RESTRICTED  
  
GPA/TN1994/2/Rev.7  
18 December  2000 
(24-2709) Page: 1/140 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994   
 
  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT*,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of 2 8 September  2000, it was agreed that the note by the Secretariat, 
reflecting the discussion on the article -by-article examination of the Agreement at the informal 
meetings held from February  1999 to September  2000 (Job No. 5749), would be updated.  
Accordingly, the present note reflects the proposals and comments made at the 2 8 September  2000 
meeting and the exchan ge of questions and answers between the delegation of the United States 
and other delegations regarding the United States' proposals in documents GPA/W/112  and 
GPA/W/113 . 
 
In considering the proposals by the United States on Articles VII, IX, X, XI, XV, XIII and  XVIII, 
delegations might wish to take into account the re -organization of the Articles of the Agreement 
suggested in documents GPA/W/113  and GPA/W/112 . 
 
 
 
* English only . 
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/C D/5 
(16/11/2023)), this document (informal document symbol: negs39) was derestricted on 8 November 2023.  GPA/TN1994/2/Rev.7  
- 2 - 
  Article I:1  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I.1 
 
1 For each Party, Appendix I is divided into 
five Annexes:  
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contains all other entities that 
procure in accordance with the provisions 
of this Agreement.  
- Annex 4 specifies services, whether listed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction 
services.  
Relevant thresholds are specified in each Party's 
Annexes.  1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement falling within the scope of 
Article III, paragraph  8 of the GATT and 
Article  XIII, paragraph  1 of GATS by 
entities covered by this Agreement, as 
specified in Appendix  I. 
[EC – GPA/W/87 ] 
 
1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement by entities covered by this 
Agreement, as specified in Appendix I, 
except procurements with a view to 
commercial resale or with a view to use in  
the production of goods or supply of 
services for commercial sale.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• A reference to the current definitions in GATT and GATS is necessary to ensure that the 
inclusion of a definition of "government procurement" i n the GPA does not lead to a situation 
in which government procurement is not covered by any WTO rules.  The intention underlying 
the proposal is to avoid any gaps between what is covered by GATT and GATS and what is 
covered under the GPA.  [EC] 
• Consideratio n should be given to whether the current definitions in the GATT and the GATS 
are adequate or whether a further definition of "government procurement" should be 
developed.  [US] 
• The proposed modification is intended to avoid misunderstandings with regard to  the meaning 
of public procurement without actually defining the term.  This modification is not intended to 
have the effect of precluding existing derogations, for instance, reciprocity -based derogations, 
under the current Agreement.  [EC in response to cla rification sought from Japan and 
Hong Kong, China]  
• Would the elimination of the footnote listing the Annexes in Appendix I and its replacement 
by the words "as specified in Appendix I", imply a different structure for Appendix I?  [Canada]  
• In the case of GA TS, the "scope" is defined in terms of an exclusion.  It might be more 
appropriate to substitute the proposed wording "procurement falling within the scope" with 
"as described in …".  [Hong Kong, China;  EC] 
• This Article should contain a definition of the ter m "government procurement" which focuses 
on the status of the end -users rather than the purchasing agent.  [Hong Kong, China ] Some 
specific suggestions with respect to this comment should be provided . [US; Canada]  GPA/TN1994/2/Rev.7  
- 3 - 
  Article I:2  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by 
any contractual means, including through such 
methods as purchase or as lease, rental or hire 
purchase, with or without an option to buy, 
includi ng any combination of products and 
services.   
 
Comments  
 
• A reference to forms of procurement under new phenomena (partnerships between private 
and public sectors, multiplication of "Build Operate Transfer" (BOT) operations, joint ventures) 
should be included in this paragraph with an exact definitions of these terms given in the text 
of the Agreement or in footnotes.  [Korea]  GPA/TN1994/2/Rev.7  
- 4 - 
  Article I:3, 4  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in th e context of 
procurement covered under this Agreement, 
require enterprises not included in Appendix I to 
award contracts in accordance with particular 
requirements, Article  III shall apply mutatis 
mutandis  to such requirements.  
  
4. This Agreement applies to any 
procurement contract of a value of not less than 
the relevant threshold specified in Appendix I.  
 4. Without prejudice to Article  XXIII, 
this Agreement applies to any procurement 
contract:  
(a) of central government entities of a 
value of not less than  
- 130,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for  
public works  
(b) of sub -central government entities 
of a value of not less than  
- 200,000 SDR  for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(c) of entities according to Appendix  I, 
Annex 3 of a value of not less than  
- 400,000 SDR for contracts for  
supply of product s and services  
- 5,000,000 SDR for contra cts for 
public works  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With regard to the harmonized thresholds:  
 
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmonization of thresholds should not be stipulated in the Agreement.  It would be 
inappropriate to include harmonized thresholds in the main body of the Agreement in view of 
the balance of commitments in Appendix I between Parties in relation to the coverage of 
entities, goods and services as well as thresholds.  [Japan;  Korea ] Nevertheless, the 
introduction of common thresholds in the text of the Agreement may be acceptable at a later 
stage in the light of  the outcome of the work regarding the elimination of discriminatory 
measures.  [Korea]  
• While harmonization of thresholds furthers the Committee's aim to streamline the Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices and cannot be dealt with simply through amendments to the text.  
[US] 
• The adoption of common thresholds should not inhibit Members' ability to tailor their offers to 
maintain a balance of interests.  [Canada ] GPA/TN1994/2/Rev.7  
- 5 - 
  • Although there may be a link between thresholds and coverage, there is not necessarily a 
clear effect on the balance of offers that have been negotiated because offers relate more to 
the entities that are covered and not necessarily to the thresholds.  [EC] 
• The adoption of common thresholds is consistent with attempts to expand coverage of the 
Agreement in the future and to make the Agreement more user -friendly.  [EC] 
• "Public works" is merely another way of naming "construction services".  There is no 
substa ntive difference between the terms used in the proposal.  [EC in response to clarification 
sought by Japan and Canada]  
 
 
  GPA/TN1994/2/Rev.7  
- 6 - 
  Article II:1, 2, 3  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes 
of implementing this Agreement.  
 
2 This Agreement shall apply to any procurement 
contract for which the contract value is estimated to 
equal or exceed the threshold at the  time of 
publication of the notice in accordance with Article IX.   
 
 
 
2 This Agreement shall apply to any 
procurement contract for which the 
contract value is estimated to equal or 
exceed the threshold at the time of the 
publication of the notice in accord ance with 
Article  IX or at the time of first contact with 
the supplier in the case of limited tendering.  
[Japan]  
 
 
Comments  
 
• The language of footnote 2 should be aligned with that of Article I:4 on threshold values.  
• What is meant by the term "first contact" and what is the rationale for the approach proposed 
by Japan in the case of limited tendering?  [Canada]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Valuation shall take into account all forms 
of remuneration, including a ny premiums, fees, 
commissions and interest receivable.  
 2. Valuation shall take into account all 
forms of remuneration, including any 
premiums, fees, commissions and interest 
to be paid.  
[Chinese Taipei – Job No. 3193]  
 
3. The selection of the valuation method by 
the entity shall not be used, nor shall any 
procurement requirement be divided, with the 
intention of avoiding the application of this 
Agreement.  
  
 GPA/TN1994/2/Rev.7  
- 7 - 
  Article II:4  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROP OSED MODIFICATIONS  
4. If an individual requirement for a 
procurement results in the award of more than 
one contract, or in contracts being awarded in 
separate parts, the basis for valuation shall be 
either:  
  
(a) the actual value of similar recurring 
contracts concluded over the previous 
fiscal year or 12 months adjusted, 
where possible, for anticipated changes 
in quantity and value over the 
subsequent 12 months;  or 
  
(b) the estimated value of recurring 
contracts in the fiscal year or 
12 months subsequent to the initial 
contract.   
 
Comments  
 
• What is meant by the reference to a 12 months period?  If the final value of a contract which 
runs for more than one year, for example, a road maintenance contract, is unknown until the 
works have b een completed, should the basis of coverage be the estimated value for one year 
or the value for the full period of the contract?  Should the contract be broken down into 
one-year periods because of the reference to 12 months in subparagraphs (a) and (b)?  
[Hong Kong, China]  
 GPA/TN1994/2/Rev.7  
- 8 - 
  Article II  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph  
 
For contracts of an indefinite value, or for 
contracts involving the award of a contract 
to multiple suppliers or service providers, 
the basis for valuation shall be either:  
 
(a) the maximum total estimated value 
of the procurement that could be 
awarded under the contract;  or 
 
(b) [where the total estimated value is 
not stated, [Singapore – 
Job No. 5271]]  the estimated 
value of the contract shall 
automatically be considered to be 
above the threshold values 
provided for in the national 
annexes to the GPA for the 
purposes of coverage under the 
Agreement.  
[US – Job No. 2795]  
 
 
 
Comments  
 
• How would the proposed provision apply to low -value contracts, for example those entered 
into by small local authorities?  Under such contracts, even over a period of several years, the 
threshold values stipulated in the Agreement may not be exceeded.  [Norway, Canada]  
• In order to provide certainty on the application of the Agreement in cases of low -value 
contracts, the concept of maximum total estimated value in subparagraph  (a) could be 
elaborated.  It might be possible to make a determination that the maximum t otal estimated 
value of small -value contracts would not exceed the GPA thresholds.  [US] 
• The total estimated value of a contract is not necessarily published.  [Canada]  
• In order to ensure consistency with the current wording of the Agreement and in light of the 
fact that a contract will not actually exist at the time when the valuation takes place, except 
in the case of limited tendering, the term "procurements" rather than "contracts" should be 
used.  [Canada]  
• The timing of the conclusion of a contract may va ry during the procurement process according 
to different national legal systems.  Accordingly, the terminology adopted with regard to 
formulation of rules on the valuation of framework contracts and similar arrangements should 
avoid prescribing whether a co ntract should be concluded at the first or the second stage of 
the procurement process.  [EC] 
• How would the existing paragraphs 4, 5 and 6 and the proposal for a new paragraph fit 
together and would there be a need for further amendments in light of the dis cussion on 
framework agreements.  [Canada;  Hong Kong, China]  
• If the proposal is intended to be an addition to the existing text, all of the qualifications 
contained in the chapeau to the proposed paragraph might not be necessary.  [Canada]  GPA/TN1994/2/Rev.7  
- 9 - 
  Article II:5, 6  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental 
or hire purchase of products or services, or in the 
case of contracts which do not specify a total 
price, the basis for valuation shall be:  
  
(a) in the case of fixed -term contracts, 
where their term is 12  months or less, 
the total contract value for their 
duration, or, where their term exceeds 
12 months, their total value including 
the estimated residual value;  
 (a) in the case of fixed -term contracts, 
where their term is 12 months or 
less, the total or estimated total 
contract value for their duration, 
or, where their term exceeds 
12 months, their total or estimated 
total value;  
[Chinese Taipei – Job No. 3193]  
 
(b) in the case of contracts for an indefinite 
period, the monthly instalment 
multiplied by 48.  
 (b) in the case of contracts for an 
indefinite period, the monthly 
instalment or estimated value of 
monthly procurement multiplied by 
48. 
[Chinese Taipei – Job No. 3193]  
 
If there is any doubt, the second basis for 
valuation, namely (b), is to be used.  
  
6. In cases where an intended procurement 
specifies the need for option clauses, the basis 
for valuation shall be the total value of the 
maximum permissible procurement, inclusive of 
optional purchases.  
  
 
 GPA/TN1994/2/Rev.7  
- 10 - 
  Article III  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  
 Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the 
procurement of its covered entities takes 
place in a transparent, reasonable and 
non-discriminatory manner, treating any 
supplier of any Party equally, and ensuring 
the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The thrust of the proposed obligations appear to be inconsistent with the contents of Appendix 
I. Would the proposed provision still allow for the reciprocity provisions in Annex 1?  The 
existing provisions of Article III should be fully implemented before introducing new 
obligations.  [Hong Kong, China]  
• It is important to include a reference to the principle of "open and effective competition" in 
the Agreement even though this principle is not reflected in all the Annexes to the Agreement.  
The principle of " open and effective competition" is not a new concept but, rather, is implicit 
in the GPA.  The fact that there are many such exceptions contained in the Annexes makes it 
necessary to spell out the basic objectives of the Agreement.  The proposal makes it cle ar that, 
unless there is an explicit exception, the general principles of transparency and open 
competition should be applied.  [EC] 
• The principle of "open and effective competition" needs to be applied broadly rather than in a 
selective way to avoid underm ining principles underlying the agreement such as the principle 
of non -discrimination and to avoid a contrario  interpretations.  [EC] 
• Selectively citing the principle of non -discrimination in other provisions of the Agreement 
might create interpretation dif ficulties.  [US] 
• The principle of "open and effective competition" should be applied in a general manner.  [US] 
• The reciprocity provisions would not be affected as implied by the wording "treating any 
supplier of any Party equally".  [EC] 
• The rationale behind  the reference to the general principles of "open and effective competition" 
is that market forces are working and that suppliers can openly compete.  [EC in response to 
clarification sought by Japan;  the US;  Canada;  and Hong Kong, China]  
• The consistency of  term "open and effective competition" with the use of selective and limited 
tendering procedures should also be clarified.  Would any adjustments need to be made in 
other specific provisions of the Agreement?  [US] 
• Article XV is an exception to the general principle of open and effective competition.  There 
may be other exceptions to the operation of the principle.  [EC] GPA/TN1994/2/Rev.7  
- 11 - 
  • Perhaps the words "Except otherwise provided for in the Agreement," should be added to the 
beginning of the EC proposal to take account of the exceptions to the general principle of open 
and effective competition.  [Chinese Taipei]  
• The terms "reasonable", "non -discriminatory" and "open competition" are not intended to be 
precise rules.  Rather, they are general principles that should  influence the application of the 
provisions of the GPA.  The meaning of these terms will vary depending upon the procedures 
to which they are applied.  [EC in response to a question from Canada requesting clarification 
of the term "reasonable"]  
• It may be us eful to clearly state the principles that underlie the Agreement.  This would, for 
instance, help address issues such as non -discrimination in the context of framework 
contracts.  The proposal merely increases the visibility of the core principles of the Agr eement.  
[EC in response to  a question from Canada]  
 GPA/TN1994/2/Rev.7  
- 12 - 
  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall provide immediately and 
unconditionally to the products, services and 
suppliers of other Parties offering products or 
services of the Parties, treatment no less 
favourable than:  
  
(a) that accorded to domestic products, 
services and suppliers;  and 
  
(b) that accorded to products, services and 
suppliers of any other Party.  
  
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
  
(a) that its entities shall not treat a 
locally -established supplier less 
favourably than another 
locally -established supplier on the basis 
of degree of foreign affiliation or 
ownership;  and 
  
(b) that its entities shall not discriminate 
against locally -established suppliers on 
the basis of the country of production 
of the good or service being supplied, 
provided that the country of production 
is a Party to the Agreement in 
accordance with the provisions of 
Article  IV. 
  
 
Comments  
 
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership" in paragraph 2(a).  [Hong Kong, China;  US] This term seems to apply both to 
Parties and non-Parties to the Agreement.  The consistency of the scope of this provision with 
that of paragraph 1 should be reviewed.  [Hong Kong, China]  
• There may be scope for inclusion of a provision on denial of benefits to non -parties similar to 
that contained in A rticle 11 of the NAFTA Agreement.  [US] More detail is required in this 
respect.  [EC] 
• GATS Article XXVII deals with the denial of benefits in relation to services.  [Secretariat]  
• Given that the GPA is a plurilateral agreement, it is implicit that a non -signa tory cannot avail 
itself of its benefits under the GPA.  [Singapore]  
• It is necessary to consider whether, because of the plurilateral nature of the GPA, it is 
necessary to adopt a different approach from, for example, the GATS.  [US] GPA/TN1994/2/Rev.7  
- 13 - 
  • It could be useful to cl arify Members' obligations under the Agreement in relation to benefits 
to be accorded to non -Parties.  Article 11 of the NAFTA Agreement merely clarifies parties' 
rights.  [US] 
 
 GPA/TN1994/2/Rev.7  
- 14 - 
  Article III:3  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall 
not apply to customs duties and charges of any 
kind imposed on or in connection with 
importation, the method of levying such duties 
and charges, other impor t regulations and 
formalities, and measures affecting trade in 
services other than laws, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  3. This Article shall not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations and formalities, 
and measures affecting trade in services 
other than laws, regulations, procedures 
and practices regarding government  
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 new paragraph 4  
 
4. [For procurements awarded to more 
than one supplier][Where contracts are 
awarded to more than one supplier under 
the same procurement [Hong Kong, 
China]], Parties shall ensure that each 
awardee [winning tenderer [Hong Kong, 
China]] is provided a fair opportunity to be 
considered for each transaction under the 
procurement on a non -discriminatory basis.  
[US - Job No. 2795]  
 
 
Comments  
 
• The term "transaction" in the proposed new paragraph (4 ) should be clarified.  [Hong Kong, 
China]  
• The US proposal appears to create a separate non -discrimination obligation for one type of 
procurement or contract and for certain steps in the procurement process.  The existing 
paragraphs  1 and 2 may be sufficient  to ensure non -discrimination for all procurement covered 
by the GPA.  [Canada]  
 GPA/TN1994/2/Rev.7  
- 15 - 
  Article IV:1, 2  
 
Rules of Origin  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to 
products or services imported or supplied for 
purposes of government procurement covered 
by this Agreement from other Parties, which are 
different from the rules of origin applied in the 
normal course of trade and at the time of the 
transaction in question to imports or suppli es of 
the same products or services from the same 
Parties.  
  
2. Following the conclusion of the work 
programme for the harmonization of rules of 
origin for goods to be undertaken under the 
Agreement on Rules of Origin in Annex 1A of the 
Agreement Establis hing the World Trade 
Organization (hereinafter referred to as "WTO 
Agreement") and negotiations regarding trade in 
services, Parties shall take the results of that 
work programme and those negotiations into 
account in amending paragraph  1 as 
appropriate.  
  
 
Comments  
 
• The issue of rules of origin of services should be taken up in the discussion concerning the 
extension of the Agreement to services.  
 GPA/TN1994/2/Rev.7  
- 16 - 
  Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 new paragraph  
 
Upon accession to the Agreement, a 
developing country shall enjoy all the 
benefits of the Agreement.  
It shall be obliged to comply with the 
obligations under this Agreement:  
- at central government level X years 
after accession  
- at sub -central government level  Y 
years after accession  
- as far as entities under Appendix  I, 
Annex 3 are concerned Z years 
after accession . 
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The EC proposal represents a new approach , which attempts to facilitate the entry of 
developing countries into the GPA by simplifying and making less technical what is currently 
a complicated set of  provisions.  [EC] 
• The proposed amendment may go beyond the aim of simplification of the existing provisions.  
[Japan]  
• A possible effect of the proposed amendment in particular, the reference to transitional 
periods, could be that developing countries are de terred from joining the Agreement.  [Korea;  
Hong Kong, China]  
• The provisions of the existing Article are complicated and the Article hasn't served its intended 
purpose.  The current text of Article V is more likely to deter developing countries from joining 
the Agreement.  
• The reference to compliance with "the obligations under this Agreement" might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in time.  
[US] It should mean that only the negotiated coverage  would come into effect at that point in 
time. [US; EC] 
• Providing a generic transitional period for central or sub -central government coverage for 
every acceding member might not be appropriate.  [US] 
 GPA/TN1994/2/Rev.7  
- 17 - 
  Article V:1, 2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
  
1. Parties shall, in the implementation and 
administration of this Agreement, through the 
provisions set out in this Article, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least-developed countries, in their need to:  
  
(a) safeguard their balance -of-payments 
position and ensure a level of reserves 
adequate for the implementation o f 
programmes of economic 
development;  
  
(b) promote the establishment or 
development of domestic industries 
including the development of 
small -scale and cottage industries in 
rural or backward areas ; and economic 
development of other sectors of the 
econom y; 
  
(c) support industrial units so long as they 
are wholly or substantially dependent 
on government procurement;  and 
  
(d) encourage their economic development 
through regional or global 
arrangements among developing 
countries presented to the Ministerial 
Conference of the World Trade 
Organization (hereinafter referred to as 
the "WTO") and not disapproved by it.  
  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and  
procedures affecting government procurement, 
facilitate increased imports from developing 
countries, bearing in mind the special problems 
of least -developed countries and of those 
countries at low stages of economic 
development.  
  
 GPA/TN1994/2/Rev.7  
- 18 - 
  Article  V:3 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing 
countries are able to adhere to this Agreement 
on terms consistent with their development, 
financial and trade needs, the objectives listed in 
paragraph  1 shall be duly taken into account in 
the course of negotiations with respect to the 
procurement of developing countries to be 
covered by the provisions of this Agreement.  
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procuring products and services of export 
interest to developing countries.  
  
 
Comments  
 
• With regard to the issue of granting developing countries non -reciprocal access to 
procurement markets of Parties, should there be flexibility in offers of coverage by prospective 
Members or should there be special provisions associated with the evaluation of offers under 
individual procurements by Members?  [Canada]  GPA/TN1994/2/Rev.7  
- 19 - 
  Article V:4  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with 
other participants in negotiations under this 
Agreement mutually acceptable exclusions from 
the rules on national treatment with respect to 
certain entities, products or services that are 
included in its coverage lists, having regard to 
the particular circumstan ces of each case.  In 
such negotiations, the considerations mentioned 
in subparagraphs  1(a) through 1(c) shall be duly 
taken into account.  A developing country 
participating in regional or global arrangements 
among developing countries referred to in 
subpar agraph  1(d) may also negotiate 
exclusions to its lists, having regard to the 
particular circumstances of each case, taking 
into account, inter alia, the provisions on 
government procurement provided for in the 
regional or global arrangements concerned and,  
in particular, products or services which may be 
subject to common industrial development 
programmes.  
  
 
Comments  
 
• Further flexibility should be provided in the evaluation of offers from developing countries with 
respect to non -discriminatory treatment and in the application of the procedural provisions.  
[Job No. 5074]  GPA/TN1994/2/Rev.7  
- 20 - 
  Article V:5, 6, 7, 8 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
5. After entry into force of this Agreement, a 
developing country Party may modify its 
coverage lists in accordance with the  provisions 
for modification of such lists contained in 
paragraph  6 of Article  XXIV, having regard to its 
development, financial and trade needs, or may 
request the Committee on Government 
Procurement (hereinafter referred to as "the 
Committee") to grant e xclusions from the rules 
on national treatment for certain entities, 
products or services that are included in its 
coverage lists, having regard to the particular 
circumstances of each case and taking duly into 
account the provisions of subparagraphs  1(a) 
through 1(c).  After entry into force of this 
Agreement, a developing country Party may also 
request the Committee to grant exclusions for 
certain entities, products or services that are 
included in its coverage lists in the light of its 
participation in re gional or global arrangements 
among developing countries, having regard to 
the particular circumstances of each case and 
taking duly into account the provisions of 
subparagraph  1(d). Each request to the 
Committee by a developing country Party 
relating to m odification of a list shall be 
accompanied by documentation relevant to the 
request or by such information as may be 
necessary for consideration of the matter.  
  
6 Paragraphs 4 and 5 shall apply mutatis 
mutandis  to developing countries acceding to 
this Agreement after its entry into force.  
  
7. Such agreed exclusions as mentioned in 
paragraphs 4, 5 and 6 shall be subject to review 
in accordance with the provisions of 
paragraph  14 below.  
  
 
 
 
Technical Assistanc e for Developing Country 
Parties  
  
8. Each developed country Party shall, upon 
request, provide all technical assistance which it 
may deem appropriate to developing country 
Parties in resolving their problems in the field of 
government procurement.  
  GPA/TN1994/2/Rev.7  
- 21 - 
  Article V:9, 10, 11  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on 
the basis of non -discrimination among 
developing country Parties, shall relate, 
inter alia, to: 
  
- the solution of particular technical 
problems relating to the award of a specific 
contract;  and 
  
- any other problem which the Party making 
the request and another Party agree to 
deal with in the context of this assistance.  
  
10. Technical assistance referred to in 
paragraphs  8 and 9 would include translation of 
qualification documentation and tenders made 
by suppliers of developing country Parties into an 
official language of the WTO designated by the 
entity, unless developed country Parties deem 
translation to be burdensome, and in that case 
explanation shall be given to developing country 
Parties upon their request addressed either to 
the developed countr y Parties or to their entities.  
  
 
Comments  
 
• The provisions on technical cooperation should be extended to take account of the needs of 
developing countries to adjust to new developments in the application of information 
technology to government procureme nt. 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to 
respond to reasonable requests from developing 
country Parties for information relating to, 
inter alia, laws, regulations, procedures and 
practices regarding governm ent procurement, 
notices about intended procurements which have 
been published, addresses of the entities 
covered by this Agreement, and the nature and 
volume of products or services procured or to be 
procured, including available information about 
future tenders.  The Committee may also set up 
an information centre.  
  GPA/TN1994/2/Rev.7  
- 22 - 
  Article V:12, 13, 14  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed 
Countries  
  
12. Having regard to paragraph  6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28  November  1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), special treatment shall be 
granted to least -developed country Parties and 
to the suppliers in those Parties with respect to 
products or services originating in those Parties, 
in the context of any general or specific 
measures in favour of developing co untry 
Parties.  A Party may also grant the benefits of 
this Agreement to suppliers in least -developed 
countries which are not Parties, with respect to 
products or services originating in those 
countries.  
  
13. Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in 
least-developed countries in submitting their 
tenders and selecting the products or services 
which are likely to be of interest to its entities as 
well as to suppliers in l east-developed countries, 
and likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended 
procurement.  
  
Review  
  
14. The Committee shall review annually the 
operation and  effectiveness of this Article and, 
after each three years of its operation on the 
basis of reports to be submitted by Parties, shall 
carry out a major review in order to evaluate its 
effects.  As part of the three -yearly reviews and 
with a view to achievin g the maximum 
implementation of the provisions of this 
Agreement, including in particular Article  III, and 
having regard to the development, financial and 
trade situation of the developing countries 
concerned, the Committee shall examine 
whether exclusions  provided for in accordance 
with the provisions of paragraphs  4 through 6 of 
this Article shall be modified or extended.  
  GPA/TN1994/2/Rev.7  
- 23 - 
  Article V:15  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. In the course of further rounds of 
negotiations in accordance with the provisions of 
paragraph  7 of Article  XXIV, each developing 
country Party shall give consideration to the 
possibility of enlarging its coverage lists, having 
regard to its economic, financial and trade 
situation.  
  
 GPA/TN1994/2/Rev.7  
- 24 - 
  Article VI:1  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symbols, terminology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformity assessment 
procedures prescribed  by procuring entities, 
shall not be prepared, adopted or applied with a 
view to, or with the effect of, creating 
unnecessary obstacles to international trade.  
 1. Technical specifications laying down 
the characteristics of the products or 
services to be p rocured, such as quality, 
performance, safety and dimensions, 
symbols, terminology, packaging, marking 
and labelling, or the processes and methods 
for their production and requirements 
relating to conformity assessment 
procedures prescribed by procuring 
entities, shall ensure the principle of open 
and effective competition and shall not be 
prepared, adopted or applied with a view to, 
or with the effect of, creating unnecessary 
obstacles to international trade.  
[EC – Job No. 5716]  
 
 
Comments  
 
Paragraph 1 of the EC proposal:  
 
• The EC proposal is based upon the principles that are already in Article VI of the Agreement 
and does not introduce new concepts.  [EC; Singapore]  
• The principle of open and effective competition has been retained in relation  to the selection 
of technical specifications.  [EC] 
• Would the implementation of the principle of "open and effective competition" lead to disputes 
in terms of deciding whether a particular specification ensures open and effective competition 
compared to an other specification?  [US] 
• The reference to the principle of "open and effective competition" does not mean that entities 
always have to opt for the specification that allow for the most pro -competitive solution in all 
cases without taking into account the entity's requirements.  If there are different alternatives 
that equally meet those requirements, the solution that is more pro -competitive should be 
selected.  An entity does not have to take the most open and pro -competitive solution if that 
solution does not meet the entity's needs.  [EC in response to Hong Kong, China and the US]  GPA/TN1994/2/Rev.7  
- 25 - 
  Article VI:2  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Technical specifications prescribed by 
procuring entities shall, where appropriate:  
 
(a) be in terms of performance rather than 
design or descriptive characteristics;  
and 
 
(b) be based on international standards, 
where such exist;  otherwise, on 
national technical regulations3, 
recognized national standards4, or 
building codes.  
 
3 For the purpose of this Agreement, a 
technical regulation is a document which lays down 
characteristics of a product or a service or their 
related processes and production methods, including 
the applicable administrative p rovisions, with which 
compliance is mandatory.  It may also include or deal 
exclusively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
4 For the purpose of this Agree ment, a 
standard is a document approved by a recognized 
body, that provides, for common and repeated use, 
rules, guidelines or characteristics for products or 
services or related processes and production 
methods, with which compliance is not mandatory.  It 
may also include or deal exclusively with terminology, 
symbols, packaging, marking or labeling requirements 
as they apply to a product, service, process or 
production method.  2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in te rms of performance rather 
than design or descriptive 
characteristics;  and 
 
(b) be based on international 
standards, where such exist;  
otherwise, on technical 
regulations3, recognized national 
standards4, or building codes.  
 
3 For the purpose of this Agreement, a 
technical regulation is a document which lays 
down characteristics of a product or a service or 
their related processes and production methods, 
including the applicable administrative 
provisions, with which compliance is mandatory.  
It may also include or deal exclusively with 
terminology, symbols, packaging, marking or 
labeling requirements as they apply to a 
product, service, process or production method.  
4 For the purpose of this Agreement, a 
standard is a document ap proved by a 
recognized body, that provides, for common and 
repeated use, rules, guidelines or characteristics 
for products or services or related processes 
and production methods, with which compliance 
is not mandatory.  It may also include or deal 
exclusiv ely with terminology, symbols, 
packaging, marking or labeling requirements as 
they apply to a product, service, process or 
production method.  
[EC – Job No. 5716]  
 
3. (a) Each Party shall ensure that, 
wherever appropriate, any 
technical specification prescr ibed 
by its entities is specified in terms 
of performance requirements for 
the product or service being 
procured rather than design or 
descriptive characteristics.  
[US – Job No. 1462]  
 
 
  GPA/TN1994/2/Rev.7  
- 26 - 
  • The EC proposal refers to technical specifications in terms of performance standards and 
international standards and this is a warranty for the competitive use of specifications.  Any 
departure from those standards should be fully justified.  However, since an overly formalistic 
approach could also be restrictive and im pose an unnecessary burden on entities, technical 
specifications that are not fully compatible with all the details of international standards that 
nevertheless meet the "essential requirements" of the procuring entity should also be 
considered in the tend ering process.  Such an approach strikes a fair balance between the need 
to facilitate competition and the need to allow for innovative solutions while preserving what 
has been achieved in the field of international standardisation.  [EC] 
• Unlike the EC propo sal, the US proposal excludes references to mandatory regulations and 
building codes as it is unclear whether it is necessary to state that a procurement has to be 
consistent with mandatory requirements.  [US] 
• The words "where appropriate" in the chapeau pa ragraph have been deleted in order to clarify 
what is meant by the exception.  [EC] 
• Further consideration of the meaning of "appropriate" is required.  Deletion of the words 
"where appropriate" may raise the question of burden of proof in terms of what is and what 
is not appropriate.  Should flexibility be restricted further by defining more clearly what 
situations are "appropriate" and which are not?  [US; Japan]  GPA/TN1994/2/Rev.7  
- 27 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MOD IFICATIONS  
 1. Each Party shall ensure that its 
entities do not prepare, adopt or apply any 
technical specification with the purpose or 
the effect of creating unnecessary 
obstacles to trade.  
[US – Job No. 1462]  
 
 2.(a)  In establishing the technical 
specifications for each product or 
service being procured, each Party 
shall ensure that its entities specify, 
whenever available and applicable to 
that Party, an existing domestic or 
international consensus 
standardfootnote, except where the use 
of a consensus standard would fail to 
meet the entity's programme 
requirements or would impose more 
burdens than the use of a 
government -unique standard.  
 
footnote  A consensus standard is a standard 
adopted by an independent domestic or  
international standards body, where the decision 
to adopt that standard is characterized by the 
absence of sustained opposition to substantial 
issues by any important part of the concerned 
interests and by a process that involves seeking 
to take into acco unt the views of all parties 
concerned and to reconcile any conflicting 
arguments.  
[US – Job No. 1462]  
 
 2.(b)  Each Party shall ensure that, 
whenever there is an existing 
consensus standard for a product or 
service being procured and an entity 
specifies a government -unique 
standard, such entity shall maintain 
an official record explaining why the 
existing consensus standard would 
fail to meet the entity's programme 
requirements or would impost more 
burdens than the use of a 
government -unique sta ndard.  
[US – Job No. 1462]  
 
 
  GPA/TN1994/2/Rev.7  
- 28 - 
  Comments  
 
• The meaning of the term "unnecessary obstacles to international trade" should be clarified.  
[Job No. 5074]  
• It is important that technical specifications are developed in a way that ensures, to the extent 
possible, that they focus on the end -needs of the procuring entity rather than use 
designed -based specifications which would limit competition.  [US] 
With respect to international standards:  
 
• Reference to international standards may place excessive restrict ions on procuring entities' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambiguity associated with what constitutes an "international standard" and the 
procedures according to which those standa rds are set.  [Korea;  US] The objections that have 
been raised regarding the definition of "international standards" also apply in relation to the 
current provisions.  [EC] 
• Given that the GPA currently provides for a hierarchy with international standards ta king 
precedence over national standards, what is the rationale for treating all standards as having 
equal footing, as appears to be the case under the US proposal?  [Canada]  
• If a standard is developed in an appropriate way, whether international or domestic , it should 
be considered to be a legitimate standard and, therefore, there is not a need to establish a 
hierarchy amongst standards.  [US] 
• Subparagraph (b) of the Agreement should make reference to voluntary compliance with 
market -based standards instead o f international standards.  [US] 
• The proposal should be clarified whether an implication of a requirement on procuring entities 
to accept specifications that comply with international standards would be the delegation of 
the certification process to an independent expert.  [Japan]  
With respect to consensus standards:  
 
• The concept of consensus standard was introduced as an attempt to ensure that a standard 
is not used or given a special status under the Agreement if it has not been adopted through 
a proces s that is transparent and that takes into account the views of all parties.  The proposal 
addresses the process for development of such standards rather than specifying the type of 
body that would be involved in developing the standards.  [US in response to a request for 
further clarification from the EC]  
• Disagreements can arise as to what is an appropriate standard and whether or not a standard 
is an international standard.  There are situations where the use of standards that are described 
as being international could be used to restrict competition in inappropriate ways.  The concept 
of consensus standards ensures that standards are developed through an open and 
transparent process and enable all Parties to participate in the setting of standards.  [US] 
• How long would a consensus standard be considered a consensus standard?  For example, if a 
consensus exists at the time of the development of a standard but a long time elapses without 
review, would the consensus be considered to continue to exist?  [Cana da] 
• A standard could not be considered to be a consensus standard if only domestic interests 
participate in the development of the standard.  The US expects that the process of 
development of a domestic consensus standard by, for example, a domestic standar d setting 
body, would be open to participation by suppliers from other Parties or other standard setting 
bodies.  The term "domestic" refers to the location or the status of the body but not necessarily 
the process.  [US in response to a question by Canada]  GPA/TN1994/2/Rev.7  
- 29 - 
  • Should the body that develops the consensus standard be independent of government?  Would 
a standard be a consensus standard only if it is developed in a manner that produces a result 
independent of government?  [Canada]  
• A consensus standard does not necessa rily need to be a non -governmental standard.  A 
governmental standard -setting body could set standards in an open and transparent process 
and those standards could be considered to be consensus standards.  The US proposal related 
more to the process of setti ng standard.  [US] 
• The concept of consensus standards will complicate the debate in the GPA and TBT contexts.  
There should not be two sets of characterisations of standards in an area that is already very 
complicated.  Since international standards are alrea dy being used in the WTO, reference to 
them should not be changed unless there are good reasons for doing so.  [EC] 
• The issue of international standards is currently being discussed in the context of the triennial 
review of the TBT Agreement.  [Canada ] Also, the GPA Committee should not duplicate the 
work being undertaken in the TBT Committee.  [EC; US] 
• The proposed paragraph 2(a) of the US proposal allows an entity to use an existing consensus 
standard regardless of whether or not it conflicts with another co nsensus standard.  
Paragraph  2(b) would only apply when an entity has available to it one or more consensus 
standards and, nevertheless, chooses to use a government -unique standard.  [US] 
• National standards may directly conflict with those in another country . The existing 
formulation of this Article allows the procuring entity to choose between conflicting national 
standards.  [Singapore]  
• It is important to refer to use technical specifications that have been agreed by the largest 
possible number of potential users and buyers.  The use of traditional techniques for 
standardization may not be sufficient or optimal in some cases.  Accordingly, some flexibility 
has to be provided.  [EC] 
 
  GPA/TN1994/2/Rev.7  
- 30 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would 
not apply when the entity may objectively 
demonstrate that this would be ineffective 
or inappropriate for the fulfilment of the 
legitimate objectives pursued.  Procuring 
entities relying on this exception shall 
maintain an official record explaining why 
these conditions apply.  
[EC – Job No. 5716]  
 
 
Comments  
 
• The proposed paragraph 3 makes it clear that when the requirements in paragraph 2 of the 
proposal are departed from, an entity should be prepared to provide  an objective justification 
for such a departure.  [EC] 
• Would this requirement raise the burden of proof on procuring entities in relation to use of the 
exception and, if so, what would the implications of that be?  [US; Hong Kong, China]  
• The priority accord ed to performance -based standards and international standards is already 
contained in the GPA.  The EC proposal attempts to clarify what that means in practice.  An 
exemption mechanism is not being proposed where entities have to first ask for permission.  
However, it is necessary to impose a minimum requirement in the Agreement to entities who 
consider it necessary to depart from the relevant principles to provide an objective 
explanation.  [EC] 
• Should records of why a particular available standard was not use d in relation to every single 
procurement decision be kept or would it be possible to keep records of the decision taken as 
a general matter, that a particular standard would not meet an entity's needs?  Would it be 
possible to record that once and not have  the administrative burden of going through that 
process every time a procurement decision is made?  [US] 
• If the explanation given in the broader decision applies to a specific procurement, then there 
is not a significant difference between having a record of the broad decision and having records 
of decisions that are made every time a procurement is made.  [EC] 
 
  GPA/TN1994/2/Rev.7  
- 31 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. In all the cases procuring entities 
shall consider bids which do not comply 
with the provisions of the technical 
specifications but do demonstrably meet 
the essential requirements thereof and are 
fit for the purpose intended.  The reference 
to the technical specifications in the tender 
documents must include words such as "o r 
equivalent".  
[EC – Job No. 5716]  
 
 
Comments  
 
• The EC proposal attempts to introduce the notion of flexibility.  Technical specifications, either 
when defined in terms of performance standards or defined in terms of international 
standards, should not be absolute requirements but rather a benchmark against which 
solutions have to be measured.  [EC; Japan]  
• Bids that fulfil the "essential requirements" of international standards should be considered 
equally with other bids.  Further, bids that are based on int ernational standards should be 
considered even when technical specifications are formulated as performance requirements, 
provided that the bids fully address the essential requirements of the specifications.  [EC] 
• What would be the implications of proving t hat a bid meets the "essential requirements"?  [US] 
• The reference to "essential requirements" is a reference to core objectives underlying technical 
specifications irrespective of whether they were based on an international standard or a 
domestic standard.  This principle achieves a balance between providing competitive conditions 
and allowing the procuring entity to achieve its objectives.  The burden of proof involved would 
only require the supplier to show that its solution can work.  [EC] 
• If a tenderer woul d like to offer an alternative solution, that is, a solution that does not meet 
the requirements of the tender documents, or is not in conformity with the tender documents, 
the supplier should request the procurement entity to revise the documents.  If the 
procurement entity does not accept such a suggestion, then the supplier should use the 
challenge procedure mechanism to ask for a revision to the tender documents instead of 
submitting a proposal or offer that is not in conformity with the tender documents . 
[Chinese  Taipei]  
• There is a concern that the tender documents should be clear and legally certain.  It would be 
unacceptable to allow a party to submit any offer, regardless of what is contained in the 
technical specification.  Any solution has to fulfil t he essential needs of the entity but there is 
also the possibility for new suppliers to submit alternative proposal that perhaps the 
contracting entity is not accustomed to or aware of.  Such flexibility preserves legal certainty 
and allows for new opportun ities within the framework of the Agreement.  [EC] GPA/TN1994/2/Rev.7  
- 32 - 
  Article VI:3  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and provided that words such as 
"or equivalent" are included in the tender 
documentation.  
 5. There shall be no requirement or 
reference to a particular trademark or trade 
name, patent, design or type, specific 
origin, producer or supplier, unless there is 
no sufficiently precise or intelligible way of 
describing the procurement requirements 
and provided that words such as "or 
equivalent" are included in the tender 
documentation.  
[EC – Job No. 5716]  
 
 3.(b)  Each Party shall ensure that the 
technical specifications prescribed by 
its entities do not require or refer to a 
particular  trademark or tradename, 
patent, design or type, specific origin 
or producer or supplier unless there is 
no sufficiently precise or intelligible 
way of otherwise describing the 
procurement requirements and 
provided that, in such cases, words 
such as "or eq uivalent" are included 
in the tender documentation.  
[US – Job No. 1462]  
 
 
Comments  
 
• The words "or equivalent" seem to suggest that a government can authorize the manufacture 
of a product of a similar design as the one specified.  Would the words "or equivalent" have 
any implications under intellectual property law?  [Hong Kong, China]  
• The notion of "equivalence" is already contained in the existing paragraph 3 of Article VI and 
is aimed at ensuring that when contracting entities refer to a particular t rademark in technical 
specifications because there is no other practical way of defining what is being sought, they 
should foresee the possibility of providing an opportunity to alternatives that do not infringe 
intellectual property rights but, neverthele ss, provide the same kind of solution to the  needs 
of the contracting entity.  [EC] 
• The words "or equivalent" deal with a real practical problem, are necessary and should be 
retained.  Whereas theoretically, there may be a perception that there is an intelle ctual 
property problem, it is not a problem in practice.  [US] 
 
 GPA/TN1994/2/Rev.7  
- 33 - 
  Article VI:4  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may be 
used in the preparation of specifications for a 
specific procurement from a firm that may have 
a commercial interest in the procurement.  6. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may 
be used in the preparation of specifications 
for a specific procurement from a person 
that may have a commercial interest in the 
procurement.  
[EC – Job No. 5716]  
 
 4. Each Party shall ensure that its 
entities do not seek or accept, in a manner 
that would have the effect of precluding 
competition, advice that may be used in the 
preparation or adoption of any technical 
specification for a specific procurement 
from a person that may have a commercial 
interest in that procurement.  
[US – Job No. 1462]  
 
 
Comment  
 
• In relation to the EC proposal, which replaces the word "firm" by "person", it would be very 
difficult and sometimes not practically feasible to identify a person as the person who actually 
provides  advice on technical specifications.  [Hong Kong, China]  
• The location of Article VI should be changed in order to reflect the close association of the 
provisions on technical specifications with those on tender documentation.  [Job No. 5074]  
 GPA/TN1994/2/Rev.7  
- 34 - 
  Article VII:1 
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article A  
 
General Provisions Relating to Tendering 
Procedures  
 
A.1. The Parties shall ensure that their 
procuring entities, in conducting 
procurement subject  to this Agreement, use 
tendering procedures that are in 
accordance with the provisions of Article 
[B] (open tendering and qualified open 
tendering), Article [C] (Selective 
Tendering) or Article [E] (Limited 
Tendering).  
[US – GPA/W/113 ] 
 
Article VII  
 
Tendering Procedures  
 Article VII  
 
Methods of Procurement  
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a 
non-discriminatory manner and are consistent 
with the p rovisions contained in Articles  VII 
through XVI.  
 1. Each Party shall ensure that the 
tendering procedures of its entities are 
applied in a non -discriminatory manner and 
are consistent with the provisions 
contained in Articles VII through XVI.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• General comments by Hong Kong, China ( Nos. 1 and 2), Japan ( No. 1) and Korea ( No. 1) 
regarding the United States' proposal in GPA/W/113  relating to the definition and use of 
tendering procedures are contained in Job No. 5595.  
• Because Article VII and all other provisions of the Agreement are subject to Article III, the 
repetition of the non -discriminatory  rule in Article VII:1 does not appear to be necessary.  
Selective repetition of this rule may in fact raise unintended interpretative questions.  
[US; Canada]  
• The new category created – qualified open tendering – is equivalent to selective tendering.  
What t he US refers to as selective tendering is not possible under the GPA because it allows 
a procedure under which suppliers would not have a continuous opportunity for qualification.  
The EC is not persuaded that it is justifiable to offer the possibility of a llowing closed lists of 
qualified suppliers under the GPA.  [EC] 
• The categories of "open tendering" and "qualified open tendering" correspond to the existing 
categories of open tendering and selective tendering, as currently defined in the Agreement.  
The US  proposal attempts to combine disciplines of the Agreement relating to procedural 
transparency and apply them in the same way to procedures that are currently defined as 
open and selective tendering since there does not appear to be very substantial differ ences in 
the existing Agreement as between the procedure for open and selective tendering.  Further, 
the distinction between open and selective tendering in the Agreement is not particularly clear 
since in almost every case, including open tendering, there is some form of qualification 
required.  The US proposal adds another category called "selective tendering" which is not 
currently allowed for under the GPA because it permits suppliers to have a continuous 
opportunity to apply for qualification.  That type of procedure is used frequently by non -parties.  GPA/TN1994/2/Rev.7  
- 35 - 
  It is possible to consider disciplines that would apply to that type of procedure that would 
ensure that the objectives of the Agreement are achieved.  The US proposal attempts to 
establish basic disciplines t hat apply to a range of different types of procedure.  [US] 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 A.2. The Parties shall ensure that their 
procuring entities use open tendering or 
qualified open tendering procedures to 
conduct procurement subject to this 
Agreement, except:  
 
 (a) where selective tendering 
procedures are appropriate 
because most potential suppliers of 
the goods or services being 
procured may have difficulty 
meeting government requirements 
which are unusua l or more 
demanding than the requirements 
of typical private sector buyers, 
and the efficient conduct of the 
procurement requires that 
competition be limited to a closed 
list of suppliers whose 
qualifications have been 
established in advance;  or 
 
 (b) in the specific circumstances 
identified in Article [E] of this 
Agreement for the use of limited 
tendering.  
[US – GPA/W/113 ] 
 
 
Comment  
 
• A comment by Hong Kong, China regarding A.2(a) of the United States' proposal ( No. 11) and 
the response by the United States are contained in Job No. 5595.  
• A question by Korea ( No. 3) on the nature of "difficulty" referred to in subparagra ph (a) above 
and the response of the United States are contained in Job No. 5595.  
Comments  
 
• The provisions on tendering procedures should be reviewed to accommodate the use of 
two-stage tendering and electronic catalogues.  [Job No. 5074]  
 
  GPA/TN1994/2/Rev.7  
- 36 - 
  Article VII:2 
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall not provide to any supplier 
information with regard to a specific 
procurement in a manner which would have the 
effect of precluding competiti on. 
 2. Entities shall not provide to any 
supplier information with regard to a 
specific procurement in a manner which 
would have the effect of negatively 
affecting competition.  
[Singapore – Job No. 3772]  
 
 General Provisions for the Dissemination 
of Information Relating to Specific  
Tendering Procedures  
 
 6. Procuring entities shall not provide to 
any supplier information with regard to a 
specific procurement in a manner which 
would have the effect of precluding 
competition.  
[US – GPA/W/113 ] 
 
 
Comment  
 
• The reference to "negatively affecting competition" in paragraph 2 of the Singaporean proposal 
is a useful concept.  [EC] 
• Should information with regard to a specific procurement be provided to all suppliers 
participating in a tender or only to those suppliers who have reached a certain stage in the 
procurement process?  [EC] 
 
 GPA/TN1994/2/Rev.7  
- 37 - 
  Article VII:3  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
(a) Open tendering procedures are those 
procedures under which all interested 
suppliers may submit a tender.  
 (a) Open tenders are those which are 
posted in a medium which is [in the 
public domain] [readily available 
to both lo cal and foreign 
suppliers], and which all interested 
suppliers may submit a tender.  
[Singapore – Job No. 3772]  
 
 Definitions  
 
B.1. For the purposes of this Agreement:  
 
(a) "open tendering" procedures are 
those procedures in which the 
procuring entity permits all 
interested suppliers to participate 
in a procurement competition;  and 
 
(b) "qualified open tendering" 
procedures are those procedures in 
which the procuring entity:  
 
(1) requires each supplier to be 
qualified before such supplier 
may par ticipate in the 
tendering process;  and 
 
(2) permits interested suppliers 
to apply for qualification 
while the tendering process 
is under way.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• The phrase "in the public domain" in the proposal by Singapore is not necessary.  [Korea]  
• Questions and comments by the European Community ( Nos. 2 and 3);  Hong Kong, China 
(Nos.  18-19); and Japan ( No. 3) regarding qualified open tendering and the difference 
between this procedure and selective tendering procedure and the resp onses by the United 
States are contained in document Job No. 5595.  Switzerland also made a similar comment on 
this point.  
• How should the term "qualified" be understood?  [Switzerland]  
• Qualification process could be simple or complex covering a range of proc urement situations.  
[US] 
• A comment by Hong Kong, China regarding the nomenclature used in the United States' 
proposal for different procedures ( No. 10) and the response by the United States are contained 
in document  Job No. 5595.  GPA/TN1994/2/Rev.7  
- 38 - 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Selective tendering procedures are 
those procedures under which, 
consistent with paragraph 3 of Article  X 
and other relevant provisions of this 
Agreement, those suppliers invited to 
do so by the entity may sub mit a 
tender.  
 (b) Selective tenders are those which, 
consistent with paragraph  3 of 
Article X and other relevant 
provisions of this Agreement, 
selected suppliers are invited to do 
so by the entity, and the 
information on the tender is not 
posted in a medium which is [in the 
public domain] [readily available 
to both local and foreign 
suppliers].  
[Singapore – Job No. 3772]  
 
 
Comment  
 
• It may not be appropriate to define the procedure in terms of the medium through which 
information on selective tendering opportunities is provided.  In most cases, notices of 
selective tendering are published in the same way as for open tendering procedures.  For 
transparency purposes, requirements for publication of notices of invitation to tender should 
also apply to selective tendering procedures.  [US] 
 GPA/TN1994/2/Rev.7  
- 39 - 
  Article VII  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article C  
 
Procedures for Selective Tendering  
 
 1. For the purposes of this Agreement, 
"selective tendering" procedures are those 
procedures in which a procuring entity:  
 
(a) requires each supplier to be 
included on a closed list of qualified 
suppliers before such supplier may 
participate in the tendering 
process;  and 
 
(b) does not provide an opportunity for 
interested suppliers to apply for 
inclusion on the relevant closed list 
of qualified suppliers while the 
tendering process is under way.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• A question by the European Community ( No. 4) regarding the provision on "closed list" and 
its relationship to GPA Article VIII:(a) and (e) and the response by the United States are 
contained in document Job No. 5595.  
• Comments and questions by Hong Kong, China ( No. 26) and Japan ( No. 5) regarding a  new 
definition of selective tendering in the above proposal and the United States' responses are 
contained in Job No. 5595.  
• Selective tendering procedures are used frequently by non -parties.  GPA/TN1994/2/Rev.7  
- 40 - 
  Article VII  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Limited tendering procedures are those 
procedures where the entity contacts 
suppliers individually, only under the 
conditions specified in Article  XV. 
 (c) Limited tenders are those where 
the entity contacts suppliers 
individually, only under the 
conditions specified in Article XV.  
[Singapore – Job No. 3772]  
 
 Article E(1)  
 
Definition  
 
 1. For the purposes of this Agreement, 
"limited tendering procedures" are 
procedures in which a procuring entity 
invites tenders only from a supplier or 
suppliers that the entity identifies through 
an internal, non -competitive selection 
process.  
[US – GPA/W/113 ] 
 
Comment  
 
• A comment by Hong Kong, China ( No. 30) regarding the above proposal and the United  States' 
response are contained in Job No. 5595.  
  GPA/TN1994/2/Rev.7  
- 41 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of 
Suppliers  
In the process of qualifying suppliers, entities 
shall not discriminate among suppliers of other 
Parties or between domestic suppliers and 
suppliers of other Parties.  Qualification 
procedures shall be consistent with the 
following:  
 1. Entities maintaining permanent lists 
of qualified suppliers shall not discriminate 
among suppliers of other Parties or 
between domestic suppliers and suppliers 
of other Parties.  Qualification procedures 
shall be consistent with the following:  
(a) any cond itions for participation in 
tendering procedures shall be 
published in adequate time to enable 
interested suppliers to initiate and, to 
the extent that it is compatible with 
efficient operation of the procurement 
process, complete the qualification 
procedu res; 
 (a) any supplier may apply for 
qualification at any time;  and all 
qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Support the approach in the above proposal.  [US; EC] 
• Clarification of the phrase "reasonably short time" is required.  [Hong Kong, China]  
 
 GPA/TN1994/2/Rev.7  
- 42 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Each Party shall ensure that any 
conditions for participation in a tendering 
process used by its procuring entities are 
limited to those which are essential to 
ensure a potential supplier's ability to fulfil 
the requirements and technical 
specifications of the contract in question.  
[US – Job No. 6048]  
 
(b) any conditions for participation in 
tendering procedures shall be limited to 
those which are essential to ensure the 
firm's capability to fulfil the contract in 
question.  
 (b) if registration as a permanent 
qualified supplier is a pre -requisite 
for participation in an intended 
procurement, and a supplier not 
yet qualified requests to 
participate in the intended 
procurement, the [entity shall 
promptly start procedures for 
qualification] [supplier shall not be 
denied the opportunity to 
participate simply on the basis that 
the supplier is not on the entity's 
permanent list of qualified 
suppliers];  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• With respect to Article VIII:(b) of the Agreement, ways should be found to reduce 
administrative burdens o n suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  [Korea]  
• It is preferable to separate the rules regarding permanent lists of qualified suppliers and those 
regarding qualification for an individual procurement.  This approach is reflected in 
paragraphs  1 to 3 of the Singaporean proposal.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.7  
- 43 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information 
necessary for establishing the 
financial, commercial and technical 
capacity of suppliers, as well as the 
verification of qualific ations, shall be 
no less favourable to suppliers of 
other Parties than to domestic 
suppliers and shall not discriminate 
among suppliers of other Parties.  
 
 The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory 
of the procuring entity, taking due 
account of the legal relationship 
between the supply organizations;  
 (a) Each Party shall ensure that its 
procuring entities evaluate he 
financial, commercial and technical 
capabilities of a supplier on the 
basis of that supplier's global 
business activities, and do not 
impose the condition that, in order 
for a supplier to participate in a 
procurement process, the supplier 
has p reviously been awarded one 
or more contracts by an entity of 
that Party of that the supplier has 
prior work experience in the 
territory of that Party.  
[US – Job No. 6048]  
 GPA/TN1994/2/Rev.7  
- 44 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (19 94) PROPOSED MODIFICATIONS  
(c) the process of, and the time required 
for, qualifying suppliers shall not be 
used in order to keep suppliers of other 
Parties off a suppliers' list or from being 
considered for a particular intended 
procurement.  
  
 Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet the 
conditions for participation in a 
particular intended procurement.  
 2. Procuring entities shall recognize as 
qualified suppliers such domestic suppliers 
or suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  Entities shall base 
their qualification decisions solely on the 
conditions for participation that have been 
specified in advanc e in notices or tender 
documentation.  
[US – Job No. 6048]  
 
 Suppliers requesting to participate in a 
particular intended procurement who 
may not yet be qualified shall also be 
considered, provided there is sufficient 
time to complete the qualification 
procedure;  
 3. When a supplier that is not yet 
qualified requests to participate in a 
qualified open tendering process, the 
procuring entity shall promptly start the 
qualification procedure.  The entity shall 
consider such supplier for the relevant 
procurement , provided there is sufficient 
time to complete the qualification 
procedure.  
[US – Job No. 6048]  
 
 4. When, after publication of a notice of 
the opportunity to apply for inclusion on a 
closed list of suppliers, a supplier that is not 
yet qualified request s to be included on that 
list, the procuring entity shall promptly 
start the qualification procedure.  The entity 
shall consider such supplier for subsequent 
procurements open to suppliers on that list, 
provided there is sufficient time to 
complete the qualification procedure.  
[US – Job No. 6048]  
 
 
Comments  
 
• Do Parties have the same understanding of what is meant by a "permanent list"?  [Singapore]  
• Who is expected to take the initiative to respond to a tender?  Is the tender an open invitation 
and interested suppliers take the initiative as to whether or not to respond to a tender?  
Alternatively, does the procuring entity make the decision to invite particular suppliers and 
not others?  [Singapore]  
With respect to the new US proposal on Article VIII:  
 
• Article VIII currently requires that a qualification process should be open, including cases when 
a permanent list of suppliers is created under Article IX.  There should be an opportunity for 
suppliers at all times to request qualification and if there i s sufficient time during the tendering GPA/TN1994/2/Rev.7  
- 45 - 
  process, to qualify and participate in the procurement process.  That principle should continue 
to apply in cases of open and selective tendering as currently defined in the Agreement.  
Paragraph 4 of the US proposal pr ovides that if closed list of pre -qualified suppliers are used, 
that principle will not apply.  [US] 
• Careful examination of the US proposal to create a fourth type of procedure – qualified open 
tendering – is needed, since it appears to correspond with what  is currently referred to as 
selective tendering under the GPA.  This means that what is referred to as "selective tendering" 
under the US proposal is not currently possible under the GPA.  [EC] 
• Is it practically possible to qualify new suppliers while the t endering process is under way?  
Suppliers who fail to abide by time -limits would have another opportunity to qualify, which 
seems unfair.  If all suppliers have equal opportunity to participate, the practicality of including 
new suppliers in an ongoing quali fication would be a secondary issue.  There would be a rolling 
deadline so that suppliers can qualify at any time.  [Singapore]  
• Is the distinguishing feature between the two types of qualification procedures proposed by 
the US - qualified open tendering and qualification of suppliers for closed lists – that, in the 
case of qualified open tendering, the qualification deadline is made known?  [Singapore]  
• If the US proposal were followed, selective tendering would be considered open tendering and 
would, therefore , receive favourable treatment.  The key point justifying giving that treatment 
to selective tendering is the fact of having the theoretical possibility of qualifying while the 
tendering process is ongoing.  Unless there is a very simple qualification system , in most cases, 
it will be impossible for a supplier to first qualify and secondly, to submit a tender within the 
given deadlines.  In those circumstances, is it still appropriate to switch the emphasis in the 
way proposed by the US?  [EC] 
• More information is required in relation to the kind of situations that would be covered by the 
new category of closed lists of qualified suppliers to determine whether offering this possibility 
under the GPA is justifiable.  [EC] 
• At some point in a qualification process fo r a particular procurement, an entity may establish 
a time -limit beyond which it will no longer accept applications.  Both under the GPA and the 
US proposal, there should be an opportunity for interested supplies who are not qualified to 
apply for qualifica tion during the procurement process.  However, at some point in time, the 
entity might state that it is no longer practical to receive applications.  [US] 
• The selective tendering method covers two types of procedures.  One type is for a specific 
procurement such as construction of highways for which interested suppliers submit 
qualification documents within the time -limit set out in the qualification documents.  If the 
qualification documents cannot be submitted within the time -limit or the documen t submitted 
is not in conformity with the tender documentation, the qualification application would be 
rejected.  The other type is the establishment of permanent lists of qualified suppliers, which 
allows suppliers to apply for qualification at any time.  Any modification to Article VIII should 
take into account the difference between these two types of methods of selective tendering.  
[Chinese  Taipei]  
• Conceptually, there are at least two different types of selective tendering methods envisaged 
under the GPA.  However, rather than having different procedures to address the various types 
of methods, it is preferable to have one set of provisions that relates to all types and that 
ensure that the objectives of the Agreement are achieved.  [US] 
• What are the linkage s between qualified open tendering and the present Article IX:3 which 
covers planned procurement or notice for qualification systems as an invitation to participate 
in a tender?  [Switzerland]  
• The proposal is not intended to preclude the use of planned proc urement notices.  The US 
proposal attempts to introduce principles that apply to all procedures in a way that achieves 
the objectives of the existing Article IX.  [US] GPA/TN1994/2/Rev.7  
- 46 - 
  • The key factor in making the link between the four categories of tendering procedures refe rred 
to in the US proposal could be the notice of planned procurement.  If qualification systems are 
to be made more open and transparent, such a notice could play an important role.  [EC] 
• The use of closed lists is unlikely to occur very often.  Elaboration is required in relation to their 
use and the relationship with what is currently at entities' disposal in relation to, for example, 
utilities.  [Switzerland]  
 
 GPA/TN1994/2/Rev.7  
- 47 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994 ) PROPOSED MODIFICATIONS  
 (c) any supplier having requested to 
become a qualified supplier shall 
be advised by the entities 
concerned of the decision in this 
regard.  Qualified suppliers 
included on permanent lists by 
entities shall also be notified of the  
termination of any such lists or of 
their removal from them;  
[Singapore – Job No. 3772]  
 
(d) entities maintaining permanent lists of 
qualified suppliers shall ensure that 
suppliers may apply for qualification at 
any time;  and that all qualified 
suppliers so requesting are included in 
the lists within a reasonably short time;  
 (d) each Party shall ensure that:  
 
(i) each entity and its 
constituent parts follow a  
single  qualification  
procedure, except in cases of 
duly substantiated need for a 
differ ent procedure, and  
 
(ii) efforts be made to minimize  
differences  in qualification 
procedures between entities;  
[Singapore – Job No. 3772]  
 
(e) if, after publication of the notice under 
paragraph 1 of Article  IX, a supplier not 
yet qualified requests to participate in 
an intended procurement, the entity 
shall promptly start procedures for 
qualification;  
  
(f) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of the 
decision in this regard.  
 5. A procuring entity shall promptly 
advise any supplier that requests to become 
a qualified supplier of its decision as to 
whether that supplier is qualified.  
[US – Job No. 6048]  
 
 Qualified suppliers included on 
permanent lists by entities shall also be 
notified of the termination of any such 
lists or of their removal from them;  
 6. If a procuring entity rejects a 
supplier's application to qualify or ceases to 
recognize a supplier as qualified, the entity 
shall, on request of the supplier, promptl y 
provide te supplier wit a written 
explanation of the reasons for its decision.  
[US – Job No. 6048]  
 
  GPA/TN1994/2/Rev.7  
- 48 - 
  Comments  
 
• It would be difficult to comply with subparagraph (d)(ii) of the Singapore proposal given the 
differences in scope and nature of procurement undertaken by different entities.  [Hong Kong, 
China]  
• A question by Korea ( No. 2) regarding the absence of GPA Article VIII:(e) in the United States' 
proposal in GPA/W/113  and the United States' response are contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 49 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(g) each Party shall ensure that:  
  
(i) each entity and its constituent parts 
follow a single qualification 
procedure, except in cases of duly 
substantiated need for a different 
procedure;  and 
  
(ii) efforts be made to minimize 
differences in qualification 
procedures between entities.  
  
(h) nothing in subparagraphs (a) through 
(g) shall preclude the exclusion of any 
supplier on grounds such as bankruptcy 
or false declarations, provided that 
such an action is consistent with the 
national treatment and 
non-discrimination provisions of this 
Agreement.  
 [1](b)  Nothing in this Article shall 
preclude the exclusion of a supplier 
on grounds such as bankruptcy or 
false declarations.  
[US – Job No. 6048]  
 (e) nothing in subparagraphs (a) 
through (d) shall preclude the 
exclusion of any supplier on 
grounds such as bankruptcy or 
false declarations, provided that 
such an action is consistent with 
the national treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 
 2. The process of, and the time required 
for, qualif ying suppliers to permanent lists 
maintained by the entity shall not be used 
in order to keep suppliers of other Parties 
off a suppliers' list or from being considered 
for a particular intended procurement.  
Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  [Suppliers 
requesting to participate in a particular 
intended procurement who may not yet be 
qualified shall als o be considered, provided 
there is sufficient time to complete the 
qualification procedure.]  
[Singapore – Job No. 3772]  
 
Comments  
 
• Alternatively, paragraph 1(b) above can be expanded to cover the point in paragraph 2 of the 
Singapore proposal.  [Singapore – Job No. 3772]  GPA/TN1994/2/Rev.7  
- 50 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers for 
participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreemen t, ensure that their 
procedures are consistent with the following:  
 
 (a) the invitation to be considered for 
pre-qualification shall be publ ished in 
adequate time to enable interested 
suppliers to submit proper 
documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to those  
which are essential to ensure the firm's 
capability to fulfil the contract in 
question.  Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information necessary 
for establishing the financial, commercial 
and technical capacity of suppliers, as 
well as the verification of qualifications, 
shall be no less favourable to suppliers of 
other Parties than to domestic suppliers 
and shall not discriminate among 
[against] suppliers of other Parties.  The 
financial, commercial and technical 
capacity of a supplier shall be judged on 
the basis both of that supplier's global 
business activity as well as of its activit y 
in the territory of the procuring entity, 
taking due account of the legal 
relationship between the [supply 
organizations] [business units of the 
supplier in different territories].  
 
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The reference to "other provisions in this Agreement" in subparagraph 3 of the Singaporean 
proposal should be made more specific or it should be deleted as it appears to be unnecessary.  
[Hong Kong, China]  
• The existing wording of Article VIII(a) is preferred to the proposed wordin g in 
subparagraph  3(a). [Hong Kong, China]  
• Subparagraph 3(b) of the proposal is, in principle, desirable, particularly in relation to SMEs, 
since it purports to reduce administrative burdens on suppliers.  However, more details of the 
proposal are required.  [Hong Kong, China]  
• The last sentence of paragraph 3(b) of the Singaporean proposal should be deleted given that 
it is difficult to assess a suppliers' global business and legal relationship between business 
units that are located in different territories.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.7  
- 51 - 
  Article IX:1  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article  XV (limited 
tendering).  The notice shall be published in the 
appropriate publication listed in Appendix  II. 
 1. In accordance with paragraphs 2 and 
3, entities s hall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering).  The 
notice shall be published through means 
which offer the widest possible and 
non-discriminatory access t o interested 
suppliers and service providers from all 
Parties to this Agreement;  these means 
shall be accessible [free of charge [ delete 
Singapore – Job No. 5271]] through a 
single point of access.  
Each Party shall notify to the other Parties 
this single point of access.  [Entities shall 
not charge for access to invitations to 
participate [Singapore – Job No. 5271]]  
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 
 
Comments  
 
• The proposal aims at eliminating several undefined terms that are used in the current 
Agreement to refer to tender notices issued by different types of entities and in different types 
of circumstances.  In effect, the proposal combines the requirements for Annex 1, 2 and 3 
entities into one set of requirements for tender notices relating to op en tendering 
opportunities.  [EC] 
• The application of the same type of obligation to entities at all three levels could result in 
increasing the level of obligations for Annex 2 and 3 entities regarding the publication of 
invitations to tender.  [Chinese Taip ei] 
With regard to the proposed requirement that procurement notices should be provided "free of 
charge":  
 
• This proposal raises concerns.  [Hong Kong, China ] Would there be a benefit by shifting the 
costs of publication from suppliers to taxpayers?  [Canada]  
• The intent of the additional wording by Singapore is to explicitly state what is provided free of 
charge, as opposed to a blanket free of charge formulation.  The telephone line, the computer, 
the Internet Service Provider fees are not free of charge.  The current subparagraph 6(g) of 
Article  IX also refers to "the amount and terms of payment of any sum payable for the tender 
documentation".  Hence, it would be better to explicitly state what is provided free of charge.  
[Singapore – Job No. 5271]  
• The principle of "reasonableness" might be relevant in this respect to ensure that barriers are 
not created through the imposition of excessive costs.  Any charge that is imposed should be 
non-discriminatory and closely linked to the actual cost of providing th e information.  Fees 
charged for access to information should not be regarded as a source of revenue.  [EC; US] 
With regard to single point of access:  
 
• The establishment of "a single point of access" to electronic publications of tender notices 
under the GPA, as suggested by Korea, is technically feasible.  However, it is questionable 
whether the benefits would be worth the significant cost and undue burden associated with GPA/TN1994/2/Rev.7  
- 52 - 
  introducing this system for Parties with decentralized systems and for developing cou ntries.  
[US] 
• Korea has a central procurement system from which all relevant information on government 
procurement can be obtained.  A single contact point does not mean that masses of information 
need to be accumulated.  Rather, that point would merely conne ct interested Parties to the 
right point.  [Korea]  
• Information should be as easily accessible as possible provided that providing such access 
does not impose unnecessary burdens on Parties.  Having all the information available at a 
single point of access ma y not be practically possible and could defeat the aim of transparency 
since it could be very difficult to filter through all the information provided at the point.  [US] 
• It would be ideal to have a single Internet address where all relevant information cou ld be 
obtained.  However, this could be difficult to arrange in cases where procurement systems are 
highly decentralized.  [EC] 
• The term "widest possible access" has been used to avoid referring to the Internet in 
recognition of the fact that other technolog ical advance may emerge which also promote 
transparency.  [EC] 
• The reference to the term "widest possible access" suggests that the publication of 
procurement notices must be published through the use of information technology.  The use 
of information techno logy should be optional.  [Japan;  Korea]  
• The intention underlying the proposed text is not to make the use of information technology 
mandatory.  Traditional means of publication can also be used provided that they are easily 
accessible.  The EC proposal is in tended to encourage the use of information technology as far 
as is possible and to facilitate its use.  [EC] 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering).  The 
notice shall be published in the appropriate 
publication listed in Appendix II.  Such 
appropriate publication may be ele ctronic 
or paper.  
[Canada – Job No. 3483]  
 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV.  The notice shall be 
published in the appropriate publication or 
website listed in Appendix II.  
[Chinese Taipei – Job No. 3193]  
 
  GPA/TN1994/2/Rev.7  
- 53 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 B.2. Procuring entities using open 
tendering and qualified open tendering 
procedures shall publish a notice of 
intended procurement for each contract to 
be awarded.  The notice shall be published 
in the appropriate publication listed in 
Appendix II.  Such pu blications shall be in 
an electronic or paper media which is 
widely disseminated and readily accessible 
to the general public.  
[US – GPA/W/113 ] 
 
 E.2. When a procuring entity uses a 
limited tendering procedure, it may choose 
not to publish or distribute a noti ce of 
intended procurement prior to the award of 
the procurement contract.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• A comment by Japan ( No. 4) supporting the United States' proposal in B.2. and the response 
by the United States are contained in Job No. 5595.  
• A question by Hong Kong, China ( No. 21) regarding the term "widely disseminated" in the 
above proposal and the response by the United Sta tes are contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 54 - 
  Article IX:2, 3, 4  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the 
form of a notice of proposed  procurement, as 
provided for in paragraph  6. 
 2. The invitation to participate may take 
the form of a notice of intended 
procurement, as provided for in 
paragraph  6. 
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a 
notice containing the types of information as provided for in paragraph 6.  The present use of 
the word "may" might be interpreted to suggest otherwise . [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a 
notice of planned procurement, as provided for 
in paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9, as an invitation to participate . 
 3. Entities may use a notice of intended 
procurement, as provided for in paragraph 
7, or a notice regarding a qualification 
system, as provided for in paragraph 9 as 
an invitation to participate.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
• The use of notices regarding qualification systems as invitations to participate should be 
clarified . [Job No. 5074]  
• The application of the requi rements for publication of tender notices for Annex 3 entities could 
be burdensome.  [Japan]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate shall 
subsequently invite all suppliers who have 
expressed an interest to confirm their interest on 
the basis of information which shall include at 
least the information referred to in paragraph  6. 
  
 
 
 
 
 
 
  GPA/TN1994/2/Rev.7  
- 55 - 
  Article IX:5, 6  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Entities which use a notice regarding a 
qualification system as an invitation to 
participate shall provide, subject to the 
considerations referred to in paragraph 4 of 
Article  XVIII and in a timely manner, information 
which allows all those who have expressed an 
interest to have a meaningful opportunity to 
assess their interest in participating in the 
procurement.  This information  shall include the 
information contained in the notices referred to 
in paragraphs 6 and 8, to the extent such 
information is available.  Information provided to 
one interested supplier shall be provided in a 
non-discriminatory manner to the other 
interested suppliers.  
  
6. Each notice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 B.3. Procuring entities shall include the 
following information in each notice of 
intended procurement:  
(a) the nature and quantity, including 
any options for further procurement 
and, if possible, an estimate of the 
timing when such options may be 
exercised;  in the case of recurring 
contracts the nature and quantity 
and, if possible, an estimate of the 
timing of the  subsequent tender 
notices for the products or services 
to be procured;  
 (a) a description of the intended 
procurement, including the 
nature and quantity of the goods 
or services to be procured;  
(b) whether the procedure is open or 
selective or will invol ve negotiation;  (c) the procurement method that 
will be used and whether it will 
involve negotiations;  
[United States – GPA/W/113 ] 
 
(c) any date for starting delivery or 
completion of delivery of goods or 
services;   
 
  GPA/TN1994/2/Rev.7  
- 56 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the address and final date for 
submitting an application to be 
invited to tender or for qualifying for 
the suppliers' lists, or for receiving 
tenders, as well as the language or 
languages in which they must be 
submitted;  
 (d) the time -limits set for the 
submission of tenders and, if 
qualified open tendering 
procedures are used, the 
time-limits for the submission of 
applications to qualify for 
participation in the intended 
procurement;  
 
(e) the address of the entity awarding 
the contract and providing any 
information necessary for obtaining 
specifications and other documents;  
 (b) the name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain all 
relevant documents relating to 
the contract;  
(f) any economic and technical 
requirements, financial guarantees 
and information required from 
suppliers;  
  
(g) the amount  and terms of payment 
of any sum payable for the tender 
documentation;  and 
 (e) the amount and terms of 
payment of any sum payable for 
the tender documentation;  
 (f) an indication that the 
procurement is covered by the 
Agreement;  
[US – GPA/W/113 ] 
 
(h) whether the entity is inviting offers 
for purchase, lease, rental or hire 
purchase, or more than one of these 
methods.  
  
 
Comments  
 
• Article IX:6 should be modified to require procuring entities to include the means by which 
bids may be submitte d/the means of communication to be used (e.g. mail, electronic means, 
telex, telegram or facsimile) in tender notices.  [Canada, Job No.3481]  
• A question by the European Community ( No. 9) regarding the absence of a reference to 
economic and technical require ments, financial guarantees and information required from 
suppliers in Article IX:6(f) in the United States' proposal and the response by the United States 
are contained in Job No. 5595.  
• A comment by Hong Kong, China ( No. 20) regarding the absence of a lan guage requirement 
in the United States' proposal and the response by the United States are contained in 
Job No. 5595.  
• A comment by Hong Kong, China ( No. 22) regarding point (d) in the United States' proposal 
and the response by the United States are contained in Job No. 5595.  
• A comment by Korea ( No. 4) regarding the absence of certain information requirements in 
GPA Article IX:6(a), (c), (f) and (h) in the  United States' proposal and the response of the 
United States are contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 57 - 
  Article IX:7, 8  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement 
referred to in paragraph 3 shall contain as much 
of the information referred to in paragraph  6 as 
is available.  It shall in any case include the 
information referred to in paragraph 8 and:  
  
(a) a statement that interested 
suppliers should express their 
interest in the procurement to the 
entity;  
  
(b) a contact point with the entity from 
which further information may be 
obtained.  
  
8. For each case of intended procurement, 
the entity shall publish a summary noti ce in one 
of the official languages of the WTO.  The notice 
shall contain at least the following information:  
 8. For each case of intended 
procurement, the entity shall publish a 
summary notice in one of the official 
languages of the WTO.  The notice shall 
contain at least the following information:  
 
(a) the subject matter of the contract;  
 (a) the subject -matter of the 
contract, including the relevant 
CPV code;  
 
(b) the time -limits set for the 
submission of tenders or an 
application to be invited to  tender ; 
and 
 (b) the time -limits set for the 
submission of tenders or an 
application to be invited to 
tender;  and 
 
(c) the addresses from which 
documents relating to the contracts 
may be requested.  
 (c) the addresses from which 
documents relating to the 
contracts may be requested.  
[EC – GPA/ W/87 ] 
 
 
Comments  
 
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
• A question by the European Community ( No. 8) regarding the absence of a provision on the 
publication of a summary notice in the United States' proposal and the response by the United 
States are contained in Job No. 5595.  
With regard to the reference to the relevant CPV code:  
 
• Reference to a nation al classification code should suffice as long as it is transparent.  There 
should be no requirements in the Agreement regarding the use of CPV codes.  [US] 
• The reference to CPV code should be deleted.  [Singapore;  US] Many projects contain a mixture 
of CPV co des. In some projects, CPV code may not be available or applicable.  Alignment to 
CPV codes would impose an unnecessary administrative burden and may not make much 
difference to the suppliers/tenderers.  [US; Singapore]  GPA/TN1994/2/Rev.7  
- 58 - 
  • Alternatively, the words "if applicabl e" should be added at the end of subparagraph 8(a).  
[Singapore – Job No. 5271]  
• A variety of classification systems are used by Parties for various purposes.  The practicality of 
establishing a common classification system applicable among the GPA Parties fo r all purposes 
is questionable.  [Canada]  
• While the establishment of a common classification system might be necessary, further 
consideration of the impact on existing systems is required.  [Singapore]  
• The aim underlying the proposal is to come up with a sys tem that is as transparent and 
efficient as possible.  This cannot be achieved unless there is a common classification system.  
A common classification system will help suppliers to understand what a procuring entity 
wishes to purchase and will also facilita te the collection of accurate statistical data.  [EC] 
• The CPV code is more comprehensive than the Harmonized System of classification of goods.  
It covers the whole gamut of government purchases of goods and services.  [EC in reply to 
clarification sought by Switzerland]  
 GPA/TN1994/2/Rev.7  
- 59 - 
  Article IX:9  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering 
procedures, entities maintaining permanent lists 
of qualified suppliers shall publish annually in one 
of the publications listed in Appendix  III a notice 
of the following:  
 Article C  
4. For as long as a procuring entity 
maintains a closed list of qualified 
suppliers, such enti ty shall publish a notice 
of the opportunity for interested suppliers 
to apply for inclusion on that list, in 
accordance with the requirements of 
paragraph 3 above, at least once each year.  
 
 3. At least 60 days before establishing a 
closed list of qualified suppliers for the 
purposes of conducting a selective 
tendering procedure, procuring entities 
shall publish, in one of the publications 
listed in Appendix II, a notice of the 
opportunity for interested suppliers to 
apply for inclusion in that list . Such notice 
shall contain the following information:  
 
(a) the enumeration of the lists 
maintained, including their 
headings, in relation to the products 
or services or categories of products 
or services to be procured through 
the lists;  
  
(b) the condi tions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which each of 
those conditions will be verified by 
the entity concerned;  and 
 (b) the conditions to be fulfilled by 
suppliers in order to be inc luded 
on that list;  
 
(c) the period of validity of the lists, and 
the formalities for their renewal.  (c) the period of validity of the list;  
and 
 
 (b) provide additional information 
in a timely manner which allows 
all those who have expressed an 
interest to have a meaningful 
opportunity to assess their 
interest in participating in the 
procurement.  This information 
shall include the information 
contained in the notices referred 
to in paragraph 2, to the extent 
available.  
[United States – GPA/W/113 ] 
 
 
 
  GPA/TN1994/2/Rev.7  
- 60 - 
  Comments  
 
• A comment by Hong Kong, China ( No. 27) regarding the above proposal and the United  States' 
response are contained in Job No. 5595.  A comment by Japan ( No. 7) regarding 
paragraph  C.3. of the above proposal and the United States' response are contained in Job 
No. 5595.  
• A comment by Korea ( No. 5) regarding the absence of GPA Article IX:9(a) and the 
United  States' response are contained in Job No. 5595.  
• A question by the European Comm unity ( No. 7) regarding paragraphs C.2. to 5 of the 
United  States' proposal and their relationship to GPA Article IX:9 and the response by the 
United  States are contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 61 - 
  Article IX:10  
 
Invitation to Participate Regarding Intended Procure ment 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to 
participate in accordance with paragraph 3, the 
notice shall, in addition, include the following 
information:  
  
(d) the nature of the products or 
services concerned;  
 (a) a description, in as much detail 
as is available, of the goods or 
services to be procured from 
suppliers included on that list;  
 
(e) a statement that the notice 
constitutes an invitation to 
participate.  
 (d) a statement that the notice 
constitutes a notice of the 
opportunity to apply for 
qualification to be included on 
the list.  
[US – GPA/W/113 ] 
 
However, when the duration of the qualification 
system is three years or less, and if the duration 
of the system is made clear in the notice and it 
is also made clear that further notices will not be 
published, it shall be sufficient to publish the 
notice once only, at the beginning of the system.  
Such a system shall not be used in a manner 
which circumvents the provisions of this 
Agreement.  
  
10. If, after publication of an invitation to 
participate in any case of intended procurement, 
but before t he time set for opening or receipt of 
tenders as specified in the notices or the tender 
documentation, it becomes necessary to amend 
or re-issue the notice, the amendment or the 
re-issued notice shall be given the same 
circulation as the original documents  upon which 
the amendment is based.  Any significant 
information given to one supplier with respect to 
a particular intended procurement shall be given 
simultaneously to all other suppliers concerned 
in adequate time to permit the suppliers to 
consider such  information and to respond to it.  
 Article A  
7. If it becomes necessary to amend 
information provided to suppliers during 
the procurement process, procuring 
entities shall provide the amended 
information:  
 
(a) to all of the suppliers that are 
participating at the time the 
information is amended;  and 
 
(b) in adequate time to allow such 
suppliers to modify and 
resubmit their initial tenders, as 
appropriate.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• Questions by the European Community ( No. 6) and Hong Kong, China  (Nos. 15-17) regarding 
A.7. of the United States' proposal and its relationship to GPA Article IX:10 and the responses 
by the United States are contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 62 - 
  • Article A.7(a) and (b) of the US proposal suggest that procuring entities need to pr ovide 
amended information to all participating suppliers.  In cases of procurement conducted over 
the Internet, the procuring entity will not know which suppliers download or view the tender 
documentation and, in many instances, many procuring entities will  publish the amendment 
in the same medium.  The onus should be on the supplier to look at amended information.  
Perhaps an additional paragraph should be added stating that making the amended 
information publicly available is sufficient.  [Singapore]  
• What would be the position under the US proposal when, at some point in the process when 
only a few potential suppliers remain, there is a change in the published conditions, some of 
which could be substantial and could affect those suppliers that have already been 
disqualified?  [EC] 
• It is important to consider what the situation would be if there is a two -stage competition and 
a change in information occurs that affects the criteria on which the initial competition was 
based.  In cases where information is chang ed during the second stage of the process, perhaps 
it would not be reasonable or necessary to share it or disseminate it to all the suppliers that 
initially expressed an interest in the procurement.  [US] 
 
  GPA/TN1994/2/Rev.7  
- 63 - 
  Article IX:11  
 
Invitation to Participate Regardin g Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
11. Entities shall make clear, in the notices 
referred to in this Article or in the publication in 
which the notices appear, that the procurement 
is covered by the Agreement.  
 Article C  
5. Procuring entities maintaining such 
closed lists shall, on request, provide 
additional information in a timely manner 
which allows all suppliers who have 
expressed an interest to have a meaningful 
opportunity to assess their intere st and, if 
they choose, apply for inclusion on a closed 
list of qualified suppliers.  This information 
shall include the information contained in 
the notices referred to in Article B:3 of this 
Agreement to the extent available.  
[US – GPA/W/113 ] 
 
 GPA/TN1994/2/Rev.7  
- 64 - 
  Article X:1, 2, 3  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering 
procedures, entities shall, for each intended 
procurement, invite tenders from the maximum 
number of domestic suppliers and suppliers of 
other Parties, consistent with the efficient 
operation of the procurement system.  They shall 
select the suppliers to participate in the 
procedure in a fair and non -discriminatory 
manner.  
  
2. Entities maintaining permanent lists of 
qualified suppliers may select suppliers to be 
invited to tender from among those listed.  Any 
selection shall allow for equitable opportunities 
for suppliers on the lists.  
 Article C  
 
Notification of Procurement Opportunities 
Under Selective Tendering Procedures  
 
2. Procuring entities using selective 
tendering procedures shall distribute a 
notice of each intended procurement to 
each of the suppliers on the entity's closed 
list of qualif ied suppliers for that 
procurement.  Such entities may choose, 
when they deem it appropriate, not to 
publish such notice in one of the 
publications listed in Appendix II  
[US – GPA/W/113 ] 
 
3. Suppliers requesting to participate in a 
particular intended procurement shall be 
permitted to submit a tender and be considered, 
provided, in the case of those not yet qualified, 
there is sufficient time to complete the 
qualification procedure under Articles  VIII and 
IX. The number of additional suppliers permitted  
to participate shall be limited only by the efficient 
operation of the procurement system.  
 Article A (repeated)  
 
1.(b)  "qualified open tendering" 
procedures are those procedures in 
which the procuring entity:  
 … 
 
 (2) permits interested 
suppliers to appl y for 
qualification while the 
tendering process is under 
way.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• For the purposes of simplifying the Agreement, paragraphs 1 and 2 should be deleted.  [US in 
response to Switzerland]  
• Paragraph C.2. regarding notices of "intended procurement" covers notices of "proposed 
procurement" and notices "regarding qualification systems".  [US in response to Switzerland]  
• A question by the European Community ( No. 5) regarding C.2. of the United States' proposal 
and its relationship t o GPA Article IX:1 and the response by the United States are contained 
in Job  No. 5595.  GPA/TN1994/2/Rev.7  
- 65 - 
  • The provision regarding the limitation of additional tenderers permitted to participate is not 
essential.  As part of their normal decision -making process, entities have  the ability to take 
that type of decision.  [US] 
• A comment by Japan ( No. 6) regarding paragraph C.2. of the United States' proposal and the 
responses are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.7  
- 66 - 
  Article X:4  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile.  
 4. Requests to participate in selective 
tendering procedures may be submitted by 
telex, telegram or facsimile, electronic 
means, including email.  [Canada – Job 
No. 3481]  
 
4. Requests to participate in selective 
tendering procedures may be submitted in 
writing including electronic means . The 
term "writing" as used in this Agreement is 
to be understood to include any worded or 
numbered expression which can be read, 
reproduced, and later communicated, and 
includes electronically transmitted and 
stored information . "Electronic means" 
means using electronic equipment for the 
processing (including digital compr ession) 
and storage of data, and entirely using 
transmission, conveyance and reception by 
wire, by radio, by optical means or by other 
electromagnetic means.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• In Article X, a provision stating that the means of communication to be used can be specified 
by the procuring entity (e.g. mail, electronic means, telex, telegram or facsimile) should also 
be added.  [Canada – Job No. 3481]  
• Should the above definition of the term "writing" apply across -the-board in the Agre ement or 
only to the provisions on selective tendering?  [US] 
 GPA/TN1994/2/Rev.7  
- 67 - 
  Article XI:1  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
General  General  
1.(a) Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers to 
prepare and submit tenders before the 
closing of the tendering procedures.  In 
determining any such time -limit, 
entities shall, consistent with their own 
reasonable needs, take in to account 
such factors as the complexity of the 
intended procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting tenders by 
mail from foreign as well as domestic 
points.  
 1.(a)  Any prescribed time -limit shall be 
adequate  to allow suppliers of 
other Parties as well as domestic 
suppliers to prepare and submit 
tenders before the closing of the 
tendering procedures.  In 
determining any such time -limit, 
entities shall, consistent with their 
own reasonable needs, take into 
accou nt such factors as the 
complexity of the [intended] 
procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting 
tenders [by mail - delete [Canada]] 
[in writing] from foreign as well as 
domestic points.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 3. Except in the exceptional 
circumstances identified in Article [D:1(d)] 
and Article [E:4(g)] of this Agreement, any 
prescribed time -periods for the tendering 
process shall be adequate to allow 
participating suppliers of all Pa rties to this 
Agreement to prepare and submit 
responsive tenders.1 
 
1 In determining the adequacy of such 
time-periods, entities should, consistent with 
their own reasonable needs, take into account 
such factors as the complexity of the intended 
procuremen t, the extent of subcontracting 
anticipated and the normal time for transmitting 
tenders from foreign as well as domestic points.  
[US – GPA/W/113 ] 
 
 4. Procuring entities shall apply the 
same time -periods for all suppliers.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• A comment by Japan regarding the footnote to paragraph A.3. of the United States' proposal 
(No. 2) and the response thereto is contained in Job No. 5595.  
• As one alternative, all of the deadlines identified in this Article could be removed.  [Canada – 
Job No. 3481]  GPA/TN1994/2/Rev.7  
- 68 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting the 
final date for receipt of tenders or of 
applications to be invited to tender.  
 (b) Each Party shall ensure that its 
entities shall take due account 
of publication delays when 
setting the final date for receipt 
of tenders or of applications to 
be invited to tender.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 A.5. If, as a result of a need to amend 
information provided to suppliers during 
the procurement process, a procuring 
entity must extend the time -period for the 
tendering procedures, such entity shall 
permit all participating suppliers to submit 
final tenders in accordance with a common 
deadline.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• A comment by Hong Kong, China regarding A.5. of the United States' proposal and its 
relationship to Article XVIV:4(d) ( No. 14) and the response by the United States are contained 
in Job No. 5595.  
• Regarding A.5 of the US proposal requiring  the procuring entity to extend the time -period, is 
it intended that this requirement will only apply to changes in information that are pertinent 
to suppliers making a bid or is it intended to extend to information that has no material impact 
on suppliers  submitting bids?  [Singapore]  
• The time -period does not need to be extended in all cases where there are changes in 
information.  However, there are some cases where, as a result of changes in information, it 
may be necessary to extend the time -period to all ow suppliers to respond to the change in 
information and provide meaningful responses.  The US proposal attempts to maintain the 
principle that if an entity decides to change the initially published time -period, the change 
must be the same for all intereste d suppliers.  [US] GPA/TN1994/2/Rev.7  
- 69 - 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Deadlines  
 Deadlines  
2. Except in so far as provided in 
paragraph  3: 
 2. Except insofar as provided in 
paragraph 3,  
 
(a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in paragraph 
1 of Article  IX; 
 (a) in open procedures, the period 
for the receipt of tenders shall 
not be l ess than 40 days from 
the date of publication referred 
to in paragraph 1 of Article IX;  
[Singapore – Job No. 3772]  
 
 2. Except insofar as provided in 
paragraphs 3 and 4,  
 
(a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 30 days from 
the date of publication;  
[EC – GPA/W/87 ] 
 
 2. (a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 28 days from 
the date of publication referred 
to in paragraph 1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Careful consideration should be given to any reduction of the current time -limits.  [Korea]  
• The suppliers of products, the prices of which are subject to frequent changes, question the 
rational for the extended time -periods in the Agreement.  [Singapore]  
• Further discussion is required in relation the reduction of time -limits 
when  electronic  procurement means are used.  [EC] 
 
  GPA/TN1994/2/Rev.7  
- 70 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODI FICATIONS  
 Time -Periods for Suppliers' Responses to 
Notifications Under Open Tendering and 
Qualified Open Tendering Procedures  
  
B.4. Except as provided for in Article [D] of 
this Agreement:  
 
 (a) A procuring entity using open 
tendering or qualified open 
tendering procedures shall 
provide no less than 40 calendar 
days between the date on which 
a notice of intended 
procurement is published and 
the date on which the tendering 
procedures relating to that 
notice are closed.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• A comment by Hong Kong, China ( No. 28) regarding the above proposal and the United States' 
response are contained in Job No. 5595.  
  GPA/TN1994/2/Rev.7  
- 71 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) in selective procedures not involving 
the use of a permanent list of 
qualified suppliers, the period for 
submitting an application to be 
invited to tender shall not be less 
than 25 days from the date of 
publication referred to in 
paragra ph 1 of Article  IX; the period 
for receipt of tenders shall in no case 
be less than 40  days from the date 
of issuance of the invitation to 
tender;  
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for  
submitting an application to be 
invited to tender shall not be 
less than 25  days from the date 
of publication referred to in 
paragraph  1 of Article IX;  the 
period for receipt of tenders 
shall in no case be less than 40 
days from the date of issuance 
of th e invitation to tender;  
[Singapore – Job No. 3772]  
 
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less than 15 days from the date 
of publication ; the period for 
receipt of tenders shall in no 
case be less than 30 days from 
the date of issuance of the 
invitation to tender;  
[EC – GPA/W/87 ] 
 
 
 
 GPA/TN1994/2/Rev.7  
- 72 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less than 14 days from the date 
of publi cation referred to in 
paragraph  1 of Article IX;  the 
period for receipt of tenders 
shall in no case be less than 28 
days from the date of issuance 
of the invitation to tender;  
[Chinese Taipei – Job No. 3193]  
 
 (b) A procuring entity using 
qualified open tendering 
procedures shall provide no less 
than 25 calendar days, 
beginning on the date on which 
the notice of intended 
procurement is published, for 
interested suppliers to submit 
their applications for 
qualification.  
[US – GPA/W/113 ] 
 
 
Commen ts 
 
• Comments by Hong Kong, China ( No. 23-25) regarding the above proposal by the 
United  States and the responses by the United States are contained in Job No. 5595.  
• What is the relationship between 40 days in B.4.(a) and 25 days in B.4.(b) of the 
United  States' proposal in GPA/W/113 ? [Switzerland]  
• There could be two separate notices for invitation to tender and for application to qualify, 
providing 40 days and 25 days, respectively.  Alternatively, notices of invitation to tender could 
indicate that potential suppliers have 25 days to apply for qualification . [US] 
• It is doubtful that suppliers can submit application for complex procurements within 25 days.  
[Korea;  Switzerland].  
 
 
  GPA/TN1994/2/Rev.7  
- 73 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in selective procedures involving the 
use of a permanent list of qualified 
suppliers, the period for receipt of 
tenders shall not be less than 40 
days from the date of the initial 
issuance of invitations to tender, 
whether or not the date of initial 
issuance of invitations to tender 
coincides with the date of the 
publication referred to in 
paragraph  1 of Article  IX. 
 (c) in selective procedures 
involving the use of a 
permanent list of qu alified 
suppliers, the period for receipt 
of tenders shall not be less than 
40 [30] days from the date of 
the initial issuance of invitations 
to tender, whether or not the 
date of initial issuance of 
invitations to tender coincides 
with the date of the pub lication 
[referred to in paragraph 1 of 
Article IX].  
[Singapore – Job No. 3772;  EC – 
GPA/W/87 ] 
 
 (c) in selective procedures 
involving the use of a 
permanent list of qualified 
suppliers, the period for receipt 
of tenders shall not be less than 
28 days from the date of the 
initial issuance of invitations to 
tender, whether or not the date 
of initial issuance of invitations 
to tender coincides with the 
date of the publication referred 
to in paragraph 1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 Article C  
 
Time -Periods for Suppliers' Responses to 
Notifications Under Selective Tendering 
Procedures  
 
 6. Except as provided for in Article [D] of 
this Agreement, procuring entities using 
selective tendering procedures shall 
provide no less than 40 calendar days 
between the date on which a notice of 
intended procurement is distributed to 
participating suppliers and the date on 
which the tendering procedures relating to 
that notice is closed.  
[US – GPA/W/113 ] 
 
 
Comment  
 
• Whether or not the time -periods in the situations described in D.1. are to be applied on a 
cumulative basis, they should not be shorter than 10 days.  [US] 
 
  GPA/TN1994/2/Rev.7  
- 74 - 
  Article XI:3  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The periods referred to in paragraph 2 
may be reduced in the circumstances set out 
below:  
 3. The periods referred to in paragraph 2 
may be reduced in the circumstances set 
out below:  
 
(a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and the 
notice contains at least:  
 (a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
(i) as much of the information 
referred to in paragraph 6 of 
Article  IX as i s available;  
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 
(ii) the information referred to in 
paragraph 8 of Article  IX; 
 (ii) the information referred to 
in paragraph 8 of 
Article  IX; 
 
(iii) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity;  and 
 (iii) a statement that 
interested suppliers 
should express their 
interest in the 
procurement to the entity;  
and 
 
(iv) a contact point with the entity 
from which further 
information may be obtained,  
 
the 40 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to 
enable responsive tendering, 
which, as a general rule, shall 
not be less than 24 days, but 
in any case not less  than 
10 days;  
 (iv) a contact point with the 
entity from which further 
information may be 
obtained, the 40 -day limit 
for receipt of tenders may 
be replaced by a period 
sufficiently long to enable 
responsive tendering, 
which, as a general rule, 
shall not b e less than 
24 days, but in any case 
not less than 10 days;  
[Singapore – Job No. 3772]  
 GPA/TN1994/2/Rev.7  
- 75 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article D  
 
Provisions for Shorter Time -Periods in 
Open Tendering, Qualified Open Tendering 
and Selective Tendering Procedures  
 
 1. Under the following circumstances, 
procuring entities may replace the 
time-periods referred to in Articles B:4 and 
C:6 with a period which is sufficiently long 
to enable suppliers to submit responsive 
tenders, but which in no case shall be less 
than 10 calendar days from the date on 
which the notice of intended procurement 
is published:  
 
 (a) if a separate notice has been 
published at least 40 calendar 
days and not more than 
12 months in advance, and the 
notice contains:  a description of 
the subject -matter of the 
procurement;  the time -limits for 
the submission of tenders or, 
when appropriate, applications 
for qualification;  and the 
address from which documents 
relating to the procurement may 
be requested;  
[US – GPA/W/113 ] 
 
 
 
 GPA/TN1994/2/Rev.7  
- 76 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The periods referred to in paragraph  2 
may be reduced in the circumstances set 
out below:  
 
 (a) if a separate notice has been 
published 28 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 (ii) the information referred to 
in paragraph 8 of 
Article  IX; 
 
 (iv) a contact point with the 
entity from which further 
information may be 
obtained;  
 
  the 28 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to 
enable responsive tendering, 
which as a general rule, shall 
not be less than 14 days, but in 
any case not less than 10 days;  
[Chinese Taipei – Job No. 3193]  
 
  
 
Comments  
 
• Article XI:3 could be modified to provide for a minimum bid period of 10 days for procurement 
of commodities and commercial, off -the-shelf goods (and possibly other sufficiently 
well-defined categories of goods or services).  [Canada – Job No. 3481]  
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim to simplify and improve the Agreement.  [Hong Kong, China]  
• Article XI:3 could be modified so that when electronic tendering is used, all periods referred 
to in Article  XI:2 may be reduced to a minimum of 20 days.  [Canada – Job No. 3481]  
• Article XI:3 could be modified so that when electronic tendering and electronic bid receipt are 
used, second -stage periods referred to in Article XI:2(b) and (c) may be reduced to a minimum 
of 12 and 5  days respectively.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.7  
- 77 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring nature 
within the meaning of paragraph 6 
of Article  IX, the 40 -day limit for 
receipt of tenders may be redu ced 
to not less than 24 days;  
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph 6 of Article IX, the 
40-day [30 -day [EC]] limit for 
receipt of tenders may be 
reduced to [n ot less than 
24 days][24 days [EC]];  
[Singapore – Job No. 3772 ; 
EC – GPA/W/87 ] 
 
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph  6(a) of Article IX, the 
28-day limit for receipt of 
tenders may be reduced to not 
less than 14 days;  
[Chinese Taipei – Job No. 3193]  
 
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature;  
 
 (c) in the case of procurement of 
commercial goods and services 
which are sold or offered for 
sale to and customarily 
purchased and used by 
non-governmental buyers for 
non-governmental purposes, 
except that a procuring entity 
shall not reduce time -periods 
for this reason if the entity uses 
qualified open t endering 
procedures or selective 
tendering procedures;  and 
[US – GPA/W/113 ] 
 GPA/TN1994/2/Rev.7  
- 78 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in 
question, the periods specified in 
paragraph  2 may be reduced but 
shall in no case be less than 10  days 
from the date of the publication 
referred to in paragraph  1 of 
Article  IX; or 
 (c) where a state of urgency duly 
substantiated by the entity 
renders impracticable the 
periods in question, the periods 
specified in paragraph 2 may be 
reduced but shall in no case be 
less than 10 days from the date 
of the publication referred to in 
paragraph 1 of Article IX;  or 
[Singapore – Job No. 3772]  
 
 (d) when, for duly substantiated 
reasons of extreme urgency 
brought about by events 
unforeseeable by the entity, the 
adherence to the time -periods 
referred to in Articles  B:4 and 
C:6 would result in serious 
injury to the entity or the 
relevant Party;  however, 
concerns relating to the amount 
of funds available to an entity 
within a particular period of 
time shall not be considered to 
be a reason of extreme urgency 
for these purposes.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• Unlike the cur rent provisions in the Agreement, the EC proposal does not provide for the 
reduction of time -periods in urgent cases.  [Japan]  
• The proposal appears to limit the reduction of time limits only to contracts of a recurrent 
nature.  [Hong Kong, China]  
• Further att ention must be given to the effect on the ability to reduce time limits in cases where 
a prior notification has been made.  [US] 
 GPA/TN1994/2/Rev.7  
- 79 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed in 
Annexes  2 and 3, be fixed by mutual 
agreement between the entity and 
the selected suppliers.  In the 
absence of agreement, the entity 
may fix periods whi ch shall be 
sufficiently long to enable 
responsive tendering and shall in 
any case not be less than 10 days.  
 (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed 
in Annexes 2 and 3, be fixed by 
mutual agreement between the  
entity and the selected 
suppliers.  In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering an d shall 
in any case not be less than 
10 days.  
[Singapore – Job No. 3772]  
 
 (d) the period referred to in 
paragraph  2(c) may be fixed by 
mutual agreement between the 
entity and the selected 
suppliers.  In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering and shall 
in any case not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (e) in the case where the procuring 
entity procures off -the-shelf 
products or services, the period 
referred to in paragraph 2(c) 
may be reduced to 15  days.  
[EC – GPA/W/87 ] 
 
 (e) where the subject -matter o f a 
procurement is an off -the-shelf 
product or service, or 
agricultural or mineral product, 
the period shall not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (f) where an electronic tender 
documentation is available from 
a website indicated in the notice 
of paragraph  6 of Article IX, the 
period may be further reduced 
by 5 days.  
[Chinese Taipei – Job No. 3193]  
 
 GPA/TN1994/2/Rev.7  
- 80 - 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 D.2. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Articles [B], [C] and [D] of 
this Agreement in an electronic media listed 
in Appendix II, the entity may reduce the 
time-periods provided for in this Agreement 
by up to five calendar days.  The use of this 
provision, however, shall in no case result 
in the reduction of those time -periods to 
less than 10  calendar days from the date on 
which the notice of intended procurement 
is published.  
[US – GPA/W/113 ] 
 
4. Consistent with the entity's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of 
the intended procurement, the extent of 
subcontracting anticipated and the realistic time 
required for production, de -stocking and 
transport of goods from the points of supply or 
for supply of services.  
 4. In cases where the procuring entity 
offers simultaneously free and direct access 
via the single point of access referred to in 
Article IX to the complete call for tenders 
including all annexes both the deadlines of 
30 and 15 days may be further reduced by 
5 days.  
[EC – GPA/W/87 ] 
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which i s [in the public domain] 
[readily available to both local and foreign 
suppliers] its overall policy on the 
time-limits for intended procurement to be 
followed by its entities.  
 
 Clause (b)  
 
 Consistent with the provisions in 
Article  XX, entities shall provide for rapid 
and immediate measures to address 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Comments from Hong Kong, China ( No. 29) and Japan ( No. 8) regarding proposal D.2. by th e 
United States on reduced time -periods and the United States' responses are contained in 
Job No. 5595.  
• Even with the recent advances in electronic tendering, submission of complex tenders through 
electronic media might not always be feasible.  [US] GPA/TN1994/2/Rev.7  
- 81 - 
  Article XII:1, 2  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity 
allows tenders to be submitted in several 
languages, one of those languages shall be one 
of the official languages of the WTO.  
  
 
Comments  
 
• This Article should contain references to the use of information technology in communications 
between the purchasing authority and tenderers.  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to 
suppliers shall contain all information necessary 
to permit them to submit responsive tenders, 
including information required to be published in 
the notice of intended procurement, except for 
paragraph 6(g ) of Article  IX, and the following:  
  
(a) the address of the entity to which 
tenders should be sent;  
  
(b) the address where requests for 
supplementary information should 
be sent;  
  
(c) the language or languages in which 
tenders and tendering documents 
must be submitted;  
  
(d) the closing date and time for receipt 
of tenders and the length of time 
during which any tender should be 
open for acceptance;  
  
(e) the persons authorized to be 
present at the opening of tenders 
and the date, time and place of this 
opening;  
  
 GPA/TN1994/2/Rev.7  
- 82 - 
  Article XII  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) any economic and technical 
requirement, financial guarantees 
and information or documents 
required from suppliers;  
  
(g) a complete description of the 
products or services required or of 
any requirements including 
technical specifications, conformity 
certification to be fulfilled, 
necessary plans, drawings and 
instructional materials;  
  
(h) the criteria fo r awarding the 
contract, including any factors other 
than price that are to be considered 
in the evaluation of tenders and the 
cost elements to be included in 
evaluating tender prices, such as 
transport, insurance and inspection 
costs, and in the case of p roducts or 
services of other Parties, customs 
duties and other import charges, 
taxes and currency of payment;  
  
(i) the terms of payment;  
  
(j) any other terms or conditions;  
  
(k) in accordance with Article XVII the 
terms and conditions, if any, under 
which tenders from countries not 
Parties to this Agreement, but which 
apply the procedures of that Article, 
will be entertained.  
  
 GPA/TN1994/2/Rev.7  
- 83 - 
  Article XII:3  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the 
Entities  
  
3.(a) In open procedures, entities shall 
forward the tender documentation 
at the request of any supplier 
participating in the procedure, and 
shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
  
(b) In selective procedures, entities 
shall forward the tender 
documentation at the request of any 
supplier requesting to participate, 
and shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
  
(c) Entities shall reply promptly to any 
reasonable request for relevant 
information submitted by a supplier 
participating in the tendering 
procedure, on condition that such 
information does not give that 
supplier an advantage over its 
competitors in the  procedure for the 
award of the contract.  
  
 GPA/TN1994/2/Rev.7  
- 84 - 
  Article XIII:1  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of 
tenders and awarding of contracts shall be 
consistent with the following:  1. The submission, receipt and opening 
of tenders and awarding of contracts shall 
be consistent with the following:  
 
(a) tenders shall normally be submitted 
in writing directly or by mail.  If 
tenders by telex, telegram or 
facsimile are permitted, the tender 
made thereby must include all the 
information necessary for the 
evaluation of the tender, in 
particular the definitive price 
proposed by the tenderer and a 
statement that the tenderer agrees 
to all the terms, conditions and 
provisions of the invitation to 
tender.  The tender must be 
confirmed promptly by letter or by 
the despatch of a signed copy of the 
telex, telegram or facsimile.  
Tenders presented by telephone 
shall not be permitted.  The content 
of the telex, telegram or facsimile 
shall prevail where there is a 
difference or conflict between that 
content and any documentation 
received after the time -limit;  and (a) tenders shall be submitted in 
writing;  
[EC – GPA/W/87 ] 
 
(a) tenders shall normally be 
submitted in writing.  If tenders 
by telex, telegram or facsimile 
or electronic means are 
permitted, the tender made 
thereby must include all the 
information necessary for the 
evaluation of the tender, in 
particular the definitive price 
proposed by the tenderer and a 
statement that the tenderer 
agrees to all the terms, 
conditions and provisions of the 
invitation to tender.  Tenders 
presented by telephone shall 
not be permitted.  The content of 
the telex, telegram or facsimile 
shall pr evail where there is a 
difference or conflict between 
that content and any 
documentation received after 
the time -limit;  and 
[Canada - Job No. 3481 – Alternative 1]  
 
 (a) tenders shall normally be 
submitted in writing, directly or 
by mail.  Tenders must incl ude 
all the information necessary for 
the evaluation of the tender, 
however submitted.  A procuring 
entity may require that the 
tender b e confirmed promptly 
by letter or by the despatch of a 
signed copy of the telex, 
telegram or facsimile or 
electronic docu ment.  
[Canada - Job No. 3481 – Alternative 2]  
 
Comments  
 
• There should be flexibility to submit and receive tenders either in paper or electronic form.  
The revised provisions should allow the discontinuation of the use of paper format in 
submission of tenders.  [US] 
  GPA/TN1994/2/Rev.7  
- 85 - 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) tenders shall normally be 
submitted in writing directly or 
by mail.  If tenders by telex, 
telegram, facsimile or electronic 
transmission are permitted, the 
tender made thereby must 
include all the information 
necessary for the evaluation of 
the tender.  The tender must be 
confirmed promptly by letter or 
by the despatch  of a signed copy 
of the telex, telegram, facsimile 
or electronic transmission, if 
required.  Tenders presented by 
telephone shall not be 
permitted.  Unless otherwise 
specified in the tender 
documentation, the content of 
the telex, telegram, facsimile or 
electronic transmission shall 
prevail where there is a 
difference or conflict between 
that content and any 
documentation received after 
the time -limit;  and 
[Chinese Taipei – Job No. 3193]  
 
Comments  
 
• In order to define the term "writing" to include electronic ally formatted writings, the following 
definition could be incorporated into the Agreement:  "The term 'writing' as used in this 
Agreement is to be understood to include any worded or numbered expression which can be 
read, reproduced, and later communicated , and include electronically transmitted and stored 
information".  [US – Job No. 3842]  
• Parties need to agree whether electronic communications can be considered to be "in writing"?  
[Japan]  
• The expression "in writing" could include the use of electronic mean s to the extent that the 
rest of the rules of the Agreement are respected.  Paper bids should be kept as a warranty of 
transparency and equal treatment.  [EC] 
• There are two aspects to the phrase "in writing".  One is the physical aspect.  The meaning of 
"in wr iting" has changed over time.  Now that an electronic medium has been invented, the 
reference to "writing" could mean electronic writing.  The other aspect is the legal aspect.  In 
most cases, tenders are firm undertakings to carry out a contract.  For the pur poses of the 
GPA, the more important aspect is the second aspect.  [Singapore]  
• A provision should be added to indicate that the means for submitting tenders may be specified 
by the procuring entity, provided the requirement to use such means shall not reduce access 
by foreign and domestic suppliers.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.7  
- 86 - 
  • The proposals do not make it clear who is responsible and to what extent, for the accuracy of 
data in tender documents and ensuring the protection of confidentiality of tender information.  
There should be limits on the burden imposed upon procuring entities as regards the protection 
of the confidentiality of data transmitted electronically.  [Japan]  
• What is the rationale for the elimination of the phrase "in particular the defini tive 
price…invitation to tender" in the second sentence of the proposal for Article XVIII:1(a) by 
Chinese Taipei?  [Korea]  
• Questions and comments by the European Community ( No. 11) and Hong Kong, China 
(No. 13) regarding the elimination of GPA Article XIII: 1(a) in the United States' proposal and 
the responses by the United States are contained in Job No. 5595.  
• Since some Parties are already using electronic procurement, a consensus is needed to the 
effect that electronic procurement procedures are not incons istent with the basic objective of 
the GPA, that is, non -discrimination and transparency of procurement.  [Japan]  
• Even though the EC has put forward proposals favouring the submission of bids by electronic 
means, this does not mean that the current wording does not allow for the use of such means.  
[EC] 
 GPA/TN1994/2/Rev.7  
- 87 - 
  Article XIII:2  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) integrity of data and 
confidentiality of tenders must 
be preserved . Tenders shall not 
be opened until after the 
deadline set by the contracting 
entity for receipt of tenders;  
 
 (c) whatever means of 
communication or exchange of 
information chosen they shall 
not cause a discrim ination and 
be consistent with the principles 
laid down in Article 3 hereof;  
and 
 
(b) the opportunities that may be given 
to tenderers to correct unintentional 
errors of form between the opening 
of tenders and the awarding of the 
contract shall not be per mitted to 
give rise to any discriminatory 
practice.  
 (d) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of tenders 
and the awarding of the contract 
shall not be permitted to give 
rise to any dis criminatory 
practice.  
[EC – GPA/W/87 ] 
 
 Receipt of Tenders  
 
3. When procuring entities provide 
suppliers with opportunities to correct 
unintentional errors of form between the 
opening of tenders and the awarding of the 
contract, they shall provide the same 
opportunities to all participating suppliers.  
[US – GPA/W/112 ] 
 
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender 
is received in the office designated in the tender 
documentation after the time specified because 
of delay due solely to mishandling on the part of 
the entity.  Tenders may also be considered in 
other exceptional circumstances if the 
procedures of the entity concerned so provide.  
 2. Procuring entities shall not penalize 
any supplier whose tender is received after 
the time specified for receiving te nders if 
the delay is caused solely by the entity.  
[US – GPA/W/112 ] 
 
 
 
Comments  
 
• Comments by Hong Kong, China ( Nos. 3 and 4) regarding the above paragraphs 2 and 3 in 
the United States' proposal and the responses by the United States are contained in Job 
No. 5595.  
  GPA/TN1994/2/Rev.7  
- 88 - 
  Article XIII:3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Opening of Tenders  
  
3. All tenders solicited under open or 
selective procedures by entities shall be received 
and opened under procedures and conditions 
guaranteeing the regularity of the openings.  The 
receipt and opening of tenders shall also be 
consistent with the national treatment and 
non-discrimination provisions of th is Agreement.  
Information on the opening of tenders shall 
remain with the entity concerned at the disposal 
of the government authorities responsible for the 
entity in order that it may be used if required 
under the procedures of Articles  XVIII, XIX, 
XX and XXII. 
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process.  
[US – GPA/W/112 ] 
 
 GPA/TN1994/2/Rev.7  
- 89 - 
  Article XIII:4  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Award of Contracts  
 Awarding of Contracts  
4.(a) To be considered for award, a tender 
must, at the time of opening, conform 
to the essential requirements of the 
notices or tender documentation and 
be from a supplier which complies 
with the conditions for participation.  If 
an entity has received a tender 
abnormally lower than other tenders 
submitted, it may enquire with the 
tenderer to ensure that it can comply 
with the conditions o f participation 
and be capable of fulfilling the terms 
of the contract.  
 1. To be considered for award, a tender 
must, at the time of opening, conform to the 
essential requirements of the notices or 
tender documentation and be from a supplier 
which complie s with the conditions for 
participation, including any specified 
time-periods.  Parties shall ensure that 
entities base contract award decisions solely 
on the requirements and evaluation criteria 
that have been specified in the notices or 
tender documentati on provided in advance 
to all participating suppliers.  
[US – GPA/W/112 ] 
 
2. Procuring entities shall award each 
contract to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose tender 
is either the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the requirements 
and evaluation criteria set forth in the 
notices or tender documentation.  
[US – GPA/W/112 ] 
 (b) Unless in the public interest an entity 
decides not to issue the contract, the 
entity shall make the award to the 
tenderer who has been determined to 
be fully capable of undertaking the 
contract and whose tender, whether 
for domestic products or services, or 
products or services of other Parties, 
is either the lowest te nder or the 
tender which in terms of the specific 
evaluation criteria set forth in the 
notices or tender documentation is 
determined to be the most 
advantageous.  
 
 
Comments  
 
• Comments and questions by the European Community ( No. 12); Hong Kong, China ( No. 5); 
and Japan ( No. 11) regarding the absence of a mechanism to deal with the issue of 
"abnormally low offers" in the United States' proposal and the responses by the United States 
are contained in Job  No. 5595.  
• The reference to "specific evaluation criteria" in this subparagraph should be clarified in the 
light of the relevant terms in Article  VIII:(b).  
• A clarification sought by Japan ( No. 12) regarding any recent experiences of the suppliers in 
the United States that might have been at th e basis of the proposals by the United States on 
awarding of contracts and the United States' response are contained in Job No. 5595.  
• A question by Korea ( No. 7) regarding paragraph 2 above and the United States' response are 
contained in Job No. 5595.  GPA/TN1994/2/Rev.7  
- 90 - 
  • For the purpose of simplifying the Agreement, the following test should apply in connection 
with the elimination of the last sentence of Article XIII:4(a).  If there is anything in the 
Agreement that calls into question the right of the entity to enquire ab normally low tenders, 
it may be necessary to state such a right.  Otherwise, the sentence should be eliminated.  [US] 
• The Agreement should have the essential requirements.  For the rest, the entities should be 
allowed to use their own judgement for meeting th e objectives of the Agreement in the most 
efficient way.  [Switzerland]  
• Regarding the proposed deletion of the current provision on abnormally low offers, would it 
still be possible for the contracting entity to make the necessary checks and investigations?  It 
would be preferable to have an explicit provision unless that provision has been abused.  
However, there is no evidence that that has been the case.  [EC] 
  GPA/TN1994/2/Rev.7  
- 91 - 
  Article XIII:5  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Awards shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a 
manner which circumvents the provisions of the 
Agreement.  
  
 3. Procuring entities shall not cancel a 
procurement process, or terminate or 
modify awarded contracts in a manner 
which circumvents the objectives and 
requirements of the Agreement.  
[US – GPA/W/112 ] 
 
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agreement in 
the light of developments in the use of 
electronic tendering with a view to 
developing criteria for discontinuation of 
paper -based tenders, such as the 
experience of the entity in conducting 
electronic tendering and the readiness of 
potential suppliers of a particular 
procurement to use electronic tendering, if 
appropriate.  
[Hong Kong, China – Job No. 3436]  
 
 
Comment  
 
• A question by Korea ( No. 8) rega rding any recent experiences of the suppliers in the 
United  States that might have been at the basis of the proposals by the United States in 
paragraph 3 and the United States' response are contained in Job No. 5595.  
• A clarification sought by Hong Kong, Ch ina (No. 7) regarding paragraph 3 of the United  States' 
proposal and the United States response is contained in Job No. 5595.  
• What is the rationale for paragraph 3 of the United States' proposal in GPA/W/112 ? [Canada]  
• In a number of major procurement situations, the suppliers have experienced that entities 
have cancelled the award procedures at the last moment.  There can be an impression among 
the suppliers that the entities had taken their decision relating to the technical merits of the 
tenders and that the cancellation of the procedures close to the award decision was for some 
other reasons which might be contrary to the objectives of the Agreement.  [US] GPA/TN1994/2/Rev.7  
- 92 - 
  Article XIV :1, 2, 3, 4  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
  
(a) in the context of procurements in 
which they have indicated such 
intent, namely in the notice referred 
to in paragraph 2 of Article IX (the 
invitation to sup pliers to participate 
in the procedure for the proposed 
procurement);  or 
  
(b) when it appears from evaluation 
that no one tender is obviously the 
most advantageous in terms of the 
specific evaluation criteria set forth 
in the notices or tender 
documentation.  
  
2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in 
tenders.  
  
3. Entities shall treat tenders in confidence.  
In particular, they shall not provide information 
intended to assist particular participants to  bring 
their tenders up to the level of other participants.  
  
4. Entities shall not, in the course of 
negotiations, discriminate between different 
suppliers.  In particular, they shall ensure that:  
  
(a) any elimination of participants is 
carried out in accordance with the 
criteria set forth in the notices and 
tender documentation;  
  
(b) all modifications to the criteria and 
to the technical requirements are 
transmitted in writing to all 
remaining participants in the 
negotiations;  
 Article A  
 
7. If it becomes necessary to amend 
information provided to suppliers during 
the procurement process, procuring 
entities shall provide the amended 
information:  
 
 (a) to all of the suppliers that are 
participating at the time the 
information is amended;  and 
 [US – GPA/W/113 ] 
 
  GPA/TN1994/2/Rev.7  
- 93 - 
  Article XIV  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) all remaining participants are 
afforded an opportunity to submit 
new or amended submissions on the 
basis of the revised requirements;  
and 
  
(d) when negotiations are concluded, all 
participants remaining in the 
negotiations shall be permitted to 
submit final tenders in accordance 
with a common deadline.  
 (b) in adequate time to allow such 
suppliers to modify and 
re-submit their initial tenders, 
as appropriate.  
[US – GPA/W/113 ] 
 
Comments  
 
• Some of the provisions of this Article can be found in the proposal in document GPA/W/113 . 
It may not be necessary to identify a separate framework given that negotiations can be a 
part of other procurement procedures.  It would be sufficient to apply the basic principles in 
the Agreement to negotiations.  This Article should be removed from the Agreement.  [US] 
• There should be certain parameters in this respect, given the role that negotiations often play 
in the tendering process . [EC] 
• This Article could be combined with Articles  VII and  X on tendering procedures.  [US] 
• The principle contained in Article XIV:(b) is similar to the US proposal regarding the 
transmission of information on modifications to criteria a nd technical requirements to the 
remaining participants in the bidding process.  The principle can apply more broadly than 
merely to negotiating procedures.  [US] GPA/TN1994/2/Rev.7  
- 94 - 
  Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article E  
 
Limited Tendering  
 
 Provisions on the Use of Limited Tendering 
Procedures  
 E.2. When a procuring entity uses a 
limited tendering procedures, it may choose 
not to publish or distribute a notice of 
intended procurement prior to the award of 
the procurement contract.  
[US – GPA/W/113 ] 
 
1. The provisions of Articles  VII through XIV 
governing open and selective tendering 
procedures need not apply in the following 
conditions, provided that limited tendering is not 
used with a view to avoi ding maximum possible 
competition or in a manner which would 
constitute a means of discrimination among 
suppliers of other Parties or protection to 
domestic producers or suppliers:  
 E.3. Procuring entities shall not use 
limited tendering procedures for the 
purpose of avoiding competition among 
suppliers or in a manner that constitutes a 
means of discrimination between suppliers 
of the other Parties or protection of 
domestic suppliers.  
[US – GPA/W/113 ] 
 
  Notwithstanding any of the provisions 
of Article E.4., below, entities shall not use 
limited tendering because of a lack of 
advance planning by the requiring activity 
or concerns relating to the amount of funds 
available to an entity within a particular 
period of time.  
[US – GPA/W/113 ] 
 
 E.4. Procuring entities may use limited 
tendering procedures in the following 
circumstances and subject to the following 
conditions, as applicable:  
 
 
Comments  
 
• Comments by Hong Kong, China regarding paragraph E.3. of the United States' proposal 
(Nos.  31-32) an d the responses thereto are contained in Job No. 5595.  
• Limited tendering is a significant exception to the general principle underlying the GPA and 
therefore, caution should be exercised in considering the extension of situations in which 
limited tendering  may be used.  [EC] 
• While the stipulation in the GPA of situations in which limited tendering may be used, promotes 
transparency, efficiency is also an important consideration and it is necessary to maintain a 
balance between the two factors.  The US proposa l may promote transparency but it may 
decrease efficiency.  [Korea]  
• Regarding the proposed deletion of the exception in relation to collusive tendering, there may 
be cases of collusive tendering in particular markets and, therefore, procuring entities shoul d 
have instruments to react in those situations.  [EC] GPA/TN1994/2/Rev.7  
- 95 - 
  • Normally, the absence of competition in cases of collusive tendering should not necessarily 
lead to the restriction of competition by the entity.  If collusive tendering occurs, suppliers 
should be exclu ded. Further consideration of tendering procedures is needed in markets where 
it is difficult to introduce or maintain competition.  [US] 
 GPA/TN1994/2/Rev.7  
- 96 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) in the absence of tenders in 
response to an open or selective 
tender, or when the tenders 
submitted have been collusive, or 
not in conformity with the essential 
requirements in the tender, or from 
suppliers who do not comply with 
the conditions for participation 
provided for in accordance with this 
Agreement, on condition, however, 
that the requirements of the initial 
tender are not substantially 
modified in the contract as 
awarded;  (a) in the absence of tenders that 
conform to the essential 
requirements in the te nder 
documentation provided in a 
prior open , qualified open, or 
selective tendering procedure, 
on condition that the 
requirements of the initial 
procurement are not 
substantially modified in the 
contract as awarded;  
[US – GPA/W/113 ] 
 
 (b) in the absence of te nders from 
suppliers which meet 
qualification requirements 
established for a prior open 
qualified or selective tendering 
procedure;  
[US – GPA/W/113 ] 
 
(b) when, for works of art or for reasons 
connected with protection of 
exclusive rights, such as patents or 
copyrights, or in the absence of 
competition for technical reasons, 
the products or services can be 
supplied only by a particular 
supplier and no reasonable 
alternative or substitute exists;  
 (c) where, for works of art, or for 
reasons connected  with the 
protection of exclusive rights, 
such as patents, copyrights or 
proprietary information or 
where there is an absence of 
competition for technical 
reasons, the goods or services 
can be supplied only by a 
particular supplier and no 
reasonable altern ative or 
substitute exists;  
[US – GPA/W/ 113] 
 (b) when, for works of art or for 
reasons connected with 
protection of exclusive rights, 
such as patents or copyrights, or 
in the absence of competition 
for technical reasons, the 
products or services can be 
suppl ied only by a particular 
supplier or group of suppliers 
and no reasonable alternative or 
substitute exists;  
[Hong Kong, China – Job No. 1333]  
 
Comment  
 
• With respect to paragraph (b) of the US proposal, would it be appropriate to allow limited 
tendering or should there just be an extension of the qualification period?  [EC] GPA/TN1994/2/Rev.7  
- 97 - 
  Article XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in so far as is strictly necessary 
when, for reasons of extreme 
urgency brought about by events 
unforeseeable by the entity, the 
products or services could not be 
obtained in time by means of open 
or selective tendering procedures;  
 (g) insofar as is strictly necessary 
where, for reasons of extreme 
urgency brought abou t by 
events unforeseeable by the 
entity, the goods or services 
could not be obtained in time by 
means of open or selective 
tendering procedures and the 
use of such procedures would 
result in serious injury to the 
entity, the entity's programme 
responsibili ties, or the 
responsible Party;  
[US – GPA/W/113 ] 
 
(d) for additional deliveries by the 
original supplier which are intended 
either as parts replacement for 
existing supplies, or installations, or 
as the extension of existing 
supplies, services, or installations 
where a change of supplier would 
compel the entity to procure 
equipment or services not meeting 
requirements of interchangeability 
with already existing equipment or 
services5; 
 (d) for additional deliveries by the 
original supplier that are 
intended either as replacement 
parts, extensions, or continuing 
services for existing  equipment, 
software, services or 
installations, where a change of 
supplier would compel the 
entity to procure products or 
services not meeting 
requirements of 
interchange ability with existing 
equipment, software, services, 
or installations;  
[US – GPA/W/113 ] 
 
(e) when an entity procures prototypes 
or a first product or service which 
are developed at its request in the 
course of, and for, a particular 
contract for research, experiment, 
study or original development.  
When such contracts have been 
fulfilled , subsequent procurements 
of products or services shall be 
subject to Articles  VII through XIV6; 
 
5 It is the understanding that "existing equipment" 
includes software to the extent that the initial 
procurement of the software was covered by the 
Agreement.  
 
6 Original development of a first product or service may 
include limited production or supply in order to 
incorporate the results of field testing and to 
demonstrate that the product or service is suitable for 
production or supply in quantity to acceptab le quality 
standards.  It does not extend to quantity production or 
supply to establish commercial viability or to recover 
research and development costs.   GPA/TN1994/2/Rev.7  
- 98 - 
  Comments  
 
• Comments by Hong Kong, China regarding paragraph E.4. and 4(d) and (g) of the 
United  States' proposal ( Nos. 34-36) and the responses thereto are contained in 
Job No. 5595.  
• Questions by the European Community ( No. 10); Japan ( No. 9); and Korea ( No. 6) regarding 
the proposed changes to the conditions under Article XV in the United States' proposal and 
the responses by the United States are contained in Job No. 5595.  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additiona l construction 
services which were not included in 
the initial contract but which were 
within the objectives of the original 
tender documentation have, 
through unforeseeable 
circumstances, become necessary 
to complete the construction 
services described th erein, and the 
entity needs to award contracts for 
the additional construction services 
to the contractor carrying out the 
construction services concerned 
since the separation of the 
additional construction services 
from the initial contract would be 
difficult for technical or economic 
reasons and cause significant 
inconvenience to the entity.  
However, the total value of 
contracts awarded for the additional 
construction services may not 
exceed 50 % of the amount of the 
main contract;  
  
(g) for new construction services 
consisting of the repetition of similar 
construction services which conform 
to a basic project for which an initial 
contract was awarded in accordance 
with Articles  VII through XIV and for 
which the entity has indicated in the 
notice of intended procurement 
concerning the initial construction 
service, that limited tendering 
procedures might be used in 
awarding contracts for such new 
construction services;  
  
 
Comment  
 
• Regarding the proposed deletion of the exception relating to additio nal construction services, 
clarification is necessary as to whether such cases are covered by other exceptions such as 
the additional delivery of goods or services.  [EC] GPA/TN1994/2/Rev.7  
- 99 - 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED M ODIFICATIONS  
(h) for products purchased on a 
commodity market;  
  
(i) for purchases made under 
exceptionally advantageous 
conditions which only arise in the 
very short term.  This provision is 
intended to cover unusual disposals 
by firms which are not normally 
suppliers, or disposal of assets of 
businesses in liquidation or 
receivership.  It is not intended to 
cover routine purchases from 
regular suppliers;  
 (e) for goods purchased on a 
commodity market;  
[US – GPA/W/113 ] 
 
Comments  
 
• The Agreement's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of paragraphs (h) and (i).  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(j) in the case of contracts awarded to 
the winner of a design contest 
provided that the contest has been 
organized in a manner which is 
consistent with the principles of this 
Agreement, notably as regards the 
publication, in the sense of 
Article  IX, of an invitation  to suitably 
qualified suppliers, to participate in 
such a contest which shall be judged 
by an independent jury with a view 
to design contracts being awarded 
to the winners.  
  
 GPA/TN1994/2/Rev.7  
- 100 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
(k) for additional purchases of 
human life -preserving or 
life-saving products that require 
extensive user training or 
experience or trial for safety 
reasons.  
[Hong Kong, China – Job No. 1333)  
 
 
(f) where an entity needs to 
procure consulting services 
regarding matters of a 
confidential nature, the 
disclosure of which could 
reasonably be expected to 
compromise government 
confidences, cause economic 
disruption or similarly be 
contrary to the public interest.  
 
[US – GPA/W/113 ] 
 
 
 
Comments  
 
• The new proposed paragraph (k) is aimed at fairly restricted circumstances.  [Hong Kong, 
China]  
• The issues that have been raised in this context as warranting an addition to Article XV relate 
primarily to issues of quality control and the technical appropriateness of products.  It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to selective 
tendering which could involve qualification requirements including performance records and 
technical specifications establishing high quality standards and would be much more 
transparent and competitive.  [US] 
• This proposal must be carefully considered since the use of limited tendering must be strictly 
limited.  [EC] 
• The proposed paragraph (k) is quite similar to the existing Article XV:1(d) in that both 
provisions refer to "additional purchases".  [Singapore ] Article XV:1(d) could/might be 
modified to meet the concerns raised by Hong Kong, China.  [Switzerland;  United States]  
• Singli ng out a particular sector or set of issues in the new paragraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of additional deliveries.  
[Switzerland]  
• The existing subparagraph 1(d) may not be wide enough to cove r what is proposed to be 
covered by the proposed paragraph (k).  Also, in relation to the former paragraph, it is unclear 
what is meant by "interchangeability" and "compulsion".  [Hong Kong, China]  GPA/TN1994/2/Rev.7  
- 101 - 
  • The concerns of Hong Kong, China could be met by formulating  appropriate conditions in 
tender documents.  [US] 
• A question by Japan ( No. 10) regarding the relationship between paragraph (f) of the United 
States' proposal and GPA Article XXIII and the response of the United States are contained in 
Job No. 5595.  
 
  GPA/TN1994/2/Rev.7  
- 102 - 
  Article XV:2  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall prepare a report in writing on 
each contract awarded under the provisions of 
paragraph  1. Each report shall contain the name 
of the procurin g entity, value and kind of goods 
or services procured, country of origin, and a 
statement of the conditions in this Article which 
prevailed.  This report shall remain with the 
entities concerned at the disposal of the 
government authorities responsible for  the entity 
in order that it may be used if required under the 
procedures of Articles  XVIII, XIX, XX and XXII.  
 5. Procuring entities shall prepare a 
report in writing on each contract awarded 
under paragraph  4. Each such report shall 
include the name of the procuring entity, 
the value and kind of goods or services 
procured, and a statement indicating the 
circumstances and conditions described in 
paragraph 4 that justified the use of limited 
tendering.  Entities shall retain each such 
report for a minimum o f three years.  
[US – GPA/W/113 ] 
 GPA/TN1994/2/Rev.7  
- 103 - 
  Article XVI:1, 2  
 
Offsets  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in 
the evaluation of tenders and award of contracts, 
impose, seek or consider offsets.7 
 
7 Offsets in government procurement are measures 
used to encourage local development or improve the 
balance -of-payments accounts by means of domestic 
content, licensing of technology, investment 
requirements, counter -trade or similar requirements.  
  
2. Nevertheless, having regard to general 
policy considerations, including those relating to 
development, a developing country may at the 
time of accession negotiate conditions for the use 
of offsets, such as requirements for the 
incorporation of domestic content.  Such 
requirements shall be used only for qualification 
to participate in the procurement process and 
not as criteria for awarding contracts.  Conditions 
shall be objecti ve, clearly defined and 
non-discriminatory.  They shall be set forth in the 
country's Appendix I and may include precise 
limitations on the imposition of offsets in any 
contract subject to this Agreement.  The 
existence of such conditions shall be notified t o 
the Committee and included in the notice of 
intended procurement and other documentation.  
  
 GPA/TN1994/2/Rev.7  
- 104 - 
  Article XVII: 1 
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering 
procedures or access to challenge procedures, 
under which tenders will be entertained from 
suppliers situated in countries not Parties to this 
Agreement but which, with a view to cre ating 
transparency in their own contract awards, 
nevertheless:  
 1. Each Party shall encourage entities to 
indicate the terms and conditions, including 
any deviations from competitive tendering 
procedures or access to challenge 
procedures, under which tende rs will be 
entertained from suppliers situated in 
countries not Parties to this Agreement but 
which, with a view to creating transparency 
in their own contract awards, nevertheless:  
 
(a) specify their contracts in accordance 
with Article  VI (technical 
specifications);  (a) specify their contracts in 
accordance with Article  VI 
(technical specifications);  
 
(b) publish the procurement notices 
referred to in Article  IX, including, in 
the version of the notice referred to 
in paragraph  8 of Article  IX 
(summary o f the notice of intended 
procurement) which is published in 
an official language of the WTO, an 
indication of the terms and 
conditions under which tenders shall 
be entertained from suppliers 
situated in countries Parties to this 
Agreement;  
 (b) publish the procurement notices 
referred to in Article IX, 
including, in the version of the 
notice referred to in paragraph 8 
of Article IX (summary of the 
notice of intended procurement) 
which is published in an official 
language of the WTO, an 
indication  of the terms and 
conditions under which tenders 
shall be entertained from 
suppliers situated in countries 
Parties to this Agreement;  
 
(c) are willing to ensure that their 
procurement regulations shall not 
normally change during a 
procurement and, in the event that 
such change proves unavoidable, to 
ensure the availability of a 
satisfactory means of redress.  
 (c) are willing to ensure that their 
procurement regulations shall 
not normally change during a 
procurement and, in the event 
that such change proves  
unavoidable, to ensure the 
availability of a satisfactory 
means of redress.  
 
 GPA/TN1994/2/Rev.7  
- 105 - 
  Article XVII:2  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Governments not Parties to the Agreement 
which comply with the conditions specified in 
paragraphs 1(a) through 1(c), shall be entitled if 
they so inform the Parties to participate in the 
Committee as observers.  
 2. Each Party shall encourage entities to 
publish their technical specifications on the 
Internet through a single point of access 
accessible free of charge [The amount and 
terms of payment of any sum payable for 
the download of such technical 
specifications shall be reasonable, and shall 
be indicated in the notice of intended 
procurement, as provided for under Article 
IX, paragraph 6(g) [Sing – Job No. 5271]].  
Where such publication is provided, 
contracting entities shall be encouraged to 
mention the address of the single point of 
access in the tender notice.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• Given the aim to streamline th e Agreement and encouraging broader participation, the 
proposed provision on the use of the Internet may not be appropriate.  [US] 
• A further question is whether technical specifications remain unchanged from procurement to 
procurement.  There may be a risk t hat, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
• A single point of entrance may not be workable or necessary.  It may be easier to have 
information at a single point of entry on how to access information throughout a given system.  
However, it may not be practical to have too much detailed information at the single point of 
entry.  The difficulties may be particularly pronounced in the case of Members with 
decentralized procurement systems.  [US] 
• Technology offers possibilities that are not always fully exploited.  There could be Internet 
pages with links.  A stronger commitment is required to use the various possibilities of 
electronic procurement to allow businesses to eas ily access at least information as to where 
further information can be obtained.  [EC] 
In relation to the charging of fees:  
 
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount and terms of payment of any sum  payable for the tender documentation".  Parties 
should be given the flexibility to impose a reasonable charge, even for technical specifications 
and tender documents which are downloaded from the Internet.  [Job No. 5074]  
• Some form of charges may be necessa ry to ensure that documents are not downloaded 
indiscriminately.  Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore;  Canada]  
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs associated with providing the documents by mail.  Providing 
documents free of charge will increase transparency and, in particular, will benefit small and 
medium enterprises seeking opportunities in procurement markets.  [EC] 
• The fee charged should be strictly linked to actual cost incurred in the provision of information.  
[EC] GPA/TN1994/2/Rev.7  
- 106 - 
  • Paragraph 2 should be deleted or amended as suggested after deleting the words "accessible 
free of charge" in the first sentence.  [Singapore – Job No. 5271] 
 GPA/TN1994/2/Rev.7  
- 107 - 
  Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each 
contract under Articles  XIII through XV.  These 
notices shall contain:  
 1. Entities shall publish a notice in the 
appropriate publication listed in Appendix 
II not later than 72 days after the award of 
each contract under Articl es XIII through 
XV. These notices shall contain at least:  
 
 2. Not later than 90 calendar days after 
the award of a procurement covered by this 
Agreement, the responsible procuring 
entity shall publish a notice in the 
appropriate publication designated in 
Appendix II of this Agreement which 
includes at least the following information 
about that contract:  
[US – GPA/W/112 ] 
 
 1. Having awarded a contract, entities 
shall:  
 
(a) Publish, for at least 120 days, 
information on contract awards, 
including:  
[Canada – Job No. 3484]  
 
(a) the nature and quantity of products 
or services in the contract award;  
 (a) the nature and quantity of 
products or services in the 
contract award [by referring to 
the relevant CPV code, if 
applicable[Singapore – Job 
No. 5271]];  
[EC – GPA/W/87 ] 
 
 (b) a description of the goods or 
services procured;  
[US – GPA/W/112 ] 
 
 (iii) a description of t he nature 
and quantity of the goods 
or services included in the 
contract;  
[Canada –Job No. 3484]  
 
(b) the name and address of the entity 
awarding the contract;  
 (b) the name and address of the 
entity awarding the contract;  
[EC – GPA/W/87 ] 
 
 
 GPA/TN1994/2/Rev.7  
- 108 - 
  Comments  
 
• The period of 90 days for publication of contract award information might be too long for 
certain suppliers, for instance for bid challenge purposes.  [Singapore]  
• Publication of information on contract award for at least 120 days is intended  to deal with the 
situation of electronic -based publishing, for instance on an Internet site.  It would be useful to 
have parameters with respect to the minimum time the information should be made accessible 
to suppliers through electronic media.  The wordin g could be changed so as not to give the 
impression that the information should be published each day for 120 days . [Canada]  
• There is a link between the United States' proposal in GPA/W/112  and the proposal of the 
European Community for using publication of co ntract award information as an alternative to 
statistical reporting.  If the proposal by the European Community were to be pursued, the 
time-periods for publication of notices would need to be longer.  [Canada]  
 GPA/TN1994/2/Rev.7  
- 109 - 
  Article XVIII  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the name of the procuring 
entity;  
[US – GPA/W/112 ] 
 
 (iv) the name and contact 
location of the procuring 
entity;  
[Canada – Job No. 3484]  
 
(c) the date of award;  
 (c) the date of award;  
[EC – GPA/W/87 ] 
 
(d) the name and address of winning 
tenderer;  
 (d) the name and address of 
winning tenderer;  
[EC – GPA/W/87 ] 
 
 (c) the name of the winning 
tenderer;  
[US – GPA/W/112 ] 
 
 (i) the name and address of the 
winning supplier;  
[Canada – Job No. 3484]  
 
 
Comments  
 
• A question by the European Community ( No. 13) regarding the limitation of the publication of 
information to the value of the winning award only in the United States' proposal and the 
response by the United States are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.7  
- 110 - 
   
Article XVIII  
 
Information and Review as Regards O bligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) the value of the winning award or 
the highest and lowest offer taken 
into account in the award of the 
contract;  
 (e) the value of the winning award 
or the highest and lowest offer 
taken into account in the award 
of the contract;  
 
[EC – GPA/W/87 ] 
 
 (d) the value of the winning award;  
and 
 
[US – GPA/W/112 ] 
 
 (ii) the value and date of the 
contract;  
 
[Canada – Job No. 3484]  
 
 
Comments  
 
• There is currently a choice given to the procuring entity to publish either the value of the 
winning award or the highest and the lowest offers made.  The US proposal 2(d ) to eliminate 
that choice and make compulsory the publication of the value of the winning award would 
mean that no information may be provided when entities consider the precise value of the 
contract to be commercially sensitive information.  Would this ch ange not lead to a reduction 
in the level of transparency achieved?  [EC] 
• For the purposes of transparency, the value of all tenders received should be published.  There 
are some rare instances, such as defence contracts, that are excluded from the GPA, that do 
contain sensitive information.  If open tendering procedures are used, transparency should 
apply throughout the process, until the tender award.  If, for whatever reason, open tendering 
procedures are not used, the bid value might be commercially sen sitive and would not 
published - for example, in cases involving confidential information, R&D, or prototypes.  
[Singapore]  
• Article XVIII is applicable to all procedures and not only to open tendering procedures.  The 
release of the value of the winning bid may not be problematic in cases of open tendering 
procedures.  However, that may not be the case where selective and limited tendering 
procedures are used.  [EC] 
• The two options currently allowed for have their advantages and disadvantages.  If an option 
is to be removed, it is necessary to justify why one option is better than the other.  
[Switzerland]  
• In cases where there are oligopolistic market structures, would it be risky to have an absolute 
transparency rule regarding publication of award values?  [EC] 
• From the procuring entity's point of view, there is no reason why the award value should not 
be disclosed, especially since taxpayers' money is being used.  The issue is only relevant to 
suppliers.  However, suppliers' concerns are already accommodated in paragraph 4, which GPA/TN1994/2/Rev.7  
- 111 - 
  states that publication can be withheld upon request where legitimate commercial interests 
could be prejudiced.  [Singapore]  
• Why would some entities consider the total value of a contract to be commercially sensitive 
information?  [US] GPA/TN1994/2/Rev.7  
- 112 - 
  Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) where appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article  IX or 
justification according to Article  XV 
for the use of such procedure;  and 
 (f) where appropriate, means of 
identifying the notice issued 
under paragraph 1 of Article IX 
or justification according to 
Article XV for the use of such 
procedure ; and 
[EC – GPA/W/87 ] 
 
 (v) and, where appropriate, 
the justification according 
to Article  XV. 
[Canada – Job No. 3484]  
 
(g) the type of procedure used.  
 (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
 (e) the type of procurement 
procedure used, and in cases 
where limited tendering 
procedures are used, a 
description of the circumstances 
justifying the use of such 
procedures.  
[US – GPA/W/112 ] 
 
 1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the procurement award 
decisions and provide opportunities for 
losing bidders to obtain an explanation of 
the reasons for not being selected and the 
relative advant ages of the successful 
supplier.  
[US – GPA/W/112 ] 
 
 (b) Publish such information in 
officially designated media 
which are readily accessible to 
suppliers and other Parties 
within 72 days of contract 
award.  Officially designated 
media, listed in Appendix II, 
may be electronic or paper.  
[Canada – Job No. 3484]  
 
 (c) Provide bidders, upon request, 
with information regarding the 
reasons that they were not 
successful.  
[Canada – Job No. 3484]  
 
 
 GPA/TN1994/2/Rev.7  
- 113 - 
  Article XVIII:2, 3, 4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a 
supplier of a Party, promptly provide:  
 Announcement of Post Award Information  
 
1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the procurement award 
decisions and provide opportunities for 
losing bidders to obtain an explanation of 
the reasons for not being selected and the 
relative advantages of the successful 
supplier.  
[US – GPA/W/112 ] 
 
(a) an explanation of its procurement 
practices and procedures;  
  
(b) pertinent information concerning 
the reasons why the supplier's 
application to qualify was rejected, 
why its existing qualification was 
brought to an end and why it was 
not selected;  and 
  
(c) to an unsuccessful tenderer, 
pertinent information concerning 
the reasons why its tender was not 
selected and on the characteristics 
and relative advantages of the 
tender selected as well as the name 
of the winning tenderer.  
  
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.  
 2. Parties shall ensure that their 
procuring entities maintain and make 
available upon request by any other Party, 
record s of tendering procedures relating to 
procurements subject to this Agreement.  
Procuring entities shall maintain such 
records for a period of at least three years.  
[US – GPA/W/112 ] 
 
4. However, entities may decide that certain 
information on the contract award,  contained in 
paragraphs  1 and 2(c), be withheld where 
release of such information would impede law 
enforcement or otherwise be contrary to the 
public interest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or priva te, or might prejudice fair 
competition between suppliers.  
 3. Nothing in this Article shall be 
construed as requiring any Party and its 
procuring entities to disclose confidential 
information which would impede law 
enforcement or otherwise be contrary to 
the public interest or would prejudice the 
legitimate commercial interest of particular 
enterprises, public or private, or might 
prejudice fair competition between 
suppliers, without formal authorization 
from the [party] [Party or supplier] 
providing the i nformation.  
[Canada – Job No. 3484]  
 GPA/TN1994/2/Rev.7  
- 114 - 
  Comments  
 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso that electronic documents may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
• This change may not be necessary.  Further, the clause does not specify the form by which 
entities are required to produce and r ecord information.  [Hong Kong, China]  
• Parties should consider setting up a single "information centre" given that some Parties have 
decentralised procurement systems.  Accordingly, it is important to establish an information 
system that provides suppliers w ith a single point of access.  [Korea;  EC] 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall 
prevent Parties from withholding the 
release of information where release would 
impede law enforcement, or prejudice fair 
competition between suppliers or the 
legitimate commercial interests of 
particular suppliers, including the 
protection of their intellectual property.  
[US – GPA/W/112 ] 
 
 
Comments  
 
• The existing provisions in Articles XVIII:4 and XIX:2 and 4 are preferable.  [Hong Kong, China]  
• The basic concepts in Articles VII:2, XIV:3, XVIII:4, XIX:2 and XIX:4 are the same and do not 
differ in their application to procuring entities or Parties.  This appears to provide scope  for 
consolidation and simplification, perhaps by stating the concept once in the text and 
incorporating it by reference elsewhere.  [US; Canada]  
 GPA/TN1994/2/Rev.7  
- 115 - 
  Article XIX:1, 2, 3, 4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative 
ruling of general application, and any procedure 
(including standard contract clauses) regarding 
government procurement covered by this 
Agreement, in the appropriate publications listed 
in Appendix IV and in such a manner as to enable 
other Parties and suppliers to become acquainted 
with them.  Each Party shall be prepared, upon 
request, to explain to any other Party its 
government procurement procedures.  
  
2. The government of an unsuccessful 
tenderer which is a Party to this Agreement may 
seek, without prejudice to the provisions under 
Article  XXII, such additional information on the 
contract award a s may be necessary to ensure 
that the procurement was made fairly and 
impartially.  To this end, the procuring 
government shall provide information on both 
the characteristics and relative advantages of the 
winning tender and the contract price.  Normally 
this latter information may be disclosed by the 
government of the unsuccessful tenderer 
provided it exercises this right with discretion.  In 
cases where release of this information would 
prejudice competition in future tenders, this 
information shall not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
 1. Each Party shall provide detailed 
information regarding procurement by 
covered entities and their individual 
contract awards to any other Party upon 
request.  This information may include such 
additional information on the award of a 
contract as may be necessary to determine 
whether the procurement was conducted 
fairly and impartially, including information 
on the  characteristics and relative 
advantage of the winning tender.  
[US – GPA/W/112 ] 
 
2. A Party may seek additional 
information on the award of a contract as 
may be necessary to determine whether the 
procurement was made fairly and 
impartially.  To this end, the Par ty of the 
procuring entity shall provide information 
on the characteristics and relative 
advantages of the winning tender and the 
contract price.  
[Canada – Job No. 3484]  
 
3. Available information concerning 
procurement by covered entities and their 
indivi dual contract awards shall be provided, 
upon request, to any other Party.  
  
4. Confidential information provided to any 
Party which would impede law enforcement or 
otherwise be contrary to the public interest or 
would prejudice the legitimate commercial 
interest of particular enterprises, public or 
private, or might prejudice fair competition 
between suppliers shall not be revealed without 
formal authorization from the party providing the 
information.  
  
 GPA/TN1994/2/Rev.7  
- 116 - 
  Comments  
 
• Is further clarification of the phrase "of general application" in paragraph 1 necessary?  [US; 
EC] 
• Rules of general application are rules that are not specific to a particular procurement but 
perhaps apply to only some sectors.  [EC] 
• The term "general application" is contained in a number of WTO agreements in the context of 
provisions that relate to notification, for example in GATT Article X and Article 63 of the TRIPS 
Agreement.  [Secretariat]  
• The words "detailed information" in paragraph 1 above should be replaced by  "available 
information".  [Japan – No. 13, Job No. 5595]  
• Comments and questions by Hong Kong, China ( No. 8) regarding the above proposal by the 
United States and the responses by the United States are contained in Job No. 5595.  
• A question by Korea ( No. 9) regarding the distinction between GPA Article XIX:2 and 
paragraph  2 of the United States' proposal and the replies of the United States are contained 
in Job  No. 5595.  
 GPA/TN1994/2/Rev.7  
- 117 - 
  Article XIX:5  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement.  Such 
reports shall contain the following information 
with respect to contracts awarded by all 
procurement entities covered under this 
Agreement:  
  
(a) for entities in Annex  1, statistics on 
the estimated value of contracts 
awarded, both above and below the 
threshold value, on a global basis 
and broken down by  entities;  for 
entities in Annexes  2 and 3, 
statistics on the estimated value of 
contracts awarded above the 
threshold value on a global basis 
and broken down by categories of 
entities;  
  
(b) for entities in Annex  1, statistics on 
the number and total value of 
contracts awarded above the 
threshold value, broken down by 
entities and categories of products 
and services according to uniform 
classification systems;  for entities in 
Annexes  2 and 3, statistics on the 
estimated value of contracts 
awarded  above the threshold value 
broken down by categories of 
entities and categories of products 
and services;  
  
(c) for entities in Annex  1, statistics, 
broken down by entity and by 
categories of products and services, 
on the number and total value of 
contrac ts awarded under each of the 
cases of Article  XV; for categories of 
entities in Annexes  2 and 3, 
statistics on the total value of 
contracts awarded above the 
threshold value under each of the 
cases of Article  XV; and 
  GPA/TN1994/2/Rev.7  
- 118 - 
  Article XIX 
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) for entities in Annex  1, statistics, 
broken down by entities, on the 
number and total value of contracts 
awarded under derogations to the 
Agreement contained in the relevant 
Annexes;  for categories of entities 
in Annexes  2 and 3, statistics on the 
total value of contracts awarded 
under derogations to the Agreement 
contained in the relevant Annexes.  
  
To the extent that such information is a vailable, 
each Party shall provide statistics on the country 
of origin of products and services purchased by 
its entities.  With a view to ensuring that such 
statistics are comparable, the Committee shall 
provide guidance on methods to be used.  With a 
view to ensuring effective monitoring of 
procurement covered by this Agreement, the 
Committee may decide unanimously to modify 
the requirements of subparagraphs (a) through 
(d) as regards the nature and the extent of 
statistical information to be provided and t he 
breakdowns and classifications to be used.  
  
 
Comments  
 
• A note by the Chair presenting a draft revision of the text of Article XIX:5 was circulated in a 
separate document.  GPA/TN1994/2/Rev.7  
- 119 - 
  Article XX:1 
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Consultations  
 Consultations  
1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement 
in the context of a procurement, each Party shall 
encourage the supplier to seek resolution of its 
complaint in consultation with the procuring 
entity.  In such instances the procuring entity 
shall accord impartial and timely consideration to 
any such complaint, in a manner that is not 
prejudicial to obtaining corrective measures 
under the challenge system.  
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement, each Party shall encourage the 
supplier and the relevant procuring entity 
to seek resolution o the complaint through 
consultations.  Procuring entities shall 
accord impartial and timely consideration 
to any such complaint, and shall not act in 
a manner that is prejudicial to suppliers' 
participation in ongoing or future 
procurement activities or to suppliers' 
rights to seek corrective m easures under 
the challenge system.  
[US – Job No. 6049]  
 
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement in the context of a procurement, 
each Party shall encourage the supplier to 
seek solution of its complain t in 
consultation with the procuring entity . In 
such instances the procuring entity shall 
accord impartial and timely consideration 
to any such complaint, in a manner that is 
not prejudicial to obtaining corrective 
measures under the challenge system.  Such  
encouragement may take place in particular 
through the designation of one or more 
bodies which can offer their good advice in 
trying to solve the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With respect to the EC proposal:  
 
• The last sentence in this paragraph should be clarified.  The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC's proposed amendment and the 
challenge bodies referred to in paragraph 6 of the existing agreement should be clarified.  
[Japan ; Hong Kong, China]  
• It is not intended that the proposed amendment would have the result of imposing a new 
authority on procuring entities.  Rather, the intent was to have a central point to address any 
problems in an unbureaucratic fashion, informally and rapidly.  It would be left to Parties to 
decide how to organize these bodies.  [EC] 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
• Rather than create a completely new body, the relevant aspects of the approach proposed by 
the EC co uld be incorporated into the existing procedures.  [Singapore]  
• The proposal is not intended to make it compulsory for Members to create new bodies.  Rather, 
the intention is to designate bodies that may already be in place.  This proposal was made in GPA/TN1994/2/Rev.7  
- 120 - 
  recognit ion of the fact that resort to a court is not an ideal solution for government 
procurement disputes.  [EC] Settling of government procurement disputes outside legal judicial 
systems will afford increased flexibility in dispute settlement procedures.  
• With re spect to the concept that access to consultations should not be prejudicial to rights 
under the bid challenge system, it is unclear whether it is necessary to establish another 
consultative procedure akin to mediation if the bid challenge system worked the  way it should.  
[US] 
• It is unclear whether there is a need for an independent body as provided for in the EC 
proposal.  Parties should have flexibility to establish the most appropriate review bodies for 
their particular procurement system as is currently the case under the GPA.  [Canada]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authority  
 
 2. Each Party shall establish or 
designate at least one impartial authority, 
separate and independent from its 
procuring entities, to receive and review 
supplier challenges relating to this 
Agreement and to make appropriate 
findings and recommendations.  
[US – Job No. 6049]  
 
 
• Paragraph 2 is based upon the principle contained in Article XX:6, which sets outs the  
requirement for the establishment of an independent and impartial review authority.  Since 
that is a core obligation, it has been placed at the beginning of the Article and language has 
been added requiring that such an authority be kept separate from inte rested procuring 
entities.  This is already implicit in the text but the proposed amendment helps to clarify 
matters.  The authority can be established anew or an existing independent review authority 
can be designated as the relevant authority.  The words "s eparate" and "independent" have 
been added to reinforce that in order to be independent and impartial, a review body should 
be separate from the procuring entities that are being challenged.  [US] 
• Perhaps further consideration is required in relation to wha t is an independent or separate 
body.  [EC] GPA/TN1994/2/Rev.7  
- 121 - 
  Article X X:2, 3 , 4, 5, 6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  
 Challenge  
2. Each Party shall provide 
non-discriminatory, timely, transparent and 
effective procedures enabling suppliers to 
challenge alleged breaches of the Agreement 
arising in the context of procurements in which 
they have, or have had, an interest.  
 3. Each Party shall provide timely, 
effective, transparent, and pre dictable 
procedures for interested suppliers to 
challenge alleged breaches of this 
Agreement.  All challenge procedures shall 
be specified in writing and made generally 
available.  
[US – Job No. 6049]  
 
3. Each Party shall provide its challenge 
procedures in  writing and make them generally 
available.  
  
4. Each Party shall ensure that 
documentation relating to all aspects of the 
process concerning procurements covered by 
this Agreement shall be retained for three years.  
  
5. The interested supplier may be required to 
initiate a challenge procedure and notify the 
procuring entity within specified time -limits from 
the time when the basis of the complaint is 
known or reasonably should have been known, 
but in no case within a period of less than 
10 days.  
  
6. Challenges shall be heard by a court or by 
an impartial and independent review body with 
no interest in the outcome of the procurement 
and the members of which are secure from 
external influence during the term of 
appointment.  A review body which is not a court 
shall either be subject to judicial review or shall 
have procedures which provide that:  
 5. In the event that a challenge is 
initially reviewed by a body other than an 
authority established or designated under 
paragraph 2, each Party shall ensure tha t 
suppliers may appeal the initial decision to 
an impartial administrative or judicial 
authority which is separate and 
independent from te procuring entity that is 
the subject of the challenge.  
[US – Job No. 6049]  
 
(a) participants can be heard before an 
opinion is given or a decision is 
reached;  
  
(b) participants can be represented and 
accompanied;  
  
(c) participants shall have access to all 
proceedings;  
  
 GPA/TN1994/2/Rev.7  
- 122 - 
  Article XX  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Review Procedures  
 
 6. Each Party shall ensure that review 
procedures are conducted in accordance 
with the following:  
 
 (a) suppliers shall be allowed a 
sufficient period of time to 
prepare and submit challenges, 
which in no case shall be less 
than 10 days from the time 
when the basis of the complaint 
became known or reasonably 
should have become known to 
the supplier;  
 
 (b) procuring entities shall respond 
in writing to the complaint and 
disclose all relevant documents 
to the rev iew body;  
 
 (c) a supplier that initiates a 
complaint shall be provided an 
opportunity to respond to the 
procuring entities' report prior 
to a decision being taken on the 
complaint;  
 
 (d) decisions and opinions relating 
to supplier challenges shall be 
provided in a timely fashion, in 
writing, with an explanation of 
the basis for each decision;  
 
 (e) review procedures shall provide 
for correction of the breach of 
the Agreement or compensation 
for the loss or damages 
suffered, which may be limited 
to the costs for tender 
preparation or protest.  
[US – Job No. 6049]  
 
 
Comment  
 
• In paragraph 6 of the US proposal , the existing provisions that apply only to non -judicial 
bodies have been simplified so that that they can apply to all review bodies, both 
administrative and judicial.  The US proposal provides additional flexibility to apply to all types 
of review procedures, eliminating the need for the some of the distinctions that currently exist 
in Article  XX. [US] GPA/TN1994/2/Rev.7  
- 123 - 
  Article XX:7  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) proceedings can take place in public;  
  
(e) opinions or decisions are given in 
writing with a statement describing the 
basis for the opinions or decisions;  
  
(f) witnesses can be presented;  
  
(g) documents are disclosed to the review 
body.  
  
7. Challenge procedures shall provide for:  
  
(a) rapid interim measures to correct 
breaches of the Agreement and to 
preserve commercial opportunities.  
Such action may result in suspension of 
the procurement process.  However, 
procedures may provide that overriding 
adverse consequences for the interests 
concerned, including the public 
interest, may be taken into account in 
deciding whether such measures 
should be applied.  In such 
circumstances, just cause for not acting 
shall be provided in writing;  
 4. Challenge procedures shall provide 
for prompt interim measures to correct 
potential breaches of te Agreement and to 
preserve commercial opportunities, 
including the possibility of de laying a 
contract award or delaying performance of 
a contract already awarded.  
[US – Job No. 6049]  
(b) an assessment and a possibility for a 
decision on the justification of the 
challenge;  
  
(c) correction of the breach of the 
Agreement or compensation for the 
loss or damages suffered, which may 
be limited to costs for tender 
preparation or protest.   
 
Comment  
 
• Paragraph 4  of the US proposal adopts the discipline contained in Article XX:7(a) and expands 
on it.  It introduces a provision allow ing for rapid or prompt interim measures to suspend a 
procurement process that is underway prior to the award of a contract but also to suspend 
work on a contract that has been awarded, which is an addition to the existing provision.  The 
addition is necess ary to take account of problems that come to light late in the procurement 
process so that a supplier may have the opportunity to raise or express a complaint to the 
procuring entity before the entity awards the contract.  In such cases, there should be an 
opportunity for a review body to temporarily suspend work or further action under the contract 
until the case is heard.  [US] GPA/TN1994/2/Rev.7  
- 124 - 
  Article XX:8  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the 
challenge procedure shall normally be completed 
in a timely fashion.   
 9. The Parties undertake to designate or 
establish an independent body with a view 
to solve informally problems encount ered 
in gaining access to contracts.  
[EC - GPA/W/87 ] 
 
 
Comments  
 
• Clarification is required in relation to what is meant by the new paragraph 9.  [Japan;  
Hong Kong, China]  
• An illustrative example of an independent body dealing with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
 GPA/TN1994/2/Rev.7  
- 125 - 
  Article XXI:1, 2  
 
Institutions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established.  This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary but not less than once a 
year for the purpose of affording Parties the 
opportunity to consult on any ma tters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to carry out 
such other responsibilities as may be assigned to 
it by the Parties.  
  
2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
  
 GPA/TN1994/2/Rev.7  
- 126 - 
  Article XXII:1, 2  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter referred to as the "Dispute 
Settlement Understanding") shall be applicable 
except as otherwise specifically provided below.  
  
2. If any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any objective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to c arry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of this Agreement, it may with a view 
to reaching a mutually satisfactory resolution of 
the matter , make written representations or 
proposals to the other Party or Parties which it 
considers to be concerned.  Such action shall be 
promptly notified to the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred  to as 
"DSB"), as specified below.  Any Party thus 
approached shall give sympathetic consideration 
to the representations or proposals made to it.  
  GPA/TN1994/2/Rev.7  
- 127 - 
  Article XXII:3, 4, 5  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB shall have the authority to 
establish panels, adopt panel and Appellate Body 
reports, make recommendations or give rulings 
on the matter, maintain surveillance of 
implementation of rulings and 
recommend ations, and authorize suspension of 
concessions and other obligations under this 
Agreement or consultations regarding remedies 
when withdrawal of measures found to be in 
contravention of the Agreement is not possible, 
provided that only Members of the WTO Party to 
this Agreement shall participate in decisions or 
actions taken by the DSB with respect to 
disputes under this Agreement.  
  
4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of t he establishment of 
the panel:  
  
"To examine, in the light of the 
relevant provisions of this 
Agreement and of (name of any 
other covered Agreement cited by 
the parties to the dispute), the 
matter referred to the DSB by 
(name of party) in document ... and 
to make such findings as will ass ist 
the DSB in making the 
recommendations or in giving the 
rulings provided for in this 
Agreement."   
In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix  1 of the Dispute 
Settlement Und erstanding are invoked by one of 
the parties to the dispute, paragraph 3 shall 
apply only to those parts of the panel report 
concerning the interpretation and application of 
this Agreement.  
  
5. Panels established by the DSB to examine 
disputes under this  Agreement shall include 
persons qualified in the area of government 
procurement.  
  GPA/TN1994/2/Rev.7  
- 128 - 
  Article XXII:6, 7  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible.  
Notwithstanding the provisions of paragraphs 8 
and 9 of Article 12 of the Dispute Settlement 
Understanding, the panel shall attempt to 
provide its final report to the parties to the 
dispute not la ter than four months, and in case 
of delay not later than seven months, after the 
date on which the composition and terms of 
reference of the panel are agreed.  Consequently, 
every effort shall be made to reduce also the 
periods foreseen in paragraph 1 of A rticle 20 and 
paragraph 4 of Article  21 of the Dispute 
Settlement Understanding by two months.  
Moreover, notwithstanding the provisions of 
paragraph  5 of Article 21 of the Dispute 
Settlement Understanding, the panel shall 
attempt to issue its decision, in case of a 
disagreement as to the existence or consistency 
with a covered Agreement of measures taken to 
comply with the recommendations and rulings, 
within 60 days.  
  
7. Notwithstanding paragraph  2 of Article 22 
of the Dispute Settlement Understanding, an y 
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 Agr eement shall not 
result in the suspension of concessions or other 
obligations under any other Agreement listed in 
the said Appendix  1. 
  GPA/TN1994/2/Rev.7  
- 129 - 
  Article  XXIII:1, 2  
 
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be 
construed to prevent any Party from taking any 
action or not disclosing any information which it 
considers necessary for the protection of its 
essential security interests relating to the 
procurement of arms, ammunition or war 
materials, or to procurement indispensable for 
national security or for national defence 
purposes.  
  
 
Comments  
 
• The provisions of Article  XXIII should be aligned with those in the corresponding provisions of 
GATT  1994. [Job No. 5074]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such 
measures are not applied in a manner which 
would constitute a means of arbitrary or 
unjustifiable discrimination between countries 
where the same conditions prevail or a disguised 
restriction on international trade, nothing in this 
Agreement shall be construed to prevent any 
Party from imposing or enforcing measures : 
necessary to protect public morals, order or 
safety, human , animal or plant life or health or 
intellectual property;  or relating to the products 
or services of handicapped persons, of 
philanthropic institutions or of prison labour.  
  
 
Comments  
 
• An article containing definitions of the various terms used in the Agreement should be 
considered.  [Job No. 5074]  
 GPA/TN1994/2/Rev.7  
- 130 - 
  Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
  
 This Agreement shall enter into force on 
1 January  1996 for those governments8 whose 
agreed coverage is contained in Annexes 1 
through 5 of Appendix I of this Agreement and 
which have, by signature, accepted the 
Agreement on 1 5 April 1994 or have, by that 
date, signed the Agreement subject to 
ratification and subsequently ratified the 
Agreement before 1 January  1996. 
 
8 For the purpose of this Agreement, the term 
"government" is deemed to include the competent 
authorities of the European Communities.  
  
2. Accession  
  
 Any government which is a Member of the 
WTO, or prior to the date of entry into force of 
the WTO Agreement which is a contracting party 
to GATT  1947, and which is not a Party to this 
Agreement may accede to this Agreement on 
terms to be ag reed between that government 
and the Parties.  Accession shall take place by 
deposit with the Director -General of the WTO of 
an instrument of accession which states the 
terms so agreed.  The Agreement shall enter into 
force for an acceding government on the 30th 
day following the date of its accession to the 
Agreement.  
  GPA/TN1994/2/Rev.7  
- 131 - 
  Article  XXIV:3  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
(a) Hong Kong and Korea may delay 
application of the provisions of this 
Agreement, except Articles  XXI 
and XXII, to a date not later than 
1 January  1997.  The 
commencement date of their 
application of the provisions, if prior 
to 1 January  1997, shall be notified 
to the Director -General of t he 
WTO 30 days in advance.  
  
(b) During the period between the date 
of entry into force of this Agreement 
and the date of its application by 
Hong Kong, the rights and 
obligations between Hong Kong and 
all other Parties to this Agreement 
which were on 15 April 1994 Parties 
to the Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed by 
the substantive9 provisions of the 
1988 Agreement, including its 
Annexes as modified or rectified, 
which provisions are incorporated 
herein by reference for that purpose 
and shall remain in force until 
31 December  1996.  
 
9 All provisions of the 1988 Agreement except the 
Preamble, Article  VII and Article  IX other than 
paragraphs 5(a) and (b ) and paragraph 10.  
  
(c) Between Parties to this Agreement 
which are also Parties to the 1988 
Agreement, the rights and 
obligations of this Agreement shall 
supersede those under the 1988 
Agreement.  
  
 GPA/TN1994/2/Rev.7  
- 132 - 
  Article  XXIV:4, 5  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) Article  XXII shall not enter into force 
until the date of entry into force of 
the WTO Agreement.  Until such 
time, the provisions of Article  VII of 
the 1988 Agreement shall apply to 
consultations and dispute 
settlement under this Agreement, 
which provisions are hereby 
incorporated in the Agreement by 
reference for that purpose.  These 
provisions shall be applied under the 
auspices of the Committee under 
this Agreement.  
  
(e) Prior to the date of entry into force 
of the WTO Agreement, references 
to WTO bodies shall be construed as 
referring to the corresponding GATT 
body and references to the 
Director -General of the WTO and to 
the WTO Secretariat shall be 
construed as references to, 
respectively, the Director -General 
to the CONTRACTING PARTIES to 
GATT 1947 and to the GATT 
Secretariat.  
  
4. Reservations  
  
 Reservations may not be entered in 
respect of any of the provisions of this 
Agreement.  
  
5. National  Legislation  
  
(a) Each government accepting or 
acceding to this Agreement shall 
ensure, not later than the date of 
entry into force of this Agreement 
for it, the conformity of its laws, 
regulations and administrative 
procedures, and the rules, 
procedures and practices applied by 
the entities contained in its lists 
annexed hereto, with the provisions 
of this Agreement.  
  GPA/TN1994/2/Rev.7  
- 133 - 
  Article  XXIV:6  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall inform the 
Committee of any changes in its 
laws and regulations relevant to this 
Agreement and in the 
administration of such laws and 
regulations.  
  
6. Rectifications or Modifications  
  
(a) Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other 
modifications relating 
to Appendices  I through IV shall be 
notified to the Committee, along 
with information as to the likely 
consequences of the change for the 
mutually agreed coverage provided 
in this Agreement.  If the 
rectificat ions, transfers or other 
modifications are of a purely formal 
or minor nature, they shall become 
effective provided there is no 
objection within 30 days.  In other 
cases, the Chairman of the 
Committee shall promptly convene 
a meeting of the Committee.  The 
Committee shall consider the 
proposal and any claim for 
compensatory adjustments, with a 
view to maintaining a balance of 
rights and obligations and a 
comparable level of mutually agreed 
coverage provided in this 
Agreement prior to such 
notification.  In the  event of 
agreement not being reached, the 
matter may be pursued in 
accordance with the provisions 
contained in Article  XXII. 
  GPA/TN1994/2/Rev.7  
- 134 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence 
over it has been effectively 
eliminated, that Party shall notify 
the Committee.  Such modification 
shall become effective the day af ter 
the end of the following meeting of 
the Committee, provided that the 
meeting is no sooner than 30 days 
from the date of notification and no 
objection has been made.  In the 
event of an objection, the matter 
may be pursued in accordance with 
the procedur es on consultations and 
dispute settlement contained in 
Article  XXII. In considering the 
proposed modification to Appendix I 
and any consequential 
compensatory adjustment, 
allowance shall be made for the 
market -opening effects of the 
removal of government control or 
influence.  
 Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee.  Such modification 
shall become effective the day after the end 
of the following meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made.  In the event of an 
objection, the matte r may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XXII.  In considering the 
proposed modification to Appendix  I, it 
shall be deemed that government control or 
influence over the entity in questio n has 
been effectively eliminated if all of the 
following conditions are met:  
 
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, subparagraph  6(b) 
would need to be modified as suggested above . [Japan]  
• The present provis ions are a carefully balanced outcome of the negotiations between Parties 
and reflect the uncertainties in market access opportunities which might be associated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of governme nt 
control or influence.  Its purpose is to ensure that any future changes to an agreed annex does 
not affect the negotiated balance.  [Job No. 5189]  
 GPA/TN1994/2/Rev.7  
- 135 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the government does not 
provide the entity with any 
special and exclusive right to 
operate;  
 
(b) the government does not 
appoint more than half of the 
members of the entity's 
managing board which has the 
power to decide on its 
operation s; and 
 
(c) the operation of the entity is 
financed by its business 
revenue, not by government 
subsidies or equity infusion.  
 
Unless these conditions are met, a 
compensatory adjustment may be sought 
for any remaining government control or 
influence.  
[Japan – Job No. 860]  
 
 
Comments  
 
• The proposed criteria may not be the only ones for establishing that an entity was no longer 
under government control or influence.  There might be other criteria that might be used as 
evidence of market opening effects.  [Job No. 5189]  
• The proposal attempts to define the conditions under which Parties would relinquish their right 
to seek consultation with other Parties about a proposed modification for the removal of an 
entity from the Agreement's coverage . Parties should not be denied that right.  [US] 
• The application of the criteria listed in Japan's proposal would facilitate consultations between 
Parties.  [Japan]  
• Regarding the requirement in subparagraph (a) that the government not provide the entity 
with any special or exclusive rights, a wide variety of private companies are granted such 
rights by the government.  For instance a corner store might be authorized to sell fishing 
licences or postage stamps.  [Job No. 5189]  
• It is unclear whether a company that  is granted a special right to operate, for instance a bus 
company that is no more within the government sphere given a franchise to operate by the 
government on certain routes in competition with other forms of transport, would fall within 
the scope of pr oposed subparagraph (a).  [Hong  Kong, China]  
• An effect of proposed paragraph (b) would be that it would not allow consideration of 
compensatory adjustment if, for example, an entity that was unilaterally withdrawn from 
Appendix  I still had 48 % government me mbership on its board.  [US] 
• The requirement that the government in subparagraph (b) might not be sufficient to ensure 
that the government control or influence is effectively removed.  What would be an appropriate 
percentage in this respect?  [Job No. 5189]  GPA/TN1994/2/Rev.7  
- 136 - 
  • With regard to the criteria in subparagraph (c), in some circumstances, government subsidies 
to privatized entities may still be necessary if the subsidies are linked to lowering the cost of 
provision of basic services and where the benefici aries are the members of the general public.  
[Korea]  
• The criterion in subparagraph (c) might not be appropriate in all cases.  For instance, a number 
of entities in both Annexes 1 and 3 of the United States, while operating on the basis of their 
own busines s revenues, continue to be considered as government agencies conducting 
government procurement.  If the entity was mainly financed by its business revenue, some 
non-voting equity infusions by the government would not affect the degree of government 
control or influence.  [Job No. 5189]  
 GPA/TN1994/2/Rev.7  
- 137 - 
  Article  XXIV:7  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations and Future Work  
  
(a) The Committee shall review 
annually the implementation and 
operation of this Agreement taking 
into account the objectives thereof.  
The Committee shall annually 
inform the General Council of the 
WTO of developments during the 
periods covered by such reviews.  
  
(b) Not later than the end of the third 
year from the date of entry into 
force of this Agreement and 
periodically thereafter, the Parties 
thereto shall undertake further 
negotiations, with a view to 
improving this Agreement and 
achieving the greatest possible 
extension of its coverage among all 
Parties on  the basis of mutual 
reciprocity, having regard to the 
provisions of Article  V relating to 
developing countries.  
  
(c) Parties shall seek to avoid 
introducing or prolonging 
discriminatory measures and 
practices which distort open 
procurement and shall, in  the 
context of negotiations under 
subparagraph (b), seek to eliminate 
those which remain on the date of 
entry into force of this Agreement.   
 GPA/TN1994/2/Rev.7  
- 138 - 
  Article  XXIV:8, 9, 10  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
 With a view to ensuring that the 
Agreement does not constitute an unnecessary 
obstacle to technical progress, Parties shall 
consult regularly in the Committee regarding 
developments in the use of information 
technology in government procurement and 
shall, if necessary, negotiate modifications to the 
Agreement.  These consultations shall in 
particular aim to ensure that the use of 
information technology promotes the aims of 
open, non -discriminatory a nd efficient 
government procurement through transparent 
procedures, that contracts covered under the 
Agreement are clearly identified and that all 
available information relating to a particular 
contract can be identified.  When a Party intends 
to innovate, it shall endeavour to take into 
account the views expressed by other Parties 
regarding any potential problems.  
  
9. Amendments  
  
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation.  Such an amendmen t, 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.  
  
10. Withdrawal  
  
(a) Any Party may withdraw from this 
Agreement.  The withdrawal shall 
take effect upon the expiration of 60 
days from the date on which written 
notice of withdrawal is received by 
the Director -General of the WTO.  
Any Party may upon such 
notification request an immediate 
meeting of the Committe e. 
  
 
Comments  
 
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to 
the Agreement in relation to the use of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.7  
- 139 - 
  Article  XXIV:11, 12, 13, 14  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) If a Party to this Agreement does not 
become a Member of the WTO within 
one year of the date of entry into force 
of the WTO Agreement or ceases to be 
a Member of the WTO, it shall cease to 
be a Party to this Agreement with effect 
from the same date.  
  
11. Non-application of this Agreement 
between Particular Parties  
  
 This Agreement  shall not apply as between 
any two Parties if either of the Parties, at the 
time either accepts or accedes to this 
Agreement, does not consent to such 
application.  
  
12. Notes,  Appendices and Annexes  
  
 The Notes, Appendices and Annexes to 
this Agreement constitute an integral part 
thereof.  
  
13. Secretariat  
  
 This Agreement shall be serviced by the 
WTO Secretariat.  
  
14. Deposit  
  
 This Agreement shall be deposited with 
the Director -General of the WTO, who shall 
promptly furnish to each Party a certified true 
copy of this Agreement, of each rectification or 
modification thereto pursuant to paragraph  6 
and of each amendment thereto pursuant to 
paragraph  9, and a notification of each 
acceptance thereof or accession thereto 
pursuant to parag raphs  1 and 2 and of each 
withdrawal therefrom pursuant to paragraph  10 
of this Article.  
  GPA/TN1994/2/Rev.7  
- 140 - 
  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
  
 This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
  
 Done at Marrakesh this fifteenth day of 
April one  thousand  nine hundred  and ninety -four 
in a single copy, in the English, French and 
Spanish languages, ea ch text being authentic, 
except as otherwise specified with respect to the 
Appendices hereto.  
  
 
NOTES  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The terms "country" or "countries" as used 
in this Agreement, including the Appendices, are 
to be understood to include any separate 
customs territory Party to this Agreement.  
 
 In the case of a separate customs territory 
Party to this Agreement, where an expression in 
this Agreement is qualified by the term 
"national", such expression shall be read as 
pertaining to that customs territory, unless 
otherwise specified.  
 
Article 1, paragraph 1  
 
 Having regard to general policy 
considerations relating to tied aid, including the 
objective of developing countries with respect to 
the untying of such aid, this Agreement does not 
apply to procurement made in furtherance of tied 
aid to developing countries so long as it is 
practised by Parties.  
  
 
 
__________