RESTRICTED  
  
GPA/TN1994/3/Rev.3  
27 February  2004 
(24-2714) Page: 1/34 
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   
 
  
REVISION OF THE AGREEMENT ON GOVERNMENT PROCUREMENT  
AS AT 20  FEBRUARY  2004*,** 
Revision  
This note reflect s the state of the negotiations on the revision of the text of the Agreement on 
Government Procurement under Article  XXIV:7 as at the end of the meeting of the Informal Group 
of the Committee on Government Procurement of 17-20 February  2004. 
 
______________ _ 
 
 
 
* In English only . 
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs 133) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.3  
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  Table of Contents  
Article  I Definitions  ................................ ................................ ................................ .........  3 
Article  II Scope and Coverage  ................................ ................................ ..........................  5 
Article  III General Principles  ................................ ................................ .............................  7 
Article  IV Publication of Procurement Information  ................................ ................................  8 
Article  V Publication of Notice of Intended Procurement  ................................ ........................  9 
Article  VI Time-Periods for Tendering  ................................ ................................ ...............  10 
Article  VII Information on Intended Procurements  ................................ ..............................  12 
Article  VIII Conditions for Participation  ................................ ................................ .............  14 
Article  IX Negotiation  ................................ ................................ ................................ .... 17 
Article  X Limited Tendering  ................................ ................................ .............................  18 
Article  XI Treatment of Tenders and Contract Awards  ................................ .........................  19 
Article  XIbis  Use of Electronic Means  ................................ ................................ ...............  20 
Article  XII Transparency of Contract Award Information  ................................ ......................  21 
Article  XIII Non-Disclosure of Information  ................................ ................................ .........  23 
Article  XIV Developing Countries  ................................ ................................ ......................  23 
Article  XV Exceptions to the Agreement  ................................ ................................ ............  26 
Article  XVI Modifications and Rectifications to Coverage  ................................ ......................  26 
Article  XVII  Challenge Procedures  ................................ ................................ ....................  29 
Article  XVIII  Consultations and Dispute Settlement  ................................ .............................  30 
Article  XIX Institutions  ................................ ................................ ................................ ... 32 
Article XX  Final Provisions  ................................ ................................ ...............................  32 
 
 
Preamble  
 
Parties to this Agreement (hereinafter referred to as "Parties"),  
 
Recognizing  the need for an effective multilateral framework for government procurement, with a 
view to achieving greater liberalization and expansion of, and improving the framework for, the 
conduct of in ternational trade;  
 
Recognizing  that measures regarding government procurement should not be prepared, adopted or 
applied so as to afford protection to domestic suppliers, goods or services or discriminate among 
foreign suppliers, goods or services;  
 
Recog nizing  that the integrity and predictability of government procurement systems are integral to 
the efficient and effective management of public resources, the performance of the Parties' 
economies, 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;  
 GPA/TN1994/3/Rev.3  
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  [Recognizing  the need to take into account the development, financial and trade needs of developing 
countries, in particular the least -developed countries;]1 [NB: To be revised in light of revision of 
relevant provisions related to developing countries.]  
 
Recognizing the desirabi lity of transparent measures regarding government procurement and the 
importa nce of carrying out procurements in a transparent and impartial manner, avoiding conflict of 
interest and corrupt practices, in accordance with relevant international instruments.  
 
[Recognizing the importance of encouraging the use of electronic means for procurement covered 
by this Agreement;]US, SWI 
 
Desiring  to encourage acceptance of and accession to this Agreement by WTO Members not party 
to it; 
 
Having undertaken  further negotiations in pursuance of these objectives;  
 
Hereby agree  as follows:  
 
Article  I Definitions  
For purposes of this Agreement:  
 
[build -operate -transfer contract  and public works concession contract 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 contractual arrangement , a procuring entity 
grants to the supplier, for a specified 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 [Market 
Access Issue ] 
 
commercial goods an d services  mean goods and services with characteristics similar to those of 
goods and services that are sold or offered for sale to, and customarily purchased by, 
non-governmental buyers for non -governmental purposes ; [it includes goods and services with 
modifications customary in the commercial marketplace]JPN,US ,CDA,EC [as well as minor modifications 
not customarily available in the commercial marketplace that do not significantly alter the 
non-governmental function or essential physical characteristics o r change the purpose]US,CDA; 
 
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 Provisional U.N . Central 
Product Classification (CPC)] ; [Bracketed Language - Market Access Issue ] 
 
country or countries  include any separate customs territory that is a Party to this Agreement . In 
the case of a separate customs territory that is a 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;  
 
days means calendar days;  
 
[electronic auction  means  an iterative process involving [a computer networking en vironment]US 
[an electronic device]EC for the presentation of new prices [or]US,EC revised [downwards,]EC or new 
values concerning certain elements of tenders, which occurs after an initial full evaluation of the 
tenders, enabling them to be ranked using a utomatic evaluation methods;]EC,US ,KOR [NB: Canada 
questions the need for the phrase "which occurs after an initial full evaluation of the 
tenders" and whether it is necessary to prejudge the sequence of the evaluation and 
auction. ] 
 
1 Unattributed brackets [ ] indicates language that Parties are still considering.  GPA/TN1994/3/Rev.3  
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[electronic means  mean s using [a computer networking environment]US [electronic equipment]EC 
for the processing (including digital compression) and storage of data [that]US,EC is transmitted, 
conveyed and received by Internet, by wire, by radio, by optical means or by other ele ctromagnetic 
mean;]EC,US [NB: Canada, Japan and Israel reserve their position on this definition because 
of its links to other provisions.]  
 
in writing  or written  means any worded or numbered expression that can be read, reproduced 
and later communicated . It may include electronically transmitted and stored information;  
 
limited tendering  means a procurement method where the procuring entity contacts a supplier or 
suppliers of its choice, [only under the conditions specified in [paragraph … of Article  X] and may 
choose not to apply Articles [ ]]EC; [NB: Japan , Canada and the US  propose to delete this 
definition.]  
 
measure  means any law, regulation, procedure, [or any act of a procuring entity relating to  a 
covered procurement]EC [requirement applied in a particular procurement ,]US,NOR,JPN administrative 
guidance or practice [administrative ruling of general application]CT; 
 
multi -use list  means a list of suppliers that a procuring entity has determined satisfy the conditions 
for participation in that list,  and that the procuring entity intends to use more than once;  
 
notice of intended procurement  means a notice published by a procuring entity in accordance 
with Article  V inviting interested suppliers to submit tenders;  
 
offsets  in government procurement means any [measures,]CT conditions or undertakings that 
encourage local development or improve a Party's balance -of-payments accounts, such as the use 
of domestic content, domestic suppliers, the licensing of technology, technolog y transfer, 
investment, counter -trade and similar actions [unless such conditions or undertakings are necessary 
to enable the contracts to be performed]HKC; [NB: Hong Kong, China is concerned that the 
addition of "domestic suppliers" and, along with Korea and Israel, that "technology 
transfer" expands the scope of offsets.]  
 
open tendering  means a procurement method where all interested suppliers may submit a tender ; 
[NB: Japan and Canada propose to delete this definition.]  
 
person  means a natural person or a juridical person;  
 
[procurement  means the process by which a [government]US [procuring entity]JPN,CT 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;]JPN,US [Market Access Issue ] 
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of Appendix I of each Party;  
 
qualified suppl ier means a supplier that a procuring entity recognizes as having satisfied the 
conditions for participation in a procurement;  
 
[recurring contracts  mean contracts, not based on an initial contract or agreement, which are 
regular in nature or which are int ended to be renewed within a given period;]EC,CT 
 
selective tendering  means a procurement method where only suppliers satisfying the conditions 
for participation are invited by the procuring entity to submit a tender ; [NB: Japan and Canada 
propose to delet e this definition.]  
 
services  includes construction services, unless otherwise specified;  
 GPA/TN1994/3/Rev.3  
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  [standard  means a document approved by a recognized body, that provides, for common and 
repeated use, rules, guidelines or characteristics for products or services o r related processes and 
production methods, with which compliance is not mandatory . It may also include or deal exclusively 
with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, process or production m ethod;]JPN,EC,US ,KOR,NOR 
 
supplier  means a person or group of persons that provides or could provide goods or services;  
 
[technical regulation  means a document which lays down characteristics of a product or a service 
or their related processes and product ion methods, including the applicable administrative 
provisions, with which compliance is mandatory . It may also include or deal exclusively with 
terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, proces s or production method;]JPN,EC 
 
technical specification  means a tendering requirement that:  
 
(a) lays down the characteristics of goods or services to be procured, including quality, 
performance, safety and dimensions, or the processes and methods for their production 
or provision ; or 
 
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they 
apply to a good or service.  
 
Article  II Scope and Coverage  
Application of Agreement  
 
1. This Agreement applies to any measure regar ding a procuring entity's procurement of goods, 
services or any combination thereof that is covered by this Agreement.  
 
2. This Agreement applies to procurement:  
 
(a) by any contractual means, including purchase ; lease; rental or hire purchase, with or 
without an option to buy [and build -operate -transfer contracts and concessions for 
public works contracts;]US [with or without utilization of the funds and the managerial 
or technical ability of the private sector]JPN; and [Bracketed Language – Market 
Access Issue ] 
 
(b) for which the value as estimated, in accordance with paragraph  6, equals or exceeds 
the relevant threshold specified in Appendix  I, at the time of publication of a notice in 
accordance with Article  V. 
 
[2bis. Without prejudice to Article  [Excep tions], this Agreement applies to any procurement:  
 
(a) of central government entities where the value is estimated to equal or exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services;  
 
(b) of sub -central government entities where the value is estimated to equal or exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services;  
 
(c) of entities according to Appendix  I, Annex  3 where the value is estimated to equal or 
exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services.]EC 
 GPA/TN1994/3/Rev.3  
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  [Market Access Issue ] [NB: Korea does not support the text (2 bis) proposed by the EC.]  
 
3. 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.  
 
Compliance  
 
4. Each Party shall [take such reasonable measures as may be available to it to]CDA,HKC ensure 
that the procuring entities listed in its Appendix  I comply with the provisions of [Articles  VII to X 
of]CDA this Agreement in conducting procurement covered by this Agreement.  [NB: The EC, the US, 
Switzerland, Singapore, Japan , Norway  and Korea have reservation on the bracketed 
language. ] 
 
5. Where a procuring entity, in the context of procurement covered by th is Agreement, requires 
persons not listed in Appendix  I to procure in accordance with particular requirements, Article  III 
shall apply mutatis mutandis  to such requirements.  
 
Valuation  
 
6. In estimating the value of a procurement for the purpose of ascerta ining whether that 
procurement is covered by this Agreement, a procuring entity shall:  
 
(a) neither divide a procurement into separate procurements nor select or use a particular 
valuation method for estimating the value of a procurement with the intention  of totally 
or partially excluding it from the application of this Agreement;  
 
[(b) 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 maximum value of the procurement, inclusive of optional purchases ; 
and] 
 
[(b)bis include the maximum total estimated value of the procurement over its entire duration, 
taking into account premiums, fees, commissions, interest and other revenue st reams 
[Market Access Issue ] that may be provided for in such contracts and, where the 
procurement provides for the possibility of option clauses, the total maximum value [or 
total maximum estimated value] of the procurement, inclusive of optional purchases, 
and any estimated residual value in the case of leases, rentals and hire purchases ; 
and]CDA,US,HKC ,JPN 
 
[(c) without prejudice to the terms of paragraphs  7 and 8, base the calculation on:  
 
(i) the total maximum value of the procurement over its entire duration where the 
procurement is conducted in multiple parts, with contracts to be awarded to one 
or more suppliers, at the same time or over a given time ; or 
 
(ii) [[the total maximum value of]EC the contracts, [in case of framework 
purchasing ]EC, that are to be awarded over a given period to one or more 
suppliers.]EC; or 
 GPA/TN1994/3/Rev.3  
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  (iii) [on the total estimated maximum value of the procurement over its entire 
duration when the total price of the procurement is not specified.]SWI] 
[NB: Japan questions the  need for subparagraph (c).]  
 
[(c) bis deem the procurement [the estimated value of which cannot be provided]HKC to 
be covered if the scope of the work or the period of the contract is 
indefinite.]CDA,US,HKC ,JPN 
 
[NB: Canada  is proposing that subparagraphs  6(b)bis and (c)bis also replace 
paragraphs  7 and 8. The EC considers  Canada's proposal to relate to market acce ss as it 
would change coverage. ] 
 
[7. In the case of a recurring procurement [ other than framework purchasing ]EC, the calculation 
of the estimated value shall be based on the total of:  
 
(a) the actual aggregate value of recurring contracts with similar characteristics awarded 
during the preceding 12  months or fiscal year, adjusted where possible to take account 
of anticipated changes in quantity or value over the subsequent 12  months ; or 
[NB: Hong Kong, China considers that the scope of "recurrin g contracts with 
similar characteristics" should be clarified.]  
 
(b) the estimated aggregate value of recurring contracts to be awarded during the 
12 months subsequent to the initial contract or during the procuring entity's fiscal year, 
whichever is great er.]EC 
 [NB: Korea, Switzerland and Canada question the meaning and application of 
this paragraph. ] 
 
[8. In the case of procurement by lease, rental or hire purchase of goods or services, [or 
procurement for which a total price is not specified,] the basis  for valuation shall be, with respect 
to: [NB: Switzerland and Canada propose to delete from the first sentence the words "or 
procurement for which a total price is not specified".]  
 
(a) fixed-term contracts, where the term is 12  months or less, the total contract value for 
their duration, or, where the term exceeds 12  months, the total value including any 
estimated residual value ; or 
 
(b) contracts for an indefinite period, the monthly instalment multiplied by 
[48].EC,JPN,NOR,US,KOR,HK C Where there is doubt as to whether the contract is to be a 
fixed-term contract, this basis for valuation shall be used. ] 
 
Article  III General Principles  
National Treatment and Non -Discrimination  
 
1. With respect to any measure and any  procurement covered by this Agreement, each Party 
[and each procuring entity [, respectively, ]EC,NOR,SWI,JPN]US,EC,NOR,SW I,JPN shall accord immediately and 
unconditionally to the goods and services of any other Party and to the suppliers of any other Party  
offering the goods or services of any other Party, treatment no less favourable than the treatment 
the Party [or the procuring entity]US,EC,NOR ,JPN accords to:  
 
(a) domestic goods, services and suppliers ; and 
 
(b) goods, services and suppliers of any othe r Party.  
 
2. With respect to any measure and any procurement covered by this Agreement, neither a Party 
nor a procuring entity shall:  
 
(a) treat a locally established supplier less favourably than another locally established 
supplier on the basis of degree  of foreign affiliation or ownership ; nor 
 GPA/TN1994/3/Rev.3  
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  (b) 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 any other 
Party.  
 
Procurement Methods  
 
3. A procuring entity shall conduct procurement covered by this Agreement in a manner that is 
consistent with this Agreement, and, except where specifically provided otherwise in this Agreement, 
in a transparent [and impartial]EC,US,JPN manner, using meth ods such as open tendering, selective 
tendering and limited tendering.  
 
[3bis. A procuring entity[, [in Annexes 1]JPN and 3,]US shall ensure that [a procurement official does 
not prepare or make  decisions in a [procurement covered by this Agreement]NOR,US where the 
official 's impartiality may]NOR,US,CDA,HKC,SWI [the impartiality of its procurement process may not]JPN 
be affected by family ties, business links, cross representation or other reason s that may cause a 
conflict of interest[, in accordance with the measures of the Party of the procuring 
entity].JPN]NOR,US,CDA,HKC,SW I,JPN [Procuring entities shall ensure that procurement is conducted in a 
transparent and impartial manner.]EC [NB: Norway is considering the preparation of a revised 
text at the request of the Chair.]  
 
Rules of Origin  
 
4. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods or services imported from or supplied by another Party that are different from the rules of 
origin the Party applies  at the same time  in the normal course of trade to imports or supplies of the 
same goods or services from the same Party.  
 
Offsets  
 
5. With regard to procurement covered by this Agreement, a procuring entity shall not seek, take 
account of, impose or enforce offsets in the qualification and selection of suppliers, goods or services, 
in the evaluation of tenders or in the award of contracts, prior to or in the course of a procurement 
process.  [NB: Hong Kong, China is concerned that the use of "enforce" expands the scope 
of the provision.]  
 
Measures Not Specific to Procurement  
 
6. The provisions of paragraphs  1 and 2 shall not apply to customs duties and charges of any 
kind imposed on, or in co nnection with, importation, the method of levying such duties and charges, 
other import regulations or formalities, and measures affecting trade in services other than measures 
governing procurement covered by this Agreement.  
 
Article  IV Publication of Pro curement Information  
Each Party shall:  
 
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general 
application, standard contract clauses that are mandated by law or regulation and are 
incorporated by reference in notices  and tender documentation and procedure regarding 
procurement covered by this Agreement, and any modifications thereof, in officially 
designated electronic or paper media that are widely disseminated and remain readily 
accessible to the public and that are  in the appropriate publications listed in 
Appendix  IV; and 
 
(b) provide an explanation thereof to any Party, on request.  
 GPA/TN1994/3/Rev.3  
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  Article  V Publication of Notice of Intended Procurement  
1. For each procurement covered by this Agreement, except in the circumstances described in 
Article  X, a procuring entity shall publish a notice of intended procurement . The notice shall be 
published in the appropriate publication listed in Appendix  II. [Such publications ] [The notices] shall 
be in [electronic or]ISR paper media that are widely disseminated and remain readily accessible to 
the public . [[For procuring entities in Annex  1 s]US,HKC ,JPN [In all cases, s]EC [[S]uch publications ] [the 
notices]  [where electronic ]US,HKC shall [always]EC be accessible free of charge  through a single point 
of access].EC,NOR, US,KOR,SW I,HKC [Procuring entities in Annexes  2 and 3 shall be encouraged to make 
such publications available free of charge through a single point of access. ]US,JPN] [Where electronic, 
the Party shall ensure [such publications ] [the notices] are accessible from one location.]CDA,SGP 
 
2. [Each notice of intended procurement shall include]EC [A procuring entity shall include the 
following information in each notice of intended procurement ]CDA,US: 
 
(a) the name and address of the procuring entity and other information necessary to contact 
the procuring entity and obtain all relevant documents relating to the procurement, and 
their cost and terms of payment, if any;  
 
(b) a description of the procurement, including the nature and the quantity of the goods or 
services to be procured or, where the quantity is not known, the estimated quantity;  
 
- [whether the proc uring entity is inviting offers for purchase, lease, rental or hire 
purchase, or more than one of these methods;]EC 
 
- [any options]EC,CDA,NOR,US [for further procurement and, if possible, an estimate of 
when such options may be exercised;]EC 
 
- [for recur ring contracts, if possible, an estimate of the timing of subsequent 
notices of intended procurement;]EC [NB: The US, Japan, CT , Singapore  and 
Canada continue to believe that it is not necessary to require the 
inclusion of these three items of the notice.]  
 
(c) the time -frame for delivery of goods or services or the duration of the contract;  
 
(d) the procurement method that will be used and whether it will involve negotiation [, 
electronic means ]EC [or electronic auction] CDA,US [and any intention that tender s be 
submitted by electronic means] CDA,US ; 
 
(e) the address and the time -limits for the submission of tenders and, where applicable, 
any time -limits for the submission of applications to qualify for participation in the 
procurement, as well as the language or languages in which they must be submitted, if 
other than an official language of the Party of the procuring entity;  
 
(f) a list and brief description of any conditions for participation of suppliers [including any 
specific documents or certific ations required from suppliers in connection 
therewith]EC,CDA,ISR,US ,SWI,NOR; [NB: Hong Kong, China maintained that it was not 
necessary to include information in (f) in the notice of intended procurement 
because such information would be included in the t ender documentation .] 
 
(g) where, pursuant to Article  VIII, a procuring entity intends to select a limited number of 
qualified suppliers to be invited to tender, the criteria that will be used to select them 
and, where applicable, any limitation on the num ber of suppliers that will be permitted 
to tender ; and 
 
(h) an indication that the procurement is covered by this Agreement.  
 GPA/TN1994/3/Rev.3  
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  [Summary Notice  
 
3. For each case of intended procurement, a procuring entity shall publish in a summary notice 
at least the information in paragraph  2 (a), (b) and (e) in one of the official languages of the 
WTO.]CDA,SWI ,US [NB: Chinese Taipei ; Hong Kong, China ; Korea; Japan ; and the EC are 
considering this proposal.]  
 
Notice of Planned Procurement  
 
4. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice 
regarding each procuring entity's future procurement plans . The notice should  include the 
subject -matter of the procurement and the planned date of the publication of the notice of intended 
procurement . When the published information is in accordance with Article  VI:3 (a), a procuring 
entity may apply Article  VI:3 for the purpose o f establishing shorter time -periods for tendering of 
procurements covered by this Agreement.  
 
[5. A procuring entity in [Annex  [1,]CT 2 and] Annex  3 may use a notice of planned procurement, 
as provided for in paragraph  3, as a notice of intended procuremen t provided that it [contains in 
addition the statement that]EC [no further notices will be published]EC [interested suppliers should 
express their interest in the procurement to the entity]EC,US [and includes as much of the information 
in paragraph  2 as is  available].CDA,JPN,E C [NB: The relationship of this paragraph with 
paragraph  3 needs to be re visited.] 
 
[Summary Notice  
 
5. For each case of intended procurement, a procuring entity shall publish [in a paper media 
listed in Appendix  2]ISR a summary notice in one of the official languages of the WTO.  [In addition, 
t]ISR [T]he notice [may be published also in electronic media and contain the following 
information:]ISR [shall contain at least the following information]:  
 
(a) the subject -matte r of the procurement;  
 
(b) the time -limits set for the submission of tenders or, where applicable, of applications to 
be invited to tender or for inclusion on multi -use lists ; and 
 
(c) the addresses from which documents relating to the procurement may be r equested. ] 
 [NB: Chinese Taipei ; and Hong Kong,China have reservations on this 
paragraph.]  
 
Article  VI Time -Periods for Tendering  
General  
 
1. [A procuring entity shall ensure that any prescribed time -limit, including any extension of this 
time-limit, is common for all interested  or participating suppliers and is adequate to allow suppliers 
of other Parties as well as domestic suppliers:  
 
(a) to prepare and submit tenders ; and 
 
(b) where a procuring entity requires suppliers to meet conditions of participa tion to 
participate in tendering, to submit applications requesting participation.  
 
In determining any such time -limit, a procuring entity shall, consistent with its own reasonable 
needs, take into account such factors as the complexity of the intended pro curement, the extent of 
subcontracting anticipated, and the normal time for transmitting tenders from foreign as well as 
domestic points. ]US,EC 
 GPA/TN1994/3/Rev.3  
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  [A procuring entity shall provide sufficient time for suppliers to prepare and submit tenders, taking 
into acco unt the nature and complexity of the procurement . Such time -limits shall be common for 
suppliers of other Parties as well as domestic suppliers.]CDA 
 
Deadlines  
 
2. Except as provided for in paragraphs  3 and 4, a procuring entity shall [provide ] [establish a 
time-period for tendering that is]CDA no less than 40  days:  
 
(a) from the date [on which ] [that] CDA the notice of intended procurement is published 
[and the tender documents are available] CDA to the final date for the submission of 
tenders ; or 
 
(b) where [the entity has used procedures provided for in Article  VIII:[5]US [[8] or 9] [, 
whether or not it uses a multi -use list,] ] [suppliers are required to meet conditions for 
participation in advance of the tendering process,]CDA from the date [on which ] [that]CDA 
the entity notifies [initially]JPN suppliers [that] they will be permitted to submit tenders 
to the final date for the submission of tenders.  
 
3. Under the following circumstances, a procuring entity may establish a time -period for 
tendering tha t is less than 40  days [from publication of a notice of intended procurement or an 
invitation to submit tenders, provided that such time -period is sufficient to enable suppliers to 
prepare and submit responsive tenders ] and is in no case less than 10  days [prior to the final date 
for submission ]: [The same shall apply to the 25 -day requirement for submitting applications 
specified in Article  VIII:[8].]CT,EC,JPN 
 
(a) where [a separate notice, including]US,CDA,JPN a notice of planned procurement under 
Article  V:3 has been published at least 40  days and not more than 12  months in 
advance [, [and such notice contains : a description of the procurement ; the 
approximate time-limits for the submission of tenders or, when appropriate, 
applications for qualification ; a statement that interested suppliers should express 
their interest in the procurement to the procuring entity ; and the address from which 
documents relating to the procurement may be obtained]US,JPN [together w ith as 
much information under Article  V:2 as is available]EC]; 
 
[(b) in the case of the second or subsequent publication of notices dealing with contracts 
based on an initial agreement or contract;]EC,US [where a procuring entity chooses to 
publish a secon d or subsequent notice based on an initial agreement or contract]HKC 
 
[(c)]JPN,US [b]CDA [where the procuring entity procures commercial goods or 
services;]JPN,CDA,US 
 
[(d)] [(c)]CDA where a state of urgency duly substantiated by the procuring entity rende rs 
impracticable the periods specified in paragraph  2; or 
 
[(e) when the period for the submission of tenders referred to in paragraph  2, for 
procurements by a procuring entity in [Annex  [2 and] 3], has been fixed by mutual 
agreement between the procuring entity and the selected suppliers . In the absence 
of agreement, the procuring entity may fix periods which shall be sufficient to enable 
responsive tendering].EC 
 
[4. When a procuring entity publishes a notice of intended procurement in accordanc e with 
Article  V in an electronic media listed in Appendix  II, the procuring entity may reduce the 
time-periods provided for in this Agreement by up to five  days. In addition, when the complete 
tender documentation is made available electronically from the  beginning of the publication of the 
notice, the procuring entity may reduce the time -periods provided for in this Agreement by up to an 
additional five  days.  [In addition, when the tenders may be received electronically, the procuring 
entity may reduce th e time -periods provided for in this Agreement by up to an additional GPA/TN1994/3/Rev.3  
- 12 - 
  five days.]CT,KOR,JPN,SW I The use of this provision, however, shall in no case result in the reduction of 
those time -periods to less than 10  days from the date on which the notice of inte nded procurement 
is published. ] [NB: In any case, Israel opposes shortening time -periods by any more than 
five days.]  
 
[4bis. A procuring entity may reduce the time -period of 40  days by an increment of five  days for 
each one of the following circumstances:  
 
(a) the notice of intended procurement is published electronically;  
 
(b) the tender documentation is made available electronically from the date of the 
publication of the notice of intended procurement ; and 
 
(c) the tenders can be received electronically by the procuring entity.]CDA 
 
[5. Notwithstanding any other time -periods in this Article, [when ]EC,US,SWI [where]CDA a procuring 
entity is [purchasing ]EC,US,SWI [procuring]CDA commercial goods [or]EC,US,SWI [and]CDA services [and 
the notice of intended procurement and the tender documents are published electronically, and the 
tenders may be received electronically ]EC,US,SWI [and all the circumstances listed in paragraph  4 are 
met]CDA, the entity may reduce the time -period to no less than [10]SWI,EC [5]US [three]CDA days[, 
provided such time is adequate to allow suppliers to submit responsive electronic 
tenders ]EC,US,SWI.]CDA,EC,US,SW I 
 
[6. Where a procuring entity in [Annex  [2 or] 3] has selected all or a limited number of qualified 
suppliers, the time -period for bidding may be fixed by mutual agreement between the procuring 
entity and the selected suppliers . In the absence of agreement, the period shall not be less than 
10 days.]CDA 
[NB: Parties are considering the proposals by Canad a, in particular as regards the linkages 
to Article  VIII.]  
 
Article  VII Information on Intended Procurements  
Tender Documentation  
 
1. A procuring entity shall provide to suppliers tender documentation that includes all information 
necessary to permit suppl iers to prepare and submit responsive tenders . Unless already provided in 
the notice of intended procurement, such documentation shall include a complete description of:  
 
(a) the procurement, including the nature and the quantity of the goods or services t o be 
procured or, where the quantity is not known, the estimated quantity and any 
requirements to be fulfilled, including any technical specifications, conformity 
certification, plans, drawings or instructional materials;  
 
(b) any conditions for participat ion of suppliers including a list of information and documents 
that suppliers are required to submit in connection therewith;  
 
(c) all criteria, including any cost factors, to be considered in the awarding of the contract, 
and the relative importance of su ch criteria;  
 
(d) where there will be a public opening of tenders, the date, time and place for the opening 
and, where appropriate, the persons authorized to be present ; and 
 
(e) any other terms or conditions, including terms of payment and any limitation on the 
means by which tenders may be submitted, e.g. paper or electronic means.  
 
2. In establishing any delivery date for the goods or services being procured, a procuring entity 
shall take into account such factors as the complexity of the procurement, th e 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.  
 GPA/TN1994/3/Rev.3  
- 13 - 
  3. A procuring entity shall promptly:  
 
(a) provide, on request, the tender documentation to any supplier participating in the 
procurement ; and 
 
(b) reply to any reasonable request for relevant information by a supplier participating in 
the procurement, provided that such information does not give that supplier an 
advantage over i ts competitors in the procurement.  
 
Technical Specifications  
 
4. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe 
any conformity assessment procedure with the purpose or the effect of creating unnecessary 
obstacles to international trade.  
 
5. In prescribing the technical specifications for the goods or services being procured, a procuring 
entity shall, where appropriate:  
 
(a) specify the technical specification, in terms of performance and funct ional requirements, 
rather than design or descriptive characteristics ; and [NB: The EC would prefer using 
"or" instead of "and" at the end of this sentence.]  
 
(b) base the technical specification on international standards, where such exist otherwise, 
on [national technical regulations,]CDA recognized national standards or building codes[, 
provided that the notice of intended procurement or the tender documents shall state 
that equivalent solutions shall be considered].EC,SW I 
 
[5bis. In all cases, procuring  entities shall consider tenders which do not comply with the provisions 
of the technical specification but do demonstrably meet the essential requirements thereof and are 
fit for the purposes intended . The reference to the technical specifications in the tender documents 
must include words such as "or equivalent".]EC 
 
6. A procuring entity shall not prescribe technical specifications that require or refer to a 
particular trademark or trade name, patent, copyright , design or type, specific origin, producer or 
supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement 
requirements and provided that, in such cases, words such as "or equivalent" are included in the 
tender documentation.  
 
1.  7. A procuring entity shall  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 the  
procurement.  
[8. For greater certainty, this Article is not intended to preclude a Party from preparing, adopting, 
or applying technical specifications to promote the conservation of natural resources or protect the 
environment [provided that such technic al specifications are consistent with 
paragraphs  4 through  7].JPN,EC]JP,EC,US,SWI ,NOR [NB: Chinese Taipei reserves its position on the 
last bracket.]  
 
[8bis. Requirements and evaluation criteria which require subjective assessment or professional 
judgment should be kept to a minimum and should only be used where justified.]HKC 
 
Modifications  
 
[9. If, [during the course of a procurement]US [prior to the award of a contract]HKC,CDA, a procuring 
entity modifies the criteria or technical requirements set out in previous notices and tender 
documentation provided to participating suppliers, [or]US amends or reissues the notice, it shall 
transmit all such modifications or amended or re -issued notice in writing:  
 GPA/TN1994/3/Rev.3  
- 14 - 
  (a) to all the suppliers that are participating at the time the information is [modified or]US 
amended, if [the identities of the suppliers are]US known, and in all other cases, in the 
same manner as the original information  [was transmitted]US; and 
 
(b) in adequate time to allow such suppliers to modify and re -submit amended tenders, as 
appropriate.]CDA,US 
 
[If, after publication of a notice of intended procurement, but before the time set for the opening or 
receipt of tenders [prior to the award of the contract]CDA as specified in the notices or the tender 
documentation, a procuring entity amends or re -issues the notice, the entity shall circulate the 
amendment or the re -issued notice in the same manner as the original documents u pon which the 
amendment or re -issued notice is based.  [A procuring entity shall provide]US,EC [A]JPN[a]US,ECny 
significant [additional]EC information given to [all suppliers at the same time]US,EC [one supplier with 
respect to a particular intended procurement shall be given simultaneously to all other suppliers 
concerned]JPN in adequate time to permit the suppliers to consider such information and to respond 
to it].EC,JPN,US,HKC,CDA 
 
Article  VIII Conditions for Participation  
General Requirements  
 
1. A procuring entity shall limit any conditions for participation in a procurement to those that 
are essential to ensure that a supplier has the legal, commercial, technical and financial abilities to 
undertake the relevant procurement.  
 
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity 
shall:  
 
(a) evaluate the financial, commercial and technical abilities of a supplier on the basis of 
that supplier's busines s activities both inside and outside the territory of the Party of 
the procuring entity, and may not impose the condition that, in order for a supplier to 
participate in a procurement, the supplier has previously been awarded one or more 
contracts by a pro curing entity of a given Party [or that the supplier has prior work 
experience in the territory of a given Party]US,EC,CDA,KOR,NOR,JPN,SW I; and [NB: Hong Kong, 
China proposes deletion of this bracket and suggest s a new paragraph 2 bis.] 
 
(b) base its determination on the conditions that the procuring entity has specified in 
advance in notices or tender documentation.  
 
[2bis. If essential for the satisfactory performance of the contracts, the procuring entities may 
specify that the suppliers have prior and relevant working experience in the territory provided that 
this is not used to discriminate against suppliers of any other Parties.]HKC 
 
[3.] [8.]CDA A procuring entity shall allow all domestic suppliers and suppliers of another Part y that 
satisfy the conditions for participation in a particular procurement to submit a tender, unless the 
procuring entity has indicated that it may limit the number of sup pliers that it will invite to submit 
tenders and sets out [any limitation on the number of suppliers that will be permitted to tender]US,CDA 
the criteria for such limitation in the notice of intended procurement [[or]JPN,US ,CDA [, where publicly 
available,  in]CDA [and]EC tender documentation].EC,JPN,US ,CDA 
 
[[3]JPN [5]ECbis. Each Party shall ensure that:  
 
(a) each procuring entity and its constituent parts follow a single qualification procedure, 
except in cases of duly substantiated need for a different pr ocedure ; and 
 
(b) efforts be made to minimize differences in qualification procedures between procuring 
entities.]JPN,SW I,EC 
 GPA/TN1994/3/Rev.3  
- 15 - 
  [4.] [3.]CDA Nothing in this Article shall preclude the exclusion of a supplier on grounds such as 
bankruptcy or false declaration s or significant deficiencies in performance of any substantive 
requirement or obligation under a prior contract.  
 
Multi-Use Lists  
 
[5.] [4]CDA A procuring entity that maintains a multi -use list of suppliers that have satisfied the 
conditions for participation shall annually publish [or otherwise make available continuously in 
electronic form]US,CDA ,KOR a notice inviting interested suppliers to apply for inclusion on the list . Such 
notice shall be published in the appropriate publication listed in Appendix  III. The notice shall 
include:  
 
(a) a description of the goods and services, or categories thereof, for which the list may be 
used;  
 
(b) the conditions for participation to be satisfied by suppliers and the methods that the 
procuring entity will u se to verify a supplier's satisfaction of the conditions;  
 
(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 list;  
 
(d) the date on which the list will terminate and the means for its renewal or termination, 
[or where a date is not provided, an indication of the method by which notice will be 
given of the termination of use of the list]CDA,US ,JPN; and 
 
(e) an indication that, for procurement covered by this Agreement, the list may be used.  
 
[6. Notwithstanding paragraph  5, where a multi -use list is valid for a period of three  years  or less, 
a procuring entity shall publish the notice referred to in paragraph  5 at least once, at the 
commencement of the  use of the list, provided that this provision is not used to circumvent this 
Agreement and the notice states that further notices will not be published.]EC,US [NB: Switzerland , 
Canada, Singapore  and Japan question the extent to which this paragraph is com patible 
with paragraph  5, which foresees an annual publication. ] 
 
[7.] [5]CDA A procuring entity shall allow suppliers to apply at any time for inclusion on a multi -use 
list and shall include on the list all suppliers that satisfy the conditions for participation within a 
reasonably short time.  
 
[Notice Inviting Applications]CDA,JPN 
 
[6. A procuring entity that issues a separate notice inviting applications from suppliers to meet 
conditions for participation shall publish the notice in the appropriate  publication listed in 
Appendix  III. Such notice shall include:  
 
(a) the name and address of the procuring entity and other information necessary to contact 
the procuring entity and obtain all relevant documents relating to the procurement, and 
their cost and terms of payment, if any;  
 
(b) a description of the procurement, including the nature and the quantity of the goods or 
services to be procured or, where the quantity is not known, the estimated quantity;  
 
(c) a list and brief description of the conditi ons for participation of suppliers including any 
specific documents or certifications required from suppliers in connection therewith ; 
 
(d) where a procuring entity intends to select a limited number of qualified suppliers to be 
invited to tender, the crit eria that will be used to select them and, where applicable, 
any limitation on the number of suppliers that will be permitted to tender.]CDA 
 
[Selective Tendering]EC,US GPA/TN1994/3/Rev.3  
- 16 - 
   
[7. Except where a notice of a multi -use list or a separate notice inviting applications to meet 
conditions for participation has been readily accessible in electronic form for a reasonable period of 
time, a procuring entity that intends to limit the submission of tenders to all qualified suppliers or to 
a limited number of qualif ied suppliers selected by the procuring entity in advance of the deadline 
for submitting tenders, shall publish the time limit for submitting applications in the notice of 
intended procurement.]CDA [NB: Canada considers that this paragraph addresses the sa me 
issue as paragraph  8.] 
 
8. Where a procuring entity intends to [limit the submission of tenders to all qualified suppliers 
or to a limited number of qualified suppliers selected by the procuring entity]EC,US [set a time -limit 
for submitting applications  to recognise suppliers as having satisfied the conditions for participation 
in a procurement or to select a limited number of qualified suppliers]JP,KOR, [whether or not it uses a 
multi-use list,]EC [, except where a notice of a multi -use list has been re adily accessible in electronic 
form for a reasonable period of time,]US the entity shall publish in the notice of intended procurement 
the time -limit for submitting applications[, which must be a minimum of 25  days from the date of 
publication of the notice.]EC 
 
[Such time -limit shall be:  
 
(a) a minimum of [15]SWI days from the date of publication of the notice where it uses a 
multi-use list; or [NB: Switzerland supports shortening the time -period for 
submitting applications when using a multi -use list  to 15  days, but notes that 
the time -period should not be further shortened when using electronic means, 
owing to the complexity of the projects requiring selection of qualified 
suppliers.]  
 
(b) a minimum of [25]  days from the date of publication of the no tice where it does not use 
a multi -use list.]JPN,KOR 
 
[If an application is submitted within the time -limit, a procuring entity shall examine it]EC,US and 
[may not exclude the supplier from consideration in respect of the procurement on the grounds that 
the procuring entity has insufficient time to examine the application]EC,US [,unless due to the 
complexity of the procurement the entity is not able to complete the examination of the application 
[within the time -period allowed for tendering ]US [before comme ncement of tendering]HKC]US. [A 
procuring entity may limit submission of tenders to qualified suppliers that have submitted 
applications within this time -limit.]JPN [NB: Hong Kong, China preferred deleting the sentence 
"may not exclude the supplier from consideration in respect of the procurement on the 
grounds that the procuring entity has insufficient time to examine the application" as 
experience showed that it might take considerable time to complete the qualification 
process .] 
 
[9. The time -period provided for in paragraph 8 may be reduced to [10] days where:  
 
(a) the conditions for participation for a procurement are the same as or a sub -set of the 
conditions for participation for a multi -use list;  
 
(b) the procurement is for commercial goods or  services ; and 
 
(c) the procuring entity has published a notice establishing that multi -use list for at least 
[25] days and that notice has remained readily accessible in electronic form since its 
initial date of publication.]US 
 
Annex 2 and 3 Entitie s [NB: The EC, Canada, Norway and Switzerland are considering to 
reduce the scope of this paragraph, in particular Annex  2. Japan is considering both 
Annex  2 and Annex  3.] 
 GPA/TN1994/3/Rev.3  
- 17 - 
  [10.] [9]CDA A procuring entity listed in Annexes  [2]US or [3]SWI,US,CDA,NOR,EC may use a notice inviting 
suppliers to apply for inclusion on a multi -use list as a notice of intended procurement, provided 
that: 
 
(a) the notice sets out, in addition to the information required in paragraph  5, as much of 
the information requ ired in Article  V:2 as is available and contains a statement that it 
constitutes a notice of intended procurement  [or that only the suppliers on the multi -use 
list will receive further notice of procurements that are covered by the multi -use 
list]US,CDA; 
 
(b) the entity promptly provides to suppliers that have expressed an interest to the entity 
in a given procurement, sufficient information to permit them to have a meaningful 
opportunity to assess their interest in the procurement, including all remaining 
information required in Article  V:2, to the extent such information is available ; and 
 
[(c) a supplier having applied for inclusion on a multi -use list in accordance with paragraph  7 
shall be entitled to tender in a given procurement, if there is sufficien t time to examine 
whether it satisfies the conditions for participation].EC,SW I 
 
Information on Procuring Entities' Decisions  
 
[11. A procuring entity shall promptly advise a supplier of the success or failure of its application 
for inclusion on a multi -use list and of any decision by the entity to include the supplier on a multi -use 
list.] [NB: Canada would combine this paragraph with paragraph 13.]  
 
[12.] [10]CDA Where a procuring entity has required suppliers to apply for recognition that they 
have satisfied the conditions for participation in accordance with paragraphs  [8 or 9 11] [4-7]CDA, 
the entity shall promptly notify all such suppliers of the results of their applications [.]CDA [and [at 
the same time]US,EC,CDA shall [allow all successful appli cants to submit tenders .]JPN,US,CDA [send 
invitations to tender to all successful applicants .]EC] 
 
[13.] [11]CDA Where a procuring entity has taken action under paragraph  12 or 13, the entity 
shall, on request of a supplier, promptly provide the supplier with a written explanation of the 
reasons for the entity's action.  
 
[Article  IX Negotiation  
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 in the notice of 
intended procurement in paragraph  2 of Article  V; or 
 
(b) it appears from the evaluation that no one tender is obviously the most advantageous 
in terms of the specific evaluation criteria set forth in the notices or tender 
documenta tion. 
 
2. A procuring entity [shall treat tenders in confidence . In particular, it]EC,ISR,SW I [shall not provide 
information intended to assist particular participants to bring their tenders up to the level of other 
participants.]EC,ISR,SW I,CT [NB: Canada , the US  and Korea believe that this issue is already 
addressed by Article s XI:2 and XIII:3, and suggest to delete this paragraph.]  
 
3. A procuring entity shall ensure that any elimination of tenderers in negotiations is carried out 
in accordance with the c riteria set out in the notices or tender documentation.  
 
4. A procuring entity shall transmit, in writing, any modifications to the criteria made in the 
course of negotiations to tenderers whose tenders have not yet been eliminated according to the 
criteri a set out in the notices or tender documentation, and when negotiations are concluded will 
provide a common deadline for the remaining tenderers to submit any new or revised tenders. ] GPA/TN1994/3/Rev.3  
- 18 - 
  [NB: The US and Canada suggest deleting the entire Article  as its substa nce is covered 
elsewhere .] 
 
Article  X Limited Tendering  
1. Provided that it does not use this provision for the purpose 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 [contact a supplier or suppliers of its choice]CDA,JPN,US,SW I 
[use a limited tendering procedure]EC and may choose not to apply Articles  [...] in the following 
circumstances : [NB: Switzerland finds it use ful to mention that limited tendering refers to 
"contact a supplier or suppliers of its choice" ; it should also be defined in Article  I as it is 
explicitly mentioned under Article  III:3 (Procurement methods) . Canada and the US 
propose mat ching the Articles  in the current Agreement ; Japan proposes to make 
reference to Articles  V, VI, VII:1,  2, 3, and  8, VIII,  IX and XI.] 
 
(a) provided that the requirements of the tender documentation are not substantially 
modified:  
 
(i) where no tenders were submitted or no suppliers applied to meet the conditions 
for participation;  
 
(ii) where no tenders that conform to the essential requirements of the tender 
documentation were submitted;  
 
(iii) where no suppliers satisfied the conditions for participation ; or 
 
(iv) where the tenders submitted have been collusive;  
 
(b) where the goods or services can be supplied only by a particular supplier and no 
reasonable alternative or substitute goods or services exist for the following reasons:  
 
(i) the requirement is for a work of art;  
 
(ii) the protection of patents, copyrights or other exclusive rights[, or proprietary 
information]US,CDA,JPN; or [NB: The EC is wondering what is the extent or 
definition of proprietary information.]  
 
(iii) due to an absence of competition for technical reasons;  
 
(c) for additional deliveries of goods or services [by the original supplier]EC,JPN,US that are 
intended either as replacement parts, extensions, or continuing services for existing 
equipment, software, services or insta llations, where a change [of goods or services]CDA 
[of supplier]JPN,US,EC ,KOR would compel the entity to procure goods or services [ [either]EC 
not meeting requirements of interchangeability with [or not operable with]EC existing 
equipment, software, servic es, or installations]JPN,KOR,EC [that would : [NB: Switzerland 
notes that the relationship between (c)  and (g) needs further scrutiny.]  
 
(i) alter the operation or use of the existing goods or services ; or 
 
(ii) due to the change of goods or services, require existing equipment or services to 
be altered;]CDA,US 
 
(d) in so far as is strictly necessary where, for reasons of extreme urgency brought about 
by events unforeseeable by the procuring entity, the goods or services could not be 
obtained in time under tendering procedures consistent with Articles  []; 
 
(e) for goods purchased on a commodity market ; or 
 GPA/TN1994/3/Rev.3  
- 19 - 
  (f) where a procuring entity procures a prototype or a first [product ] [good]US or service 
that is developed at its request in the course of, and for, a particular contract for 
research, experiment, study or original development . [Original development of a first 
good or service may include limited production or supply in order to incorporate the 
results of field testing and to demonst rate that the good or service is suitable for 
production or supply in quantity to acceptable quality standards , but does not include  
quantity production or supply to establish commercial viability or to recover research 
and development costs;]EC,JPN ,US 
 
(g) where additional [construction]JPN,CDA,US ,KOR services which were not included in the 
initial procurement but which were within the objectives of the original tender 
documentation have, through unforeseeable circumstances, become necessary to 
complete th e services described therein, and the entity needs to award contracts for 
the 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 procuring 
entity . However, the total value of contracts awarded for the additional services may 
not exceed 50  per cent  of the amount of the main procurement ; [NB: Switzerland, 
Norway and the EC question why this should be limited to construction?]  
 
(h) for new [construction]JPN,CDA,US ,KOR services consisting of the repetition of similar services 
which conform to a basic project for which an initial contract was awarded following an 
open or  selective procurement 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 awarding contracts for such new services ; [NB: 
Only Chin ese Taipei would like to add the words "goods and" before "services" 
in the first line.]  
 
(i) for purchases made under exceptionally advantageous conditions which only arise in 
the very short term in the case of unusual disposals such as arising from liqui dation, 
receivership or bankruptcy and not for routine purchases from regular suppliers ; and 
 
(j) in the case of a contract awarded to [a] winner of a design contest provided that:  
 
(i) the contest has been organized in a manner that is consistent with the principles 
of this Agreement, notably as regards the publication of a notice of intended 
procurement ; and 
 
(ii) the participants are judged by an independent jury with a view to a design 
contract being awarded to [a] winner.  
 
2. A procuring entity shall prepare a report in writing on each contract awarded under 
paragraph  1. 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 an d conditions described 
in paragraph  1 that justified the use of such procedures.  
 
Article  XI Treatment of Tenders and Contract Awards  
Receipt and Opening of Tenders  
 
1. A procuring entity shall receive and open all tenders under procedures that guarantee t he 
fairness and impartiality of the procurement process.  
 
2. A procuring entity shall treat tenders in confidence at least until the award of the contract.  
 
3. A procuring entity shall not penalize any supplier whose tender is received after the time 
specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring 
entity.  
 GPA/TN1994/3/Rev.3  
- 20 - 
  4. When a procuring entity provides suppliers with opportunities to correct unintentional errors 
of form between the opening of tenders and the award ing of the contract, the procuring entity shall 
provide the same opportunities to all participating suppliers.  
 
Awarding of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
comply with the essential re quirements of the notices and tender documentation and be from a 
supplier that satisfies any conditions for participation.  
 
6. A procuring entity shall not use option clauses in a manner that circumvents the provisions of 
this Agreement.  
 
7. Unless a procu ring entity determines that it is not in the public interest to award a contract, 
it shall award the contract to the supplier that the entity has determined to be fully capable of 
undertaking the contract and whose tender is either the lowest price or the tender that the entity 
has determined to be the most advantageous solely on the basis of the requirements and evaluation 
criteria specified in the notices or tender documentation.  
 
2.  8. Where a procuring entity receives a tender with a price that is abnormal ly lower than the 
prices in other tenders submitted, it may verify with the tenderer that it can comply with the 
conditions of participation and be capable of fulfilling the terms of the contract.  
[9. A procuring entity shall not cancel a procurement or mo dify awarded contracts in a manner 
that circumvents the obligations of this Agreement.]US.EC ,NOR,JPN 
 
[Article  XIbis  Use of Electronic Means ]  
[NB: Switzerland supports this new Article and is reviewing the text in detail . Israel is still 
considering this proposed Article . Canada is questioning whether  2 (b), 2 (d) and 3 (d) 
are necessary.]  
 
1. [Procurement covered by this Agreement conducted, exclusively or not, by electronic means 
shall be subject to the provisions of this Agreement.]EC,SGP,KOR,JPN,SWI 
 
2. Where a procuring entity intends to conduct a procurement using electronic means, either 
wholly or partially, it shall:  
 
[(a) indicate [in the notice of intended procurement]US,EC its intention to [require that tenders 
be submitted by el ectronic means]US,EC;] 
 
(b) ensure that any means and tools used for communicating electronically including 
authentication, integrity of data and encryption are [non -discriminatory] [.]JPN, 
[generally available and interoperable with the information and communication 
technology products in general use and will not impose an unreasonable burden on 
other Parties' suppliers access to the tendering procedure] ; [NB: Canada and the US 
have reservations on th is subparagraph .] 
 
(c) ensure that all  information necessary to permit potential suppliers to meet the 
specifications for using the necessary electronic means and tools is available to 
interested parties and is included by the procuring entity in the tender documentation ; 
and [NB: Canada and t he US wonder whether this should be a paragraph  2 in 
Article  VII.]  
 
(d) use mechanisms which clearly and unambiguously guarantee that, pending the expiry 
of the deadlines set, the integrity of data is preserved, access to tenders and request 
to participate  is prohibited and the timing of receipt of tenders and request to participate 
is accurately established.  
 GPA/TN1994/3/Rev.3  
- 21 - 
  3. [A procuring entity that intends  to hold an electronic auction in a ] [A]US procurement covered 
by this Agreement [may be conducted by electronic auction, provided that the procuring entity]US 
shall: [NB: Japan and Israel are wondering whether the requirements of confidentiality 
allow for the use of electronic auction.]  
 
[(a) state their intention to use electronic auctions in the notice of intended procurement; ] 
[NB: Canada wonders whether this is not already addressed by Article  V:2.]  
 
(b) indicate in the tender documents the features on which the electronic auction will be 
run, provided that such features are quantifiable and can be expressed in figures or 
percentages, and the conditions and rules under which the auction will be carried out ; 
[NB: Canada and the US believe this should be located in Article  VII relating to 
evaluation criteria.]  
 
(c) provide participants, before starting the electronic auction, with the evaluation factors 
that will be used, including [any]US [the]EC mathematical formula determining the 
automatic ranking during the electronic auction when the con tract is to be awarded on 
the basis of the most economically advantageous tender ; [NB: Canada believes this 
should be located in Article  VII relating to evaluation criteria.]  
 
(d) ensure that electronic auctions operate in full accordance with the general principles of 
this Agreement, in particular, equal treatment, non -discrimination and transparency.  
 
[4. [A p]US[P]rocuring entit [ies][y]US shall ensure full traceability of the [conduct of a 
procurement]SWI,US [award procedures ] conducted by electronic [auction]US,SWI ,SGP 
[means ]EC.]EC,US ,KOR [NB: Japan , the US , Korea and the EC suggest to include some time -limit 
for traceability . Canada, the US and Singapore wonder whether this is not addressed in 
Article  XII:4.] 
 
Article  XII Transparency of Contract Award Information  
Information Provided to Suppliers  
 
1. A procuring entity shall promptly inform [participating]EC,NOR suppliers [that have submitted 
tenders]CDA,JPN,US of the entity's contract award decisions [ and, on request, in writing] .EC,SW I,NOR 
Subject to Article  XIII, a procuring entity shall, on request, provide an unsuccessful supplier with an 
explanation of the reasons that the entity did not select its tender and the relative advantages of 
the successful supplier's tender . 
 
Publication of Award Information  
 
2. Not later than 72  days after the award of each contract covered by this Agreement, a procuring 
entity shall publish a notice in an officially designated publication listed in Appendix  II that may be 
in an electronic or paper medium . Where only an electronic medium is used, the information shall 
remain readily accessible for a reasonable period of time . The notice shall include at least the 
following information:  
 
(a) a description of the goods or services procured;  
 
(b) the name and address of the procuring entity;  
 
(c) the name and address of the successful supplier;  
 
(d) the value of the successful tender or the highest and lowest offers taken into account 
in the award of the contract;  
 
(e) the date of award ; and 
 GPA/TN1994/3/Rev.3  
- 22 - 
  (f) type of procurement method used, and in cases where limited tendering was used 
pursuant to Article  [X (Limited Tendering) ], a description of the circumstances justifying 
the use of such procedure.  
 
Provision of Award Information to Parties  
 
3. On request of any other Party, [and subject to Article  XIII:[2]  [1]EC]EC without prejudice to 
the provision under Article  XVIII [Dispute Settlement ], a Party shall provide promptly such 
information on the award of a contract, including information on t he characteristics and relative 
advantages of the successful tender and on the contract price, as may be necessary to determine 
whether the procurement was conducted fairly, impartially and in accordance with this Agreement.  
[In cases where release of this  information would prejudice competition in future tenders, t]EC,SWI 
[T]he Party that receives t hat information shall not disclose  it to any supplier, except after 
consultation with, and agreement of, the Party that provided the information . 
 
Maintenance o f Documentation and Reports  
 
4. Each procuring entity shall maintain documentation and reports of tendering procedures and 
contract awards relating to procurement covered by this Agreement, including the reports provided 
for in Article  [X (Limited Tenderin g)], and shall retain such documentation and reports for a period 
of at least three  years from the award of the contract.  
 
Collection and Report of Statistics  
 
5. Each Party shall collect and report to the Committee statistics on its contracts covered by t his 
Agreement . Each report shall cover one  year and be submitted within two  years of the end of the 
reporting period, and shall contain:  
 
(a) For Annex  1 procuring entities:  
 
(i) the number and total value, for all such entities, of contracts covered by this 
Agreement;  
 
(ii) the number and total value of all contracts covered by this Agreement awarded 
by such entities, broken down by [categories of] goods and services [according 
to a[n internationally recognized]CDA,US uniform classification sy stem] ; and [NB: 
Switzerland suggests the deletion of "by categories of goods and services 
according to an internationally recognized uniform classification 
system" ; this should be left optional to Members depending on the use 
they may have from these statistics . The EC is considering the need for a 
uniform classification system to be agreed upon among the GPA Parties.]  
 
(iii) the number and total value of contracts covered by this Agreement awarded by 
each such entity under limited tendering.  
 
[(iv) the total value of contracts awarded under derogations to the Agreement 
contained in the relevant Annexes.]CDA [NB: All parties, except Canada, agree 
to delete this subparagraph. ] 
 
(b) For Annex  2 and 3 procuring entities:  
 
(i) the number and total value of contracts covered by this Agreement awarded by 
all such entities, broken down by Annex;  
 
[(ii) the value of contracts covered by this Agre ement awarded by such entities under 
limited tendering, broken down by Annex].CDA [NB: All parties, except Canada, 
agree to delete this subparagraph.]  
 GPA/TN1994/3/Rev.3  
- 23 - 
  (c) Where data to be provided under subparagraph  [(a) and]EC,US,JPN (b) is not available, 
estimates shall be provided.  
 
6. Where a Party publishes its statistics on an official website, the Party may substitute a 
notification of the website address for the submission of the data, with any instructions necessary 
to access and use such statistics.  
 
7. Where a Party requires notices concerning awarded contracts, pursuant to Article  XII:2, to be 
published electronicall y and where such notices are accessible to the pub lic through a single database 
in a form permitting [automatic ] analysis  of the covered contract s, the Party may substitute a 
notification of the website address for the submission of the data, with any inst ructions necessary 
to access and use such data.  
 
Article  XIII Non-Disclosure of Information  
[NB: The United States and Japan suggest that subparagraph  2 (b) should be deleted as 
unnecessary.]  
 
1. Notwithstanding any other provision of the Agreement, a Party or a procuring entity may not 
provide information to a particular supplier that might prejudice fair competition between suppliers.  
 
2. Nothing in this Agreement shall be construed to require a Party or procuring entity [or an 
authority or review body under Article  XVII [or XVIII]EC]EC,US to release [confidential]CDA,JPN 
information under this Agreement where release:  
 
(a) would impede law enforcement;  
 
(b) [might prejudice fair competition between suppliers; ] 
 
(c) would prejudice the leg itimate commercial interests[, including the protection of 
intellectual property,] CDA,US,JPN  of particular persons ; or 
 
(d) would otherwise be contrary to the public interest.  
 
[except to the extent that it may be required to be disclosed in the context of  proceedings under 
Articles  XVII or XVIII.]EC 
 
Article  XIV Developing Countries  
[NB: All parties are reviewing this Article.]  
 
[1. In negotiations on accession to, and in the implementation and administration of, the 
Agreement, the Parties shall take special consideration of developing and least -developed countries' 
(thereafter developing countries) development, financial and trade needs and circumstances, 
recognizing that these may differ significantly from country to country . In this context, the Par ties 
shall give due consideration to requests by a developing country for transitional measures with 
regard to its market access commitments under paragraph  3, as well as its implementation of the 
procedural obligations of the Agreement under paragraph  5. The Parties shall accord special and 
differential treatment, as provided for by this Article[.]EC [: 
 
(a) to any least -developed country that accedes to this Agreement ; and 
 
(b) to any other developing country that accedes to this Agreement, provided that such 
country demonstrates to the Parties ' satisfaction a need for such 
treatment]SWI,US.]EC,SWI,US 
 GPA/TN1994/3/Rev.3  
- 24 - 
  [bearing in mind the importance attached to the concept of development, in particular as it refers 
to small and medium enterprises from developing countries, the Parties shall give due consideration 
to a request by a developing country to invoke the use of "offsets" as defined in Article I and under 
the conditions stated below.]ISR 
 
2. [Subject to the coverage that a developed country Party has negot iated with an acceding 
developing country, the]SWI,US [Each]EC developed country Party shall provide immediately to the 
goods, services and suppliers of the acceding developing country the most favourable treatment 
offered by that developed country Party u nder Appendix  I upon accession of the developing country.  
[However, with respect to a developing country other than a least -developed country, where the 
Parties have agreed to [transitional measures,] provided for in paragraph  3 for such country, in 
order to maintain appropriate reciprocal trade opportunities under the Agreement, any Party may 
agree with the acceding country to limit the scope of coverage that the Party provides to that country 
during the agreed transition period . Any such limitations shall  be clearly identified in the Committee's 
accession decision and in each Party's Annexes or Notes to Appendix  I.]SWI,US 
 
3. A developing country Party may, with the agreement of the Parties, [adopt or]EC retain 
transitional measures upon its accession to t he Agreement, during an agreed -upon transition period 
with a phase -out schedule that may include:  
 
(a) price preference programmes, provided that the price preference programme:  
 
(i) provides a preference only for the part of the tender incorporating goods  or 
services originating in the Party applying the preference or goods or services 
originating in other developing countries that have preferential agreements with 
the Party applying the preference ; and 
 
(ii) is transparent, and its application is clearly stated in notices of intended 
procurement and notices inviting suppliers to apply for participation in 
procurement covered by the Agreement ; [or]EC 
 
[(b) offsets, provided that:  
 
(i) any requirement for, or consideration of, the imposition of offsets is clearly stated 
in notices of intended procurement and notices inviting suppliers to apply for 
participation in procurement covered by the Agreement ; and 
 
(ii) the offsets are applied in a non -discriminatory manner ; [or]SWI,US]SWI,US,EC 
 
 [Offset s 
 
- Notwithstanding Article  III:5, require the incorporation of local content, offset 
procurement, [transfer of technology], or any other measures that are consistent 
with the meaning of "offsets" under Article I to this Agreement.  
 
- Requirements regardi ng the imposition of offsets shall be stated clearly in notices 
of intended procurements and in any other relevant documentation.]ISR [NB: 
Israel and Korea are still considering their position on "transfer of 
technology".]  
 
[(c) limitations on its coverage  such as the partial or total exclusion of a specific sector or 
entities]SWI,US. 
 
4. The agreed -upon transition period shall not exceed [X]  years for developing countries and 
[2X] years for least -developed countries.  
 GPA/TN1994/3/Rev.3  
- 25 - 
  5. In order for a developing country Party to bring its measures into conformity with the 
Agreement, it may, with the agreement of the Parties, apply a specified implementation period, 
which shall be:  
 
(a) for a least -developed country Party, [three] years from the entry into force of  the 
Agreement for that Party ; and 
 
(b) for any other developing country Party, the period necessary to adopt measures relating 
to [specific provisions of]SWI,US the Agreement,  
 
provided that the Party complies with Article  III [non-discrimination ]. 
 
6. At the end of the transition period, provided for in paragraph  3, and the implementation 
period, provided for in paragraph  5, the developing country Party shall fully comply with the 
Agreement.  
 
7. Any developing country Party that has  been permitted to retain a transitional measure under 
paragraph  3, or apply an implementation period under paragraph  5, shall list in an Annex to its 
Appendix  I: 
 
(a) the price preference programme or offset, including the schedule for phase -out of the 
measure;  
 
[(b) the schedule for the expansion of coverage;]SWI,U S and 
 
(c) the implementation period [, and where applicable, specific procedural obligations and 
any interim measures that it will take with regard to those obligations]SWI,US. 
 
3.  8. After the Ag reement has entered into force for a developing country Party, the Committee, on 
request of the developing country Party, and with a three -fourths majority vote, may:  
(a) extend the transitional period for measures permitted under paragraphs  3 or 5 where a  
developing country Party demonstrates a need for an extension of the transitional 
measure ; or 
 
(b) approve the application of a new transitional measure in special circumstances 
unforeseen during the accession process, provided that the measure is consist ent with 
paragraph  3. 
 
9. A Party benefiting from a transitional measure provided for under paragraphs  3 or 5 shall take 
such steps as may be necessary to ensure the fulfilment of all of its obligations at the end of the 
transitional period . The Party shal l notify the Committee of such steps, including any special technical 
cooperation needs.  
 
10. During a developing country 's accession process or after the entry into force of this Agreement 
for that country, the Parties shall give due consideration to any request by such country for technical 
cooperation in relation to that country 's implementation of this Agreement.  
 
11. Each Party shall establish an information centre to respond to reasonable requests from a 
developing country Party for information relate d to the Party's efforts to fully benefit from its 
participation in the Agreement . Such information may include information relating to procurements 
plans, procedures or requirements with respect to procurement covered by the Agreement.  
 
12. The GPA Committee shall review the operation and effectiveness of this Article every 
five years[, and more frequently, as necessary, with regard to developing country Parties that have 
measures that are subject to this Article]SWI,US. 
 GPA/TN1994/3/Rev.3  
- 26 - 
  Article  XV Exceptions to the  Agreement  
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or 
not disclosing any information that it considers necessary for the protection of its essential security 
interests relating to the procurement of arms,  ammunition or war materials, or to procurement 
indispensable for national security or for national defence purposes.  
 
2. Subject to the requirement that such measures are not applied in a manner that 
would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same 
conditions prevail or a disguised restriction on international trade, nothing in this Agreement shall 
be construed to prevent any Party from imposing or enforcing measures:  
 
(a) necessary to protect public mora ls, order or safety;  
 
(b) necessary to protect human, animal or plant life or health;  
 
(c) necessary to protect intellectual property ; or 
 
(d) relating to goods or services of handicapped persons, of philanthropic institutions or of 
prison labour.  
 
[3. The Parties understand that paragraph  2(b) includes environmental measures necessary to 
protect human, animal or plant life or health]CDA,US [or natural resources].CT]US,CDA,C T [NB: Hong 
Kong, China ; Korea; the EC ; and Japan considered this paragraph not nece ssary, given 
paragraph  2(b).]  
 
[4. [Having regard to general policy considerations relating to tied aid, including the objective of 
developing countries with respect to untying of such aid, this Agreement does not apply to 
procurement made in furtherance o f tied aid to developing countries so long as it is practised by 
Parties.]SWI,JPN [NB: Location needs to be reconsidered . Norway proposes to delete this 
paragraph. ] [Market Access Issue ] 
 
Article  XVI Modifications and Rectifications to Coverage  
[NB: This Article reflects only the views of Japan, Korea and the United States . The EC 
reserves its position on this Article and the right to submit its own drafting at a later stage . 
Switzerland , Singapore  and Canada are  still reviewing this Article.]  
 
[1. For purposes of this Article, where a procuring entity that is the subject of a proposed 
rectification, transfer, modification or withdrawal, pursuant to paragraph  2 or 3 of this Article is 
required to accord the treatment described in Articles  VII to X to goods, services or suppliers of 
another party, then the latter party shall be considered an 'affected party '.]US 
 
[2]US [1.(a)]JPN,KOR [A Party shall notify the Committee of any]US Rectification [s]JPN,KOR, 
transfer [s]JPN,KOR of an entity from one Anne x to another or, in exceptional cases, 
other modification [s]JPN,KOR [(hereinafter collectively referred to as "modification"]US 
[relating to]JPN,KOR [of]US Appendices  I through  IV [shall be notified to the 
Committee ]JPN,KOR, along with information as to the likely consequences of the 
change for the mutually agreed coverage provided in this Agreement.  [The 
Committee shall circulate the notification.]US If [no affected Party submits to the 
Committee an objection in writing to]US the [propo sed]US [rectifications, transfers or 
other ]JPN,KOR modification [s are of a purely formal or minor nature, they ]JPN,KOR [within 
30 days of circulation of the notification, the proposed modification]US shall become 
effective [provided there is no objection i n writing, notified by any Party the benefits 
of which under this Agreement may be affected by the proposed modification 
(referred to in this Article as the "affected Party") within 30  days. ]JPN,KO R [Where and 
affected Party submits an objection that the p roposed modification is not of a purely 
formal or minor nature,]US [In other cases, ]JPN,KOR the Chairman of the Committee 
shall promptly convene a meeting of the Committee . The Committee shall consider GPA/TN1994/3/Rev.3  
- 27 - 
  the proposal and any claim for compensatory adjustment s [made by any affected 
Party]JPN,KOR, 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 an agreement not being reached , the matter may 
be pursued [by any affected Party]JPN,KOR in accordance with the procedures 
[provided for]US [contained]JPN in Article  XVIII [or arbitration].JPN [NB: The US 
continues to oppose the addition of "arbitration" in the absence of a 
clarification the operation of such a process in this context.]  
 
[(b) If no affected Party has requested the procedures contained in 
Article  [XXII]JPN,KOR [XVIII]US [or arbitration] within [120]KOR [210]  days from the 
date of circulation of the proposed mo difications under subparagraph  (a), the 
proposed modifications shall become effective . The period under this subparagraph 
may be extended by mutual agreement.]JPN,KOR 
 
[(c) (the same provisions as paragraph  (2)(e) below.)]JPN 
 
[3]US [2.]JPN,KOR (a) Where a  Party wishes[, in exercise of its rights,]JPN,KOR to withdraw an entity from 
Appendix  I on the grounds that government control or influence over it has been 
effectively eliminated  [or that the entity concerned is engaged in the provision of 
goods or servi ces in markets to which access is not restricted and are subject to 
genuine competition]EC, that Party [(referred to in this Article as the "modifying 
Party")]JPN,KOR shall notify the Committee.  [The Committee shall circulate the 
notification . If no affect ed Party submits to the Committee an objection in writing to 
the proposed withdrawal within 30  days of circulation of the notification, the 
proposed withdrawal]US [Such modification ]JPN,KOR 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 [circulation of the]US notification and no 
[affected Party submits a written]US objection [has bee n made by any Party the 
benefits of which under this Agreement may be affected by the proposed modification 
(referred to in this Article as the "affected Party")]JPN,KOR [within 30  days of the 
circulation]US. [NB: The United States proposes the modificatio ns noted in 
caps and strikeout to clarify the operation of the paragraph.]  
 
[(b) The notification shall contain evidence that government control or influence over it 
has been effectively eliminated, including information [that addresses]US [on]JPN the 
following [factors]US [criteria]JPN,KOR: [NB: Hong Kong, China would  like to clarify 
whether consideration of a request to  remove an entity from Appendix  I will 
be based on all the factors for which the information is required or whether 
such consideration can be based on the information provided for a single 
factor . HKC considers that the modifying Party does not need to provide in 
his notification of modifications information to address all the 
factors/criteria listed in this paragraph .] 
 
- [whether there is a legal nexus or relationship between the government and 
the entity;]US [NB: Hong Kong, China does not see a need for the above 
factor since the relationship and/or linkage between the entity and 
the government could be addressed in other  factors.]  
 
- [whether]US the government [does not control a majority of]JPN,KOR [holds a 
direct or indirect controlling interest in]US the entity's capital [nor]JPN,KOR 
[and]US voting rights;  
 
- [whether]US the government [does not]JPN,KOR appoint[s]US more than half of 
the members of the entity's managing board [or such other number as would 
have]US [which has]JPN,KOR the power to decide on operations;]JPN,KOR,US 
 GPA/TN1994/3/Rev.3  
- 28 - 
  - [whether the government provides support to or subsidizes the entity, and, 
if so, whether such support represents a one -time public investment or a 
continuous operating subsidy;]US 
 
- [the operation of the entity is financed by its business revenue, not by 
government subsidies]JPN [Not more than 50  pre-cent of the entity's 
financing comes from the State or public bodies];  
 
- [whether the government exercises formal or informal oversight or 
supervision of an entity's business decisions, beyond the normal regulatory 
oversight for all suppliers in a particular industry;]US [NB: Hong Kong, 
China would like illustration of this factor/criteria.]  
 
- [whether there are any personnel linkages between the entity and the 
government;]US [NB: Hong Kong, China does not see a need for the 
above factor since the relationshi p and/or linkage between the 
entity and the government could be addressed in other factors.]  
 
- [the government does not have control or influence over the entity's 
procurement decisions;]JPN 
 
- [the government does not provide the entity with any special or exclusive 
rights to operate;]JPN [whether the government has granted special or 
exclusive legal or economic rights or benefits that may alter the 
competitiveness of an entity's goods or services in a commercial market or 
otherwise influence the entity 's business decisions;]US [and]CT,US [NB: Hong 
Kong, China would like illustration of the US bracket .] 
 
- [whether the entity is exclusively engaged in the provision of goods or 
services in commercial markets subject to genuine competition, or whether 
it has  mixed governmental and commercial functions.]US [there are more 
than one [entity] [supplier]CT that engage in the provision of goods or 
services on the market.]JPN [NB: Hong Kong, China would like 
illustration of the US bracket .] 
 
[(b)bis The market in which the entity operates is directly exposed to competition on 
markets to which access is not restricted, it being acknowledged that government 
control or influence over an entity through shareholding, participation on the 
management board, financing or a ny other means may be neutralized insofar as the 
entity's procurement is concerned where the entity is exposed to competition on 
markets to which access is not restricted. ] [NB: The US does not support this 
paragraph.]  
 
(c) In the event of an objection  notified, in writing, by any affected Party]JPN,KOR,US the 
modifying Party shall enter into consultations with such affected Party . If agreement 
is not reached between the modifying Party and any affected Party [within 
[120]KOR [210]  days from the date of circulation of the proposed modifications under 
subparagraph  (a)]JPN,KOR [, or within 90  days where the information provided with 
the notification pursuant to subparagraph  (b) is comprehensive],] the matter may 
be pursued [by such affected Party]JPN,KOR in accordance with the procedures on 
consultations and dispute settlement contained in Article  XVIII [[or arbitration] by 
written request, including reasons why the affected Party objects to the proposed 
modification].JPN [In considering the proposed modific ation 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.]JPN,US 
 GPA/TN1994/3/Rev.3  
- 29 - 
  [(d) If no affected Party has requested the procedures contained in Article  XVIII [or 
arbitration] within [30  days after the expiry of]KOR the [120]KOR [210] -day period of 
consultations under subparagraph  (c), the proposed modification shall become 
effective . The period of consultation may be extended by mutual agreement.]JPN,KOR 
 
[(e) If the modifying Party implements its proposed withdrawal and does not comply with 
the findings of the arbitration, any affected Party that  participated in the arbitration 
may modify or withdraw substantially equivalent benefits under its Appendix  I in 
conformity with those findings . Notwithstanding Article  III, such modification or 
withdrawal may be implemented solely with respect to the modifying Party.]JPN 
 
[3. The Committee on Government Procurement shall establish procedures for rectifications o r 
modifications to Appendices . Any Party wishing to rectify or modify its Appendices in accordance 
with preceding paragraphs shall comply with such procedures.]JPN,KOR 
 
Article  XVII  Challenge Procedures  
[Consultations between the Procuring Entity and Suppl ier 
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement 
arising in the context of a procurement covered by this Agreement in which the supplier has, or has 
had, an interest, each Party shall encourage the procuring entity and supplier to seek resolution of 
the complaint through consultations . The procuring entity shall accord impartial and timely 
consideration to any such complaint in a manner that is not prejudicial to [the supplier's participation 
in ongoing or fut ure procurement]US,CDA ,JPN the supplier's rights to seek corrective measures under 
the challenge system.  
 
Challenge  
 
2. Each Party shall provide timely, effective, transparent and non -discriminatory means for a 
supplier to challenge an alleged breach of this Agreement arising in the context of a procurement 
covered by this Agreement, in which it has, or has had, an interest[, without prejudice to the 
supplier's participation in ongoing or future procurements].US,CD A The procedural rules for all  
challenges  shall be in writing and made generally available.  
 
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, 
which in no case shall be less than 10  days from the time when the basis of the complaint became 
known or r easonably should have become known to the supplier.  [NB: Hong Kong , China believes 
that the time -period allowed for submitting a bid challenge should be specified.]  
 
4. [Supplier challenges relating to procurement covered by this Agreement shall be reviewed by 
an]EC [Each Party shall establish or designate at least one]US,CDA impartial administrative or judicial 
authority that is independent of its procuring entities [to receive and review complaints of suppliers 
arising in the context of a procureme nt covered by this Agreement].US,CDA 
 
5. Where a body other than an authority referred to in paragraph  4 initially reviews a complaint, 
the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative 
or judicial auth ority that is independent of the procuring entity that is the subject of a challenge.  
 
6. A review body that is not a court shall either be subject to judicial review or shall have 
procedures which provide that:  
 
(a) the procuring entity shall respond in w riting to the complaint and disclose all relevant 
documents to the review body;  
 
(b) the participants to the proceedings shall have the right to be heard prior to a decision 
of the review body being made  on the complaint;  GPA/TN1994/3/Rev.3  
- 30 - 
   
(c) the participants to the proce edings shall have the right to be represented and 
accompanied;  
 
(d) the participants to the proceedings shall have access to all proceedings[, subject to 
Article  XIII (Non-Disclosure of Information)]US; 
 
(e) the participants to the proceedings shall have t he right to request that the proceedings 
take place in public[, subject to Article  XIII (Non-Disclosure of Information),]US and that 
witnesses may be presented ; and 
 
(f) [decisions or]EC,US [findings and]CDA recommendations relating to supplier [challenges ]EC 
[complaints]US shall be provided, in a timely fashion, in writing, with an explanation of 
the[ir]CDA basis[.]CDA [for each decision or recommendation ]. 
 
7. [Each Party shall adopt or maintain procedures that]US,CDA [Challenge procedures shall]EC 
provide for:  
 
(a) rapid interim measures[, pending the resolution of a complaint,]US,CDA [to correct 
breaches of the Agreement and ] to preserve the supplier's opportunity to participate in 
the procurement . Such interim measu res may result in suspension of the procurement 
process [.]EC [, including contract award or the performance of a contract that has 
already been awarded. ]US,CD A However, procedures may provide that overriding adverse 
consequences for the interests concerned , including the public interest, may be taken 
into account when deciding whether such measures should be applied . In such 
circumstances, just cause for not acting shall be provided in writing ; [NB: The United 
States proposes deletion of "to correct breache s of the Agreement a nd since 
such actions would be taken only in the final action of the Court.]  
 
(b) correction of the breach of the Agreement or compensation for the loss or damages 
suffered, which may be limited to costs for the preparation of the tender or [complaint]US 
[challenge]EC [; and 
 
(c) protection of the confidentiality of information subject to Article  XIII:1]EC 
 
Article  XVIII  Consultations and Dispute Settlement  
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 
Understanding") [shall be applicable ] [apply]CDA except as otherwise provided belo w.]CDA,EC,JPN ,NOR 
[The provisions of Article  XXII and XXIII of GATT[, except Article  XXIII:1(c),]US as elaborated and 
applied by the Understanding on Rules and Procedures Governing the Settlement of Disputes under 
the WTO Agreement (Dispute Settlement Unde rstanding) [shall] apply to consultations and the 
settlement of disputes under this Agreement, except as otherwise specifically provided herein.]US,SW I 
 
[2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this 
Agree ment 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 [or their]CT 
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,]CDA,KOR,JPN it may with a view to 
reaching a mutually satisfactory resolution of the matter, [request consultations.]EC,CDA [make 
written representa tions or proposals to the other Party or Parties which it considers to be concerned . 
Such action [must]CDA [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.]KOR,CDA,JP N [Whenever a Party to this Agreement other than the consulting Parties considers that 
it has a substantial trade interest in such consultations, it may notify the consulting Parties and the 
Dispute Settlement Body (DSB), within 10  days after the date of the circulation of the request for 
consultations under this paragraph, of its desire to be joined  in such consultations.]EC,JPN [NB: Japan 
and the EC indicated that further thinking should be devoted to avoiding that third Parties GPA/TN1994/3/Rev.3  
- 31 - 
  be entitled to join consultations in the context of disputes related not only to the GPA but 
also to other WTO Agreements . Japan indicated that the DSU renegotiations still need to 
address the whether the standard should be "substantial trade interest".]  
 
[2bis. Where the dispute concerns the award of a specific procurement, paragraphs  8 and 9 of 
Article  4 of the Dispute Sett lement Understanding (DSU) may be invoked by the complaining 
Party.]EC 
 
3. Where a dispute exclusively concerns provisions of this Agreement, only Parties to this 
Agreement [shall] [may]CDA participate in decisions or actions taken by the DSB under this 
Agreement.  
 
4. [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 Understanding are invoked by one of the 
parties to the dispute, [paragraph  3 [shall apply ] [applies]CDA only to those parts of the panel report 
concerning the interpretation and application of this Agreement]KOR,JPN,CT [only Members of the WTO 
that are Party to this Agreement [shall] [may]CDA participate in decisions or actions taken by the 
Dispute Settlement Body with respect to those parts of the dispute concerning this 
Agreement].US,CDA]KOR,JPN,CT,US,SW I,CDA [A Member of the WTO may seek to join in consultations 
pertaining to this Agreement, pursuant to Article  4.11 of the DSU, only if that Member is also a Party 
to this Agreement.]US 
 
[5. [Each p]CDA[P]anel[s] established by the DSB to examine disputes under this Agreement 
[must]CDA [shall] include persons qualified in the area of government procurement.]US,KOR,JPN,CT,SW I,CDA 
 
[5bis. [Each p]CDA[P]anel[s] [must]CDA [shall] adopt appropriate procedures to protect confidentiality 
of information subject to Article  XIII:1.]EC 
 
6. [Every effort shall be made to accelerate the proceedings to the greatest extent 
possible.]KOR,JPN,CT,U S [Notwith standing the provisions of paragraphs  8 and 9 of Article  12 of the 
Dispute Settlement Understanding, the panel shall attempt]CDA,JPN,CT [Where the dispute concerns 
the award of a specific procurement the panel shall aim,]EC,SW I to provide its final report to the parties 
to the dispute not later than [three months]EC [four months, and in case of delay not later than seven 
months,]CDA,JPN,CT, 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 Dispute Settlement Understanding by 
[two]CDA,JPN,CT [three]EC months . Moreover, notwithstanding the provisions of paragraph  5 of 
Article 21 of the DSU, 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.]EC,JPN,CT 
 
[6bis.(a) In the communication referred to in Article  [21.3] of the DSU, the Party concerned shall 
inform the DSB whether it is possible to bring the measures found to be inconsistent 
with this Agreement into conformity with the Agreement . If the Party concerne d 
indicates that it is not possible to bring the measures found to be inconsistent with this 
Agreement into conformity with the Agreement, that Party shall, immediately after 
having made that communication, enter into consultations with a view to developin g 
mutually acceptable compensation.  
 
(b) Any Party which has entered into such consultations, may at any time request an 
arbitration to determine the level of nullification or impairment that was caused by the 
measure found to be inconsistent with this Agr eement.  
 
(c) Unless a request for arbitration has been made, the Party concerned shall, within 
30 days from the request for consultations, submit to all Parties who have entered into 
such consultations, a proposal for mutually acceptable compensation.  
 GPA/TN1994/3/Rev.3  
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  (d) When an arbitration has been requested, the Party concerned shall submit such a 
proposal within 30  days of the award of the arbitrator . Any such proposal shall be 
consistent with the award of the arbitrator.  
 
(e) Such arbitration shall be carried out by t he original panel, if members are available, or 
by an arbitrator, which term shall be interpreted as referring to an individual or a group, 
appointed by the Director -General and shall be completed within 60  days after the 
request for arbitration.  
 
(f) If no proposal for compensation has been submitted within the periods referred to in 
subparagraphs  (c) or (d), or if no agreement has been reached within 60  days from the 
submission of the later of:  
 
(i) a proposal for mutually acceptable compensation ; or 
 
(ii) such a proposal made subsequent to an arbitration award,  
 
the complaining Party shall be entitled to request authorization from the DSB to suspend the 
application to the Party concerned of concessions and other obligations under the covered 
agreements th at is appropriate in light of the level of nullification or impairment that was caused by 
the measure.]EC 
 
[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 con cessions or other obligations under any other Agreement listed in the said 
Appendix  1.]CDA,KOR,JPN,US,CT,ISR 
 
Article  XIX Institutions  
Committee on Government Procurement  
 
1. A Committee on Government Procurement composed of representatives from each of th e 
Parties shall be established . This Committee shall elect its own 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 Agreeme nt 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 that shall carry out 
such functions as may be given to  them by the Committee.  
 
Observers  
 
3. Any WTO Member that is not a Party to this Agreement shall be entitled to participate in the 
Committee as an observer upon submission of a written notice to the Secretariat . Any WTO observer 
may submit a written reque st to the Secretariat to participate in the Committee as an observer, and 
may be accorded observer status by the Committee.  
 
Article XX  Final Provisions  
Acceptance and Entry into Force  
 
1. This Agreement shall enter force on  [] for those WTO Members whose agreed coverage is set 
out in Annexes  1 through  5 of Appendix  I, and which have, by signature, accepted this Agreement 
on [], or have, by or on that date, signed the Agreement subject to ratification and have 
subsequently ratified the Agreement before  []. 
 GPA/TN1994/3/Rev.3  
- 33 - 
  Transitional Arrangements  
 
2. Between the Parties to this Agreement that are also Parties to the Agreement on Government 
Procurement dated 15  April 1994 ("1994  Agreement"), the 1994  Agreement shall cease to apply . 
When all Parties to the 1994  Agreement have accepted this Agreement, the  1994 Agreement shall 
be terminated.  
 
Accession  
 
3. Any Member of the WTO that is not a Party to this Agreement may accede to this Agreement 
on terms to be agreed between that Member and the Parties . Accession shall take place by deposit 
with the Director -General of the WTO of an instrument of accession that states the terms so agreed . 
This Agreement shall enter into force for an acceding Member on the 30th day following the date of 
its accession to this Agreement.  
 
Reservations  
 
4. No Party may enter any r eservation in respect of any provisions of this Agreement.  
 
National Legislation  
 
5. Each Party 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 t he rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
6. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of such l aws and regulations.  
 
Reports and Future Work  
 
7. The Committee shall annually inform the General Council of the WTO of developments relating 
to the implementation and operation of this Agreement.  
 
[7bis. Not later than the end of the third  year from the d ate 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 possible extension of its coverage among all 
Parties]EC [without prejudice to the needs of developing countries]ISR.]EC,IS R [NB: Hong Kong, China 
suggested deleting "and achieving the greatest possible extension of its coverage among 
all Parties", since "with a view to improving this Agreement" is already general  and fine .] 
 
[8. The 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 force of this Agreement.]HKC [Market Access Issue ] 
 
9. Following the conclusion of the work programme for the harmonization of rules of origin for 
goods be ing undertaken under the Agreement on Rules of Origin in Annex  1A of the Agreement 
Establishing the World Trade Organization and negotiations regarding trade in services, the Parties 
shall take the results of that work programme and those negotiations into ac count in amending 
Article  [] as appropriate.  [NB. Switzerland considers the reference to rules of origin to be 
redundant .] 
 
Amendments  
 
10. The 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 any Party until it has been 
accepted by such Party]HKC [take effect for the Parties that have accepted them upon acceptance by GPA/TN1994/3/Rev.3  
- 34 - 
  two thirds of the Parties and thereafter for each other Party upon acceptance by it].EC,JP N [NB: Hong 
Kong, China is checking whether it can withdraw its proposal.]  
 
Withdrawal  
 
11. Any Party may withdraw from this Agreement . The withdrawal s hall take effect upon the 
expiration of 60  days from the date the Director -General of the WTO receives written notice of the 
withdrawal . Any Party may upon such notification request an immediate meeting of the Committee.  
 
12. If a Party to this Agreement c eases to be a Member of the WTO, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 
Non-application of this Agreement between Particular Parties  
 
13. This Agreement shall not apply as between any two Parties if either Party, at the time it 
accepts or accedes to this Agreement, does not consent to such application.  
 
Appendices  
 
14. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
15. This Agreement shall be serviced by the WTO Secretari at. 
 
Deposit  
 
16. 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  [] and of each amendment thereto pursuant to paragraph  10, and a 
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  11. 
 
Registration  
 
17. This Agreement shall be registered in accordance wit h the provisions of Article  102 of the 
Charter of the United Nations.  
 
Done at [] this [] day of [] in a single copy in the English, French and Spanish languages, each text 
being authentic, except as otherwise specified with respect to the Appendices heret o. 
__________