in the case of contracts awarded to 
the winner of a design contest 
provided that the contest has been 
organized in a manner which is 
consistent with the principles of this 
Agreement, notably as regards the 
publication, in the sense of Article  IX, 
of an invitation to suitably qualified 
suppliers, to participate in such a 
contest which shall be judged by an 
independent jury with a view to 
design contracts being awarded to 
the winners.   
 GPA/TN1994/2/Rev.12  
- 172 - 
  Comments relating to the deletion of certain subparagraphs from the existing Article XV  
 
• Caution should be exercised in dropping conditions for limited tendering contained in the 
current Article XV.  [Japan ; Canada ; Korea; Hong Kong, China ; EC] 
• Clarification is sought as to why the US proposal omits subparagraphs (e), (f), (g), (i), (j) 
from the existing text of the Agreement.  [Japan ; Canada ; Korea]  
• Certain subparagraphs – namely, (e), (f), (g), (j) - that are to be deleted under the 
US proposal should be maintained . Subparagraphs (f) and (j) should be maintained since they 
are often used in relation to construction works . Further, Japan's GPA statistics for the period 
1997 – 1999 indicate that subparagraph (e) has been constantly used . On the bas is of advice 
from construction experts but depending upon confirmation from other agencies and local 
governments, subparagraph (g) may not be necessary.  [Japan]  
• It is necessary to determine on a substantive basis whether the particular circumstances 
contai ned in the Agreement warrant the use of limited tendering whereas it is not relevant to 
consider whether the various provisions are currently made use of . Parties should proffer 
specific reasons why they believe limited tendering is necessary in particular  circumstances.  
[US] 
• Some of the existing provisions in Article XV seem to be similar but have been expanded upon 
at great length and, perhaps, in unnecessary detail . For example, subparagraphs (f) and (g) 
relate to similar construction services . The relev ant issues are compatibility or 
interchangeability and the need to maintain consistency . It is unclear whether it is necessary 
to have three or four separate subparagraphs that address those overall, broad issues . The 
US proposal seeks to condense subparag raphs (d), (f) and (g) of the existing text into one 
subparagraph . In addition, at least on the basis of the US system, a number of subparagraphs 
in the existing text are not considered necessary.  [US] 
• Statistical reports regarding limited tendering indica te that the paragraphs that have been 
deleted by the US have not been frequently used . Most cases involve follow -up purchases.  
[Switzerland]  
• The wording contained in some parts of the US proposal differs from the wording contained in 
the existing text . What will be the impact of the proposed wording changes and how will the 
proposed new wording accommodate situations that are proposed to be deleted ? [Canada]  
• Subparagraphs (f) and (j) are very often used in cases of procurement of construction and 
related se rvices . They should therefore be included in the GPA . In addition, with regard to 
subparagraph  (f), some experts have indicated that, in a considerable number of cases, 
procuring entities choose to amend the original contract, rather than to enter into a n ew one . 
Japan would like to ask each Party to look into its own existing situation.  
Note:  With regard to additional construction works, there are a number of cases where it is 
unreasonable for such additional work to be conducted separately from the initia l work, or where it 
is necessary for such additional work to be conducted by the same contractor as for the initial work . 
The reasons for the above are as follows : In order to secure a better quality of civil engineering and 
building work, it is desirable that the initial contractor, who has become familiar with the specific 
conditions of the construction site (including geological, climatic and environmental conditions) . If a 
different contractor were to conduct any additional work, such contractor would b e required to 
prepare new temporary equipment (such as scaffolding, concrete forms and machinery), which 
would be unreasonably costly and time -consuming.  
 
Typical examples of the above are tunnel works . As the work proceeds, contractors encounter 
different  geological conditions, the emergence of obstacles, such as rocks and spring water, and so 
forth.  
 
Regarding subparagraph (e), 2 % to 3% of the total number of limited tendering contracts are 
categorized under this paragraph, according to Japan's government procuremen t statistics 
(1997 -1999) . Therefore it should also be included in the GPA . There have been a few cases where GPA/TN1994/2/Rev.12  
- 173 - 
  subparagraph  (g) has been used in Japan and only a limited number of cases where subparagraph  (i) 
has been used . Japan cannot, however, deny the possibility that it may be used in the future . [Japan ; 
Job No. 5475]  GPA/TN1994/2/Rev.12  
- 174 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
(k) for additional purchases of 
human life -preserving or 
life-saving products that require 
extensive user training or 
experience or trial for safety 
reasons.  
[Hong Kong, China – Job No. 1333)  
 
 
 
Comments relating to the proposed subparagraph (k)  
 
• The new proposed subparagraph (k) is aimed at fairly restricted circumstances.  [Hong Kong, 
China]  
• The issues that have been raised in this context as warranting an addition to Article XV relate 
primarily to issues of quality control and the technical appropriateness of products . It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to selective 
tendering which c ould involve qualification requirements including performance records and 
technical specifications establishing high quality standards and which would be much more 
transparent and competitive.  [US] 
• This proposal must be carefully considered since the use o f limited tendering must be strictly 
limited.  [EC] 
• The proposed subparagraph (k) is quite similar to the existing Article XV:1(d) in that both 
provisions refer to "additional purchases".  [Singapore ] Article XV:1(d) could/might be 
modified to meet the conce rns raised by Hong Kong, China.  [Switzerland ; United States]  
• Singling out a particular sector or set of issues in the new subparagraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of additional deliveries.  
[Switzerland]  
• The existing subparagraph 1(d) may not be wide enough to cover what is proposed to be 
covered by the proposed subparagraph (k) . Also, in relation to the former subparagraph, it is 
unclear what is meant by "interchangeability" and "compulsion".  [Hong Kong, China]  
• The concerns of Hong Kong, China could be met by formulating appropriate conditions in 
tender documents.  [US] 
 
  GPA/TN1994/2/Rev.12  
- 175 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Entities shall not invoke paragraph 1 
of this Article:  
 
(a) for the purpose of avoiding 
competition among suppliers ; or 
 
(b) because of a lack of advance planning 
or concerns relating to the amount of funds 
available to an entity within a particular 
period of time.  
[US- Job No. 1051]  
 
 
 
 GPA/TN1994/2/Rev.12  
- 176 - 
  Article XV:2  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall prepare a report in writing on 
each contract awarded under the provisions of 
paragraph  1. Each report shall contain the name 
of the procuring entity, value and kind of goods or 
services procured, country of origin, and a 
statement of the conditions in this Article which 
prevailed . This report shall remain with the 
entities concerned at the disposal of the 
government authorities respons ible for the entity 
in order that it may be used if required under the 
procedures of Articles  XVIII, XIX, XX and XXII.  
 4. Entities shall prepare a report in 
writing on each contract awarded under 
paragraph 1 of this Article . Each such report 
shall include  the name of the procuring 
entity, the value and kind of goods or 
services procured, and a statement 
indicating the circumstances and conditions 
described in paragraph 1 of this Article that 
justified the use of such procedures . 
Entities shall retain each such report for a 
minimum of three years.  
[US – Job No. 1051]  
 
 
General comments  
 
• The issue of limited tendering and how it should be addressed in the Agreement is very 
important since limited tendering, while necessary in some cases, has significant implications 
for market access and, therefore, has significant implications for achieving the objectives of 
the Agreement . While limited tendering is used in a limited way by most entities and in most 
countries, there are some cases and situati ons in which it is used 80 -85% of the time . The 
Agreement should provide flexibility in cases where limited tendering is necessary while at the 
same time ensuring that that flexibility is not be abused.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, pages 4 and 5.  GPA/TN1994/2/Rev.12  
- 177 - 
  ARTICLE XVI:  OFFSETS  
Article XVI:1, 2  
 
Offsets  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in 
the evaluation of tenders and award of contracts, 
impose, seek or consider offsets.7 
 
7Offsets in government procurement are 
measures used to encourage local development 
or improve the balance -of-payments accounts by 
means of domestic content, licensing of 
technology, investment requirements, 
counter -trade or similar requirements.  
 4. Procuring entities shall not consider, 
seek or impose offsets in the qualification 
and selection of suppliers, goods or 
services, in the  evaluation of tenders, or in 
the award of contracts.  
[US – Job No. 2867]  
 Parties shall not impose offsets in respect 
of public procurement contracts . Procuring 
entities shall not seek, take account of or 
impose offsets in the qualification and 
selection of suppliers, gods or services, in 
the evaluation of tenders or in the award of 
contracts.  
[EC – Job No. 4312]  
 
2. Nevertheless, having regard to general 
policy considerations, including those relating to 
development, a developing country may at the 
time of accession negotiate conditions for the use 
of offsets, such as requirements for the 
incorporation of domestic content . Such 
requirements shall be used only for qualification 
to participate in the procurement process and not 
as criteria for a warding contracts . Conditions shall 
be objective, clearly defined and 
non-discriminatory . They shall be set forth in the 
country's Appendix I and may include precise 
limitations on the imposition of offsets in any 
contract subject to this Agreement . The ex istence 
of such conditions shall be notified to the 
Committee and included in the notice of intended 
procurement and other documentation.  
 Definition : 
 
offsets means conditions imposed or 
considered by a procuring entity prior to, or 
in the course of, its procurement process 
that encourages local development or 
improves a Party's balance of payments 
accounts by means of requirements of local 
content, licensing of technology, 
investment, counter -trade or similar 
provisions;  
[US – Job No. 2867]  
 Offsets are conditions used to encourage 
local development or to improve 
balance -of-payments accounts that require 
use of local content, the licensing of 
technology, investment, counter -trade or 
similar actions.  [EC; Job No. 4312]  
 
Comments  
 
• Offsets are one of the main benefits for developing countries and provision for them in the 
Agreement could encourage other developing countries to become a Party . Developing country 
companies are, generally speaking, small to medium -sized enterprises and it is difficult for 
them to compete in international markets . Offsets provides those companies with an 
opportunity to enter into joint -ventures with international companies and to establish business 
contacts that could lead to participation in future projects.  [Israel]  GPA/TN1994/2/Rev.12  
- 178 - 
  • Given that the flexibility to use offsets is aimed at favouring developing countries, it might be 
more appropriate to address this issue in the context of an Article addressing developing 
countries' needs . Perhaps providing flexibility i n the Agreement will suffice.  [Switzerland ; US] 
• Offsets is not necessarily the best way in which to incorporate flexibility into the Agreement 
in favour of developing countries.  [EC] 
• With respect to the definition of "offsets" in the US proposal, several o f the elements contained 
in the proposed definition do not correspond to the main principles of the Agreement . 
Switzerland is, therefore, not in favour of offsets . Further, offsets might not be useful for 
developing countries since they do not contribute t o the long -term, sustainable success of a 
company that may have benefited from an offset in relation to a one -off contract. 
[Switzerland]  
• Offsets are an important tool for developing countries because they may result in working 
partnerships between small l ocal companies and larger companies that may enable the smaller 
companies to gain experience and develop a reputation in the marketplace . They may also 
facilitate technology transfer and capacity -building.  [Israel]  
 
 GPA/TN1994/2/Rev.12  
- 179 - 
  ARTICLE XVII:  TRANSPARENCY  
Article XVI I:1 
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering procedures 
or access to challenge procedures, under which 
tenders will be entertained from suppliers situated 
in countries not Parties to this Agreement but 
which, with a view to creating transparency in 
their own contract awards, nevertheless:  
 1. Each Party shall encourage entities to 
indicate the terms and conditions, including 
any deviations from competitive tendering 
procedures or access to challenge 
procedures, under which tenders will be 
entertained from suppliers situated in 
countries not Parties to this Agre ement but 
which, with a view to creating transparency 
in their own contract awards, nevertheless:  
 
(a) specify their contracts in accordance 
with Article  VI (technical 
specifications);  
 (a) specify their contracts in 
accordance with Article VI 
(technical specifications);  
 
(b) publish the procurement notices 
referred to in Article  IX, including, in 
the version of the notice referred to 
in paragraph  8 of Article  IX 
(summary of the notice of intended 
procurement) which is published in 
an official language of the WTO, an 
indication of the terms and 
conditions under which tenders shall 
be entertained from suppliers 
situated in countries Parties to this 
Agreement;  
 (b) publish the procurement notices 
referred to in Article IX, 
including, in the versio n of the 
notice referred to in paragraph 8 
of Article IX (summary of the 
notice of intended procurement) 
which is published in an official 
language of the WTO, an 
indication of the terms and 
conditions under which tenders 
shall be entertained from 
supplier s situated in countries 
Parties to this Agreement;  
 
(c) are willing to ensure that their 
procurement regulations shall not 
normally change during a 
procurement and, in the event that 
such change proves unavoidable, to 
ensure the availability of a 
satisfactory means of redress.  
 (c) are willing to ensure that their 
procurement regulations shall 
not normally change during a 
procurement and, in the event 
that such change proves 
unavoidable, to ensure the 
availability of a satisfactory 
means of redress . 
 
 GPA/TN1994/2/Rev.12  
- 180 - 
  Article XVII:2  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Governments not Parties to the Agreement 
which comply with the conditions specified in 
paragraphs 1(a) through 1(c), shall be entitled if 
they so inform the Parties to participate in the 
Committee as observers.  
  
 GPA/TN1994/2/Rev.12  
- 181 - 
  ARTICLE XVIII:  INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  
Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each 
contract under Articles  XIII through XV . These 
notices shall contain:  
 1. Entities shall publish a notice in the 
appropriate publication listed in 
Appendix  II not later than 72 days after the 
award of each contract under Articles  XIII 
through XV . These notices shall contain:  
[EC – GPA/W/87 ] 
 
 2. Not later than 90 calendar days after 
the award of a contract covered by this 
Agreement, the procuring entity shall 
publish a notice in the appropriate 
publication designated in Appendix III of 
this Agreement that includes at least the 
following information about the contract:  
[US – Job No. 2867]  
 
 1. Having awarded a contract, entities 
shall:  
 
(a) Publish, for at least 120 days, 
information on contract awards, 
including:  
[Canada – Job No. 3484]  
 
(a) the nature and quantity of products 
or services in the contract award;  
 (a) the nature and quantity of 
products or services in the 
contract award [by referring to 
the relevant CPV code, if 
applicable [Singapore – 
Job No. 5271 ]]; 
[EC – GPA/W/87 ] 
 
 (b) a description of the goods or 
services procured;  
[US – Job No. 2867]  
 
 (iii) a description of the nature 
and quantity of the goods 
or services included in the 
contract;  
[Canada –Job No. 3484]  
 
(b) the name and address of the entity 
awarding the contract;  
 (b) the name and address of the 
entity awarding the contract;  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• It is not clear why 90 calendar days is proposed as a substitute for 72 calendar days in the 
US' proposal . It appears that 72 calendar days are long enough.  [Hong Kong, China]  
• The period of 90 days for publication of contract award information mi ght be too long for 
certain suppliers, for instance for bid challenge purposes.  [Singapore]  GPA/TN1994/2/Rev.12  
- 182 - 
  • Publication of information on contract award for at least 120 days is intended to deal with the 
situation of electronic -based publishing, for instance on an Interne t site. It would be useful to 
have parameters with respect to the minimum time the information should be made accessible 
to suppliers through electronic media . The wording could be changed so as not to give the 
impression that the information should be pub lished each day for 120 days . [Canada]  
• Further clarification of Canada's rationale for its proposal is sought.  [US] 
• The underlying intention is to ensure that information remains available to suppliers for a 
reasonable and sufficient period of time . In the case of electronic publication, information may 
be published for a single day and then may disappear.  [Canada]  
• There is a link between the United States' proposal and the proposal of the European 
Community for using publication of contract award informati on as an alternative to statistical 
reporting . If the proposal by the European Community were to be pursued, the time -periods 
for publication of notices would need to be longer.  [Canada]  
 GPA/TN1994/2/Rev.12  
- 183 - 
  Article XVIII.1  
 
Information and Review as Regards Obligations of E ntities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the name of the procuring 
entity;  
[US – Job No. 2867]  
 
 (iv) the name and contact 
location of the procuring 
entity;  
[Canada – Job No. 3484]  
 
(c) the date of award;  
 (c) the date of award;  
[EC – GPA/W/87 ] 
 
(d) the name and address of winning 
tenderer;  
 (d) the name and address of 
winning tenderer;  
[EC – GPA/W/87 ] 
 
 (c) the name of the winning 
tenderer;  
[US – Job No. 2867]  
 
 (i) the name and address of 
the  winning supplier;  
[Canada – Job No. 3484]  
 
 
 
 GPA/TN1994/2/Rev.12  
- 184 - 
  Article XVIII.1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) the value of the winning award or the 
highest and lowest offer taken into 
account in the award of the contract;  
 (e) the value of the winning award 
or the highest and lowest offer 
taken into account in the award 
of the contract;  
[EC – GPA/W/87 ] 
 
 (d) the value of the winning award 
or the highest and lowest offer 
taken into account in the award 
of the contract ; and 
[US – Job No. 2867]  
 
 (ii) the value and date of the 
contract;  
[Canada – Job No. 3484]  
 
 
Comments  
 
• A question by the European Community ( No. 13) regarding the limitation of the publication of 
information to the value of the winning award only in the United States' proposal and the 
response by the United States are contained in Job No. 5595.  
• There is currently a choice given to the procuring entity to publish either the value of the 
winning award or the highest and the lowest offers made . The US proposal 2(d) to eliminate 
that choice and make compulsory the publication of the value of the winnin g award would 
mean that no information may be provided when entities consider the precise value of the 
contract to be commercially sensitive information . Would this change not lead to a reduction 
in the level of transparency achieved ? [EC] 
• For the purposes  of transparency, the value of all tenders received should be published . There 
are some rare instances, such as defence contracts, that are excluded from the GPA, that do 
contain sensitive information . If open tendering procedures are used, transparency sh ould 
apply throughout the process, until the tender award . If, for whatever reason, open tendering 
procedures are not used, the bid value might be commercially sensitive and should not be 
published - for example, in cases involving confidential information , R&D, or prototypes.  
[Singapore]  
• Article XVIII is applicable to all procedures and not only to open tendering procedures . The 
release of the value of the winning bid may not be problematic in cases of open tendering 
procedures . However, that may not be th e case where selective and limited tendering 
procedures are used.  [EC] 
• The two options currently allowed for have their advantages and disadvantages . If an option 
is to be removed, it is necessary to justify why one option is better than the other.  
[Switze rland]  
• In cases where there are oligopolistic market structures, would it be risky to have an absolute 
transparency rule regarding publication of award values ? [EC] 
• From the procuring entity's point of view, there is no reason why the award value should no t 
be disclosed, especially since taxpayers' money is being used . The issue is only relevant to 
suppliers . However, suppliers' concerns are already accommodated in paragraph 4, which 
states that publication can be withheld upon request where legitimate comm ercial interests 
could be prejudiced.  [Singapore]  GPA/TN1994/2/Rev.12  
- 185 - 
  • Why would some entities consider the total value of a contract to be commercially sensitive 
information ? [US] GPA/TN1994/2/Rev.12  
- 186 - 
  Article XVIII.1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) where appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article  IX or 
justification according to Article  XV 
for the use of such procedure ; and 
 (f) where appropriate, means o f 
identifying the notice issued 
under paragraph 1 of Article IX 
or justification according to 
Article XV for the use of such 
procedure ; and 
[EC – GPA/W/87 ] 
 
 (v) and, where appropriate, 
the justification according 
to Article  XV. 
[Canada – Job No. 3484]  
 
(g) the type of procedure used.  
 (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
 (e) the type of procurement method 
used, and in cases where limited 
tendering procedures are used, 
a description of the 
circumstances justifying the use 
of such procedures.  
[US – Job No. 2867]  
 
 (b) Publish such information in 
officially designated media 
which are readily accessible to 
suppliers and other Parties 
within 72 days of contract 
award . O fficially designated 
media, listed in Appendix II, 
may be electronic or paper.  
[Canada – Job No. 3484]  
 
 
Comment  
 
• With regard to paragraph (e) of the US proposal, reference is made to "procurement method" 
which is not defined in the article containing definitions . Clarification is sought in relation to 
the meaning of "procurement method".  [Japan]  GPA/TN1994/2/Rev.12  
- 187 - 
  Article XVIII:2, 3  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a supplier 
of a Party, promptly provide:  
 Announcement of Post Award Information  
 
1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the contract award decisions 
subject to Article  [XII] of this Agreement, 
procuring entities shall, upon request,  
provide losing bidders with an explanation 
of the reasons for not being selected and 
the relative advantages of the successful 
supplier.  
[US – Job No. 2867]  
 
(a) an explanation of its procurement 
practices and procedures;  
  
(b) pertinent information concerning 
the reasons why the supplier's 
application to qualify was rejected, 
why its existing qualification was 
brought to an end and why it was 
not selected ; and 
  
(c) to an unsuccessful tenderer, 
pertinent information concerning 
the reasons why its tender was not 
selected and on the characteristics 
and relative advantages of the 
tender selected as well as the name 
of the winning tenderer.  
 (c) Provide bidders, upon request, 
with information regarding the 
reasons that they were not 
successful.  
[Canada – Job No. 3484]  
 
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.   
 
 GPA/TN1994/2/Rev.12  
- 188 - 
  Article XVIII:4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. However, entities may decide that certain 
information on the contract award, contained in 
paragraphs  1 and 2(c), be withheld where release 
of such information would impede law 
enforceme nt or otherwise be contrary to the 
public interest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or private, or might prejudice fair 
competition between suppliers.  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall 
prevent Parties or their procuring entities 
from withholding the release of information 
under this Agreement where release might 
(a) impede law enforcement ; (b) prejudice 
fair competition between suppliers ; 
(c) prejudice the legitimate commercial 
interests of particular suppliers or 
procuring entities, including the protection 
of intellectual property ; or (d)  otherwise be 
contrary to the public interest.  
[US – Job No. 2867]  
 
 3. Nothing in this Article shall be 
construed as r equiring any Party and its 
procuring entities to disclose confidential 
information which would impede law 
enforcement or otherwise be contrary to 
the public interest or would prejudice the 
legitimate commercial interest of particular 
enterprises, public or  private, or might 
prejudice fair competition between 
suppliers, without formal authorization 
from the [party] [Party or supplier] 
providing the information.  
[Canada – Job No. 3484]  
 
 
Drafting suggestion  
 
• In order to emphasize the obligation not to disclose other Parties' confidential information, 
suggest adding the following wording at the end of the paragraph in the US' proposal : ", in 
particular such information which is obtained from or supplied by other Parties or their 
procuring entities. " [Hong Kong, China]  
Comments  
 
• It seems that clarification is required on whether by "confidential" information, the information 
is confidential to any one of the bidders or the procuring entity.  [Hong Kong, China]  
• The basic concepts in Articles VII:2, XIV:3, XV III:4, XIX:2 and XIX:4 are the same and do not 
differ in their application to procuring entities or Parties . This appears to provide scope for 
consolidation and simplification, perhaps by stating the concept once in the text and 
incorporating it by referen ce elsewhere.  [US; Canada]  
• Article XII:2 of the US proposal refers to the ability to withhold the release of information . 
Subparagraph (c) refers to that right in cases where it would prejudice legitimate commercial 
interests.  [US] 
 GPA/TN1994/2/Rev.12  
- 189 - 
  ARTICLE XIX:  INFORMATI ON AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  
Article XIX:1  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative ruling 
of general application, and any procedure 
(including standard contract clauses) regarding 
government procurement covered by this 
Agreement, in the appropriate publications listed 
in Appendix IV and in su ch a manner as to enable 
other Parties and suppliers to become acquainted 
with them . Each Party shall be prepared, upon 
request, to explain to any other Party its 
government procurement procedures.  
 Article IV  
Publication of Procurement Measures  
 
Each Party shall promptly publish 
any law, regulation, judicial decision, 
administrative ruling of general application, 
and procedure regarding procurement 
covered by this Agreement in officially 
designated electronic or paper media which 
are widely disseminate d and readily 
accessible to the public . Each Party shall 
promptly publish in the same media all 
additions and changes to such measures.  
[US – Job No. 2867]  
 
 
Comments  
 
• Is further clarification of the phrase "of general application" in paragraph 1 necessar y? 
[US; EC] 
• Rules of general application are rules that are not specific to a particular procurement but 
perhaps apply to only some sectors.  [EC] 
• The term "general application" is contained in a number of WTO agreements in the context of 
provisions that re late to notification, for example in GATT Article X and Article 63 of the TRIPS 
Agreement.  [Secretariat]  
• In response to a clarification sought as to why the US proposal omits any reference to 
Appendix  IV [Japan ; Korea], Appendix IV may not be necessary, provided that laws, 
regulations etc. are published in an appropriate way.  [US] 
• For the benefit of foreign suppliers, it might be better to publicize the name of officially 
designated media in Appendix IV.  [Japan]  
• The US proposal does not contain  a reference to Appendix IV for several reasons . 
Consideration of the administrative burden is necessary . Suppliers interested in competing in 
a market are able to locate the necessary information given that the relevant publications are 
open and publicly available . Therefore, it may not be crucial from the suppliers' point of view 
to have a list of publications in the Agreement . Further, there may be some Parties that have 
a large number of publications listed in Appendix IV, to which frequent changes may need to 
be made . If there are frequent changes that are not notified in a timely manner, lists in 
Appendix IV may ultimately be less transparent than not having the lists at all . It is necessary 
to consider whether it would be efficient in the long -run to adopt this approach.  [US] 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso tha t electronic documents may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
• This change may not be necessary . Further, the clause does not specify the form by which 
entities are required to produce and record information.  [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 190 - 
  • Parties should consider setting up a single "information centre" given that some Parties have 
decentralised procurement systems . Accordingly, it is important to establish an information 
system that provides suppliers with a single point of access.  [Korea ; EC] 
 GPA/TN1994/2/Rev.12  
- 191 - 
  Article XIX:2, 3  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The government of an unsuccessful 
tenderer which is a Party to this Agreement may 
seek, without prejudice to the provisions under 
Article  XXII, such additional information on the 
contract award as may be necessary to ensure 
that the procurement was made fairly and 
impartially . To this end, the procuring 
government shall provide information on  both the 
characteristics and relative advantages of the 
winning tender and the contract price . Normally 
this latter information may be disclosed by the 
government of the unsuccessful tenderer 
provided it exercises this right with discretion . In 
cases wher e release of this information would 
prejudice competition in future tenders, this 
information shall not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
 3. Upon the request of any other Party, a 
Party shall provide such detailed 
information on the award of a contract as 
may be necessary to determine whether the 
procurement was conducted fairly, 
impartially and in accordance with the 
provisions of this Agreeme nt. S uch 
information shall include information on the 
characteristics and relative advantages of 
the winning tender and on the contract 
price.  
[US – Job No. 2867]  
 
2. A Party may seek additional 
information on the award of a contract as 
may be necessary to determine whether the 
procurement was made fairly and 
impartially . To this end, the Party of the 
procuring entity shall provide information 
on the characteristics and relative 
advantages of the winning tender and the 
contract price.  
[Canada – Job No. 3484]  
 
3. Available information concerning 
procurement by covered entities and their 
individual contract awards shall be provided, upon 
request, to any other Party.  
  
 
Comments  
 
• Comments and questions by Hong Kong, China ( No. 8) regarding the above proposal by the 
United States and the responses by the United States are contained in Job No. 5595.  
• A question by Korea ( No. 9) regarding the distinction between GPA Article XIX:2 and 
paragraph  2 of the United States' proposal and th e replies of the United States are contained 
in Job  No. 5595.  
• In relation to the reference in the Canadian proposal to the requirement that procuring entities 
provide information on the contract price, while this could be an option, it should not be a 
rule. [Switzerland ; EC] 
• The contract price is useful information that should be readily available to the public . The mere 
fact that entities did not always want to release that information should not prevent its release.  
[Canada]  
• The Canadian proposal relates to the provision of information from one party to another party, 
which is not necessarily the same as the public release of that information . Such information 
is intended to provide an opportunity for Parties to exchange information in order to verify the 
appropriate implementation of the Agreement.  [US] 
• In those cases where the Party providing the information considers it to be confidential, 
Article  XIX:4 would apply.  [US] GPA/TN1994/2/Rev.12  
- 192 - 
  • In some business areas, the entity but also the winner of the contract may not want the 
contract price to be disclosed.  [Switzerland]  
In relation to the US proposal:  
 
• With respect to proposed paragraph 3, the option not to disclose the contract price has been 
removed, provided the release of information would prejudice competition . In con trast, the 
existing GPA allows flexibility in this respect . It should be considered whether this flexibility 
should be retained.  [Switzerland]  
• The words "detailed information" in paragraph 1 above should be replaced by "available 
information".  [Japan – No. 13, Job No. 5595]  
 
 
 GPA/TN1994/2/Rev.12  
- 193 - 
  Article XIX:4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Confidential information provided to any 
Party which would impede law enforcement or 
otherwise be contrary to the public interest or 
would prejudice the legitimate commercial 
interest of particular enterprises, public or private, 
or might prejudice fair competition between 
suppliers shall not be revealed without formal 
autho rization from the party providing the 
information.  
 Non-Disclosure of Information  
 
1. The Parties and their procuring 
entities shall not disclose confidential or 
proprietary information.  
[US – Job No. 2867]  
 
 
Comments  
 
• The US proposal attempts to consolidate a number of similar provisions that currently exist in 
the GPA that relate to non -disclosure.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, page 6.  GPA/TN1994/2/Rev.12  
- 194 - 
  Article XIX:5  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement . Such 
reports shall contain the following information 
with respect to contracts awarded by all 
procurement entities covered under this 
Agreement:  
 Collection and Report of Statistics  
 
5. Each Party shall collect and report to 
the Committee statistics on contracts 
awarded by entities covered under 
Appendix 1 of this Agreement . Each report 
shall be submitted within two years of the 
end of the reporting period, and shall 
contain:  
 
(a) for entities in Annex  1, statistics on 
the estimated value of contracts 
awarded, both above and below the 
threshold value, on a global basis 
and broken down by entities ; for 
entities in Annexes  2 and 3, 
statistics on the estimated value of 
contracts awarded above the 
threshold value on a global basis 
and broken down by categories of 
entities;  
 (a) For Annex 1 entities, statistics 
on the:  
 
(i) aggregate number and 
value, for all such entities 
collectively, of contracts 
covered by this 
Agreement;  
(ii) number and total value of 
all contracts covered by 
this Agreement awarded 
by such entities, broken 
down by catego ries of 
goods and services 
according to a uniform 
classification system ; and 
(iii) number and total value of 
contracts covered by this 
Agreement awarded by 
each such entity under 
limited tendering 
procedures.  
[US – Job No. 2867]  
 
 
Comments  
 
• In developing the US proposal, an effort was made to determine precisely what statistical 
information available under the GPA is used for, how useful that information is and the 
appropriate amount of information that should be provided.  [US] 
• The EC agrees wit h the idea that some useful statistics are needed under the GPA and that 
the level of complexity associated with the current requirements needs to be reduced.  [EC] 
 GPA/TN1994/2/Rev.12  
- 195 - 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVER NMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) for entities in Annex  1, statistics on 
the number and total value of 
contracts awarded above the 
threshold value, broken down by 
entities and categories of products 
and services according to uniform 
classification systems ; for entities in 
Annexes  2 and 3, statistics on the 
estimated value of contracts 
awarded above the threshold value 
broken down by categories of entities 
and categories of products and 
services;  
 (b) For Annex 2 and 3 entities , 
separately, statistics on the:  
 
(i) aggregate number and value 
of contracts covered by 
this Agreement awarded 
by such entities;  
(ii) estimated total value of 
contracts covered by this 
Agreement awarded by 
such entities, broken 
down by categories of 
entities ; and 
(iii) estimated value of 
contracts covered by this 
Agreement awarded by 
such entities under limited 
tendering procedures, 
broken down by 
categories of entities.  
[US – Job No. 2867]  
 
(c) for entities in Annex  1, statistics, 
broken down by entity and by 
categories of products and services, 
on the number and total value of 
contracts awarded under each of the 
cases of Article  XV; for categories of 
entities in Annexes  2 and 3, statistics 
on the total value of contracts 
awarded above the threshold value 
under each of the cases of Article  XV; 
and 
  GPA/TN1994/2/Rev.12  
- 196 - 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) for entities in Annex  1, statistics, 
broken down by entities, on the 
number and total value of contracts 
awarded under derogations to the 
Agreement contained in the relevant 
Annexes ; for categories of entities in 
Annexes  2 and 3, statistics on the 
total value of contracts awarded 
under derogations to the Agreement 
contained in the relevant Annexes.  
  
To the extent that such information is available, 
each Party shall provide statistics on the country 
of origin of products and services purchased by its 
entities . With a view to ensuring that such 
statistics are comparable, the Committee shall 
provide guidance on methods to be used . With a 
view to ensuring effective monitoring of 
procurement covered by this Agreement, the 
Committee may decide unanimously to modify the 
requirements  of subparagraphs (a) through (d) as 
regards the nature and the extent of statistical 
information to be provided and the breakdowns 
and classifications to be used.  
  
 
Comments  
 
• Comments made by delegations in 1999 and 2000 and the latest revision of a note by the 
Chair presenting a draft revision of the text of Article XIX:5 were circulated in Job No. 5674 
in 1999 . Moreover, a note by the Secretariat reflecting the divergences of  views among Parties 
in respect of the main elements of the Chairman's draft text has been circulated in 
January  2001 (Job  No. 244). Comments of a more general nature are set out below.  
• The basic question in relation to statistical reporting requirements i s the overall balance in 
terms of the benefits and costs of providing those statistics.  [US; EC] Even if not perfect, 
statistics should be collected in order to enable an assessment of the volume of public 
procurement . Statistical reports allow implementat ion of the Agreement to be monitored and 
to confirm that certain expectations are being met.  [US; Switzerland ] The statistics may also 
be useful for future negotiations.  [US] Significant costs are involved both for the system and 
the entities . It is diffic ult to generate some of the information required and there is a trade -off 
between the quality of the statistical information to be provided and the possibility of achieving 
it in a reasonable period of time . To what extent is it realistic and useful to ask  for detailed 
information in view of the cost and complications involved ? [EC] 
• In the OECD context, efforts have been made to collect statistics on total procurement by 
OECD Members and non -Members based on national account statistics.  [EC; US] 
• In consider ing the addition of new elements or statistical reporting obligations, it is necessary 
to bear in mind that a number of Member countries failed to comply with their statistical 
reporting requirements.  [Japan]  
• The use to be made of statistics should guide d ecisions regarding the extent of details that 
statistical reporting requirements should contain . For example, the statistics in relation to 
limited tendering has been useful in showing the number of procurement contracts that have 
been awarded to one compa ny without open tendering.  [Switzerland]  GPA/TN1994/2/Rev.12  
- 197 - 
  • It is necessary to consider what statistics are currently available and whether those numbers 
could influence policy -making in ensuring that behaviour becomes more competitive.  
[Switzerland]  
• Once the entities put IT  systems in place, annual statistics could be provided in a more timely 
manner.  [Switzerland]  
• In future, statistics could be provided on a real -time basis by all Parties, which would make 
them more useful.  [US] 
 GPA/TN1994/2/Rev.12  
- 198 - 
  ARTICLE XX:  CHALLENGE PROCEDURES  
Article XX:1  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Consultations  
 Consultations  
1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement in 
the context of a procurement, each Party shall 
encourage the supplier to seek resolution of its 
complaint in consultation with the procuring 
entity . In such instances the procuring entity shall 
accord impartial and timely consideration to any 
such complaint, in a manner th at is not prejudicial 
to obtaining corrective measures under the 
challenge system.  
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement, each Party shall encourage its 
relevant procuring entity and such supplier 
to seek resolution of the complaint through 
consultations . Procuring entities shall 
accord impartial and timely consideration 
to any such complaint in a manner that is 
not prejudicial to suppliers' participation in 
ongoing or future procurement activities or 
to suppliers' rights to seek corrective 
measures under the challenge system.  
[US – Job No. 2867]  
 
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement in the context of a procurement, 
each Party shall encourage the supplier to 
seek solution of its complaint in 
consultation with the procuring entity . In 
such instances the procuring entity shall 
accord impartial and timely consideration 
to any such complaint, in a manner that is 
not prejudicial to obtaini ng corrective 
measures under the challenge system . Such 
encouragement may take place in particular 
through the designation of one or more 
bodies which can offer their good advice in 
trying to solve the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With respect to the US proposal:  
 
• With respect to paragraph 1, is the reference to prejudicial behaviour appropriate given the 
sensitivity of this issue ? [Switzerland]  
Drafting suggestion  
 
• Suggest amending the first sentence of the US proposal as follows : "In the event of  a 
complaint by a supplier who has an interest in a procurement that there has been a breach of 
this Agreement, arising in the context of a procurement in which the supplier has, or has had, 
an interest, each Party shall encourage … . " [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 199 - 
  With respect to the EC proposal:  
 
• The last sentence in this paragraph should be clarified . The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC's proposed amendment and the 
challenge bodies referred to in para graph 6 of the existing agreement should be clarified.  
[Japan ; Hong Kong, China]  
• It is not intended that the proposed amendment would have the result of imposing a new 
authority on procuring entities . Rather, the intent was to have a central point to addre ss any 
problems in an unbureaucratic fashion, informally and rapidly . It would be left to Parties to 
decide how to organize these bodies.  [EC] 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
• Rather than create a completely new bod y, the relevant aspects of the approach proposed by 
the EC could be incorporated into the existing procedures.  [Singapore]  
• The proposal is not intended to make it compulsory for Members to create new bodies . Rather, 
the intention is to designate bodies tha t may already be in place . This proposal was made in 
recognition of the fact that resort to a court is not an ideal solution for government 
procurement disputes.  [EC] Settling of government procurement disputes outside legal judicial 
systems will afford in creased flexibility in dispute settlement procedures.  
• With respect to the concept that access to consultations should not be prejudicial to rights 
under the bid challenge system, it is unclear whether it is necessary to establish another 
consultative proce dure akin to mediation if the bid challenge system worked the way it should.  
[US] 
• It is unclear whether there is a need for an independent body as provided for in the EC 
proposal . Parties should have flexibility to establish the most appropriate review bod ies for 
their particular procurement system as is currently the case under the GPA.  [Canada]  
 
 GPA/TN1994/2/Rev.12  
- 200 - 
  Article XX:2  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  
 Challenge  
2. Each Party shall provide 
non-discriminatory, timely, transparent and 
effective procedures enabling suppliers to 
challenge alleged breaches of the Agreement 
arising in the context of procurements in which 
they have, or have had, an interest.  
 3. Each Party shall provide tim ely, 
effective, transparent, predictable and 
non-discriminatory means for suppliers to 
challenge alleged breaches of this 
Agreement, without a prejudice to 
suppliers' participation in ongoing or future 
procurement activities . A ll challenge 
procedures shall  be in writing and made 
generally available.  
[US – Job No. 2867]  
 
 
Comment  
 
• Article XX:2 of the GPA provides that a challenge procedure should be made available to 
suppliers to challenge alleged breaches of the GPA arising in the context of procurements i n 
which they have or have had an interest . One main difference between the US text and the 
GPA is that any supplier, instead of a supplier having an interest in a procurement, can bring 
a case to bid challenge . It is suggested that "breaches of this Agreem ent" should be inserted 
in this proposal . Similar wording should be inserted in draft Article XIII:1 : "arising in the 
context of procurements in which the suppliers have, or have had, an interest. " [Hong Kong, 
China]  
• With respect to paragraph 3 of the US proposal, what is the meaning, rationale and intent of 
the word "predictable " Does it refer to the outcome or process ? [Canada ; Switzerland]  
• The word "predictable" refers to procedures and not results . The word is chosen to address 
situations where there a re bid challenge procedures that may be considered to be transparent, 
timely and effective, but may not be implemented in a predictable way because of changes in 
certain elements . Parties should be able to anticipate how to proceed.  [US] 
 GPA/TN1994/2/Rev.12  
- 201 - 
  Article XX:3, 4,  5 
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Each Party shall provide its challenge 
procedures in writing and make them generally 
available.  
  
4. Each Party shall ensure that documentation 
relating to all aspects of the process concerning 
procurements covered by this Agreement shall be 
retained for three years.  
  
 2. Parties shall ensure that their 
procuring entities maintain records of 
tendering procedures relating to contract 
awards covered by this Agreement . 
Procuring entities shall maintain such 
records for a period of at least three years.  
[US – Job No. 2867]  
 
5. The interested supplier may be required to 
initiate a challenge procedure and notify the 
procuring entity within specif ied time -limits from 
the time when the basis of the complaint is known 
or reasonably should have been known, but in no 
case within a period of less than 10 days.  
 6. 
(a) suppliers shall be allowed a 
sufficient period of time to 
prepare and submit challenges, 
which in no case shall be less 
than 10 days from the time 
when the basis of the complaint 
became known or reasonably 
should have become known to 
the supplier;  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.12  
- 202 - 
  Article XX:6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
(b) the proceedings shall be 
conducted in a transparent 
manner, consistent with 
predictable, written procedures 
that are readily available to all 
participants in advance;  
[US – Job No. 2867]  
 
 
Comment  
 
• Paragraph 6(b) does not prescribe how the bid challenge should proceed if the review body is 
not a court subject to judicial review . For example, some important elements such as open 
hearing and legal representation are not prescribed . The origina l GPA text is preferred.  
[Hong  Kong, China]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authorities  
 
 2. Each Party shall establish or 
designate at least one impartial authority, 
which is independent from its procuring 
entities, to receive and review supplier 
challenges relating to the provisions of this 
Agreement and make appropriate findings 
and recommendations . Such authorities 
shall be authorized, pending the resolution 
of a challenge, to take prompt interim 
measures to preserve the opportunity to 
correct potential breaches of this 
Agreement, including the suspension of the 
award of a contract or the performance of a 
contract already awarded.  
[US – Job No. 2867]  
 
Drafting suggestion  
 
• The word "authorized" in the last sentence seems to suggest that the "impartial authority" 
shall be given the power to order prompt rapid interim measure . It is suggested that the last 
sentence be amended as follows : "Such authorities shall rec ommend the procuring entity, 
pending the resolution of a challenge, to impose prompt interim measures to preserve the 
opportunity to correct potential breaches of this Agreement, including the suspension of the 
award of a contract or the performance of a c ontract already awarded . However, the 
authorities shall take into account the overriding adverse consequences for the interests 
concerned, including the public interest, in deciding whether such measures should be 
applied ." Without prejudice to the above, in relation to the same sentence of the US draft text, 
it is better to use "impose prompt interim measures" than "take prompt interim measures".  
[Hong Kong, China]  
  GPA/TN1994/2/Rev.12  
- 203 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Challenges shall be heard by a court or by 
an impartial and independent review body with no 
interest in the outcome of the procurement and 
the members of which are secure from external 
influence during the term of appointment . A 
review body which is not a court shall either be 
subject to judicial review or shall have procedures 
which provide that:  
 4. In the event that a challenge is 
initially reviewed by a body other than an 
authority established or designated under 
paragraph (2) of this Article, each Part y 
shall ensure that suppliers may appeal the 
initial decision to an impartial 
administrative or judicial authority which is 
separate and independent from the 
procuring entity that is the subject of the 
challenge.  
[US – Job No. 2867]  
 
(a) participants can be heard before an 
opinion is given or a decision is 
reached;  
  
(b) participants can be represented and 
accompanied;  
  
(c) participants shall have access to all 
proceedings;  
  
 
Comments  
 
In relation to paragraph 4 of the US proposal:  
 
• Is the "impartial administrative or judicial authority" the same authority that is referred to in 
paragraph 2 of the US proposal ? [Japan]  
• Paragraph 4 of the US proposal refers to the possibility that a challenge may be initially 
reviewed by a "b ody". What kind of body is anticipated by this provision ? The current text in 
Article  XXVI refers to three different types of review bodies.  [Japan]  
• Paragraph 4 of the US proposal provides that a supplier may appeal the initial decision to an 
impartial adm inistrative or judicial authority . Is it possible for a supplier to appeal the initial 
decision to the authority designated under Article XIII:2 ? [Hong Kong, China]  
• The body referred to in paragraph 4 may be, for example, a body within the procuring entity  
to whom a complaint be made . That body may not necessarily constitute an impartial and 
independent review body . Paragraph 2 refers to "at least one" impartial authority, indicating 
that each government/Party must have at least one such body to whom suppli ers will have 
access.  [US] 
• In the case of the impartial authority in paragraph 2, there is a provision for prompt interim 
measures . However, it appears that interim measures are not available for the other type of 
review mechanism provided for under paragr aph 4 . The existing GPA allows for interim 
measures for any kind of review mechanism.  [EC] 
• The ability to order prompt interim measures should be available for any review procedure 
that is relied upon.  [US] 
• In response to a question on the deletion of the second sentence of the existing paragraph  6, 
the existing paragraph 6 currently refers to authorities that are not judicial authorities . The 
US proposal lists procedures that would apply to any authority, administrative or judicial.  [US 
in response to Cana da] GPA/TN1994/2/Rev.12  
- 204 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
(d) a supplier that initiates a 
complaint shall be provided an 
opportunity to respond to the 
procuring entities' report prior 
to a decision being taken on the 
complaint;  
[US – Job No. 2867]  
 
 
 5. Each Party shall ensure that any 
confidential or proprietary information that 
is submitted in the course of a challenge 
proceeding is protected in accordance with 
paragraph 1 of Article XII of this 
Agreement.  
[US – Job No. 2867]  
 
 
Comment  
 
• With respect to paragraph 6(d) of the US proposal, it may be appropriate to add "of the review 
body" after "decisions" in order to make the scope of the obligation clear.  [Canada]  GPA/TN1994/2/Rev.12  
- 205 - 
  Article XX  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Review Procedures  
 
 6. Each Party shall ensure that review 
procedures are conducted in accordance 
with the following:  
 
 (c) procuring entities shall respond 
in writing to the complaint and 
disclose all relevant documents 
to the review body;  
[US – Job No. 2867]  
 
Comments  
 
• What is the relationship between this subparagraph (c) and Article XII:2 ? Does the latter 
prevail so that a procuring entity is entitled to withhold the release of sensitive information to 
the review body in a bid challenge ? [Hong Kong, China]  
• In paragraph 6 of the US proposal, the existing provisions that apply only to non -judicial 
bodies have been simplified so that that they can apply to all review bodies, both 
administrative and judicial . The US proposal provides additional flexibility to apply to all types 
of review procedures, eliminating the need for the some of the distinctions that currently exist 
in Article  XX. [US] 
 GPA/TN1994/2/Rev.12  
- 206 - 
  Article XX:7  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) proceedings can take place in 
public;  
  
(e) opinions or decisions are given in 
writing with a statement describing 
the basis for the opinions or 
decisions;  
  
 6. 
(e) decisions relating to supplier 
challenges shall be provided in a 
timely fashion, in writing, with 
an explanation of the basis for 
each decision;  
[US – Job No. 2867]  
 
(f) witnesses can be presented;  
  
(g) documents are disclosed to the 
review body.  
  
7. Challenge procedures shall provide for:  
  
(a) rapid interim measures to correct  
breaches of the Agreement and to 
preserve commercial opportunities . 
Such action may result in suspension 
of the procurement process . 
However, procedures may provide 
that overriding adverse 
consequences for the interests 
concerned, including the public 
interest, may be taken into account 
in deciding whether such measures 
should be applied . In such 
circumstances, just cause for not 
acting shall be provided in writing;  
  
(b) an assessment and a possibility for a 
decision on the justification of the 
challenge;  
  
(c) correction of the breach of the 
Agreement or compensation for the 
loss or damages suffered, which may 
be limited to costs for tender 
preparation or protest.   
 GPA/TN1994/2/Rev.12  
- 207 - 
  Comments  
 
• Paragraph 2 of the US proposal adopts the discipline contained in Article XX:7(a) and expands 
on it. It introduces a provision allowing for rapid or prompt interim measures to suspend a 
procurement process that is underway prior to the award of a contract but also to suspend 
work on a contract that has been awarded, which is an addition to the existing provision . The 
addition is necessary to take account of problems that come to light late in the procurement 
process so that a supplie r may have the opportunity to raise or express a complaint to the 
procuring entity before the entity awards the contract . In such cases, there should be an 
opportunity for a review body to temporarily suspend work or further action under the contract 
until the case is heard.  [US] 
• Why has the clause on public interest in the existing Article XX:7(a) been deleted from the US 
proposal ? There are circumstances where it would be important and in the public interest for 
the government to proceed with an acquisiti on. [Canada]  
• Circumstances in which there may be overriding circumstances would be unusual and rare . 
The use of general exceptions under Article XXIII might be sufficient to protect the public 
interests in this respect.  [US] GPA/TN1994/2/Rev.12  
- 208 - 
  Article XX:8  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the 
challenge procedure shall normally be completed 
in a timely fashion.   
 9. The Parties undertake to designate or 
establish an independent body with a view 
to solve informally problems encountered 
in gaining access to contracts.  
[EC - GPA/W/87 ] 
 
Comments  
 
• Clarification is required in relation to what is meant by the new paragraph 9 . [Japan ; 
Hong Kong, China]  
• An illustrative example of an independent body dealing with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
 GPA/TN1994/2/Rev.12  
- 209 - 
  ARTICLE XXI:  INSTITUTIONS  
Article XXI:1, 2  
 
Institutions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established . This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary but not less than once a 
year for the purpose of affording Parties the 
opportunity to consult on any matters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to carry out 
such other responsibilities as may be assigned to 
it by the Parties.  
 Committee on Government Procurement  
 
1. A Committee on Government 
Procurement composed of representatives 
from each of the Parties shall be 
established . This Committee shall elect its 
own Chairman and Vice -Chairman and shall 
meet as necessary, but not less than once a 
year, for the purpose o f affording Parties 
the opportunity to consult on any matters 
relating to the operation of this Agreement 
or the furtherance of its objectives, and to 
carry out such other responsibilities as may 
be assigned to it by the Parties.  
 
2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
 2. The Committee may establish working 
parties or other subsidiary bodies which 
shall carry out such functions as may be 
given to them by the Committee.  
 
 Observers  
 
3. WTO Members and other 
governments who are not Parties to this 
Agreement shall be entitled to participate in 
the Committee as observers upon 
submitting a written notice to  the 
Secretariat.  
[US – Job No. 2867]  
 
 
Comment  
 
• Under the present system, does a government need the prior endorsement of the Committee 
before it can become an obser ver? Under the present draft, no prior approval is required and 
a written notice from a government will suffice.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 210 - 
  ARTICLE XXII: CONSULTATIONS AND DISPUTE SETTLEMENT  
Article XXII:1, 2  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter referred to as the "Dispute 
Settlement Understandin g") shall be applicable 
except as otherwise specifically provided below.  
 1. The provisions of the Understanding 
on Rules and Procedures Governing the 
Settlement of Disputes under the WTO 
Agreement (hereinafter referred to as the 
"Dispute Settlemen t Unders tanding") shall 
be applicable, except as otherwise provided 
below.  
 
2. If any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any objective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of th is Agreement, it may with a view 
to reaching a mutually satisfactory resolution of 
the matter, make written representations or 
proposals to the other Party or Parties which it 
considers to be concerned . Such action shall be 
promptly notified to the Dispute  Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred to as 
"DSB"), as specified below . Any Party thus 
approached shall give sympathetic consideration 
to the representations or proposals made to it.  
 2. Where any Par ty considers that any 
benefit accruing to it, directly or indirectly, 
under this Agreement is being nullified or 
impaired, or that the attainment of any 
objective of this Agreement is being 
impeded as the result of the failure of 
another Party or Parties t o carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of 
any measure, whether or not it conflicts 
with the provisions of this Agreement, it 
may with a view to reaching a mutually 
satisfactory resolution of the mat ter, make 
written representations or proposals to the 
other Party or Parties which it considers to 
be concerned . Such action shall be promptly 
notified to the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter refer red to as 
"DSB"), as specified below . Any Party thus 
approached shall give sympathetic 
consideration to the representations or 
proposals made to it.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 211 - 
  Article XXII:3, 4, 5  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB  shall have the authority to 
establish panels, adopt panel and Appellate Body 
reports, make recommendations or give rulings 
on the matter, maintain surveillance of 
implementation of rulings and 
recommendations, and authorize suspension of 
concessions and o ther obligations under this 
Agreement or consultations regarding remedies 
when withdrawal of measures found to be in 
contravention of the Agreement is not possible, 
provided that only Members of the WTO Party to 
this Agreement shall participate in decision s or 
actions taken by the DSB with respect to 
disputes under this Agreement.  
 3. Only Members of the WTO party to 
this Agreement shall participate in 
decisions or actions taken by the DSB with 
respect to disputes under this Agreement.  
 
4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of 
the panel:  
 4. Panels shall have the following terms 
of reference unless the parties to the 
dispute agree otherwise within 20 days of 
the establishment of the panel:  
 
"To examine, in the light of the 
relevant provisions of this 
Agreement and of (name of any 
other covered Agreement cited by 
the parties to the dispute), the 
matter referred to the DSB by 
(name of party) in docum ent ... and 
to make such findings as will assist 
the DSB in making the 
recommendations or in giving the 
rulings provided for in this 
Agreement."  
 "To examine, in the light of the 
relevant provisions of this 
Agreement and of (name of any 
other covered Agreement cited 
by the parties to the dispute), 
the matter referred to the DSB 
by (name of party) in document 
... and to make such findings as 
will ass ist the DSB in making the 
recommendations or in giving 
the rulings provided for in this 
Agreement."  
 
In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix  1 of the Dispute 
Settlement Und erstanding are invoked by one of 
the parties to the dispute, paragraph 3 shall 
apply only to those parts of the panel report 
concerning the interpretation and application of 
this Agreement.  
 In the case of a dispute in which provisions 
both of this Agreeme nt and of one or more 
other Agreements listed in Appendix 1 of 
the Dispute Settlement Understanding are 
invoked by one of the parties to the dispute, 
paragraph 3 of this Article shall apply only 
to those parts of the panel report 
concerning the interpretat ion and 
application of this Agreement.  
 
5. Panels established by the DSB  to examine 
disputes under this Agreement shall include 
persons qualified in the area of government 
procurement.  
 5. Panels established by the DSB to 
examine disputes under this Agreement 
shall include persons qualified in the area of 
government procuremen t. 
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 212 - 
  Comments  
 
• The phrase "consultations regarding remedies when withdrawal of measures found to be in 
contravention of the Agreement is not possible", which appears in Article XXII:3 of the GPA is 
not present in the DSU or the US draft text . This may possibly be an addi tional power given 
to the DSB . It is therefore worth reinstating this power in the US draft text.  [Hong Kong, 
China]  
• Clarification is sought as to why paragraph 3 of the US omits some of the wording contained 
in the equivalent paragraph of the existing tex t. [EC] 
• The language that has been excluded is contained in the WTO Dispute Settlement 
Understanding . The relevant provisions of the DSU have already been incorporated by 
reference into the dispute settlement procedures for the GPA . Therefore, it is unnece ssary to 
restate them in the GPA.  [US] GPA/TN1994/2/Rev.12  
- 213 - 
  Article XXII:6, 7  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible . 
Notwithstanding the provisions of paragraphs 8 
and 9 of Article 12 of the Dispute Settlement 
Understanding, the panel shall attempt to 
provide its final report to the parties to the 
dispute not later than four months, and in case 
of delay not lat er than seven months, after the 
date on which the composition and terms of 
reference of the panel are agreed . Consequently, 
every effort shall be made to reduce also the 
periods foreseen in paragraph 1 of Article 20 and 
paragraph 4 of Article  21 of the Dis pute 
Settlement Understanding by two months . 
Moreover, notwithstanding the provisions of 
paragraph  5 of Article 21 of the Dispute 
Settlement Understanding, the panel shall 
attempt to issue its decision, in case of a 
disagreement as to the existence or cons istency 
with a covered Agreement of measures taken to 
comply with the recommendations and rulings, 
within 60 days.  
 6. Every effort shall be made to 
accelerate the proceedings to the greatest 
extent possible . T herefore, 
notwithstanding the provisions of 
paragraphs 8 and 9 of Article 12 of the 
Dispute Settlement Understanding, the 
panel shall attempt to provide its final 
report to the parties to the dispute not later 
than four months, and in case of delay not 
later than seven months, after the date on 
which the composition and terms of 
reference of the panel are agreed . 
Consequently, every effort shall be made to 
reduce also the periods foreseen in 
Article  20 and paragraph 4 of Article  21 of 
the Dispute Settlement Understanding by 
two months . Moreover, notwit hstanding 
the provisions of paragraph 5 of Article 21 
of the Dispute Settlement Understanding, 
the panel shall attempt to issue its decision, 
in case of a disagreement as to the 
existence or consistency with a covered 
Agreement of measures taken to comply 
with the recommendations and rulings, 
within 60  days.  
 
7. Notwithstanding paragraph  2 of Article 22 
of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in 
Appendix  1 to the Dispute Settlement 
Understanding other than th is Agreement shall 
not result in the suspension of concessions or 
other obligations under this Agreement, and any 
dispute arising under this Agreement shall not 
result in the suspension of concessions or other 
obligations under any other Agreement listed i n 
the said Appendix  1. 
 7. Notwithstanding paragraph 2 of 
Article 22 of the Dispute Settlement 
Understanding, any dispute arising under 
any Agreement listed in Appendix 1 to the 
Dispute Settlement Understanding other 
than this Agreement shall not result in  the 
suspension of concessions or other 
obligations under this Agreement, and any 
dispute arising under this Agreement shall 
not result in the suspension of concessions 
or other obligations under any other 
Agreement listed in the said Appendix 1.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 214 - 
  ARTICLE  XXIII:  EXCEPTIONS TO THE AGREEMENT  
Article  XXIII:1, 2  
 
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be 
construed to prevent any Party from taking any 
action or not disclosing any information which 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.  
  
 
Comments  
 
• The US is reviewing its position on this Article. [US] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such 
measures are not applied in a manner which 
would constitute a means of arbitrary or 
unjustifiable discrimination between countries 
where the same conditions prevail or a disguised 
restriction on international trade, nothing in this 
Agreement shall be construed to prevent any 
Party from imposi ng or enforcing measures : 
necessary to protect public morals, order or 
safety, human, animal or plant life or health or 
intellectual property ; or relating to the products 
or services of handicapped persons, of 
philanthropic institutions or of prison labour . 
  
 GPA/TN1994/2/Rev.12  
- 215 - 
  ARTICLE XXIV:  FINAL PROVISIONS  
Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
 Entry into Force of Amended Agreement  
 
 This Agreement shall enter into force on 
1 January  1996 for those governments8 whose 
agreed coverage is contained in Annexes 1 
through 5 of Appendix I of this Agreement and 
which have, by signature, accepted the 
Agreement on 1 5 April 1994 or have, by that 
date, signed the Agreement subject to 
ratification and subsequently ratified the 
Agreement before 1 January  1996. 
 1. This Agreement supersedes the 
Government Procurement Agreement, 
which entered into force on 
1 January  1996, and enters into force on 
[date ]. 
 
8 For the purpose of this Agreement, the term 
"government" is deemed to include the competent 
authorities of the European Communities.  
 (a). This Agreement shall enter forc e on 
[______ ] for those states or customs 
territories possessing full autonomy in the 
matters provided for in this Agreement 
which have, by signature, accepted this 
Agreement on, [_______] or have, by or on 
that date, signed the Agreement subject to 
ratification and ha ve subsequently ratified 
the Agreement before [_________ ].  
 
 (b) This Agreement supersedes the 
Government Procurement Agreement dated 
15 April  1994. 
[EC; Job No. 4312]  
 
Comments  
 
• It is objectionable to simply provide that the present GPA is to be superseded by the new 
agreement . It is because according to GPA Article XXIV:9, amendments shall not enter into 
force for any Party until it has been accepted by such Party . Therefore, it is possible that 
amendments will be accepted by Party A but not by Party B.  As such, if the original GPA is 
superseded by the new agreement in respect of Party A, there will not be a GPA to apply 
between Party A and Party B.  What can be provided is that as between two Parties which are 
Parties to both the original GPA and the new GPA, either the new agreement will prevail or 
the old one will be superseded.  [Hong Kong, China]  
• It may be premature to consider this question.  [US] 
  GPA/TN1994/2/Rev.12  
- 216 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Accession  
 Accession  
 
 Any government which is a Member of the 
WTO, or prior to the date of entry into force of 
the WTO Agreement which is a contracting party 
to GATT  1947, and which is not a Party to this 
Agreement may accede to this Agreement on 
terms to be agreed  between that government 
and the Parties . Accession shall take place by 
deposit with the Director -General of the WTO of 
an instrument of accession which states the 
terms so agreed . The Agreement shall enter into 
force for an acceding government on the 30th day 
following the date of its accession to the 
Agreement.  
 2. Any government which is a Member of 
the WTO and which is not a Party to this 
Agreement may accede to this Agreement 
on terms to be agreed between that 
government and the Parties . Accession 
shall take place by deposit with the 
Director -General of the WTO of an 
instrument of accession which states the 
terms so agreed . The Agreement shall enter 
into force for an acceding government on 
the 30th day following the date of its 
accession to  the Agreement.  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.12  
- 217 - 
  Article  XXIV:3  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
(a) Hong Kong and Korea may delay 
application of the provisions of this 
Agreement, except Articles  XXI 
and XXII, to a date not later than 
1 January  1997. T he 
commencement date of their 
application of the provisions, if prior 
to 1 January  1997, shall be notified 
to the Director -General of the 
WTO 30 days in advance.  
  
(b) During the period between the date 
of entry into force of this Agreement 
and the date of its application by 
Hong Kong, the rights and 
obligations between Hong Kong and 
all other Parties to this Agreement 
which were on 15  April 1994 Parties 
to the Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed by 
the substantive9 provisions of the 
1988 Agreement, including its 
Annexes as modified or rectified, 
which provisions are incorpo rated 
herein by reference for that purpose 
and shall remain in force until 
31 December  1996.  
 
9 All provisions of the 1988 Agreement except the 
Preamble, Article  VII and Article  IX other than 
paragraphs 5(a) and (b) and paragraph 10.  
  
(c) Between Parties to this Agreement 
which are also Parties to the 1988 
Agreement, the rights and 
obligations of this Agreement shall 
supersede those under the 1988 
Agreement.  
  
 GPA/TN1994/2/Rev.12  
- 218 - 
  Article  XXIV:4, 5  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) Article  XXII shall not enter into force 
until the date of entry into force of 
the WTO Agreement . Until such 
time, the provisions of Article  VII of 
the 1988 Agreement shall apply to 
consultations and dispute 
settlement under thi s Agreement, 
which provisions are hereby 
incorporated in the Agreement by 
reference for that purpose . These 
provisions shall be applied under the 
auspices of the Committee under 
this Agreement.  
  
(e) Prior to the date of entry into force 
of the WTO Agreement, references 
to WTO bodies shall be construed as 
referring to the corresponding GATT 
body and references to the 
Director -General of the WTO and to 
the WTO Secretariat shall be 
construed as references to, 
respectively, the Director -General 
to the C ONTRACTING PARTIES to 
GATT 1947 and to the GATT 
Secretariat.  
  
4. Reservations  
 Reservations  
 
 Reservations may not be entered in respect 
of any of the provisions of this Agreement.  
 4. Parties may not take reservations in 
respect of any of the provisions of this 
Agreement.  
 
5. National  Legislation  
 National Legislation  
 
(a) Each government accepting or 
acceding to this Agreement shall 
ensure, not later than the date of 
entry into force of this Agreement for 
it, the conformity of its laws, 
regulations and administrative 
procedures, and the rules, 
procedures and practices appli ed by 
the entities contained in its lists 
annexed hereto, with the provisions 
of this Agreement.  
 5. Each government accepting or 
acceding to this Agreement shall ensure, 
not later than the date of entry into force of 
this Agreement for it, the conformity of its 
laws, regulations and administrative 
procedures, and the rules, procedures and 
practices applied by the entities contained 
in its lists annexed hereto, with the 
provisions of this Agreement.  
[US – Job No. 2867]  
 
 
Drafting suggestion  
 
• Please conside r using "make reservations" or "enter into reservations" instead of "take 
reservations".  [Hong Kong, China]  GPA/TN1994/2/Rev.12  
- 219 - 
  Article  XXIV:6  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Each Party shall inform 
the Committee of any changes in 
its laws and regulations relevant 
to this Agreement and in the 
administration of such laws and 
regulations.  
 6. Each Party shall inform the Committee 
of any changes in its laws and regulations 
relevant to this Agreement and in t he 
administration of such laws and 
regulations.  
[US – Job No. 2867]  
6. Rectifications or Modifications  
 Rectifications or Modifications  
 
(a) Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other 
modifications relating 
to Appendices  I through IV shall be 
notified to the Committee, along with 
information as to the likely 
consequences of the change for the 
mutually agreed coverage provided 
in this Agreement . If the 
rectifications, transfers or other 
modifications are of a purely formal 
or minor nature, they shall become 
effective provided there is no 
objection within 30 days . In other 
cases, the Chairman of the 
Committee shall promptly convene a 
meeting of the Committee . The 
Committee shall consider t he 
proposal and any claim for 
compensatory adjustments, with a 
view to maintaining a balance of 
rights and obligations and a 
comparable level of mutually agreed 
coverage provided in this Agreement 
prior to such notification . In the 
event of agreement not b eing 
reached, the matter may be pursued 
in accordance with the provisions 
contained in Article  XXII. 
 7. Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other modifications 
relating to Appendices I through IV shal l be 
notified to the Committee, along with 
information as to the likely consequences of 
the change for the mutually agreed 
coverage provided in this Agreement . If the 
rectifications, transfers or other 
modifications are of a purely formal or 
minor nature, they shall become effective 
provided there is no objection within 30 
days . In other cases, the Chairman of the 
Committee shall promptly convene a 
meeting of the Committee . The Committee 
shall consider the proposal and any claim 
for compensatory adjustments , with a view 
to maintaining a balance of rights and 
obligations and a comparable level of 
mutually agreed coverage provided in this 
Agreement prior to such notification . In the 
event of agreement not being reached, the 
matter may be pursued in accordance with 
the provisions contained in Article XV of 
this Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.12  
- 220 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence over 
it has been effectively eliminated, 
that Party shall notify the 
Committee . Such modification shall 
become effective the day after the 
end of the following meeting o f the 
Committee, provided that the 
meeting is no sooner than 30 days 
from the date of notification and no 
objection has been made . In the 
event of an objection, the matter 
may be pursued in accordance with 
the procedures on consultations and 
dispute settle ment contained in 
Article  XXII. In considering the 
proposed modification to Appendix I 
and any consequential compensatory 
adjustment, allowance shall be made 
for the market -opening effects of the 
removal of government control or 
influence.  
 Where a Party w ishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee . Such modification 
shall become effective the day aft er the end 
of the following meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made . In the event of an 
objection, the matter may be pursued in 
accordance with the procedure s on 
consultations and dispute settlement 
contained in Article XXII.  
[Japan – Job No. 860]  
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, subparagraph  6(b) 
would need to be modified.  [Japan ] 
• The present provisions are a carefully balanced outcome of the negotiations between Parties 
and reflect the uncertainties in market access opportunities which might be associated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of go vernment 
control or influence . Its purpose is to ensure that any future changes to an agreed annex does 
not affect the negotiated balance.  [Job No. 5189] 
  GPA/TN1994/2/Rev.12  
- 221 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The transfer to the private sector of the 
actual control over the entity:  
 
 - the government does not 
control a majority of the entity's 
capital nor the voting rights;  
 
 - the government does not 
appoint more than half of the 
members of the entity's 
managing board who has the 
power to decide on its 
operations;  
 
 - the operation of the entity is 
financed by its business 
revenue, not by government 
subsidies ; and 
 
 - the government does not have 
control or influence over the 
entity's procurement decisions.  
 
 The fact that the entity is exclusively 
engaged in the provision of goods or 
services on markets that are subject to 
genuine competition:  
 
 - the government does not 
provide the entity with any 
special and exclusive rights to 
operate;  
 
 - there are more than one entity 
that engage in the provision of 
goods or services on the market;  
 
 - in principle, downward price 
rigidity regarding goods or 
services on the market has not 
lasted for a long period of time 
after the new entry of suppliers ; 
(Note 1) and  
 
 - in principle, there does not exist 
in the market the situation 
where the market share of 
various suppliers have not 
changed for a long period of 
time after the entry of new 
suppliers.  (Note 2)  
[Japan – Job No. 3289]  
 GPA/TN1994/2/Rev.12  
- 222 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (Note 1)  - This condition should not apply 
to special cases where, for example, price 
increase on the market is to be attributed to 
changes in import prices and/or exchange 
rates, with which the state of competition 
in the market could not have linkage.  
 
 (Note 2)  – This condition should apply only 
if the existing suppliers were once 
monopoly or exclusive suppliers 
(cf. Articles 28(h) and 8.5 of the GATS) . The 
condition could not apply to special cases 
where, for example, the new entry of 
suppliers to the market would not be 
expected for a long period of time, due to 
peculiarities of the market.  
[Japan – Job No. 3289]  
  
 
General comments  
 
• There are advantages associated with both the Japanese and the US approaches . It might be 
useful to consider more generally what should be included in the Agreement and what should 
be developed in the form of a decision . However, it is first necessary to first have a common 
understanding of what is being discussed.  [EC] 
• From Japan's experience with the NTT notification, the questions posed to Japan revealed that 
privatization could be categorized into criteria or  conditions, which should be taken into 
account when considering whether or not the proposed privatised entities deserve to be 
excluded from coverage under the Agreement.  [Japan ] 
(Reference) Relevant Articles of the GATS:  
 
• Article 28(h):  "'monopoly supplie r of service' means any person, public or private, which in 
the relevant market of the territory of a Member is authorized or established formally or in 
effect by that Member as the sole supplier of that service;"  
• Article 8.5:  "The provisions of this Artic le shall also apply to cases of exclusive service 
suppliers, where a Member, formally or in effect, (a) authorizes or establishes a small number 
of service suppliers and (b) substantially prevents competition among those suppliers in its 
territory. " [Japan ] 
 GPA/TN1994/2/Rev.12  
- 223 - 
  In relation to the proposal by Japan  
 
• It is difficult to establish simple criteria or parameters to define government control or 
influence is or what constitutes effective elimination of government control or influence . The 
criteria that have been prop osed are not sufficient to prove the elimination of government 
control or influence, especially for Parties whose entities may still have to closely follow the 
direction of the government.  [EC] 
• The proposal attempts to define the conditions under which Par ties would relinquish their right 
to seek consultation with other Parties about a proposed modification for the removal of an 
entity from the Agreement's coverage . Parties should not be denied that right.  [US] 
• The application of the criteria listed in Japa n's proposal would facilitate consultations between 
Parties.  [Japan ] 
• There is a need to establish clear criteria for cases where privatization occurs and a Party 
wishes to withdraw the privatized entity from Appendix I.  [Korea ] 
• The GPA does not prevent pri vatization and it is unclear whether there is a need for further 
clarification of the criteria.  [Canada ] 
• Since some Parties consider that criteria contained in the GPA are not objective or clear 
enough, further clarification may be needed as to what the ex isting language means in specific 
circumstances.  [US] 
• Regarding the requirement in subparagraph (a) that the government not provide the entity 
with any special or exclusive rights, a wide variety of private companies are granted such 
rights by the governme nt. For instance a corner store might be authorized to sell fishing 
licences or postage stamps.  [Job No. 5189] 
• It is unclear whether a company that is granted a special right to operate, for instance a bus 
company that is no more within the government sphe re given a franchise to operate by the 
government on certain routes in competition with other forms of transport, would fall within 
the scope of proposed subparagraph (a).  [Hong Kong, China ] 
• An effect of the proposed paragraph on appointment of a managing board would be that it 
would not allow consideration of compensatory adjustment if, for example, an entity that was 
unilaterally withdrawn from Appendix  I still had 48 % government membership on its board . 
What would be an appropriate percentage in this res pect? [US] 
• With regard to the criteria in the subparagraph on the financing of the operation of an entity, 
in some circumstances, government subsidies to privatized entities may still be necessary if 
the subsidies are linked to lowering the cost of provisi on of basic services and where the 
beneficiaries are the members of the general public.  [Korea ] 
• The criterion in subparagraph on the financing of the operation of an entity might not be 
appropriate in all cases . For instance, a number of entities in both A nnexes 1 and 3 of the 
United States, while operating on the basis of their own business revenues, continue to be 
considered as government agencies conducting government procurement . If the entity was 
mainly financed by its business revenue, some non -voting  equity infusions by the government 
would not affect the degree of government control or influence.  [Job No. 5189] 
• The Japanese proposal establishes a hierarchy amongst the various criteria and suggests 
something more structured in terms of meeting criteri a on a cumulative or on an alternative 
basis.  [EC] 
• The Japanese proposal contains two separate lists of criteria and states that "either of these 
sets of criteria would suffice to define effective elimination of government control or influence" . 
However, it seems clear that fulfilment of one of set of criteria would not necessarily be 
sufficient.  [US] GPA/TN1994/2/Rev.12  
- 224 - 
  • The proposal proposes that regard should be had to the market structure in which a entity 
operates should not be incorporated since it implies that t hose entities operating in a 
competitive environment should be covered  by the GPA.  [Hong Kong, China ] 
• Given the different market and governmental structure among Parties, there is no one -size-fits 
set of criteria . Instead of developing generalised criteria , the approach in the existing 
Agreement is preferable since it allows for a flexible approach.  [Hong Kong, China ] 
In relation to the US proposal in Job No. 3152:  
 
• It is necessary to maintain a procedure that allows for consultations among the Parties relating 
to the withdrawal of entities from coverage . As is the case under the existing Agreement, the 
procedure should not allow for unilateral withdrawal of entities from coverage without 
consultation . Further, elimination of government control o r influence should be "effective" and 
not merely a formal change in legal status . Since it is difficult to generalise what may 
constitute effective elimination of government control or influence in all circumstances, it 
might be useful to develop a Committ ee Decision that provides illustrative guidance but would 
not necessarily be binding . The US proposal includes an illustrative list of factors which might 
cast light on whether government control or influence has been eliminated . It is unclear 
whether the list is complete, whether all the listed factors will be relevant in all cases, and 
how they would be weighted in a particular case.  [US] 
• The illustrative list of criteria contained in the US proposal does not fit within the logic of the 
existing provision . [EC] 
• Privatization efforts should not be delayed or obstructed since, in general, when an entity has 
been privatized and government control or influence has been effectively eliminated, there is 
greater market access than is possible under the GPA . Nevertheless, in cases where the level 
or government investment or interest in an entity is significant, it is not self -evident that 
government control or influence has been effectively eliminated simply because, for example, 
the government holding of shares is  less than 50 % or because the entity is selling a good or 
service to a non -governmental user.  [US] 
 GPA/TN1994/2/Rev.12  
- 225 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influenc e over it has been 
effectively eliminated , that Party shall 
notify the Committee . Such modification 
shall become effective the day after the end 
of the followin g meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made.  […] In the event 
of objection, the notifying Party may 
consult with the objecting Party for the 60 
days following the end of the Committee 
Meeting where the notification was first 
discussed . If no agreement is reached from 
such consultation, the notified modification 
enters into effect on the 61st day, and the 
matter may be pursued in accordance with 
the procedures on  consultations and 
dispute settlement contained in Article XXII 
of this Agreement.  
[Korea ; Job No. …..] 
 
 
Comments  
 
• With respect to Korea's proposed amendment to Articles I and XXIV:6(b) of the GPA, Korea 
considers that applying the GPA to privatized enti ties is neither legally consistent nor 
practically desirable . Therefore, Korea's proposed amendment seeks to exclude privatized 
entities from the scope of the GPA . The proposal involves the insertion of a new note – 
Note 1 - to Article I in addition to an amendment of Article XXIV:6(b).  [Korea]  
• Does the proposal mean that the modification would come into effect, regardless of whether 
or not the other Parties agree to the proposed modification ? [Canada]  
• The modification process would proceed as follows . The proposed modification would first be 
notified . If there is an objection to the proposed modification, a GPA Committee meeting will 
be convened . If agreement is not reached at that Committee meeting, the notification will 
enter into effect 61 d ays following the date of that meeting . The dispute settlement mechanism 
could be replied upon subsequently if any Parties objected to the modification.  [Korea]  
 GPA/TN1994/2/Rev.12  
- 226 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee . The elimina tion of 
such control or influence may be indicated 
by the transfer to the private sector of the 
actual control over the entity or by the fact 
that the entity is exclusively engaged in the 
provision of goods or services on markets 
that are subject to genuin e competition . 
Such modification shall become effective 
the day after the end of the following 
meeting of the Committee, provided that 
the meeting is no sooner than 30 days from 
the date of notification and no objection has 
been made . In the event of an ob jection, the 
matter may be pursued in accordance with 
the procedures on consultations and 
dispute settlement contained in 
article  XXII . In considering the proposed 
modification to Appendix I and any 
consequential compensatory adjustment, 
allowance shall be  made for the 
market -opening effects of the removal of 
government control or influence.  
[EC – Job No. 443]  
 
 
Comments with respect to the EC proposal  
 
• There should be an opportunity for objective proceedings, during which Parties have an 
opportunity to request clarification and information regarding a privatisation . However, such 
a procedure should be based on objective criteria . A Party can always withdraw an entity from 
the GPA without giving any particular reason if the other Parties ag ree. Under the proposed 
Article, there is a right to withdraw entities but only when certain objective circumstances are 
met. If those circumstances are not met, a Party can offer compensation or negotiate for 
withdrawal . Some elements contained in the EC proposal are contained in the existing 
provision . However, experience illustrates that Parties do not necessarily have a clear 
understanding of what is intended by that provision.  [EC] 
• The existing provision provides the possibility of removing coverage wi thout consensus . 
However, compensation must be paid in such circumstances . Perhaps it should be considered 
whether there are any circumstances where a consensus might not be necessary to withdraw 
coverage without compensation.  [Canada ; US] 
• If there is a co nsensus among the Parties to agree with a change to the Agreement, a problem 
does not arise . However, clarification is needed in cases of conflict.  [EC] 
• A mechanism is needed to deal with cases where an entity is no longer controlled by the 
government and there is no longer public ownership or when there is a structural change in a 
market so that it becomes more competitive . It is necessary to have a common understanding 
of what Parties' rights and obligations are in those circumstances.  [EC] GPA/TN1994/2/Rev.12  
- 227 - 
  • Although some Parties consider that it would be useful to have more precise criteria, there are 
limits to the extent to which a precise formula could be included.  [EC] 
• It is important to stress that what is referred to in the EC proposal is effective elimination of 
influence or control, not just formal changes in the status of an entity . The question then 
becomes what constitutes "effective elimination of control or influence" ? In answering that 
question, there is a relationship between that issue and the issue of the de finition of 
government procurement in general . After all, if an entity is not conducting government 
procurement, Parties do not have an interest in subjecting it to the GPA.  [United States]  
• The terms "genuine competition" and "actual transfer of control to  the private sector" are not 
concrete, objective criteria in determining whether or not government control or influence of 
the entity has been effectively eliminated since uncertainty and the possibility of conflict 
among Parties still remains.  [Korea ] 
• Clarification is needed of the term "genuine competition" ? [US; Canada ; Hong Kong, China]  
• The concept of "genuine or effective competition" comes from competition law.  [EC] 
• The key issue of who controls the company is who is deciding the policy of the company . [EC] 
• It is necessary to consider the economic aspects as well as the legal aspects of the situation . 
It is necessary to see whether the entity, apart from no longer having a legal monopoly, is 
indeed facing competition in the marketplace.  [EC] 
• What is meant by, for example, "actual transfer of control to the private sector" or "effective 
genuine competition" ? Factors relevant to privatization might be whether and how the 
government controls the decision -making of the entity concerned or whether the gove rnment 
subsidises entities . The judgement as to whether "genuine competition" exists or not would 
differ from country to country . Therefore, such elements (for example, price inflation or 
market share increases) that would be taken into account when the Co mmittee considers a 
privatization case, would be quite useful.  [Japan]  
• Market structure in which an entity operates should not be a factor for consideration in 
determining whether the GPA disciplines should apply . The first sentence of the proposal in 
relation to the "elimination or transfer of actual control to the private sector", is a bit too 
evident as justification for withdrawal of entities from coverage and, therefore, does not add 
any clarity to the Article as a whole . This Article is very important  because it relates to the 
definition of government procurement and hence the coverage of the Agreement.  [Hong  Kong, 
China]  
• In one way or another, market structure is of relevance in this context since the last phrase 
of the current text refers to "market -opening effects".  [EC] 
• The issue of whether there is "effective genuine competition" could be addressed by the 
competition authority responsible for assessing the extent to which, in various sectors of the 
economy, there is or is not competition or insuffi cient competition . Further discussion is 
needed as to how to assess "genuine competition".  [Switzerland]  
• It is necessary to further consider whether it is possible for an entity to procure for 
governmental purposes even if it is selling in a competitive market . If so, it would be possible 
for there to still be government control or influence over entities, even if they are selling in a 
competitive market.  [US] 
• It is necessary to find the right balance between using general concepts and being m ore 
precise.  [EC] GPA/TN1994/2/Rev.12  
- 228 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 8. Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix I on the grounds that government 
control or influence over it has been 
effective ly eliminated, that Party shall 
notify the Committee . Such modification 
shall become effective the day after the end 
of the following meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objecti on has been made . In the event of an 
objection, the matter may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XV of this Agreement . 
In considering the proposed modification to 
Appendix I and any co nsequential 
compensatory adjustment, allowance shall 
be made for the market -opening effects of 
the removal of government control or 
influence.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.12  
- 229 - 
  Article  XXIV:7  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations and Future Work  
 Reports and Future Work  
 
(a) The Committee shall review 
annually the implementation and 
operation of this Agreement taking 
into account the objectives thereof . 
The Committee shall annually 
inform the General Council of the 
WTO of developments during the 
periods covered by such reviews.  
 9. The Committee shall annually inform 
the General Council of the WTO of 
developments relating to the 
implementation and operation of this 
Agreement . 
(b) Not later than the end of the third 
year from the date of entry into 
force of this Agreement and 
periodically thereafter, the Parties 
thereto shall undertake further 
negotiations, with a view to 
improving this Agreement and 
achieving the greatest po ssible 
extension of its coverage among all 
Parties on the basis of mutual 
reciprocity, having regard to the 
provisions of Article  V relating to 
developing countries.  
  
 
Comments  
 
• Does the deletion of Article XXIV:7(b) in the US proposal mean that the US considers that a 
further review is no longer necessary ? [EC] 
• The US did not intend to prejudge the possibility of further reviews . Its assumption is that the 
US proposal relates to the current review . If modifications to the current text are made during 
the current review process, it is necessary to determine whether, at the end of the current 
review process, there is a need for another review . It may be too early to know how the Parties 
feel about that at the present point in time.  [US] 
• Paragraph 7(b) of t he existing text appears to be contained in paragraph 10 of the US 
proposal . However, unlike the existing text, the US proposal does appear to impose an 
obligation on Members to conduct negotiations to improve the Agreement and to extend its 
coverage . What is the rationale behind this omission ? [Hong Kong, China]  
 GPA/TN1994/2/Rev.12  
- 230 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Parties shall seek to avoid 
introducing or prolonging 
discriminatory measures and 
practices which distort open 
procurement and shall, in the 
context of negotiations  under 
subparagraph (b), seek to eliminate 
those which remain on the date of 
entry into forc e of this Agreement.  10. Parties shall seek to avoid introducing 
or continuing discriminatory measures and 
practices that distort open procurement 
and shall, in the context of negotiations, 
seek to eliminate those which remain on the 
date of entry into for ce of this Agreement.  
[US – Job No. 2867]  
 
Comment  
 
• This paragraph builds upon Article XXIV:7(b) of the GPA which provides that Parties shall in 
the context of negotiations seek to eliminate those discriminatory measures and practices . 
However, unlike Article XXIV:7(c) of the GPA, the present draft does not impose an obligation 
on Parties to conduct negotiations to improve the Agreement and to extend its coverage.  
[Hong  Kong, China]  
 GPA/TN1994/2/Rev.12  
- 231 - 
  Article  XXIV:8, 9, 10  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
 With a view to ensuring that the Agreement 
does not constitute an unnecessary obstacle to 
technical progress, Parties shall consult regularly 
in the Committee regarding developments in the 
use of information technology in government 
procurement and shall, if necessary, negotiate 
modifications to the Agreement . These 
consultations shall in particular aim to ensure that 
the use of information technology promotes t he 
aims of open, non -discriminatory and efficient 
government procurement through transparent 
procedures, that contracts covered under the 
Agreement are clearly identified and that all 
available information relating to a particular 
contract can be identifie d. When a Party intends 
to innovate, it shall endeavour to take into 
account the views expressed by other Parties 
regarding any potential problems.  
  
9. Amendments  
 Amendments  
 
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation . Such an amendment, once the 
Parties have concurred in accordance with the 
procedures established by the Committee, shall 
not enter into force for an y Party until it has been 
accepted by such Party.  
 11. Parties may amend this Agreement 
having regard, inter alia, to the experience 
gained in its implementation . Such an 
amendment, once the Parties have 
concurred in accordance with the 
procedures establis hed by the Committee, 
shall not enter into force for any Party until 
it has been accepted by such Party.  
 
10. Withdrawal  
 Withdrawal  
 
(a) Any Party may withdraw from this 
Agreement . The withdrawal shall 
take effect upon the expiration of 60 
days from the date on which written 
notice of withdrawal is received by 
the Director -General of the WTO . 
Any Party may upon such notification 
request an immediate meeting of the 
Committee.  
 12. Any Party may withdraw from this 
Agreement . The withdrawal shall take 
effect upon the expiration of 60 days from 
the date on which written notice of 
withdrawal is received by the 
Director -General of the WTO . Any Party 
may upon such notification request an 
immediate meeting of the Committee.  
[US – Job No. 2867]  
 
Comment  
 
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to 
the Agreement in relation to the use of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.12  
- 232 - 
  Article  XXIV:11, 12, 13, 14  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) If a Party to this Agreement does not 
become a Member of the WTO within 
one year of the date of entry into 
force of the WTO Agreement or 
ceases to be a Member of the WTO, 
it shall cease to be a Party to this 
Agreement with effect from the same 
date. 
 13. If a Party to this Agreement ceases to 
be a Member of the WTO, it shall cease to 
be a Party to this Agreement with effect 
from the same date.  
11. Non-application of this Agreement 
between Particular Parties  
 Non-application of this Agreement between 
Particular Parties  
 
 This Agreement shall not apply as between 
any two Parties if either of the Parties, at the 
time either accepts or accedes to this 
Agreement, does not consent to such 
application.  
 14. This Agreement shall not apply as 
between any two Parties if either of the 
Parties, at the time either accepts or 
accedes to this Agreement, does not 
consent to such application.  
12. Notes,  Appendices and Annexes  
 Notes, Appendices and A nnexes  
 
 The Notes, Appendices and Annexes to 
this Agreement constitute an integral part 
thereof.  
 15. The Notes, Appendices and Annexes 
to this Agreement constitute an integral 
part thereof.  
13. Secretariat  
 Secretariat  
 
 This Agreement shall be serviced by the 
WTO Secretariat.  
 16. This Agreement shall be serviced by 
the WTO Secretariat.  
14. Deposit  
 Deposit  
 
 This Agreement shall be deposited with 
the Director -General of the WTO, who shall 
promptly furnish to each Party a certified true 
copy of this Agreement, of each rectification or 
modification thereto pursuant to paragraph  6 
and of each amendment thereto pursuant to 
paragraph  9, and a notification of each 
acceptance thereof or accession thereto 
pursuant to paragraphs  1 and 2 and of ea ch 
withdrawal therefrom pursuant to paragraph  10 
of this Article.  
 17. This Agreement shall be deposited 
with the Director -General of the WTO, who 
shall promptly furnish to each Party a 
certified true copy of this Agreement, of 
each rectification or modifi cation thereto 
pursuant to paragraphs 7 and 8 of this 
Article and of each amendment thereto 
pursuant to paragraph 11 of this Article, 
and a notification of each accession thereto 
pursuant to paragraph 2 of this Article and 
of each withdrawal therefrom purs uant to 
paragraph 12 and 13 of this Article.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.12  
- 233 - 
  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
 Registration  
 
 This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
 18. This Agreement shall be registered in 
accordance with the provisions of 
Article  102 of the Charter of the United 
Nations.  
[US – Job No. 2867]  
 
 Done at Marrakesh this fifteenth day of 
April one  thousand  nine hundred  and ninety -four 
in a single copy, in the English, French and 
Spanish languages, each text being authentic, 
except as otherwise specified with respect to the 
Appendices hereto.  
  
 
NOTES  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The terms "country" or "countries" as used 
in this Agreement, including the Appendices, are 
to be understood to include any separate 
customs territory Party to this Agreement.  
 
 In the ca se of a separate customs territory 
Party to this Agreement, where an expression in 
this Agreement is qualified by the term 
"national", such expression shall be read as 
pertaining to that customs territory, unless 
otherwise specified.  
 
Article 1, paragraph 1 
 
 Having regard to general policy 
considerations relating to tied aid, including the 
objective of developing countries with respect to 
the untying of such aid, this Agreement does not 
apply to procurement made in furtherance of tied 
aid to developing cou ntries so long as it is 
practised by Parties.  
  
[cf. US proposals on definitions]  
 
Comments  
 
• Switzerland proposes to re -organize and streamline the content of Article V and add elements 
relevant to accession by developing and least -developed countries to the Agreement on 
Government Procurement.  [Switzerland – Job No. 1274]  
• In addition, Switzerland proposes to move these five new articles (presently Article V of the 
Agreement on Government Procurement) near the end of the Agreement as it is already the 
case in several other WTO Agreements for provisions referring to developing and 
least-developed countries.  [Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.12  
- 234 - 
  ATTACHMENT  
 
ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS REGARDING THE 
SIMPLIFICATION AND IMPRO VEMENT OF THE APPENDICES  TO THE AGREEMENT  
 A summary of the discussion relating to the simplification of Appendices at the informal 
consultations held in 1997 to 1999 is contained under Item A.1(i) of the Checklist of Issues Raised 
and Points Made, a note by the Secretariat, dated 7 September  1999 (Job No. 5189) . Below is an 
update of that section of the Checklist in the light of further discussions held on the issue at the 
informal consultations of 3 0 January  2001. 
 
_______________  
 
 
A. CHOICE BETWEEN POSITIVE AND NEGATIVE LISTS  
1. It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of presenting the Annexes in the form of negative lists, starting with 
Annex  1. The Committee could defi ne the general principles that would guide the Parties in 
determining which entities should be 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.  [Job No. 5189]  
 
2. The view has been expressed that there was an obvious connection between the need for a 
general definition of government procurement and the discussion in relation to t he Annexes . It was 
not possible to have a standard solution for every case and scenario . The main question was whether 
the universe of procurement covered under the Agreement was clearly determined or not . If a 
positive list was being used, there was a nee d for a very comprehensive list.  [EC] 
 
3. The view has also been expressed that it was desirable to maintain the presentation of the 
Annexes in the form of positive lists for the overall consistency of the Annexes.  [Job No. 5189] The 
presentation of the Annex es to Appendix I of individual Parties in the form of detailed positive lists 
was complex but what was important was that they were clear as compared to simply having a 
generic definition referring to entities covered by certain types of laws.  [Switzerland ; Japan]  
 
4. In this connection, the point has also been made that Parties had the obligation to ensure that 
all the entities that had been specified in Appendix  I complied with the requirements under the 
Agreement effectively . A negative list approach could raise certain difficulties for Parties in this 
respect.  [Job No. 5189] To have entities positively listed increased their awareness of the 
Agreement . A comprehensive positive list also gave an indication to other Parties of what entities 
were covered in different countries and how procurement was being organized.  [Switzerland]  
 
5. It has also been said that the choice between positive and negative lists of entitities was often 
a matter of practicality and the practicality may differ from system to system . Therefore, the matter 
needed to be considered on a case -by-case basis . For instance in the US, there was no convenient 
way of defining coverage in a generi c sense since if a negative list of entities was created of all the 
townships or counties that might not be subject to the Agreement, it could turn out to be a fairly 
difficult task.  [US] 
 
6. It has also been stated that, while the Appendices in the form of p ositive lists were lengthy 
when compiled into a single document for all Members, the widespread use of electronic posting in 
readily accessible form on the WTO website had provided improved transparency and access to 
information for users . According to thi s view, the loose -leaf process for the Annexes had also worked 
well. [Canada]  
 
B. ANNEX 4 ON SERVICES  
7. In relation to the coverage of services in Annex 4, one view has been that a negative list 
approach might be preferable in seeking as comprehensive covera ge of services as possible, subject 
to limited negotiated exceptions whereas a positive list tended to give the impression that the 
starting -point was to assume that everything was excluded until a decision was made to cover a GPA/TN1994/2/Rev.12  
- 235 - 
  type of service . The real iss ue was the extent of coverage . If coverage was limited and the 
classification system was very complicated and a detailed analysis was necessary in any particular 
sector, it may not make any difference whether a positive or negative list was used . On the ot her 
hand, if the ambition was to have extensive coverage of services, then a negative list approach 
would be more appropriate and, in fact, easier to implement, because it would only be necessary to 
refer to a short negative list and if the service in ques tion was not on that negative list, it would be 
clear that that service was covered . A detailed analysis would not be required as was the case under 
a long positive list.  [US] 
 
8. The point has also been made that there were many questions as to what type of services 
were covered . If a negative list was used for Annex 4, it would be necessary to define services . 
There was a question as to whether there was a definition of services that was sufficiently 
comprehensive that there would be no doubt that a negative  list could be sufficiently clear.  
[Switzerland ] It has also been said in this connection that, if reference was made to a concrete 
classification of services, the use of a positive or negative list was only a matter of presentation 
because there was a cle ar view of what was covered and what was not covered.  [EC] 
 
9. The point has also been made that Annex  4 could be presented as a negative list only after 
the uniform extension of the coverage of the Agreement in the area of services.  [Job No. 5189]  
 
C. LINKAG ES BETWEEN  THE ANNEXES  
10. The view has been held that, while it might be feasible to present Annexes  1 and 2 in the form 
of negative lists, positive lists were particularly relevant to Annex 3 entities because the scope of 
public corporations or enterprises c overed changed from country to country.  [Job No. 5189; Japan]  
 
11. It has been suggested that attention should be focused on the linkages between some of the 
Annexes, in particular Annexes 2 and 3 since it was not always easy to determine what was covered 
by which Annex.  [Switzerland]  
 
D. PRESENTATION  OF ANNEXES  
12. It has been stated that Annexes were not presented consistently among the Parties . For 
example, in the case of some Parties, notes relating to Annexes 2, 3 and 4 often appeared in the 
General Notes . For other Parties, there were similar notes that had actually been incorporated into 
the Annexes themselves . Consideration could be given to ways in which the approaches could be 
harmonized in relation to those types of issues which could as sist non -Parties and Parties to 
anticipate where relevant notes could be found in relation to coverage in various Annexes.  [US] 
 
 
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