RESTRICTEDWORLD TRADE
ORGANIZATIONGPA/W/87
15 July 1999
(99-2924)
Committee on Government Procurement Original:  English
PROPOSAL FOR THE AMENDMENT OF THE GOVERNMENT
PROCUREMENT AGREEMENT (1994)
Submission by the European Community
The following communication, dated 30 June 1999, has been received from the Permanent
Delegation of the European Commission with the request that it be circulated to the Parties to the
Agreement on Government Procurement.
_______________GPA/W/87
Page 2
Proposal for the Amendment of the Government Procurement Agreement (1994) by the European Union
(At this stage no amendments to the structure of the Agreement are suggested)
Government Procurement Agreement (1994)
Suggested amendments indicatedAmendments
Draft new text (where different from old text)Remarks
ARTICLE I ARTICLE I ARTICLE I
Scope and Coverage
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.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 coveredby this Agreement, as specified in Appendix I.
2. This Agreement applies to procurement by any
contractual means, including through such methods as
purchase or as lease, rental or hire purchase, with orwithout an option to buy, including any combination ofproducts and services.
3. Where entities, in the context of procurement
covered under this Agreement, require enterprises not
included in Appendix I to award contracts in accordance
with particular requirements, Article III shall applymutatis mutandis  to such requirements.GPA/W/87
Page 34. Without prejudice to Article XXIII, this
Agreement applies to any procurement contract:
(a)         of central government entities of a value
of not less than the relevant threshold
specified in Appendix I.
-        130,000 SDR for contracts for      
supply of products 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 products 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 products and services
-        5,000,000 SDR for contracts         
for public works4. Without prejudice to Article XXIII, thisAgreement 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 products 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 products 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 products and services
- 5,000,000 SDR for contracts for 
public worksA definition of central government entities will be presented
at a later stage.
ARTICLE II ARTICLE II ARTICLE II
Valuation of Contracts
1. The following provisions shall apply indetermining the value of contracts for purposes ofimplementing this Agreement.
2. Valuation shall take into account all forms of
remuneration, including any premiums, fees, commissions
and interest receivable.
3. The selection of the valuation method by theentity shall not be used, nor shall any procurementrequirement be divided, with the intention of avoiding the
application of this Agreement.GPA/W/87
Page 4 4. If an individual requirement for a procurement
results in the award of more than one contract, or incontracts being awarded in separate parts, the basis forvaluation shall be either:
(a) the actual value of similar recurring
contracts concluded over the previousfiscal year or 12 months adjusted, wherepossible, for anticipated changes inquantity and value over the subsequent
12 months;  or
(b) the estimated value of recurring
contracts in the fiscal year or 12 monthssubsequent to the initial contract.
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 forvaluation 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 includingthe estimated residual value;
(b) in the case of contracts for an indefinite
period, the monthly instalmentmultiplied by 48.
If there is any doubt, the second basis for valuation,
namely (b), is to be used.
6. In cases where an intended procurement specifiesthe need for option clauses, the basis for valuation shall be
the total value of the maximum permissible procurement,
inclusive of optional purchases.GPA/W/87
Page 5ARTICLE III ARTICLE III ARTICLE III
National Treatment and Non-discrimination Principal
obligationsPrincipal obligations
0.            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.0. Each Party shall ensure that the procurement of
its covered entities takes place in a transparent, reasonableand non-discriminatory manner, treating any supplier of
any Party equally, and ensuring the principle of open and
effective competition.This paragraph sets out the general principles that  govern
government procurement.  The European Union intends tospecify at a later stage in the GPA the specific obligations
resulting for Parties from these principles.
1. With respect to all laws, regulations, procedures
and practices regarding government procurement coveredby this Agreement, each Party shall provide immediatelyand unconditionally to the products, services and suppliersof other Parties offering products or services of theParties, 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 thananother 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 onthe basis of the country of production ofthe good or service being supplied,
provided that the country of production
is a Party to the Agreement inaccordance with the provisions ofArticle IV.GPA/W/87
Page 6 3. The provisions of paragraphs 1 and 2  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, proceduresand practices regarding government procurement coveredby this Agreement.3. This Article shall not apply to customs duties and
charges of any kind imposed on or in connection withimportation, the method of levying such duties andcharges, other import regulations and formalities, and
measures affecting trade in services other than laws,
regulations, procedures and practices regardinggovernment procurement covered by this Agreement.
ARTICLE IV ARTICLE IV ARTICLE IV
Rules of Origin
1. A Party shall not apply rules of origin to productsor services imported or supplied for purposes ofgovernment procurement covered by this Agreement fromother Parties, which are different from the rules of originapplied in the normal course of trade and at the time of thetransaction in question to imports or supplies 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 forgoods to be undertaken under the Agreement on Rules ofOrigin in Annex 1A of the Agreement Establishing the
World Trade Organization (hereinafter referred to as
"WTO Agreement") and negotiations regarding trade inservices, Parties shall take the results of that workprogramme and those negotiations into account inamending paragraph 1 as appropriate.GPA/W/87
Page 7ARTICLE V ARTICLE V ARTICLE V
Special and Differential Treatment for Developing
CountriesDeveloping Countries
Upon accession to the GPA, 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.Upon accession to the GPA, 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.The remainder of Article V may be included in a separate
protocol.
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 of
programmes of economic development;
(b)         promote the establishment or
development of domestic industries
including the development of small-scale
and cottage industries in rural or
backward areas; and economic
development of other sectors of the
economy;GPA/W/87
Page 8 (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.
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.GPA/W/87
Page 9Agreed Exclusions
4.            A developing country may negotiate with other
participants in negotiations under this Agreement
mutually acceptable exclusions from the rules on national
treatment with respect to certain entities, products or
services that are included in its coverage lists, having
regard to the particular circumstances of each case. In
such negotiations, the considerations mentioned in
subparagraphs 1(a) through 1(c) shall be duly taken into
account.  A developing country participating in regional
or global arrangements among developing countries
referred to in subparagraph 1(d) may also negotiate
exclusions to its lists, having regard to the particular
circumstances of each case, taking into account, inter alia ,
the provisions on government procurement provided for in
the regional or global arrangements concerned and, in
particular, products or services which may be subject to
common industrial development programmes.GPA/W/87
Page 10 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
exclusions 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
regional or global arrangements among developing
countries, having regard to the particular circumstances of
each case and taking duly into account the provisions of
subparagraph 1(d). Each request to the Committee by a
developing country Party relating to modification of a list
shall be accompanied by documentation relevant to the
request or by such information as may be necessary for
consideration of the matter.
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.GPA/W/87
Page 11Technical Assistance 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.
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 country Parties or to their entities.GPA/W/87
Page 12Information 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 government
procurement, notices about intended procurements which
have been published, addresses of the entities covered by
this Agreement, and the nature and volume of products or
services procured or to be procured, including available
information about future tenders. The Committee may
also set up an information centre.
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 Differentia l 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 country Parties. A Party may also grant the
benefits of this Agreement to suppliers in least developed
countries which are not Parties, with respect to products
or services originating in those countries.
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 least developed countries, and
likewise assist them to comply with technical regulations
and standards relating to products or services which are
the subject of the intended procurement.GPA/W/87
Page 13Review
14.          The Committee shall review annually the
operation and effectiveness of this Article and, after each
three years of its operation on the basis of reports to be
submitted by Parties, shall carry out a major review in
order to evaluate its effects. As part of the three-yearly
reviews and with a view to achieving the maximum
implementation of the provisions of this Agreement,
including in particular Article III, and having regard to the
development, financial and trade situation of the
developing countries concerned, the Committee shall
examine whether exclusions provided for in accordance
with the provisions of paragraphs 4 through 6 of this
Article shall be modified or extended.
15.          In the cours e 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.
ARTICLE VI ARTICLE VI ARTICLE VI
Technical Specifications
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 pr ocuring entities, shall comply
with the principles laid down in Article III, paragraph 0
and in particular 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.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 pr ocuring entities, shall comply
with the principles laid down in Article III, paragraph 0and in particular ensure the principle of open and effectivecompetition and shall not be prepared, adopted or appliedwith a view to, or with the effect of, creating unnecessary
obstacles to international trade.This text reverses the current situation.  Indeed, currently
contracting entities shall, where appropriate, base theirtechnical specifications on international standards, wheresuch exist.
The new text allows contracting entities to lay down technical
specifications in accordance with their needs, provided theycomply with the principles lay down in Article III,paragraph 0 and in particular ensure the principle of open andeffective competition.  Thus, within the limits just referred to,contracting entities may take into account the fact that their
project is of a genuinely innovative nature or the need to
ensure compatibility with equipment already in use.GPA/W/87
Page 14 This means that at least the following will apply:
(a) technical specifications shall be
formulated, where possible in terms of
performance requirements rather than
design or descriptive characteristics;
(b)         in all cases procuring entities shall not be
able to exclude bids which include
products, services or works which
comply with appropriate international
standards for reasons relating to the
non-compliance with technical
requirements covered by those standards;
procuring entities shall not reject bids which do not
comply with the standard, regulation or code to which the
technical specifications refer, but do meet the essential
requirements thereof and are fit for the purpose intended.This means that at least the following will apply:
(a) technical specifications shall be
formulated, where possible in terms ofperformance requirements rather than
design or descriptive characteristics;
(b) in all cases procuring entities shall not be
able to exclude bids which includeproducts, services or works whichcomply with appropriate international
standards for reasons relating to the
non-compliance with technicalrequirements covered by those standards;
procuring entities shall not reject bids which do notcomply with the standard, regulation or code to which thetechnical specifications refer, but do meet the essential
requirements thereof and are fit for the purpose intended.If a product (service or work) complies with an appropriate
international standard the contracting entity cannot exclude
this product (service or work) for reasons covered by thatstandard.  It is obvious, however, that other aspects, not
covered by the standard will still have to be assessed on the
basis of other information on the product (service or work).In addition, the conformity with the international standardneeds to be clear or made clear by the supplier, which alsomeans that the technical means to verify such conformity
must be available.
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 regulations, recognized national
standards, or building codes.
Where tender documents lay down technical
specifications by way of a reference, the following
provisions shall apply:2. Where tender documents lay down technical
specifications by way of reference, the followingprovisions shall apply:GPA/W/87
Page 15(a)         the procuring entity shall base the
technical specifications or part of those
on international standards, where they
exist; otherwise on national technical
regulations, recognized national
standards or building codes and the
tender documents must include
information on where and how the
regulations, standards or codes can be
obtained without prejudice to legally
binding national technical regulations in
so far as these are compatible with WTO
requirements;
(b)         where the procuring entity has a choice
between various non-international
standards, the technical specifications
shall be based on standards which ensure
open and effective competition.(a) the procuring entity shall base the
technical specifications or part of thoseon international standards, where theyexist; otherwise on national technical
regulations, recognized national
standards or building codes and thetender documents must includeinformation on where and how theregulations, standards or codes can be
obtained without prejudice to legally
binding national technical regulations inso far as these are compatible with WTOrequirements;
(b) where the procuring entity has a choice
between various non-international
standards, the technical specifications
shall be based on standards which ensureopen and effective competition.
3. There shall be no requirement or reference to aparticular trademark or trade name, patent, design or type,
specific origin, producer or supplier, unless there is no
sufficiently precise or intelligible way of describing theprocurement requirements and provided that words suchas "or equivalent" are included in the tenderdocumentation.
4. Entities shall not seek or accept, in a mannerwhich would have the effect of precluding competition,advice which may be used in the preparation ofspecifications for a specific procurement from a firm thatmay have a commercial interest in the procurement.GPA/W/87
Page 16ARTICLE VII ARTICLE VII ARTICLE VII
Tendering Procedures
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.
2. Entities shall not provide to any supplierinformation with regard to a specific procurement in amanner which would have the effect of precludingcompetition.
3. For the purposes of this Agreement:
(a) Open tendering procedures are those
procedures under which all interestedsuppliers may submit a tender.
(b) Selective tendering procedures are those
procedures under which, consistent with
paragraph 3 of Article X and otherrelevant provisions of this Agreement,those suppliers invited to do so by theentity may submit a tender.
(c) Limited tendering procedures are those
procedures where the entity contacts
suppliers individually, only under theconditions specified in Article XV.GPA/W/87
Page 17ARTICLE VIII ARTICLE VIII ARTICLE VIII
Qualification of Suppliers
1. In the process of qualifying suppliers, entities
shall not discriminate among suppliers of other Parties orbetween domestic suppliers and suppliers of other Parties.Qualification procedures shall be consistent with thefollowing:
(a) any conditions for participation in
tendering procedures shall be publishedin adequate time to enable interestedsuppliers to initiate and, to the extent thatit is compatible with efficient operation
of the procurement process, complete the
qualification procedures;
(b) any conditions for participation in
tendering procedures shall be limited tothose which are essential to ensure thefirm's capability to fulfil the contract inquestion. Any conditions for
participation required from suppliers,
including financial guarantees, technicalqualifications and information necessaryfor establishing the financial, commercialand technical capacity of suppliers, aswell as the verification of qualifications,
shall be no less favourable to suppliers of
other Parties than to domestic suppliersand shall not discriminate amongsuppliers 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 activityas well as of its activity in the territory ofthe procuring entity, taking due accountof the legal relationship between thesupply organizations;GPA/W/87
Page 18 (c) the process of, and the time required for,
qualifying suppliers shall not be used inorder to keep suppliers of other Parties offa suppliers' list or from being considered
for a particular intended procurement.
Entities shall recognize as qualifiedsuppliers such domestic suppliers orsuppliers of other Parties who meet theconditions for participation in a particular
intended procurement. Suppliers
requesting to participate in a particularintended procurement who may not yet bequalified shall also be considered,provided there is sufficient time tocomplete the qualification procedure;
(d) entities maintaining permanent lists of
qualified suppliers shall ensure thatsuppliers may apply for qualification atany time; and that all qualified suppliersso requesting are included in the listswithin a reasonably short time;
(e) if, after publication of the notice under
paragraph 1 of Article IX, a supplier notyet qualified requests to participate in anintended procurement, the entity shallpromptly start procedures forqualification;
(f) any supplier having requested to become a
qualified supplier shall be advised by theentities concerned of the decision in thisregard. Qualified suppliers included onpermanent lists by entities shall also be
notified of the termination of any such
lists or of their removal from them;GPA/W/87
Page 19(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 anysupplier on grounds such as bankruptcy orfalse declarations, provided that such anaction is consistent with the nationaltreatment and non-discrimination
provisions of this Agreement.GPA/W/87
Page 20ARTICLE IX ARTICLE IX ARTICLE IX
Invitation to Participate Regarding Intended Procurement
1. In accordance with paragraphs 2 and 3, entities
shall publish an invitation to participate for all cases ofintended procurement, except as otherwise provided for inArticle XV (limited tendering). The notice shall be
published in the appropriate publication listed in
Appendix II.  The notice shall be published through
means which offer the widest possible and non-
discriminatory access to interested suppliers and service
providers from all Parties to this Agreement;  these means
shall be accessible free of charge through a single point of
access.
Each Party shall notify to the other Parties this single
point of access.1. In accordance with paragraphs 2 and 3, entitiesshall publish an invitation to participate for all cases ofintended procurement, except as otherwise provided for inArticle XV (limited tendering). The notice shall be
published through means which offer the widest possible
and non-discriminatory access to interested suppliers andservice providers from all Parties to this Agreement;these means shall be accessible free of charge through asingle point of access.
Each Party shall notify to the other Parties this single
point of access.
2. The invitation to participate may take the form of
a notice of proposed procurement, as provided for in
paragraph 6.
3. Entities in Annexes 2 and 3 may use a notice ofplanned procurement, as provided for in paragraph 7, or anotice regarding a qualification system, as provided for in
paragraph 9, as an invitation to participate.
4. Entities which use a notice of planned
procurement as an invitation to participate shallsubsequently invite all suppliers who have expressed an
interest to confirm their interest on the basis of
information which shall include at least the informationreferred to in paragraph 6.GPA/W/87
Page 215. Entities which use a notice regarding a
qualification system as an invitation to participate shallprovide, subject to the considerations referred to inparagraph 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 theirinterest in participating in the procurement.  Thisinformation shall include the information contained in thenotices referred to in paragraphs 6 and 8, to the extent
such information is available.  Information provided to
one interested supplier shall be provided in anon-discriminatory manner to the other interestedsuppliers.
6. Each notice of proposed procurement, referred to
in paragraph 2, shall contain the following information:
(a) the nature and quantity, including any
options for further procurement and, ifpossible, an estimate of the timing whensuch options may be exercised; in thecase of recurring contracts the nature and
quantity and, if possible, an estimate of
the timing of the subsequent tendernotices for the products or services to beprocured;
(b) whether the procedure is open or
selective or will involve negotiation;
(c) any date for starting delivery or
completion of delivery of goods orservices;
(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 thelanguage or languages in which theymust be submitted;GPA/W/87
Page 22 (e) the address of the entity awarding the
contract and providing any informationnecessary for obtaining specificationsand other documents;
(f) any economic and technical
requirements, financial guarantees andinformation required from suppliers;
(g) the amount and terms of payment of any
sum payable for the tender
documentation;  and
(h) whether the entity is inviting offers for
purchase, lease, rental or hire purchase,or more than one of these methods.
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 anycase include the information referred to in paragraph 8and:
(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 beobtained.
8. For each case of intended procurement, the entityshall publish a summary notice in one of the officiallanguages of the WTO.  The notice shall contain at leastthe following information:
(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 totender;  and
(c) the addresses from which documents
relating to the contracts may berequested.8. For each case of intended procurement, the entity
shall publish a summary notice in one of the officiallanguages of the WTO.  The notice shall contain at leastthe following information:
(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 totender;  and
(c) the addresses from which documents
relating to the contracts may berequested.GPA/W/87
Page 239. In the case of selective tendering procedures,
entities maintaining permanent lists of qualified suppliersshall publish annually in one of the publications listed inAppendix III a notice of the following:
(a) the enumeration of the lists maintained,
including their headings, in relation tothe products or services or categories ofproducts or services to be procuredthrough the lists;
(b) the conditions to be fulfilled by suppliers
with a view to their inscription on thoselists and the methods according to whicheach of those conditions will be verifiedby the entity concerned;  and
(c) the period of validity of the lists, and the
formalities for their renewal.
When such a notice is used as an invitation to participatein accordance with paragraph 3, the notice shall, inaddition, include the following information:
(d) the nature of the products or services
concerned;
(e) a statement that the notice constitutes an
invitation to participate.
However, when the duration of the qualification system isthree years or less, and if the duration of the system ismade clear in the notice and it is also made clear thatfurther 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 mannerwhich circumvents the provisions of this Agreement.GPA/W/87
Page 24 10. If, after publication of an invitation to participate
in any case of intended procurement, but before the timeset for opening or receipt of tenders as specified in thenotices 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 theoriginal documents upon which the amendment is based.Any significant information given to one supplier withrespect to a particular intended procurement shall be given
simultaneously to all other suppliers concerned in
adequate time to permit the suppliers to consider suchinformation and to respond to it.
11. Entities shall make clear, in the notices referredto in this Article or in the publication in which the notices
appear, that the procurement is covered by the Agreement.
ARTICLE X ARTICLE X ARTICLE X
Selection Procedures
1. To ensure optimum effective international
competition under selective tendering procedures, entitiesshall, for each intended procurement, invite tenders fromthe maximum number of domestic suppliers and suppliers
of other Parties, consistent with the efficient operation of
the procurement system. They shall select the suppliers toparticipate in the procedure in a fair andnon-discriminatory manner.
2. Entities maintaining permanent lists of qualifiedsuppliers may select suppliers to be invited to tender fromamong those listed. Any selection shall allow for equitableopportunities for suppliers on the lists.GPA/W/87
Page 253. Suppliers requesting to participate in a particular
intended procurement shall be permitted to submit atender and be considered, provided, in the case of thosenot yet qualified, there is sufficient time to complete the
qualification procedure under Articles VIII and IX. The
number of additional suppliers permitted to participateshall be limited only by the efficient operation of theprocurement system.
4. Requests to participate in selective tenderingprocedures may be submitted in writing includingelectronic means telex, telegram or facsimile
.  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 compression) and storage
of data, and entirely using transmission, conveyance and
reception by wire, by radio, by optical means or by other
electromagnetic means.4. Requests to participate in selective tenderingprocedures may be submitted in writing includingelectronic means. The term "writing" as used in thisAgreement is to be understood to include any worded ornumbered expression which can be read, reproduced, andlater communicated, and includes electronically
transmitted and stored information. "Electronic means"
means using electronic equipment for the processing(including digital compression) and storage of data, andentirely using transmission, conveyance and reception bywire, by radio, by optical means or by otherelectromagnetic means.The proposed amendment is required in order to allow for
electronic procurement. The proposed wording of thedefinitions follows a proposal submitted to the WTO and thedraft wording of the electronic commerce Directive.
ARTICLE XI ARTICLE XI ARTICLE XI
Time-limits for Tendering and Delivery
General
1. (a) Any prescribed time-limit shall be
adequate to allow suppliers of otherParties as well as domestic suppliers toprepare and submit tenders before the
closing of the tendering procedures. In
determining any such time-limit, entitiesshall, consistent with their ownreasonable needs, take into account suchfactors as the complexity of the intendedprocurement, the extent of
subcontracting anticipated and the
normal time for transmitting tenders by
mail in writing from foreign as well as
domestic points.1. (a) Any prescribed time-limit shall be
adequate to allow suppliers of otherParties as well as domestic suppliers toprepare and submit tenders before the
closing of the tendering procedures. In
determining any such time-limit, entitiesshall, consistent with their ownreasonable needs, take into account suchfactors as the complexity of theprocurement, the extent of
subcontracting anticipated and the
normal time for transmitting tenders inwriting from foreign as well as domesticpoints.The deletion of "by mail" will allow for transmission by other
means, i.e. electronic means.GPA/W/87
Page 26 (b) Each Party shall ensure that its entities
shall take due account of publicationdelays when setting the final date forreceipt of tenders or of applications to be
invited to tender.(b) Each Party shall ensure that its entities
shall take due account of publicationdelays when setting the final date forreceipt of tenders or of applications to be
invited to tender.
Deadlines
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
430 days from the date of publication
referred to in paragraph 1 of Article IX ;
(b) in selective procedures not involving the
use of a permanent list of qualifiedsuppliers, the period for submitting anapplication to be invited to tender shall
not be less than 2
15 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 4 30
days from the date of issuance of theinvitation to tender;
(c) in selective procedures involving the use
of a permanent list of qualified suppliers,the period for receipt of tenders shall notbe less than 4
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 thedate of the publication referred to in
paragraph 1 of Article IX .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;
(b) in selective procedures not involving the
use of a permanent list of qualifiedsuppliers, the period for submitting anapplication to be invited to tender shallnot be less than 15 days from the date of
publication; the period for receipt of
tenders shall in no case be less than 30days from the date of issuance of theinvitation to tender;
(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 30 days from the date of theinitial issuance of invitations to tender,whether or not the date of initial issuanceof invitations to tender coincides with the
date of the publication.The reference to Article IX appears to be redundant.
Deadlines can be reduced, in particular when electronic
means of "publication" are used.GPA/W/87
Page 273. 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:
(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;
(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;
(b)(a) in the case of the second or subsequent
publications dealing with contracts of arecurring nature within the meaning ofparagraph 6 of Article IX, the 4
30-day
limit for receipt of tenders may be
reduced to not less than 24 days;  or
(c)(b)    in the case where the procuring entity
procures off-the-shelf products orservices, the period referred to inparagraph 2(c) may be reduced to
15 days.3. The periods referred to in paragraph 2 may be
reduced in the circumstances set out below:
(a) 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 30-daylimit for receipt of tenders may bereduced to 24 days; or
(b) in the case where the procuring entity
procures off-the-shelf products or
services, the period referred to inparagraph 2(c) may be reduced to15 days.The duplication of minimum periods appears to be too
complicated and not justified.
Where electronic procurement is applied there could be room
for further derogations from the general 40-day period. It
may be considered necessary to determine more preciselywhat is considered to be electronic procurement.
The term off-the-shelf will be defined at a later stage.GPA/W/87
Page 28(c)         where a state of urgency du ly
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
(d)         t he period referred to in paragraph 2(c)
may, for procurements by entities listed
in Annexes 2 and 3, be fixed by mutual
agreement between the entity and the
selected suppliers. In the absence of
agreement, the entity may fix periods
which shall be sufficiently long to enable
responsive tendering and shall in any
case not be less than 10 days.
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.4. In cases where the procuring entity offers
simultaneously free and direct access via the single pointof access referred to in Article IX to the complete call fortenders including all annexes both the deadlines of 30 and
15 days may be further reduced by 5 days.
4.5. 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 ofgoods from the points of supply or for supply of services.
ARTICLE XII ARTICLE XII ARTICLE XII
Tender Documentation
1. If, in tendering procedures, an entity allowstenders to be submitted in several languages, one of those
languages shall be one of the official languages of the
WTO.GPA/W/87
Page 292. Tender documentation provided to suppliers shall
contain all information necessary to permit them to submitresponsive tenders, including information required to bepublished 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 besubmitted;
(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, timeand place of this opening;
(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 requirementsincluding technical specifications,conformity certification to be fulfilled,
necessary plans, drawings and
instructional materials;
(h) the criteria for awarding the contract,
including any factors other than pricethat are to be co nsidered in the
evaluation of tenders and the cost
elements to be included in evaluatingtender prices, such as transport,insurance and inspection costs, and in thecase of products or services of otherParties, customs duties and other import
charges, taxes and currency of payment;GPA/W/87
Page 30(i) the terms of payment;
(j) any other terms or conditions;(k) in accordance with Article XVII the
terms and conditions, if any, under whichtenders from countries not Parties to this
Agreement, but which apply the
procedures of that Article, will beentertained.
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 theprocedure, and shall reply promptly toany reasonable request for explanationsrelating thereto.
(b) In selective procedures, entities shall
forward the tender documentation at the
request of any supplier requesting toparticipate, and shall reply promptly toany reasonable request for explanationsrelating thereto.
(c) Entities shall reply promptly to any
reasonable request for relevant
information submitted by a supplierparticipating in the tendering procedure,on condition that such information doesnot give that supplier an advantage over
its competitors in the procedure for the
award of the contract.
ARTICLE XIII ARTICLE XIII ARTICLE XIII
Submission, Receipt and Opening of Tenders and
Awarding of Contracts
1. The submission, receipt and opening of tendersand awarding of contracts shall be consistent with the
following:
(a) tenders shall normally 
be submitted in
writing directly or by mail;1. The submission, receipt and opening of tendersand awarding of contracts shall be consistent with the
following:
(a) tenders shall be submitted in writing;The reference to electronic means would facilitate electronic
procurement.GPA/W/87
Page 31(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;  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
(c)         whatever means of communication or
exchange of information chosen they
shall not cause a discrimination and be
consistent with the principles laid down
in Article 3 hereof;  and
(b)(d) the opportunities that may be given to
tenderers to correct unintentional errors
of form between the opening of tendersand the awarding of the contract shall notbe permitted to give rise to any
discriminatory practice.(b) integrity of data and confidentiality of
tenders must be preserved. Tenders shallnot be opened until after the deadline setby the contracting entity for receipt of
tenders;
(c) whatever means of communication or
exchange of information chosen theyshall not cause a discrimination and beconsistent with the principles laid down
in Article 3 hereof;  and
(d) the opportunities that may be given to
tenderers to correct unintentional errorsof form between the opening of tendersand the awarding of the contract shall notbe permitted to give rise to any
discriminatory practice.The means of information does not affect the contents.
Therefore, the content of a submission should not beregulated with reference to the means of communication.
An obligation of confirmation appears to be redundant.GPA/W/87
Page 32Receipt of Tenders
2. A supplier shall not be penalized if a tender is
received in the office designated in the tenderdocumentation after the time specified because of delaydue 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 soprovide.
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 ofthe openings. The receipt and opening of tenders shallalso be consistent with the national treatment andnon-discrimination provisions of this 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 maybe used if required under the procedures ofArticles XVIII, XIX, XX and XXII.
Award of Contracts
4. (a) To be considered for award, a tender
must, at the time of opening, conform to
the essential requirements of the noticesor tender documentation and be from asupplier which complies with theconditions for participation. If an entity
has received a tender abnormally lower
than other tenders submitted, it mayenquire with the tenderer to ensure that itcan comply with the conditions ofparticipation and be capable of fulfillingthe terms of the contract.GPA/W/87
Page 33(b) Unless in the public interest an entity
decides not to issue the contract, theentity shall make the award to thetenderer who has been determined to be
fully capable of undertaking the contract
and whose tender, whether for domesticproducts or services, or products orservices of other Parties, is either thelowest tender or the tender which in
terms of the specific evaluation criteria
set forth in the notices or tenderdocumentation is determined to be themost advantageous.
(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.
ARTICLE XIV ARTICLE XIV ARTICLE XIV
Negotiation
1. A Party may provide for entities to conduct
negotiations:
(a) in the context of procurements in which
they have indicated such intent, namelyin the notice referred to in paragraph 2 ofArticle IX (the invitation to suppliers to
participate in the procedure for the
proposed procurement);  or
(b) when it appears from evaluation that no
one tender is obviously the mostadvantageous in terms of the specificevaluation criteria set forth in the notices
or tender documentation.GPA/W/87
Page 34 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 setforth in the notices and tenderdocumentation;
(b) all modifications to the criteria and to the
technical requirements are transmitted inwriting to all remaining participants inthe negotiations;
(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 negotiationsshall be permitted to submit final tenders
in accordance with a common deadline.
ARTICLE XV ARTICLE XV ARTICLE XV
Limited Tendering
1. The provisions of Articles VII through XIV
governing open and selective tendering procedures neednot apply in the following conditions, provided thatlimited tendering is not used with a view to avoiding
maximum possible competition or in a manner which
would constitute a means of discrimination amongsuppliers of other Parties or protection to domesticproducers or suppliers:GPA/W/87
Page 35(a) in the absence of tenders in response to an
open or selective tender, or when thetenders submitted have been collusive, ornot in conformity with the essential
requirements in the tender, or from
suppliers who do not comply with theconditions for participation provided forin accordance with this Agreement, oncondition, however, that the requirements
of the initial tender are not substantially
modified in the contract as awarded;
(b) when, for works of art or for reasons
connected with protection of exclusiverights, such as patents or copyrights, or inthe absence of competition for technical
reasons, the products or services can be
supplied only by a particular supplier andno reasonable alternative or substituteexists;
(c) insofar 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 obtainedin time by means of open or selectivetendering procedures;
(d) for additional deliveries by the original
supplier which are intended either as parts
replacement for existing supplies, or
installations, or as the extension ofexisting supplies, services, or installationswhere a change of supplier would compelthe entity to procure equipment or
services not meeting requirements of
interchangeability with already existingequipment or services;GPA/W/87
Page 36 (e) when an entity procures prototypes or a
first product or service which aredeveloped at its request in the course of,and for, a particular contract for research,
experiment, study or original
development. When such contracts havebeen fulfilled, subsequent procurements ofproducts or services shall be subject toArticles VII through XIV;
(f) when additional construction services
which were not included in the initialcontract but which were within theobjectives of the original tender have,through unforeseeable circumstances,become necessary to complete the
construction services described therein,
and the entity needs to award contracts forthe additional construction services to thecontractor carrying out the constructionservices concerned since the separation ofthe additional construction services from
the initial contract would be difficult for
technical or economic reasons and causesignificant inconvenience to the entity.However, the total value of contractsawarded for the additional constructionservices may not exceed 50 per cent of the
amount of the main contract;
(g) for new construction services consisting
of the repetition of similar constructionservices which conform to a basic projectfor which an initial contract was awarded
in accordance with Articles VII through
XIV and for which the entity has indicatedin the notice of intended procurementconcerning the initial construction service,that limited tendering procedures might beused in awarding contracts for such new
construction services;
(h) for products purchased on a commodity
market;GPA/W/87
Page 37(i) for purchases made under exceptionally
advantageous conditions which only arisein the very short term. This provision isintended to cover unusual disposals by
firms which are not normally suppliers, or
disposal of assets of businesses inliquidation or receivership. It is notintended to cover routine purchases fromregular suppliers;
(j) in the case of contracts awarded to the
winner of a design contest provided thatthe contest has been organized in amanner which is consistent with theprinciples of this Agreement, notably asregards the publication, in the sense of
Article IX, of an invitation to suitably
qualified suppliers, to participate in such acontest which shall be judged by anindependent jury with a view to designcontracts being awarded to the winners.
2. Entities shall prepare a report in writing on eachcontract awarded under the provisions of paragraph 1.Each report shall contain the name of the procuring entity,value and kind of goods or services procured, country oforigin, and a statement of the conditions in this Articlewhich 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 ifrequired under the procedures of Articles XVIII, XIX, XXand XXII.
ARTICLE XVI ARTICLE XVI ARTICLE XVI
Offsets
1. Entities shall not, in the qualification andselection of suppliers, products or services, or in theevaluation of tenders and award of contracts, impose, seekor consider offsets.GPA/W/87
Page 38 2. Nevertheless, having regard to general policy
considerations, including those relating to development, adeveloping country may at the time of accession negotiateconditions 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 theprocurement process and not as criteria for awardingcontracts. Conditions shall be objective, clearly definedand 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 thisAgreement. The existence of such conditions shall benotified to the Committee and included in the notice ofintended procurement and other documentation.
ARTICLE XVII ARTICLE XVII ARTICLE XVII
Transparency
1. Each Party shall encourage entities to indicatethe terms and conditions, including any deviations fromcompetitive tendering proced ures or access to challenge
procedures, under which tenders will be entertained fromsuppliers situated in countries not Parties to thisAgreement 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);
(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 ofintended procurement) which ispublished in an official language of theWTO, an indication of the terms andconditions under which tenders shall be
entertained from suppliers situated in
countries Parties to this Agreement;1. Each Party shall encourage entities to indicate
the terms and conditions, including any deviations fromcompetitive tendering proced ures or access to challenge
procedures, under which tenders will be entertained fromsuppliers situated in countries not Parties to thisAgreement 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);
(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 ofintended procurement) which ispublished in an official language of theWTO, an indication of the terms andconditions under which tenders shall be
entertained from suppliers situated in
countries Parties to this Agreement;A single forum where notices can easily be accessed should
be promoted.GPA/W/87
Page 39(c) are willing to ensure that their
procurement regulations shall notnormally change during a procurementand, in the event that such change provesavoidable, to ensure the availability of a
satisfactory means of redress.
Each Party shall encourage entities to publish their
technical specifications through a single point of access,
accessible free of charge. Where such publication is
provided, contracting entities shall be encouraged to
mention the address of  the single point of access in the
tender notice.(c) are willing to ensure that their
procurement regulations shall notnormally change during a procurementand, in the event that such change provesavoidable, to ensure the availability of a
satisfactory means of redress.
Each Party shall encourage entities to publish theirtechnical specifications on the internet through a singlepoint of access, accessible free of charge. Where suchpublication is provided, contracting entities shall be
encouraged to mention the address of the single point of
access in the tender notice.
2. Governments not Parties to the Agreement whichcomply with the conditions specified in paragraphs 1(a)through 1(c), shall be entitled if they so inform the Partiesto participate in the Committee as observers.
ARTICLE XVIII ARTICLE XVIII ARTICLE XVIII
Information and Review as Regards Obligations of
Entities
1. Entities shall publish a notice in the appropriate
publication listed in Appendix II not later than 72 daysafter the award of each contract under Articles XIIIthrough XV.  These notices shall contain at least:
(a) the nature and quantity of products or
services in the contract award by
referring to the relevant CPV code;
(b) the name and address of the entity
awarding the contract;
(c) the date of award;
(d) the name and address of winning
tenderer;1. Entities shall publish a notice in the appropriate
publication listed in Appendix II not later than 72 daysafter the award of each contract under Articles XIIIthrough XV.  These notices shall contain at least:
(a) the nature and quantity of products or
services in the contract award byreferring to the relevant CPV code;
(b) the name and address of the entity
awarding the contract;
(c) the date of award;
(d) the name and address of winning
tenderer;GPA/W/87
Page 40 (e) the value of the winning award or the
highest and lowest offer taken intoaccount in the award of the contract;
(f) where appropriate, means of identifying
the notice issued under paragraph 1 of
Article IX or justification according toArticle XV for the use of such procedure;and
(g) the type of procedure used.(e) the value of the winning award or the
highest and lowest offer taken intoaccount in the award of the contract;
(f) where appropriate, means of identifying
the notice issued under paragraph 1 of
Article IX or justification according toArticle XV for the use of such procedure;and
(g) the type of procedure used.
2. Each entity shall, on request from a supplier of aParty, promptly provide:
(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 existingqualification was brought to an end andwhy 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 ofthe tender selected as well as the name ofthe winning tenderer.
3. Entities shall promptly inform participatingsuppliers of decisions on contract awards and, uponrequest, in writing.
4. However, entities may decide that certaininformation on the contract award, contained in
paragraphs 1 and 2(c), be withheld where release of such
information would impede law enforcement or otherwisebe contrary to the public interest or would prejudice thelegitimate commercial interest of particular enterprises,public or private, or might prejudice fair competitionbetween suppliers.GPA/W/87
Page 41ARTICLE XIX ARTICLE XIX ARTICLE XIX
Information and Review as Regards Obligations of
Parties
1. Each Party shall promptly publish any law,regulation, judicial decision, administrative ruling ofgeneral application, and any procedure (including
standard contract clauses) regarding government
procurement covered by this Agreement, in theappropriate publications listed in Appendix IV and in sucha manner as to enable other Parties and suppliers tobecome 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 tendererwhich is a Party to this Agreement may seek, withoutprejudice to the provisions under Article XXII, such
additional information on the contract award as may be
necessary to ensure that the procurement was made fairlyand impartially. To this end, the procuring governmentshall provide information on both the characteristics andrelative advantages of the winning tender and the contractprice. Normally this latter information may be disclosed
by the government of the unsuccessful tenderer provided
it exercises this right with discretion. In cases whererelease of this information would prejudice competition infuture tenders, this information shall not be disclosedexcept after consultation with and agreement of the Party
which gave the information to the government of the
unsuccessful tenderer.
3. Available information concerning procurementby covered entities and their individual contract awardsshall be provided, upon request, to any other Party.GPA/W/87
Page 42 4. Confidential information provided to any Party
which would impede law enforcement or otherwise becontrary to the public interest or would prejudice thelegitimate commercial interest of particular enterprises,
public or private, or might prejudice fair competition
between suppliers shall not be revealed without formalauthorization from the party providing the information.
5.(new)   Contracting Parties shall ensure that contract
award notices (referred to in Article XVIII) are routinely
published for the vast majority of published notices and
made easily available on a permanent basis in an official
GPA language through a single point of access, accessible
free of charge.5.(new) Contracting Parties shall ensure that contract
award notices (referred to in Article XVIII) are routinely
published for the vast majority of published notices andmade easily available on a permanent basis in an officialGPA language through a single point of access, accessiblefree of charge.
5.6. Each  Where a Party does not comply with
paragraph 5, it shall collect and provide to the Committee
on an annual basis statistics on its procurements coveredby this Agreement.  Such reports shall contain thefollowing information with respect to contracts awarded,above the applicable threshold value, by all procurement
entities covered under this Agreement:6. Where a Party does not comply with paragraph 5,
it shall collect and provide to the Committee on an annualbasis statistics on its procurements covered by thisAgreement.  Such reports shall contain the followinginformation with respect to contracts awarded, above theapplicable threshold value, by all procurement entities
covered under this Agreement:The suggested amendments for paragraph 5 correspond with
the paper on statistical reporting that the EC submitted to theWTO in June 1998 in order to reduce the reportingrequirements.
For the time being statistical reporting within the GPA
framework does not function. Either we receive nothing at all
or at best information about a small fraction of publicprocurement contracts. We have the choice betweenabandoning statistical reporting (at least for practicalpurposes) or taking a proactive approach cutting down on our
requirements but insisting on as correct information as
possible.
We would like to have a better picture of public procurement
opportunities among the GPA members. Asking for estimatesof total public procurement in case the reported information
is incomplete (which it always is) will give us a possibility to
make a very public comparison between the figures reportedby the Member States and the figures calculated by us. Thismight lead to a serious discussion of the quality of the reportsand hopefully better quality information in the future.GPA/W/87
Page 43(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 ofcontracts awarded above the threshold
value on a global basis and broken down
by categories of entities;(a) for entities in Annex 1, statistics on the
estimated value of contracts awarded ona global basis and broken down byentities;  for entities in Annexes 2 and 3,
statistics on the estimated value of
contracts on a global basis and brokendown 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 categoriesof products and services according touniform classification systems; forentities 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 ofproducts and services;(b) for entities in Annex 1, statistics on the
number and total value of contracts
awarded, broken down by entities andcategories of products and servicesaccording to uniform classificationsystems;  for entities in Annexes 2 and 3,statistics on the estimated value of
contracts awarded broken down by
categories of entities and categories ofproducts 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 contracts awarded under
each of the cases of Article XV  in all
cases where limited tendering is used;
for categories of entities in Annexes 2and 3, statistics on the total value of
contracts awarded above the threshold
value under each of the cases of Article
XV in all cases where limited tendering
is used.; and(c) for entities in Annex 1, statistics, broken
down by entity and by categories of
products and services, on the number and
total value of contracts awarded in allcases where limited tendering is used;for categories of entities in Annexes 2and 3, statistics on the total value ofcontracts awarded above the threshold
value in all cases where limited tendering
is used.GPA/W/87
Page 44 (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.
6.            To t he extent that such information is available,
each Party shall provide statistics on the country of origin
of products and services purchased by its entities. With a
view to ensuring that such statistics are comparable, the
Committee shall provide guidance on methods to be used.
With a view to ensuring effective monitoring of
procurement covered by this Agreement, the Committee
may decide unanimously to modify the requirements of
subparagraphs (a) through (d) as regards the nature and
the extent of statistical information to be provided and the
breakdowns and classifications to be used.
7.(new)   Where any party has reason to believe that any of
the statistics it provides are incomplete it shall also
provide its best estimate of the true total numbers or value
of the information required in paragraph 5.7.(new) Where any party has reason to believe that any of
the statistics it provides are incomplete it shall alsoprovide its best estimate of the true total numbers or valueof the information required in paragraph 5.GPA/W/87
Page 45ARTICLE XX ARTICLE XX ARTICLE XX
Challenge Procedures
Consultations
1. In the event of a complaint by a supplier that
there has been a breach of this Agreement in the contextof a procurement, each Party shall encourage the supplierto seek solution of its complaint in consultation with the
procuring entity. In such instances the procuring entity
shall accord impartial and ti mely consideration to any
such complaint, in a manner that is not prejudicial toobtaining 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.1. In the event of a complaint by a supplier thatthere has been a breach of this Agreement in the contextof a procurement, each Party shall encourage the supplierto seek solution of its complaint in consultation with the
procuring entity. In such instances the procuring entity
shall accord impartial and ti mely consideration to any
such complaint, in a manner that is not prejudicial toobtaining 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.
Challenge
2. Each Party shall provide non-discriminatory,timely, transparent and effective procedures enablingsuppliers 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 its challenge proceduresin writing and make them generally available.
4. Each Party shall ensure that documentationrelating to all aspects of the process concerningprocurements covered by this Agreement shall be retainedfor three years.
5. The interested supplier may be required toinitiate a challenge procedure and notify the procuringentity within specified time-limits from the time when thebasis of the complaint is known or reasonably should havebeen known, but in no case within a period of less thanten days.GPA/W/87
Page 46 6. Challenges shall be heard by a court or by an
impartial and independent review body with no interest inthe outcome of the procurement and the members ofwhich 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 haveprocedures which provide that:
(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;
(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 topreserve commercial opportunities. Suchaction may result in suspension of theprocurement process. However,
procedures may provide that overriding
adverse consequences for the interestsconcerned, including the public interest,may be taken into account in decidingwhether such measures should be
applied. In such circumstances, just
cause for not acting shall be provided inwriting;
(b) an assessment and a possibility for a
decision on the justification of thechallenge;GPA/W/87
Page 47(c) correction of the breach of the
Agreement or compensation for the lossor damages suffered, which may belimited to costs for tender preparation orprotest.
8. With a view to the preservation of the
commercial and other interests involved, the challenge
procedure shall normally be completed in a timelyfashion.
9.            The Parties undertake to designate or establish an
independent body with a view to solve informally
problems encountered in gaining access to contracts.9. The Parties undertake to designate or establish anindependent body with a view to solve informally
problems encountered in gaining access to contracts.The Community will specify at a later stage the content of
such proposal.
ARTICLE XXI ARTICLE XXI ARTICLE XXI
Institutions
1. A Committee on Government Procurementcomposed of representatives from each of the Parties shallbe 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 affordingParties the opportunity to consult on any matters relatingto the operation of this Agreement or the furtherance of itsobjectives, and to carry out such other responsibilities asmay be assigned to it by the Parties.
2. The Committee may establish working parties orother subsidiary bodies which shall carry out suchfunctions as may be given to them by the Committee.GPA/W/87
Page 48ARTICLE XXII ARTICLE XXII ARTICLE XXII
Consultations and Dispute Settlement
1. The provisions of the Understanding on Rules
and Procedures Governing the Settlement of Disputesunder 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 beingnullified or impaired, or that the attainment of any
objective of this Agreement is being impeded as the result
of the failure of another Party or Parties to carry out itsobligations under this Agreement, or the application byanother Party or Parties of any measure, whether or not itconflicts with the provisions of this Agreement, it maywith 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 beconcerned. Such action shall be promptly notified to theDispute Settlement Body established under the DisputeSettlement 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.
3. The DSB shall have the authority to establishpanels, adopt panel and Appellate Body reports, make
recommendations or give rulings on the matter, maintain
surveillance of implementation of rulings andrecommendations, and authorize suspension ofconcessions and other obligations under this Agreement orconsultations regarding remedies when withdrawal ofmeasures 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 oractions taken by the DSB with respect to disputes underthis Agreement.GPA/W/87
Page 494. Panels shall have the following terms of
reference unless the parties to the dispute agree otherwisewithin 20 days of the establishment of the panel:
"To examine, in the light of the relevant
provisions of this Agreement and of (name of
any other covered Agreement cited by the partiesto the dispute), the matter referred to the DSB by(name of party) in document and to make suchfindings as will assist 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 thisAgreement and of one or more other Agreements listed inAppendix 1 of the Dispute Settlement Understanding areinvoked 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 thisAgreement.
5. Panels established by the DSB to examinedisputes under this Agreement shall include persons
qualified in the area of government procurement.GPA/W/87
Page 50 6. Every effort shall be made to accelerate the
proceedings to the greatest extent possible.Notwithstanding the provisions of paragraphs 8 and 9 ofArticle 12 of the Dispute Settlement Understanding, the
panel shall attempt to provide its final report to the parties
to the dispute not later than four months, and in case ofdelay not later than seven months, after the date on whichthe composition and terms of reference of the panel areagreed. Consequently, every effort shall be made to
reduce also the periods foreseen in paragraph 1 of
Article 20 and paragraph 4 of Article 21 of the DisputeSettlement Understanding by two months. Moreover,notwithstanding the provisions of paragraph 5 ofArticle 21 of the Dispute Settlement Understanding, thepanel 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 therecommendations and rulings, within 60 days.
7. Notwithstanding paragraph 2 of Article 22 of theDispute Settlement Understanding, any dispute arising
under any Agreement listed in Appendix 1 to the Dispute
Settlement Understanding other than this Agreement shallnot result in the suspension of concessions or otherobligations under this Agreement, and any dispute arisingunder this Agreement shall not result in the suspension ofconcessions or other obligations under any other
Agreement listed in the said Appendix 1.
ARTICLE XXIII ARTICLE XXIII ARTICLE XXIII
Exceptions to the Agreement
1. Nothing in this Agreement shall be construed to
prevent any Party from taking any action or not disclosingany information which it considers necessary for the
protection of its essential security interests relating to the
procurement of arms, ammunition or war materials, or toprocurement indispensable for national security or fornational defence purposes.GPA/W/87
Page 512. Subject to the requirement that such measures are
not applied in a manner which would constitute a meansof arbitrary or unjustifiable discrimination betweencountries where the same conditions prevail or a disguised
restriction on international trade, nothing in this
Agreement shall be construed to prevent any Party fromimposing or enforcing measures: necessary to protectpublic morals, order or safety, human, animal or plant lifeor health or intellectual property; or relating to the
products or services of handicapped persons, of
philanthropic institutions or of prison labour.
ARTICLE XXIV ARTICLE XXIV ARTICLE XXIV
Final Provisions
1. Acceptance and Entry into Force
This Agreement shall enter into force on
1 January 1996 for those governments whose agreedcoverage is contained in Annexes 1 through 5 of
Appendix I of this Agreement and which have, by
signature, accepted the Agreement on 15 April 1994 orhave, by that date, signed the Agreement subject toratification and subsequently ratified the Agreementbefore 1 January 1996.
2. Accession
Any government which is a Member of the
WTO, or prior to the date of entry into force of the WTOAgreement which is a CONTRACTING PARTY toGATT 1947, and which is not a Party to this Agreementmay accede to this Agreement on terms to be agreed
between that government and the Parties. Accession shall
take place by deposit with the Director-General of theWTO of an instrument of accession which states the termsso agreed. The Agreement shall enter into force for anacceding government on the 30th day following the dateof its accession to the Agreement.GPA/W/87
Page 523. Transitional Arrangements
(a) Hong Kong and Korea may delay
application of the provisions of thisAgreement, except Articles XXIand XXII, to a date not later than
1 January 1997. The commencement date
of their application of the provisions, ifprior to 1 January 1997, shall be notifiedto the Director-General of the WTO30 days in advance.
(b) During the period between the date of
entry into force of this Agreement andthe 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 GovernmentProcurement done at Geneva on12 April 1979 as amended on
2 February 1987 (the "1988 Agreement")
shall be governed by the substantiveprovisions of the 1988 Agreement,including its Annexes as modified orrectified, which provisions areincorporated herein by reference for that
purpose and shall remain in force until
31 December 1996.
(c) Between Parties to this Agreement which
are also Parties to the 1988 Agreement,the rights and obligations of thisAgreement shall supersede those under
the 1988 Agreement.GPA/W/87
Page 53(d) Article XXII shall not enter into force
until the date of entry into force of theWTO Agreement. Until such time, theprovisions of Article VII of the 1988Agreement shall apply to consultations
and dispute settlement under this
Agreement, which provisions are herebyincorporated in the Agreement byreference for that purpose. Theseprovisions 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 WTObodies shall be construed as referring tothe corresponding GATT body and
references to the Director-General of the
WTO and to the WTO Secretariat shallbe construed as references to,respectively, the Director-General to theCONTRACTING PARTIES toGATT 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 laterthan the date of entry into force of thisAgreement for it, the conformity of itslaws, regulations and administrativeprocedures, and the rules, procedures and
practices applied by the entities
contained in its lists annexed hereto, withthe provisions of this Agreement.GPA/W/87
Page 54 (b) Each Party shall inform the Committee
of any changes in its laws andregulations relevant to this Agreementand 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 exceptionalcases, other modifications relating to
Appendices I through IV shall be notified
to the Committee, along with informationas to the likely consequences of thechange for the mutually agreed coverageprovided in this Agreement. If therectifications, transfers or other
modifications are of a purely formal or
minor nature, they shall become effectiveprovided there is no objection within30 days. In other cases, the Chairman ofthe Committee shall promptly convene ameeting of the Committee. The
Committee shall consider the proposal
and any claim for compensatoryadjustments, with a view to maintaininga balance of rights and obligations and acomparable level of mutually agreed
coverage provided in this Agreement
prior to such notification.  In the event ofagreement not being reached, the mattermay be pursued in accordance with theprovisions contained in Article XXII.GPA/W/87
Page 55(b) Where a Party wishes, in exercise of its
rights, to withdraw an entity fromAppendix I on the grounds thatgovernment control or influence over it
has been effectively eliminated, that
Party shall notify the Committee.  Suchmodification shall become effective theday after the end of the followingmeeting of the Committee, provided that
the meeting is no sooner than 30 days
from the date of notification and noobjection has been made.  In the event ofan objection, the matter may be pursuedin accordance with the procedures onconsultations and dispute settlement
contained in Article XXII.  In
considering the proposed modification toAppendix I and any consequentialcompensatory adjustment, allowanceshall be made for the market-openingeffects of the removal of government
control or influence.
7. Reviews, Negotiations and Future Work
(a) The Committee shall review annually the
implementation and operation of thisAgreement taking into account the
objectives thereof. The Committee shall
annually inform the General Council ofthe WTO of developments during theperiods covered by such reviews.GPA/W/87
Page 56 (b) Not later than the end of the third year
from the date of entry into force of thisAgreement and periodically thereafter,the Parties thereto shall  undertake
further negotiations, with a view to
improving this Agreement and achievingthe greatest possible extension of itscoverage among all Parties on the basisof 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 andpractices which distort open procurementand shall, in the context of negotiationsunder subparagraph (b), seek to eliminate
those which remain on the date of entry
into force of this Agreement.
8. Information Technology
With a view to ensuring that the Agreement does
not constitute an unnecessary obstacle to technicalprogress, Parties shall consult regularly in the Committeeregarding developments in the use of informationtechnology in government procurement and shall, ifnecessary, negotiate modifications to the Agreement.
These consultations shall in particular aim to ensure that
the use of information technology promotes the aims ofopen, non-discriminatory and efficient governmentprocurement through transparent procedures, thatcontracts covered under the Agreement are clearlyidentified 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 theviews expressed by other Parties regarding any potentialproblems.GPA/W/87
Page 579. Amendments
Parties may amend this Agreement having
regard, inter alia , to the experience gained in its
implementation. Such an amendment, once the Partieshave 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 ofwithdrawal is received by the Director-General of the WTO. Any Party mayupon such notification request animmediate meeting of the Committee.
(b) If a Party to this Agreement does not
become a Member of the WTO withinone year of the date of entry into force ofthe WTO Agreement or ceases to be aMember of the WTO, it shall cease to bea 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.GPA/W/87
Page 5813. 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, ofeach rectification or modification thereto pursuant toparagraph 6 and of each amendment thereto pursuant toparagraph 9, and a notification of each acceptance thereof
or accession thereto pursuant to paragraphs 1 and 2 and of
each withdrawal therefrom pursuant to paragraph 10 ofthis Article.
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, inthe English, French and Spanish languages, each textbeing authentic, except as otherwise specified with respect
to the Appendices hereto.
__________