RESTRICTED  
  
GPA/TN1994/2/Rev.4  
1 October  1999 
(24-2767) Page: 1/88 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article  XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994   
 
  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT*,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meetings held in the period February to September  1999, delegations proceeded 
with the article -by-article examination of the Agreement on the basis of a note containing a 
two-column table prepared by the Secretariat, the latest version of which was circulated as 
Job No. 5074.  At the meeting of 16  September  1999, it was agreed that an updated version of the 
note would be prepared  also reflecting in it the comments made at that meeting.  
 
For each of the Articles of the Agreement, the left column contains the text of the 1994  Agreement 
and the right column indicates the proposals for modifications to the individual Articles that hav e 
been suggested since February  1997. Square brackets have been employed to indicate alternative 
proposals on the same text.  Under each of the paragraphs of the Articles, any comments made 
specifically on those paragraphs have been included.  This note shou ld be read in conjunction with 
the tenth revision of the Checklist of Issues (Job No. 5189), dated 7  September  1999, and, in 
particular, section 1(g) of that document which contains a more detailed explanation of the reasons 
for the proposals for modificat ions and of the reactions of delegations to those proposals.  
 
 
* English only .  
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs16) was derestricted on 8 November 2023.  GPA/TN1994/2/Rev.4  
- 2 - 
  Article I:1, 2  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I.1 
 
1 For each Party, Appendix I is divided into 
five Annexes:  
- Annex 1 contains central government entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contai ns all other entities that procure 
in accordance with the provisions of this 
Agreement.  
- Annex 4 specifies services, whether listed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction services.  
Relevant thresholds  are specified in each Party's 
Annexes.  
 1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement falling within the scope of 
Article III, paragraph  8 of the GATT and 
Article  XIII, paragraph  1 of GATS by 
entities covered by this Agreement, as 
specified in Appendix  I. 
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The proposed modification is intended to avoid misunderstandings with regard to the meaning 
of public procurement without actually defining the term.  This modification is not intended to 
have the effect of precluding existing derogations, for instance, reciprocity -based derogations, 
under the current Agreement.  [EC in response to clarification sought from Japan and Hong 
Kong, China]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by 
any contractual means, including through such 
methods as purchase or as lease, rental or hire 
purchase, with or without an option to buy, 
including any combination of pro ducts and 
services.  
  
 
Comments  
 
• The paragraph should include a reference to forms of procurement under new phenomena 
(partnerships between private and public sectors, multiplication of "Build Operate Transfer" 
(BOT) operations, joint ventures).  [Job No. 5074]  
• This Article should contain a definition of the term "government procurement" which focuses 
on the status of the end -user rather than the purchasing agent.  [Hong Kong, China]  
 
 GPA/TN1994/2/Rev.4  
- 3 - 
  Article I:3, 4  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in the context of 
procurement covered under this Agreement, 
require enterprises not included in Appendix I to 
award contracts in accordance with particular 
requirements, Article  III shall apply mutatis 
mutandis  to such requirements.  
  
4. This Agreement applies to any 
procurement contract of a value of not less than 
the relevant threshold specified in Appendix I.  4. Without prejudice to Article  XXIII, 
this Agreement applies to any procurement 
contract:  
(a) of central government entities of a 
value of not less than   
- 130,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(b) of sub -central government entities 
of a value of not less than  
- 200,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(c) of entities according to Appendix  I, 
Annex 3 of a value of not less than  
400,000 SDR for contracts for 
supply of product s and services  
- 5,000,000 SDR f or contracts  for 
public works  
[EC – GPA/W/ 87] 
 
 
Comments  
 
With regard to the harmonized thresholds:  
 
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmonization of thresholds should not be stipulated in the Agreement.  It would be 
inappropriate to include harmonized thresholds in the main body of the Agreement in view of 
the balance of commitments  in Appendix I between Parties in relation to the coverage of 
entities, goods and services as well as thresholds.  [Japan . Korea]  
• While harmonization of thresholds furthers the Committee's aim to streamline the Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices and cannot be dealt with simply through amendments to the text.  
[US] 
• Although there may be a link between thresholds and coverage, there is not necessarily a 
clear effect on the balance of offers that have been negotiated because offers relate more to 
the entities that are covered and not necessarily to the thresholds.  [EC] 
 GPA/TN1994/2/Rev.4  
- 4 - 
  With regard to the term "public works":  
 
• Clarification was sought in relation to the differen ce between "public works" and construction 
services.  [Japan]  
• Construction services are considered to be more or less equivalent to public works.  [EC] 
 
  GPA/TN1994/2/Rev.4  
- 5 - 
  Article II:1, 2, 3  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFIC ATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes 
of implementing this Agreement.  
 
2 This Agreement shall apply to any procurement 
contract for which the contract value is estimated to 
equal or exceed the threshold at the time of publication 
of the notice in accordance with Article IX.   
 
 
 
2 This Agreement shall apply to any procurement 
contract for which the contract value is estimated 
to equal or exceed the threshold at the time of 
the publication of the notice in accordance with 
Article  IX or at the time of first contact with the 
supplier in the case of limited tendering.  [Japan]  
 
 
Comments  
 
• The language of footnote 2 should be aligned with that of Article I:4 on threshold values.  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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 
the entity shall not be used, nor shall any 
procurement requirement be divided, with the 
intention of avoiding the application of this 
Agreement.  
  
 GPA/TN1994/2/Rev.4  
- 6 - 
  Article II:4  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. If an individual requirement for a 
procurement results in the award of more than 
one contract, or in contracts being awarded in 
separate parts, the basis for valuation shall be 
either:  
  
(a) the actual value of similar recurring 
contracts concluded over the previous 
fiscal year or 12 months adjusted, 
where possible, for anticipated changes 
in quantity and value over the 
subsequent 12 months;  or 
  
(b) the estimated value of recurring 
contracts in the fiscal year or 
12 months subsequent to the initial 
contract .  
 
Comments  
 
• What is meant by the reference to a 12 months period?  If the final value of a contract which 
runs for more than one year, for example, a road maintenance contract, is unknown until the 
works have been completed, should the basis of coverage be the estimated value for one year 
or the value for the full period of the contract?  Should the contr act be broken down into 
one-year periods because of the reference to 12 months in paragraphs (a) and (b)?  [Hong 
Kong, China]  
• Individual contracts with values below the threshold values resulting from the practice of 
slicing up contracts should also be subj ect to the provisions of this Agreement.  [US] 
 GPA/TN1994/2/Rev.4  
- 7 - 
  Article II  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph  
 
For contracts of an indefinite value, or for 
contracts involving the award of a contract 
to multiple suppliers or service providers, 
the basis for valuation shall be either:  
 
(a) the maximum total estimated value 
of the procurement that could be 
awarded under the contract; or  
(b) [where the total estimated value is 
not stated, [Singapore – 
Job No. 5271]]  the estimated value 
of the contract shall automatically be 
considered to be above the threshold 
values provided for in the national 
annexes to the GPA for the purposes 
of coverage under the Agreement.  
[US – Job No.  2795]  
 
 
Comments  
 
• How would the proposed provision apply to low value contracts, for example those entered 
into by small local authorities?  Under such contracts, even over a period of several years, the 
threshold values stipulated in the Agreemen t may not be exceeded.  [Norway, Canada]  
• The concept of maximum total estimated value can be elaborated to deal with the concern 
regarding low value contracts.  [US] 
• The total estimated value of a contract is not necessarily published.  [Canada]  
 GPA/TN1994/2/Rev.4  
- 8 - 
  Article II: 5, 6 
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental 
or hire purchase of products or services, or in the 
case of contracts which do not specify a total 
price, the basis for valuation shall be:  
  
(a) in the case of fixed -term contracts, 
where their term is 12  months or less, 
the total contract value for their 
duration, or, where their term exceeds 
12 months, their total value including 
the estimated residual value;  
  
(b) in the case of contracts for an indefinite 
period, the monthly instalment 
multiplied 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 
specifies the need for option clauses, the basis 
for valuation shall be the total value of the 
maximum permissible procurement, inclusive of 
optional purchases.  
  
 
 GPA/TN1994/2/Rev.4  
- 9 - 
  Article III  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  
 Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the 
procurement of its covered entities takes 
place in a transparent, reasonable and 
non-discriminatory manner, treating any 
supplier of any Party equally, and ensuring 
the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• Would the proposed provision still allow for the reciprocity provisions?  [Hong Kong, China]  
• The reciprocity provisions would not be affected as implied by the wor ding "treating any 
supplier of any Party equally".  [EC] 
• The rationale behind the reference to "open and effective competition" is that market forces 
are working and that suppliers can openly compete.  [EC in response to clarification sought by 
Japan and US] 
• The consistency of term "open and effective competition" with the use of selective and limited 
tendering procedures should also be clarified.  [US] 
 GPA/TN1994/2/Rev.4  
- 10 - 
  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall provide immediately and 
unconditionally to the products, services and 
suppliers of othe r Parties offering products or 
services of the Parties, treatment no less 
favourable than:  
  
(a) that accorded to domestic products, 
services and suppliers;  and 
  
(b) that accorded to products, services and 
suppliers of any other Party.  
  
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
  
(a) that its entities shall not treat a 
locally -established supplier less 
favourably than another 
locally -established supplier on the basis 
of degree of foreign affiliation or 
ownership;  and 
  
(b) that its entities shall not discriminate 
against locally  established suppliers on 
the basis of the country of production 
of the good or service being supplied, 
provided that the country of production 
is a Party to the Agreement in 
accordance with the provisions of 
Article  IV. 
  
 
Comments  
 
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership" in paragr aph 2(a).  [Hong Kong, China;  US] 
• The term "foreign affiliation or ownership" seems to apply both to Parties and non -Parties to 
the Agreement.  The consistency of the scope of this provision with that of paragraph 1 should 
be reviewed.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.4  
- 11 - 
  Article III:3  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall 
not apply to customs duties and charges of any 
kind imposed on or in connection with 
importation, the method of levying such duties 
and charges, other import regulations and 
formalities, and measures affecting trade in 
services other than laws, regulations, procedures 
and practices regarding government 
procurement covered b y this Agreement.  3. This Article shall not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations and formalities, 
and measures affecting trade in services 
other than laws, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 new paragraph 4  
 
[For procurements awarded to more than 
one supplier][Where contracts are awarded 
to more than one supplier under the same 
procurement [Hong Kong, China]], Parties 
shall ensure that each awardee [winning 
tenderer [Hong Kong, China]] is provided a 
fair opportunity to be considered for each 
transaction under the procurement on a 
non-discriminatory bas is. 
[US - Job No. 2795]  
 
 
Comments  
 
• The term "transaction" in the proposed new paragraph (4) should be clarified.  
[Hong  Kong,  China]  
 GPA/TN1994/2/Rev.4  
- 12 - 
  Article IV:1, 2  
 
Rules of Origin  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to 
products or services imported or supplied for 
purposes of government procurement covered 
by this Agreement from other Parties, which are 
different from the rules of origin applied in the 
normal course of trade and at the time of the 
transaction in question to imports or 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 for goods to be undertaken under the 
Agreement on Rules of Origin in Annex 1A of the 
Agreement Establishing the World Trade 
Organization (hereinafter referred to as "WTO 
Agreement") and negotiations regarding trade in 
services, Parties shall take the results of that 
work programme and those negotiation s into 
account in amending paragraph  1 as 
appropriate.  
  
 
Comments  
 
• The issue of rules of origin of services should be taken up in the discussion concerning the 
extension of the Agreement to services.  
 GPA/TN1994/2/Rev.4  
- 13 - 
  Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 new paragraph  
 
Upon accession to the Agreement, a 
developing country shall enjoy all the 
benefits of the Agreement.  
It shall be obliged to comply with the 
obligations under this Agreement:  
- at central government level X years 
after accession  
- at sub -central government level  Y 
years after accession  
- as far as entities under Appendix  I, 
Annex 3 are concerned Z years 
after accession.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The proposed amendment may go beyond the aim of simplification of the existing provisions.  
[Japan]  
• A possible effect of the proposed amendment could be that developing countries are deterred 
from joining the Agreement.  [Korea]  
• The provisions of the existing Article are complicated and the Article hasn't served its intended 
purpose.  The current text of Article V is more likely t o deter developing countries from joining 
the Agreement.  [EC] 
• The reference to compliance with "the obligations under this Agreement" might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in time.  
[US] It should mean that only the negotiated coverage would come into effect at that point in 
time. [US; EC] 
• Providing a generic transitional period for central or sub -central government coverage for 
every acceding member might not be appropriate.  [US] 
 GPA/TN1994/2/Rev.4  
- 14 - 
  Article  V:1, 2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
  
1. Parties shall, in the implementation and 
administration of this Agreement, through the 
provisions set out in this Article, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least-developed countries, in their need to:  
  
(a) safeguard their balance -of-payments 
position and ensure a level of reserves 
adequate for the implementation 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;  
  
(c) support industrial units so long as they 
are wholly or substantially dependent 
on government procurement;  and 
  
(d) encourage their economic development 
through regional or global 
arrangements among developing 
countries presented to the Ministerial 
Conference of the World Trade 
Organization (hereinafter referred to as 
the "WTO") and not disapproved by it.  
  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and 
procedures affecting government procurement, 
facilitate increased imports from developing 
countries, bearing in mind the special problems 
of least -developed countries and of those 
countries  at low stages of economic 
development.  
  
 
 
 
 
 
 
 
 GPA/TN1994/2/Rev.4  
- 15 - 
  Article  V:3 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing 
countries are able to adhere to this Agreement 
on terms consistent with their development, 
financial and trade needs, the objectives listed in 
paragraph  1 shall be duly taken into account in 
the course of negotiations with respect to the 
procure ment of developing countries to be 
covered by the provisions of this Agreement.  
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procuring products and services of e xport 
interest to developing countries.  
  
 
Comments  
 
• The issue of granting developing countries non -reciprocal access to procurement markets of 
Parties should be explored.  [Job No. 5074]  GPA/TN1994/2/Rev.4  
- 16 - 
  Article V:4  
 
Special and Differential Treatment for Developing Coun tries 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with 
other participants in negotiations under this 
Agreement mutually acceptable exclusions from 
the rules on national treatment with respect to 
certain entities, products or services that are 
included in its coverage lists, having regard to 
the particular circumstances of each case.  In 
such negotiations, the considerations mentioned 
in subparagraphs  1(a) through 1(c) shall be duly 
taken into account.  A developing country 
participating in regional or global arrangements 
among developing countries referred to in 
subparagraph  1(d) may also negotiate 
exclusions to its lists, having regard to the 
particular circumstanc es 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 
programm es. 
  
 
Comments  
 
• Further flexibility should be provided in the evaluation of offers from developing countries with 
respect to non -discriminatory treatment and in the application of the procedural provisions.  
[Job No. 5074]  GPA/TN1994/2/Rev.4  
- 17 - 
  Article V:5, 6, 7, 8  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
5. After entry into force of this Agreement, a 
developing country Party may modify its 
coverage lists in accordan ce 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 subparag raphs  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.  
  
 
 
 
Technical 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.  
  GPA/TN1994/2/Rev.4  
- 18 - 
  Article V:9, 10, 11  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on 
the basis of non -discrimination among 
developing country Par ties, 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.  
  
 
Comments  
 
• The provisions on technical cooperation should be extended to take account of the needs of 
developing countries to adjust to new developments in the application of information 
technology to government procurement.  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to 
respond to reasonable requests from developing 
country Parties for information relating to, 
inter alia, laws, regulations, procedures and 
practices regarding governm ent procurement, 
notices about intended procurements which have 
been published, addresses of the entities 
covered by this Agreement, and the nature and 
volume of products or services procured or to be 
procured, including available information about 
future tenders.  The Committee may also set up 
an information centre.  
  GPA/TN1994/2/Rev.4  
- 19 - 
  Article V:12, 13, 14  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed 
Countries  
  
12. Having regard to paragraph  6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28  November  1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), special treatment shall be 
granted to least -developed country Parties and 
to the suppliers in those Parties with respect to 
products or services originating in those Parties, 
in the context of any general or specific 
measures in favour of devel oping 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, up on 
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 i n 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.  
  
Review  
  
14. The Committee shall review annually the 
operation and effectiveness of this Article and, 
after each three years of its operation on the 
basis of reports to be submitted by Parties, shall 
carry out a major review in order to evaluate its 
effects.  As part of the three -yearly reviews and 
with a vie w 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 
wheth er exclusions provided for in accordance 
with the provisions of paragraphs  4 through 6 of 
this Article shall be modified or extended.  
  GPA/TN1994/2/Rev.4  
- 20 - 
  Article V:15  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. In the course of further rounds of 
negotiations in accordance with the provisions of 
paragraph  7 of Article  XXIV, each developing 
country Party shall give consideration to the 
possibility of enlarging its coverage lists, having 
regard to its economic, financial and trade 
situation.  
  
 GPA/TN1994/2/Rev.4  
- 21 - 
  Article VI:1, 2  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symbols, terminology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformity assessment 
procedure s prescribed by procuring entities, 
shall not be prepared, adopted or applied with a 
view to, or with the effect of, creating 
unnecessary obstacles to international trade.  
 1. Technical specifications laying down 
the characteristics of the products or 
services to be procured, such as quality, 
performance, safety and dimensions, 
symbols, terminology, packaging, marking 
and labelling, or the processes and methods 
for their production and requirements 
relating to conformity assessment 
procedures prescribed by procuring 
entities, shall 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, creatin g unnecessary 
obstacles to international trade.  
[EC – GPA/W/87 ; Hong Kong, China]  
 
2. Technical specifications prescribed by 
procuring entities shall, where appropriate:  
 
(a) be in terms of performance rather than 
design or descriptive characteristics;  
and 
 
(b) be based on international standards, 
where such exist;  otherwise, on 
national technical regulations3, 
recognized national standards 4, or 
building codes.  
 
3 For the purpose of this Agreement, a technical 
regulation is a document wh ich lays down 
characteristics of a product or a service or their related 
processes and production methods, including the 
applicable administrative provisions, with which 
compliance is mandatory.  It may also include or deal 
exclusively with terminology, sym bols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
 
4 For the purpose of this Agreement, a standard is a 
document approved by a recognized body, that 
provides, for common and repeated use, r ules, 
guidelines or characteristics for products or services or 
related processes and production methods, with which 
compliance is not mandatory.  It may also include or 
deal exclusively with terminology, symbols, packaging, 
marking or labeling requirements  as they apply to a 
product, service, process or production method.  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;  
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 
(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;  
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 
(c) procuring entities shall not reject 
bids which [do not comply with the 
standard, regulation or code to 
which the technical specifications 
refer, but  do[EC – GPA/W/87 ]] 
meet the essential requirements 
thereof and are fit for the purpose 
intended.  
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 GPA/TN1994/2/Rev.4  
- 22 - 
  Comments  
 
• The second sentence with subparagraphs ("This means …") should be deleted.  [Hong Kong, 
China;  Korea].  
• The meaning of the term "unnecessary obstacles to international trade" should be clarified. 
[Job No. 5074]  
• Paragraphs (b) and (c) of the EC proposal are directly contradictory.  The combined effect of 
paragraphs  (b) and  (c) nullifies the requirement to use international standards because bids 
whether they meet international standards or not, cannot be rejected.  Paragraph (c) should 
focus on essential requirements.  It appears to make more sense to refer to "essential 
requirements" in paragraph (c).  [Singapore - Job No. 5271]  
In relation to subparagraph (b):  
 
• Reference to international standards may place excessive restrictions on procuring entities' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambigu ity associated with what constitutes an "international standard" and the 
procedure according to which those standards are set [Korea;  Canada;  US]. Subparagraph  (b) 
should make reference to voluntary compliance with market -based standards instead of 
interna tional standards.  [US] 
• The proposal should be clarified whether an implication of a requirement on procuring entities 
to accept specifications that comply with international standards would be the delegation of 
the certification process to an independent e xpert.  [Japan]  
 GPA/TN1994/2/Rev.4  
- 23 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Where tender documents lay down 
technical specifications by way of 
reference, the following provisions shall 
apply:  
 
 (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 
infor mation 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;  
[EC – GPA/W/87 ] 
 
 (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.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• What is meant by "without prejudice to  legally binding national technical regulations"?  [Japan]  GPA/TN1994/2/Rev.4  
- 24 - 
  Article VI:3, 4  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and provided that words such as 
"or equivalent" are included in the tender 
documenta tion. 
  
 
Comments  
 
• Paragraphs  1 and  2, which relate more to non -discrimination, should be separated from 
paragraph  3 describing the types of procurement procedures and be placed in Article  III. [Job 
No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may be 
used in the preparation of specifications for a 
specific procurement from a firm that may have 
a commercial  interest in the procurement.  
  
 
• The location of Article VI should be changed in order to reflect the close association of the 
provisions on technical specifications with those on tender documentation.  [Job No. 5074]  
 
 GPA/TN1994/2/Rev.4  
- 25 - 
  Article VII:1, 2  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VII  
 
Tendering Procedures  
 Article VII  
 
Methods of Procurement  
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a 
non-discriminatory manner and are consistent 
with the provisions contained in Articles  VII 
through XVI.  
 1. Each Party shall ensure that the 
tendering procedures of its entities are 
applied in a non -discriminatory manner and 
are consistent with the provisi ons 
contained in Articles VII through XVI.  
2. Entities shall not provide to any supplier 
information with regard to a specific 
procurement in a manner which would have the 
effect of precluding competition.  
 2.  Entities shall not provide to any 
supplier i nformation with regard to a 
specific procurement in a manner which 
would have the effect of negatively 
affecting competition.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The provisions on tendering procedures should be reviewed to accommodate the use of 
two-stage tendering and electronic catalogues.  [Job No. 5074]  
• These two paragraphs relate more to non -discrimination and could be shifted to Article III.  
 GPA/TN1994/2/Rev.4  
- 26 - 
  Article VII:3  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
(a) Open tendering procedures are those 
procedures under which all interested 
suppliers may submit a tender.  
 (a) Open tenders are those which are 
posted in a medium which is [in the 
public domain] [readily available 
to both local and foreign 
suppliers], and which all interested 
suppliers may submit a tender.  
 
(b) Selective tendering procedures are 
those procedures under which, 
consistent with paragraph 3 of Ar ticle X 
and other relevant provisions of this 
Agreement, those suppliers invited to 
do so by the entity may submit a 
tender.  (b) Selective tenders are those which, 
consistent with paragraph  3 of 
Article X and other relevant 
provisions of this Agreement, 
selected suppliers are invited to do 
so by the entity, and the 
information on the tender is not 
posted in a medium which is [in the 
public domain] [readily available 
to both local and foreign 
suppliers].  
 
(c) Limited tendering procedures are those 
procedure s where the entity contacts 
suppliers individually, only under the 
conditions specified in Article  XV. 
 (c) Limited tenders are those where 
the entity contacts suppliers 
individually, only under the 
conditions specified in Article XV.  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.4  
- 27 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of 
Suppliers  
 
In the process of qualifying suppliers, entities 
shall not discriminate among suppliers of other 
Parties or between domestic suppliers and 
suppliers of other Parties.  Qualification 
procedures shall be consistent with the 
following:  
 1. Entities maintaining pe rmanent lists 
of qualified suppliers shall not discriminate 
among suppliers of other Parties or 
between domestic suppliers and suppliers 
of other Parties.  Qualification procedures 
shall be consistent with the following:  
(a) any conditions for participatio n in 
tendering procedures shall be 
published in adequate time to enable 
interested suppliers to initiate and, to 
the extent that it is compatible with 
efficient operation of the procurement 
process, complete the qualification 
procedures;  
 (a) any supplier may apply for 
qualification at any time;  and all 
qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.4  
- 28 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) any conditions for participation in 
tendering procedures shall be limited to 
those which are essential to ensure the 
firm's capability to fulfil the contract in 
question.  Any conditions for 
participation requi red from suppliers, 
including financial guarantees, 
technical qualifications and information 
necessary for establishing the financial, 
commercial and technical capacity of 
suppliers, as well as the verification of 
qualifications, shall be no less 
favourabl e to suppliers of other Parties 
than to domestic suppliers and shall not 
discriminate among suppliers of other 
Parties.  The financial, commercial and 
technical capacity of a supplier shall be 
judged on the basis both of that 
supplier's global business acti vity as 
well as of its activity in the territory of 
the procuring entity, taking due 
account of the legal relationship 
between the supply organizations;  
 (b) if registration as a permanent 
qualified supplier is a pre -requisite 
for participation in an intended 
procurement, and a supplier  not yet 
qualified requests to participate in 
the intended procurement, the 
[entity shall promptly start 
procedures for qualification] 
[supplier shall not be denied the 
opportunity to participate simply 
on the basis that the supplier is not 
on the entity's  permanent list of 
qualified suppliers];  
[Singapore – Job No. 3772]  
 
(c) the process of, and the time required 
for, qualifying suppliers shall not be 
used in order to keep suppliers of other 
Parties off a suppliers' list or from being 
considered for a par ticular intended 
procurement.  Entities shall recognize 
as qualified suppliers such domestic 
suppliers or suppliers of other Parties 
who meet the conditions for 
participation in a particular intended 
procurement.  Suppliers requesting to 
participate in a par ticular intended 
procurement who may not yet be 
qualified shall also be considered, 
provided there is sufficient time to 
complete the qualification procedure;  
 (c) any supplier having requested to 
become a qualified supplier shall 
be advised by the entities 
concerned of the decision in this 
regard.  Qualified suppliers 
included on permanent lists by 
entities shall also be notified of the 
termination of any such lists or of 
their removal from them;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• With respect t o Article VIII:(b) of the Agreement, ways should be found to reduce 
administrative burdens on suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  GPA/TN1994/2/Rev.4  
- 29 - 
  Article VIII  
 
Qualification of Suppli ers 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) entities maintaining permanent lists of 
qualified suppliers shall ensure that 
suppliers may apply for qualification at 
any time;  and that all qualified 
suppliers so requesting are included in 
the lists within a reasonably short time;  
 (d) each Party shall ensure that:  
 
(i) each entity and its constituent 
parts follow a single qualification 
procedure, except in cases of duly 
substantiated need for a different 
procedure , and  
 
(ii) efforts be made to minimize 
differences in qualification 
procedures between entities;  
[Singapore – Job No. 3772]  
 
(e) if, after publication of the notice under 
paragraph 1 of Article  IX, a supplier not 
yet qualified requests to participate in 
an intended procurement, the entity 
shall promptly start procedures for 
qualification;  
  
(f) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of the 
decision in this regard.  Qualified 
suppliers included on permanent lists 
by entities shall also be notified of the 
termination of any such lists or of their 
removal from them;  
  
(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.  
  
 GPA/TN1994/2/Rev.4  
- 30 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) nothing in subparagraphs (a) through 
(g) shall preclude the exclusion of any 
supplier on grounds such as bankruptcy 
or false declarations, provided that 
such an action is consistent wit h the 
national treatment and 
non-discrimination provisions of this 
Agreement.  
 (e) nothing in subparagraphs (a) 
through (d) shall preclude the 
exclusion of any supplier on 
grounds such as bankruptcy or 
false declarations, provided that 
such an action is co nsistent with 
the national treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 2. The process of, and the time required 
for, qualifying suppliers to permanent lists 
maintained by the entity shall not be used 
in order to keep suppliers of other Parties 
off a suppliers' list or from being considered 
for a particular intended procurement.  
Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet the 
conditions for  participation in a particular 
intended procurement.  [Suppliers 
requesting to participate in a particular 
intended procurement who may not yet be 
qualified shall also be considered, provided 
there is sufficient time to complete the 
qualification procedure. ] 
[Singapore – Job No. 3772]  
 
Comments  
 
• Alternatively, paragraph 1(b) above can be expanded to cover the point in paragraph 2 of the 
Singapore proposal [Singapore – Job No. 3772]  
 GPA/TN1994/2/Rev.4  
- 31 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers for 
participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreement, ensure that their 
procedures are consi stent with the following:  
 (a) the invitation to be considered for 
pre-qualification shall be published in 
adequate time to enable interested 
suppliers to submit proper 
documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to those 
which are essential to ensure the firm's 
capability to fulfil the contract in 
question.  Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and informati on necessary 
for establishing the financial, commercial 
and technical capacity of suppliers, as 
well as the verification of qualifications, 
shall be no less favourable to suppliers of 
other Parties than to domestic suppliers 
and shall not discriminate amon g 
[against] suppliers of other Parties.  The 
financial, commercial and technical 
capacity of a supplier shall be judged on 
the basis both of that supplier's global 
business activity as well as of its activity 
in the territory of the procuring entity, 
taking  due account of the legal 
relationship between the [supply 
organizations] [business units of the 
supplier in different territories].  
[Singapore – Job No. 3772]  
 
 Entities maintaining permanent lists of qualified 
suppliers with a duration of more than three 
years shall publish annually in one of the 
publications listed in Appendix III a notice 
containing the information referred to in 
sections  (i) through (iii) of Article IX:3.  
[United States – GPA/W/85 ] 
 GPA/TN1994/2/Rev.4  
- 32 - 
  Article IX:1  
 
Invitation to Participate Regarding In tended Procurement  
 
Comments  
 
• The terms "invitation to participate for all cases of intended procurement", "notice of proposed 
procurement", "notice of planned procurement" and "notice regarding a qualification system" 
should be clarified.  
• A footnote shoul d be added defining "publication" to include either electronic or paper 
publication of notices and to indicate that electronic publication is on the Internet or in one 
location and is accessible worldwide by telephone.  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article  XV (limited 
tendering).  The notice s hall be published in the 
appropriate publication listed in Appendix  II. 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (li mited tendering).  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 [ delete 
Singapore – Job No. 5271]] through a 
single point of access.  
Each Party shall notify to the other Parties 
this single point of access.  [Entities shall 
not charge for access to invitations to 
participate [Singapore – Job No. 5271]]  
[EC – GPA/W/87 ; Singapore  – Job 
No. 5271]  
 
 
Comments  
 
With regard to the proposed requirement that procurement notices should be provided "free of 
charge":  
 
• This proposal raises concerns.  [Hong Kong, China ] Would there be a benefit by shifting the 
costs of publication from suppliers to taxpayers?  [Canada]  
• The intent of the Additional wording by Singapore is to explicitly state what is provided free 
of charge, as opposed to a blanket free of charge formulation.  The telephone line, the 
computer, the Internet Service Provider f ees are not free of charge.  The current 
paragraph  6(g) of Article IX also refers to "the amount and terms of payment of any sum 
payable for the tender documentation".  Hence, it would be better to explicitly state what is 
provided free of charge.  [Singapore  – Job No. 5271]  
With regard to other points:  
 
• The establishment of "a single point of access" is technically feasible.  However, it is 
questionable whether the benefits would be worth the significant cost and undue burden 
associated with introducing this s ystem for Parties with decentralised systems and for 
developing countries.  [US] 
• The term "widest possible access" has been used to avoid referring to the Internet in 
recognition of the fact that other technological advance may emerge which also promote 
transparency.  [EC] GPA/TN1994/2/Rev.4  
- 33 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Except as provided for in Article XV 
(provisions for the use of limited tendering 
procedures) and paragraph  3 of this Article 
(provisions for the use of selective 
tendering procedures by Annexes  2 and  3 
entities), entities shall publish a notice of 
intended procurement for each contract to 
be awarded.  The notice shall be published 
in th e appropriate publication listed in 
Appendix II.  
[United States – GPA/W/85 ] 
 
 
Comments  
 
• The aim of the amendment is to provide more flexibility for Annex 2 and 3 entities.  The 
proposed amendment would allow those entities to either provide the "normal" notificat ion as 
provided for in paragraph 2 of the proposal or, in lieu of that, Annex 2 and 3 entities would be 
able to publish an annual notification informing the public and suppliers of their procurement 
plans during that year.  [US] 
• The wording in paragraph 1 r aises the question whether selective tendering procedures by 
Annex 2 and 3 entities would still be covered.  If selective tendering procedures were to be no 
longer covered by Article IX, there is a question whether paragraph 3 of the US proposal (see 
below opposite the text of paragraph 9 of Article IX) is consistent.  [EC] 
• The impact of the proposed amendment on selective tendering for Annex 1 entities requires 
further clarification.  [Canada]  
• The proposal simplifies notification requirements for Annex 1 enti ties. [US] 
 GPA/TN1994/2/Rev.4  
- 34 - 
  Article IX:2, 3, 4  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the 
form of a notice of proposed procurement, as 
provided for in paragraph  6. 
  
 
Comments  
 
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a 
notice containing the types of information as provided for in paragraph 6.  The present use of 
the word "ma y" might be interpreted to suggest otherwise . [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a 
notice of planned procurement, as provided for 
in paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9, as an invitation to participate.  
  
 
Comments  
 
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
• The use of notices regarding qua lification systems as invitations to participate should be 
clarified . [Job No. 5074]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate shall 
subsequently invite all suppliers who have 
expressed an interest to confirm their interest on 
the basis of information which shall include at 
least the information referred to in paragraph  6. 
  
 
 
 
 
 
 GPA/TN1994/2/Rev.4  
- 35 - 
  Article IX:5, 6  
 
Invitation to Participate Regarding I ntended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Entities which use a notice regarding a 
qualification system as an invitation to 
participate shall provide, subject to the 
considerations referred to in paragraph 4 of 
Article  XVIII and in a timely manner, information 
which allows all those who have expressed an 
interest to have a meaningful opportunity to 
assess their interest in participating in the 
procurement.  This information shall include the 
informa tion contained in the notices referred to 
in paragraphs 6 and 8, to the extent such 
information is available.  Information provided to 
one interested supplier shall be provided in a 
non-discriminatory manner to the other 
interested suppliers.  
  
6. Each not ice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 2. Each notice of intended procurement 
shall contain the following information:  
(a) the nature and quantity, including any 
options for further procurement and, if 
possible, an estimate of the timing 
when such options may be exercised;  
in the case of recurring contracts the 
nature and quantity and, if possible, an 
estimate of the timing of the 
subsequent tender notices for the 
products or services  to be procured;  
 (a) a description of the intended 
procurement, including the nature 
and quantity of the goods or 
services to be procured;  
(b) whether the procedure is open or 
selective or will involve negotiation;  
 (b) the name and address of the 
procur ing entity and other 
information necessary to contact 
the entity and obtain all relevant 
documents relating to the contract;  
 
(c) any date for starting delivery or 
completion of delivery of goods or 
services;  (c) the procurement method that will 
be used;  
[United States – GPA/W/85 ] 
 
 
Comments  
 
• Article IX.6 should be modified to obligate the procuring entity to include in the notice the 
means by which bids may be submitted/the means of communication to be used (e.g. mail, 
electronic means, telex, telegram o r facsimile).  [Canada ; Job No.3481]  GPA/TN1994/2/Rev.4  
- 36 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the address and final date for 
submitting an application to be invited 
to tender or for qualifying for the 
suppliers' lists, or for receiving tenders, 
as well as the language or languages in 
which they must be submitted;  
 (d) the time -limits set for the 
submission of tenders and, if 
applicable, the time -limits for the 
submission  of applications to 
qualify for participation in the 
intended procurement or for 
inclusion on a permanent list of 
qualified suppliers from which the 
tenders will be accepted;  
 
(e) the address of the entity awarding the 
contract and providing any information 
necessary for obtaining specifications 
and other documents;  
 (e) the amount and terms of payment 
of any sum payable for the tender 
documentation;  
(f) any economic and technical 
requirements, financial guarantees and 
information required from suppliers;  
 (f) an indication that the procurement 
is covered by the Agreement;  and 
(g) the amount and terms of payment of 
any sum payable for the tender 
documentation;  and 
 (g) a summary of the notice in one of 
the official languages of the WTO, 
containing at least the following 
information:  
 
 (i) the subject -matter of the 
contract;  
 
 (ii) the time -limits set for the 
submission of tenders or an 
application to be invited to 
tender;  and 
 
 (iii) the addresses from which 
documents relating to the 
contracts may be requested.  
[United States – GPA/W/85 ] 
 
(h) whether the entity is inviting offers for 
purchase, lease, rental or hire 
purchase, or more than one of these 
methods.  
  
 
Comments  
 
• The provision should be modified to obligate procuring entities to include the means by which 
bids may be submitted.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.4  
- 37 - 
  Article IX:7, 8  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement 
referred to in paragraph 3 shall contain as much 
of the information referred to in paragraph  6 as 
is available.  It shall in any case include the 
information referred to in paragraph 8 and:  
  
(a) a state ment that interested suppliers 
should express their interest in the 
procurement to the entity;  
  
(b) a contact point with the entity from 
which further information may be 
obtained.  
  
8. For each case of intended procurement, 
the entity shall publish a summary notice in one 
of the official languages of the WTO.  The notice 
shall contain at least the following information:  
 8. For each case of intended 
procurement, the entity shall publish a 
summary notice in one of the official 
languages of the WTO.  The notice shall 
contain at least the following information:  
 
(a) the subject matter of the contract;  
 (a) the subject -matter of the contract, 
including the relevant CPV code;  
 
(b) the time -limits set for the submission 
of tenders or an application to be 
invited to tender ; and 
 (b) the time -limits set for the 
submission of tenders or an 
application to be invited to tender;  
and 
 
(c) the addresses from which documents 
relating to the contracts may be 
requested.  
 (c) the addresses from which 
documents relating to the 
contracts may be requested.  
[EC – GPA/W/87 ] 
 
Comments  
 
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
With regard to the reference to the relevant CPV code:  
 
• Reference to a national classification code shoul d suffice as long as it is transparent.  [US] 
• The reference to CPV code should be deleted.  [Singapore ; US] Many projects contain a mixture 
of CPV codes.  In some projects, CPV code may not be available or applicable.  Alignment to 
CPV codes would impose an un necessary administrative burden and may not make much 
difference to the suppliers/tenderers.  [US; Singapore]  
• Alternatively, the words "if applicable" should be added at the end of paragraph 8(a).  
[Singapore – Job No. 5271]  GPA/TN1994/2/Rev.4  
- 38 - 
  Article IX:9  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering 
procedures, entities maintaining permanent lists 
of qualified suppliers shall publish annual ly in one 
of the publications listed in Appendix  III a notice 
of the following:  
 3. Except as provided for in Article XV, 
Annexes 2 and 3 entities that maintain 
permanent lists of qualified suppliers for 
selective tendering procedures will be 
considered to  have met the notice 
requirements of paragraphs 1 and 2 of this 
Article, if they:  
 
(a) the enumeration of the lists 
maintained, including their headings, in 
relation to the products or services or 
categories of products or services to be 
procured through the lists;  
 (a) publish annually in one of the 
publications listed in Appendix III 
a notice which contains the 
following information:  
(b) the conditions to be fulfilled by 
suppliers with a view to their inscription 
on those lists and the methods 
according to which each of those 
conditions will be verified by the entity 
concerned;  and (i) an enumeration of all 
permanent lists of qualified 
suppliers from which such 
procurements are made, 
including a description in as 
much detail as is availa ble, of 
the good or service to be 
procured;  
 
(c) the period of validity of the lists, and 
the formalities for their renewal.  (ii) the conditions to be fulfilled 
by suppliers in order to be 
included on those lists;  
 
 (iii) the period of validity of those 
lists;  and 
 
 (iv) a statement that the notice 
constitutes a notice of 
intended procurement;  and 
 
 (b) provide additional information  in a 
timely manner which allows all 
those who have expressed an 
interest to have a meaningful 
opportunity to assess their interest 
in participating in the 
procurement.  This information 
shall include the information 
contained in the notices referred to 
in paragraph 2, to the extent 
available.  
[United States – GPA/W/85 ] 
 
 GPA/TN1994/2/Rev.4  
- 39 - 
  Article IX:10, 11  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to 
participate in accordance with paragraph 3, the 
notice shall, in addition, include the following 
information:  
  
(d) the nature of the products or services 
concerned;  
  
(e) a statement that the notice constitutes 
an invitation to participate.  
  
However, when the duration of the qualification 
system is three years or less, and if the duration 
of the system is made clear in the notice and it 
is also made clear that further notices will not be 
published, it shall be sufficient to pub lish the 
notice once only, at the beginning of the system.  
Such a system shall not be used in a manner 
which circumvents the provisions of this 
Agreement.  
  
10. If, after publication of an invitation to 
participate in any case of intended procurement, 
but before the time set for opening or receipt of 
tenders as specified in the notices or the tender 
documentation, it becomes necessary to amend 
or re-issue the notice, the amendment or the 
re-issued notice shall be given the same 
circulation as the original documents upon which 
the amendment is based.  Any significant 
information given to one supplier with respect to 
a particular intended procurement shall be given 
simultaneously to all other suppliers concerned 
in adequate time to permit the suppliers to 
consider such information and to respond to it.  
 4. If it becomes necessary to amend or 
re-issue the notice during the procurement 
process, the amendment or the re -issued 
notice shall be given the same circulation as 
the original notice upon which the 
amendmen t is based.  Any significant 
information given to one supplier with 
respect to a particular intended 
procurement shall be given simultaneously 
to all other suppliers that have expressed 
interest in that procurement in adequate 
time to permit those suppliers  to consider 
such information and to respond to it.  
[United States – GPA/W/85 ] 
11. Entities shall make clear, in the notices 
referred to in this Article or in the publication in 
which the notices appear, that the procurement 
is covered by the Agreement.  
  
 GPA/TN1994/2/Rev.4  
- 40 - 
  Article X:1, 2, 3, 4  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering 
procedures, entities shall, for each intended 
procurement, invite tenders from the maximum 
number of domestic suppliers and suppliers of 
other Parties, consistent with the efficient 
operation of the procurement system.  They shall 
select the suppliers to participate in the 
procedure in a fair and non -discriminatory 
manner.  
  
2. Entities maintaining permanent lists of 
qualified suppliers may select suppliers to be 
invited to tender from among those listed.  Any 
selection shall allow for equitable opportunities 
for suppliers on the lists.  
  
3. Suppliers requesting to participate in a 
particular intended procurement shall be 
permitted to submit a tender and be considered, 
provided, in the case of those not yet qualified, 
there is sufficient time to complete the 
qualification procedure under Artic les VIII and 
IX. The number of additional suppliers permitted 
to participate shall be limited only by the efficient 
operation of the procurement system.  
  
4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile.  
 4. Requests to participate in selective 
tendering procedures may be submitted by 
telex, telegram or facsimile, electronic 
means, including email.  [Canada – Job 
No. 3481]  
 
4. Requests to participate in selective 
tendering procedures may be submi tted in 
writing including electronic means . The 
term "writing" as used in this Agreement is 
to be understood to include any worded or 
numbered expression which can be read, 
reproduced, and later communicated, and 
includes electronically transmitted and 
stored information . "Electronic means" 
means using electronic equipment for the 
processing (including digital compression) 
and storage of data, and entirely using 
transmission, conveyance and reception by 
wire, by radio, by optical means or by other 
electroma gnetic means.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• In Article X, a provision stating that the means of communication to be used can be specified 
by the procuring entity (e.g. mail, electronic means, telex, telegram or facsimile) should also 
be added.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.4  
- 41 - 
  Article XI:1, 2  
 
Time-limits for Tendering and Delivery  
 
Comments  
 
• As one alternative, all of the deadlines identified in this Article could be removed.  [Canada – 
Job No. 3481]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED M ODIFICATIONS  
General  
 General  
1.(a) Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers to 
prepare and submit tenders before the 
closing of the tendering procedures.  In 
determining any such time-limit, 
entities shall, consistent with their own 
reasonable needs, take into account 
such factors as the complexity of the 
intended procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting tenders by 
mail from foreign  as well as domestic 
points.  
 1.(a)  Any prescribed time -limit shall be 
adequate to allow suppliers of 
other Parties as well as domestic 
suppliers  to prepare and submit 
tenders before the closing of the 
tendering procedures.  In 
determining any such time -limit, 
entities shall, consistent with their 
own reasonable needs, take into 
account such factors as the 
complexity of the [intended] 
procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting 
tenders [by mail - delete [Canada] ] 
[in writing] from foreign as well as 
domestic points.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
(b) Each Party shall ensure that its entities 
shall take due account of publication 
delays when setting the final date for 
receipt of tenders or of applications to 
be invited to tender.  
 (b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting 
the final date for receipt of tenders 
or of applications to be invited to 
tender.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
Deadlines  
 Deadlines  
2. Except in so far as provided in paragraph 3:  
 2. Except insofar as provided in 
paragraph 3,  
 
(a) in open procedures, the period for the 
receipt of tenders shall not be less than 
40 days from the date of publication 
referred to in paragraph 1 of Article  IX; 
 (a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in 
paragraph 1 of Article IX;  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.4  
- 42 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Except insofar as provided in 
paragraphs  3 and 4,  
 
(a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 30 days from the date of 
publication;  
[EC – GPA/W/87 ] 
 
(b) in selective procedures not involving 
the use of a permanent list of qualified 
suppliers, the period for submitting an 
application to be invited to tender shall 
not be less than 25 days from the da te 
of publication referred to in 
paragraph  1 of Article  IX; the period for 
receipt of tenders shall in no case be 
less than 40  days from the date of 
issuance of the invitation to tender;  
 (b) in selective procedures not 
involving the use of a permanent 
list of qualified suppliers, the 
period for submitting an 
application to be invited to tender 
shall not be less than 25  days from 
the date of publication referred to 
in paragraph  1 of Article IX;  the 
period for receipt of tenders shall 
in no case  be less than 40 days 
from the date of issuance of the 
invitation to tender;  
[Singapore – Job No. 3772]  
 
 (b) in selective procedures not 
involving the use of a permanent 
list of qualified suppliers, the 
period for submitting an 
application to be invited to tender 
shall not be less than 15 days from 
the date of publication ; the period 
for receipt of tenders shall in no 
case be less than 30 days from the 
date of issuance of the invitation to 
tender;  
[EC – GPA/W/87 ] 
 
 GPA/TN1994/2/Rev.4  
- 43 - 
  Article XI:3  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in selective procedures involving the 
use of a permanent list of qualified 
suppliers, the period for receipt of 
tenders shall not be less than 40 days 
from the date of the initial issuance of 
invitations to tender, whether or not 
the date of initial issuance of invitations 
to tender coincides with the date of the 
publication referred to in paragraph  1 
of Article  IX. 
 (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers, the period for 
receipt of tenders shall not be less 
than 40 [30] days from the date of 
the initial issuance of invitations to 
tender, whether or not the date of 
initial issuance of invitations to 
tender coincides  with the date of 
the publication [referred to in 
paragraph 1 of Article IX].  
[Singapore – Job No. 3772;  EC – 
GPA/W/87 ] 
 
3. The periods referred to in paragraph 2 
may be reduced in the circumstances set out 
below:  
 3. The periods referred to in paragraph  2 
may be reduced in the circumstances set 
out below:  
 
(a) if a separate notice has been published 
40 days and not more than 12 months 
in advance and the notice contains at 
least:  
 (a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and the 
notice contains at least:  
 
(i) as much of the information 
referred to in paragraph 6 of 
Article  IX as is available;  
 (i) as much of the information 
referred to in paragraph 6 of 
Article IX as is available;  
 
(ii) the information referred to in 
paragraph 8 of Article  IX; 
 (ii) the information referred to in 
paragraph 8 of Article  IX; 
 
(iii) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity;  and 
 (iii) a statement that interested 
suppliers should express 
their interest in the 
procurement to the entity;  
and 
 
(iv) a contact point with the entity 
from which further information 
may be obtained,  
 
 the 40 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to enable 
responsive tendering, which, as 
a general rule, shall not be less 
than 24 days, but in any case not 
less than 10 days;  
 (iv) a contact point with the 
entity from which further 
information may be obtained, 
the 40 -day limit for re ceipt 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;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Article XI:3 should be m odified to provide for a minimum bid period of 10 days for procurement 
of commodities and commercial, off -the-shelf goods (and possibly other sufficiently 
well-defined categories of goods or services).  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.4  
- 44 - 
   
• The proposal to specify a min imum bid period for certain kinds of procurement may go against 
the aim to simplify and improve the Agreement.  [Hong Kong, China;  US] 
• Article XI:3 should be modified so that when electronic tendering is used, all periods referred 
to in Article  XI:2 may be reduced to a minimum of 20 days.  [Canada – Job No. 3481]  
• Article XI:3 should be modified so that when electronic tendering and electronic bid receipt 
are used, second -stage periods referred to in Article XI:2(b) and (c) may be reduced t o a 
minimum of 12 and 5 days respectively.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.4  
- 45 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) in the case of the second or subsequent 
publications dealing wit h contracts of a 
recurring nature within the meaning of 
paragraph 6 of Article  IX, the 40 -day 
limit for receipt of tenders may be 
reduced to not less than 24 days;  
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurr ing 
nature within the meaning of 
paragraph 6 of Article IX, the 
40-day [30 -day [EC]] limit for 
receipt of tenders may be reduced 
to [not less than 24  days][24 days 
[EC]];  
[Singapore – Job No. 3772 ; E C – 
GPA/W/87 ] 
 
(c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in question, 
the periods specified in paragraph  2 
may be reduced but shall in no case be 
less than 10  days from the date of the 
publication referred to in paragraph  1 
of Article  IX; or 
 (c) wher e a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in 
question, the periods specified in 
paragraph 2 may be reduced but 
shall in no case be less than 10 
days from the date of the 
publication referred to in 
paragraph 1 o f Article IX;  or 
[Singapore  – Job No. 3772]  
 
 
Comments  
 
• Unlike the current provisions in the Agreement, the EC proposal does not provide for the 
reduction of time -periods in urgent cases.  [Japan]  
• The proposal appears to limit the reduction of time limits only to contracts of a recurrent 
nature.  [Hong Kong, China]  
• Further attention must be given to the effect on the ability to reduce time limits in cases where 
a prior notification has been made.  [US] 
 GPA/TN1994/2/Rev.4  
- 46 - 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the period referred to in paragraph  2(c) 
may, for procurements by entities 
listed in Annexes  2 and 3, be fixed by 
mutual agreement between the entity 
and the selected supplie rs. In the 
absence of agreement, the entity may 
fix periods which shall be sufficiently 
long to enable responsive tendering 
and shall in any case not be less than 
10 days.  
 (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed in 
Annexes 2 and 3, be fixed by 
mutual agreement between the 
entity and the selected suppliers.  
In the absence of agreement, the 
entity may fix periods which shall 
be sufficiently long to enable 
responsive tendering an d shall in 
any case no t be less than 10 days.  
[Singapore – Job No. 3772]  
 
 (b) in the case where the procuring 
entity procures off -the-shelf 
products or services, the period 
referred to in paragraph 2(c) may 
be reduced to 15  days.  
[EC – GPA/W/87 ] 
 
4. Consistent with the entity's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of 
the intended procurement, the extent of 
subcontracting anticipated and the realistic time 
required for production, de -stocking and 
transport of goods from the points of supply or 
for supply of services.  
 4. In cases where the procuring entity 
offers simultaneously free and direct access 
via the single point of access referred to in 
Article IX to the complete call for tenders 
including all annexes both the deadlines of 
30 and 15 days may be further reduced by 
5 days.  
[EC – GPA/W/87 ] 
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which i s [in the public domain] 
[readily available to both local and foreign 
suppliers] its overall policy on the 
time-limits for intended procurement to be 
followed by its entities.  
 
 Clause (b)  
 
 Consistent with the provisions in 
Article  XX, entities shall provide for rapid 
and immediate measures to address 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.4  
- 47 - 
  Article XII:1, 2  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity 
allows tenders to be submitted in several 
languages, one of those languages shall be one 
of the official languages of the WTO.  
  
 
Comments  
 
• This Article should contain references to the use of information technology in communications 
between the purchasing authority and tenderers.  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to 
suppliers shall contain all information necessary 
to pe rmit them to submit responsive tenders, 
including information required to be published in 
the notice of intended procurement, except for 
paragraph 6(g) of Article  IX, and the following:  
  
(a) the address of the entity to which 
tenders should be sent;  
  
(b) the address where requests for 
supplementary information should be 
sent; 
  
(c) the language or languages in which 
tenders and tendering documents must 
be submitted;  
  
(d) the closing date and time for receipt of 
tenders and the length of time during 
which any tender should be open for 
acceptance;  
  
(e) the persons authorized to be present at 
the opening of tenders and the date, 
time and place of this opening;  
  
 GPA/TN1994/2/Rev.4  
- 48 - 
  Article XII  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) any economic and technical 
requirement, financial guarantees and 
information or documents required 
from suppliers;  
  
(g) a complete description of the products 
or services required or of any 
requirements including technical 
specifications, conformity certification 
to be fulfilled, necessary plans, 
drawings and instructional materials;  
  
(h) the criteria for awarding the contract, 
including any factors other than price 
that are to be considered in the 
evaluation of tenders and the cost 
elements to be included in evaluating 
tender prices, such as transport, 
insurance and inspection costs, and in 
the case of products or services of 
other Parties, customs duties and other 
import charges, taxes and currency of 
payment;  
  
(i) the terms of payment;  
  
(j) any other terms or conditions;  
  
(k) in accordance with Article XVII the 
terms and conditions, if any, under 
which tenders from countries not 
Parties to this Agreement, but which 
apply the procedures of that Article, will 
be entertained.  
  
 GPA/TN1994/2/Rev.4  
- 49 - 
  Article XII:3  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the 
Entities  
  
3.(a) In open procedures, entities shall 
forward the tender documentation at 
the request of any supplier 
participating in the procedure, and shall 
reply promptly to any reasonable 
request for explanations relating 
thereto.  
  
(b) In selective procedures, entities shall 
forward the tender documentation at 
the request of any supplier requesting 
to participate, and shall reply promptly 
to any reasonable request for 
explanations relating thereto.  
  
(c) Entities shall reply promptly to any 
reasonable request for relevant 
information submitted by a supplier 
partic ipating in the tendering 
procedure, on condition that such 
information does not give that supplier 
an advantage over its competitors in 
the procedure for the award of the 
contract.  
  
 GPA/TN1994/2/Rev.4  
- 50 - 
  Article XIII:1  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of 
tenders and awarding of contracts shall be 
consistent with the following:  1. The submission, receipt and opening 
of tenders and awarding of contracts shall 
be consistent with the following:  
 
(a) tenders shall normally be submitted in 
writing directly or by mail.  If tenders by 
telex, telegram or facsimile are 
permitted, the tender made thereby 
must include all the information 
necessary for the evaluation of the 
tender, in particular the definitive price 
proposed by the tenderer and a 
statement that the tenderer agrees to 
all the terms, conditions and provisions 
of the invitat ion 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 whe re there is a difference or 
conflict between that content and any 
documentation received after the 
time-limit; and (a) tenders shall be submitted in 
writing;  
[EC – GPA/W/87 ] 
 
(a) tenders shall normally be 
submitted in writing.  Tenders must 
include all the information 
necessary for the evaluation of the 
tender, however submitted.  A 
procuring entity may require that 
the tender b e confirmed promptly 
by letter or by the despatch of a 
signed copy of the telex, telegram 
or facsimile or electronic 
document.  
[Canad a- Job No. 3481]  
 
 
Comments  
 
• In order to define the term "writing" to include electronically formatted writings, the following 
definition could be incorporated into the Agreement:  "The term 'writing' as used in this 
Agreement is to be understood to include any worded or numbered expression which can be 
read, reproduced, and later communicated, and include electronically transmitted and stored 
information".  [US – Job No. 3842]  
• A provision should be added to indicate that the means for submitting tende rs may be specified 
by the procuring entity, provided the requirement to use such means shall not reduce access 
by foreign and domestic suppliers.  [Canada – Job No. 3481]  
• The proposals do not make it clear who is responsible and to what extent, for the acc uracy of 
data in tender documents and ensuring the protection of confidentiality of tender information.  
There should be limits on the burden imposed upon procuring entities as regards the protection 
of the confidentiality of data transmitted electronically . [Japan]  
Regarding more specific amendments to paragraph 1(a) of Article XIII:1:  
 
• In the first sentence, alternatively, the words "or electronic means" should be added to the 
words "in writing, directly or by mail". [Canada – Job No. 3481]  
• 3rd sentence al ternatively, the 3rd sentence should be deleted.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.4  
- 51 - 
  Article XIII:2, 3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) integrity of data and confidentiality 
of tenders must be preserved . 
Tenders shall not be opened until 
after the deadline set by the 
contracting entity for receipt of 
tenders;  
 
 (c) whatever means of communication 
or exchange of information chosen 
they shall not cause a 
discrimination and be consistent 
with the principles laid down in 
Article 3 hereof;  and 
 
(b) the opportunities that may be given to 
tenderers to correct unintentional 
errors of form between the opening of 
tenders and the awarding of the 
contract shall n ot be permitted to give 
rise to any discriminatory practice.  
 (d) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of tenders 
and the awarding of the contract 
shall not be permitted to give rise 
to any discriminatory practice.  
[EC – GPA/W /87] 
 
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender 
is received in the office designated in the tender 
documentation after the time specified because 
of delay due solely to mishandling on the part of 
the entity.  Tenders may also be considered in 
other exceptional circumstances if the 
procedures of the entity concerned so provide.  
  
Opening of Tenders  
  
3. All tenders solicited under open or 
selective procedures by entities shall be received 
and opened under procedures and conditions 
guaranteeing the regularity of the openings.  The 
receipt and opening of tenders shall also be 
consistent with the national treatment and 
non-discrimination provisions of this Agreement.  
Informati on on the opening of tenders shall 
remain with the entity concerned at the disposal 
of the government authorities responsible for the 
entity in order that it may be used if required 
under the procedures of Articles  XVIII, XIX, 
XX and XXII.  
  
 GPA/TN1994/2/Rev.4  
- 52 - 
  Article XIII:4  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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 
notices or tender documentation and 
be from a supplier which complies with 
the conditions for participation.  If an 
entity has received a tender abnormally 
lower than other tenders submitted, it 
may enquire with the tenderer to 
ensure that it can comply with the 
conditions of participation and be 
capable of fulfilling the terms of the 
contract.  
  
(b) Unless in the public interest an entity 
decides not to issue the contract, the 
entity shall make the award to the 
tenderer who has been determined to 
be fully capable of undertaking the 
contract and whose tender, whether for 
domestic products or services, or 
products or services of other Parties, is 
either the lowest tender or the tender 
which in terms of the specific  
evaluation criteria set forth in the 
notices or tender documentation is 
determined to be the most 
advantageous.  
  
 
Comments  
 
• The reference to "specific evaluation criteria" in this subparagraph should be clarified in the 
light of the relevant terms in Ar ticle VIII(b).  
  GPA/TN1994/2/Rev.4  
- 53 - 
  Article XIII:5  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Awards shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a 
manner which circumvents the provisions of the 
Agreement.  
  GPA/TN1994/2/Rev.4  
- 54 - 
  Article XIV:1, 2, 3, 4  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
  
(a) in the context of procurements in which 
they have indicated such intent, 
namely in the notice referred to in 
paragraph 2 of Article IX (the invitation 
to suppliers to participate in the 
procedure for the proposed 
procurement);  or 
  
(b) when it appears from evaluation that 
no one tender is obviously the most 
advantageous in terms of the specific 
evaluation criteria set forth in the 
notices or tender documentation.  
  
2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in 
tenders.  
  
3. Entities shall treat tenders in confidence.  
In particular, they shall not provide information 
intended to assist particul ar 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 i s 
carried out in accordance with the 
criteria set forth in the notices and 
tender documentation;  
  
(b) all modifications to the criteria and to 
the technical requirements are 
transmitted in writing to all remaining 
participants in the negotiations;  
  
  GPA/TN1994/2/Rev.4  
- 55 - 
  Article XIV  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) all remaining participants are afforded 
an opportunity to submit new or 
amended submissions on the basis of 
the revised requirements;  and 
  
(d) when negotiations are concluded, all 
participants remaining in the 
negotiations shall be permitted to 
submit final tenders in accordance with 
a common deadline.  
  
 
Comments  
 
• Article XIV should be modified in the light of the practice of post -tender or even post -contract 
award negotiations between the procuring entities and tenderers.  
• This Article could be combined with Articles  VII and  X on tendering procedures.  
 GPA/TN1994/2/Rev.4  
- 56 - 
  Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCU REMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of Articles  VII through XIV 
governing open and selective tendering 
procedures need not apply in the following 
conditions, provided that limited tendering is not 
used with a view to avoiding maximum po ssible 
competition or in a manner which would 
constitute a means of discrimination among 
suppliers of other Parties or protection to 
domestic producers or suppliers:  
  
(a) in the absence of tenders in response 
to an open or selective tender, or when 
the tenders submitted have been 
collusive, or not in conformity with the 
essential requirements in the tender, or 
from suppliers who do not comply with 
the conditions for participation 
provided for in accordance with this 
Agreement, on condition, however, 
that the requirements of the initial 
tender are not substantially modified in 
the contract as awarded;  
  
(b) when, for works of art or for reasons 
connected with protection of exclusive 
rights, such as patents or copyrights, or 
in the absence of competiti on for 
technical reasons, the products or 
services can be supplied only by a 
particular supplier and no reasonable 
alternative or substitute exists;  
  
 
Comments  
 
• In paragraph 1(b), the phrase "or group of suppliers" should be added after "a particular 
supplier" in order to address the circumstances where the products or services can be supplied 
by a limited number of suppliers . [Job No. 5074]  
 GPA/TN1994/2/Rev.4  
- 57 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in so far as is strictly necessary when, 
for reasons of extreme urgency 
brought about by events unforeseeable 
by the entity, the products or services 
could not be obtained in time by means 
of open or selective tendering 
procedures;  
  
(d) for additional deliveries by the original 
supplier which are intended either as 
parts replacement for existing supplies, 
or installations, or as the extension of 
existing supplies, services, or 
installations where a change of supplier 
would compel the entity t o procure 
equipment or services not meeting 
requirements of interchangeability with 
already existing equipment or 
services5; 
  
(e) when an entity procures prototypes or 
a first product or service which are 
developed at its request in the course 
of, and fo r, a particular contract for 
research, experiment, study or original 
development.  When such contracts 
have been fulfilled, subsequent 
procurements of products or services 
shall be subject to Articles  VII through 
XIV6; 
 
5 It is the understanding that "existing equipment" 
includes software to the extent that the initial 
procurement of the software was covered by the 
Agreement.  
 
6 Original development of a first product or service may 
include limited production or supply in order to 
incorporate the results of field testing and to 
demonstrate that the product or service is suitable for 
production or supply in quantity to acceptable quality 
standards.  It does not extend to quantity production or 
supply to establish commercial viability or  to recover 
research and development costs.  
  
 GPA/TN1994/2/Rev.4  
- 58 - 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additional construction services 
which were not included in the initial 
contract but which were within the 
objectives of the original tender 
documentation have, through 
unforeseeable circumstances, become 
necessary to complete the construction 
services described therein, and the 
entity needs to award contracts for the 
additional construction services  to the 
contractor carrying out the 
construction services concerned since 
the separation of the additional 
construction services from the initial 
contract would be difficult for technical 
or economic reasons and cause 
significant inconvenience to the entit y. 
However, the total value of contracts 
awarded for the additional construction 
services may not exceed 50 % of the 
amount of the main contract;  
  
(g) for new construction services 
consisting of the repetition of similar 
construction services which conform to 
a basic project for which an initial 
contract was awarded in accordance 
with Articles  VII through XIV and for 
which the entity has indicated in the 
notice of intended procurement 
concerning the initial construction 
service, that limited tenderin g 
procedures might be used in awarding 
contracts for such new construction 
services;  
  
 GPA/TN1994/2/Rev.4  
- 59 - 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) for products purchased on a commodity 
market;  
  
(i) for purchases made under 
exceptionally advantageous conditions 
which only arise in the very short term.  
This provision is intended to cover 
unusual disposals by firms which are 
not normally suppliers, or disposal of 
assets of businesses in liquidation or 
receivership.  It is not intended to cover 
routine purchases from regular 
suppliers;  
  
 
Comments  
 
• The Agreement's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of paragraphs (h) and (i).  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(j) in the case of contracts awarded to the 
winner of a design contest provided 
that the contest has been organized in 
a manner which is consistent with the 
principles of this Agreement, notably as 
regards the publication, in the sense of 
Article  IX, of an invitation to suitably 
qualified suppliers, to participate in 
such a contest which shall be judged by 
an independent jury with a view to 
design contracts being awarded to the 
winners.  
  
 GPA/TN1994/2/Rev.4  
- 60 - 
  Article XV:2  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
where end -users have specified strong 
technical or professional preferences for 
using particular suppliers, and are able to 
support their preferences on sound 
technical or professional reasons, these 
suppliers should demonstrate that they are 
able to meet the requisite quality standards 
and delivery schedule over the terms of the 
contract.  
[Hong Kong, China – Job No. 5269) 
 
 
Comments  
 
• The proposed paragraph (k) might provide broader latitude for using limited tendering than is 
intended and currently allowed for.  Further, it might be difficult to distinguish between 
suppliers on the basis of "sound technical or professional reasons".  [US] 
• The proposed paragraph (k) would aid in achieving transparency.  Justification for the end -user 
preference must be satisfactorily demonstrated.  Further, the provision would avoid the use of 
open tenders when end -users have alread y determined the products that they want to buy.  
The issue of how other Parties' procurement practices meet end -user preferences within 
product categories should be explored.  [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICA TIONS  
2. Entities shall prepare a report in writing on 
each contract awarded under the provisions of 
paragraph  1. Each report shall contain the name 
of the procuring entity, value and kind of goods 
or services procured, country of origin, and a 
statement of the conditions in this Article which 
prevailed.  This report shall remain with the 
entities concerned at the disposal of the 
government authorities responsible for the entity 
in order that it may be used if required under the 
procedures of Arti cles XVIII, XIX, XX and XXII.  
  
 GPA/TN1994/2/Rev.4  
- 61 - 
  Article XVI:1, 2  
 
Offsets  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in 
the evaluation of tenders and award of contracts, 
impose, seek or consider offsets.7 
 
7 Offsets in government procurement are measures 
used to encourage local development or improve the 
balance -of-payments accounts by means of domestic 
content, licensing of technology, investment 
requirements, counter -trade or similar requirements.  
  
2. Nevertheless, having regard to general 
policy considerations, including those relating to 
development, a developing country may at the 
time of accession negotiate conditions for the use 
of offsets, such as requirements for the 
incorporation of domestic content.  Such 
requirements shall be used only for qualification 
to participate in the procurement process and 
not as criteria for awarding contracts.  Conditions 
shall be objecti ve, clearly defined and 
non-discriminatory.  They shall be set forth in the 
country's Appendix I and may include precise 
limitations on the imposition of offsets in any 
contract subject to this Agreement.  The 
existence of such conditions shall be notified t o 
the Committee and included in the notice of 
intended procurement and other documentation.  
  
 GPA/TN1994/2/Rev.4  
- 62 - 
  Article XVII:1  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering 
procedures or access to challenge procedures, 
under which tenders will be entertained from 
suppliers situated in countries not Parties to this 
Agreement but which, with a view to cre ating 
transparency in their own contract awards, 
nevertheless:  
 1. Each Party shall encourage entities to 
indicate the terms and conditions, including 
any deviations from competitive tendering 
procedures or access to challenge 
procedures, under which tenders will be 
entertained from suppliers situated in 
countries not Parties to this Agreement but 
which, with a view to creating transparency 
in their own contract awards, nevertheless:  
 
(a) specify their contracts in accordance 
with Article  VI (technica l 
specifications);  
 (a) specify their contracts in 
accordance with Article VI 
(technical specifications);  
 
(b) publish the procurement notices 
referred to in Article  IX, including, in 
the version of the notice referred to in 
paragraph  8 of Article  IX (summary of 
the notice of intended procurement) 
which is published in an official 
language of the WTO, an indication of 
the terms and conditions under which 
tenders shall be entertained from 
suppliers situated in countries Parties 
to this Agreem ent; (b) publish the procurement notices 
referred to in Article IX, including, 
in the version of the notice referred 
to in paragraph 8 of Article IX 
(summary of the notice of intended 
procurement) which is published in 
an official language of the WTO, an 
indication of the terms and 
conditions under which tenders 
shall be entertained from suppliers 
situated in countries Parties to this 
Agreement;  
 
(c) are willing to ensure that their 
procurement regulations shall not 
normally change during a procurement 
and, in the event that such change 
proves unavoidable, to ensure the 
availability of a satisfactory means of 
redress.  
 (c) are willing to ensure that their 
procurement regulations shall not 
normally change during a 
procurement and, in the event that 
such chan ge proves unavoidable, 
to ensure the availability of a 
satisfactory means of redress.  
 
 GPA/TN1994/2/Rev.4  
- 63 - 
  Article XVII:2  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Governments not Parties to the Agreement 
which comply with the conditions specified in 
paragraphs 1(a) through 1(c), shall be entitled if 
they so inform the Parties to participate in the 
Committee as observers.  
 2. Each Party shall encourage entities to 
publish their technical specifications on the 
Internet through a single point of access 
accessible free of charge [The amount and 
terms of payment of any sum payable for 
the download of such technical 
specifications shall be reasonable, and shall 
be indicated in the notice of intended 
procurement, as provided for under 
Article  IX, paragraph 6(g) [Sing – Job 
No. 5271]].  Where such publication is 
provided, contracting entities shall be 
encouraged to mention the address of the 
single point of access in the tender notice.  
[EC – GPA/W/87 ] 
 
Comments  
 
• Paragraph 2 should be deleted or amended as suggested after deleting the words "accessible 
free of charge" in the first sentence.  [Singapore – Job No. 5271]  
• Given the aim to streamline the Agreement and encouraging broader participation, the 
proposed provision on the use of the  Internet may not be appropriate.  [US] 
• A further question is whether technical specifications remain unchanged from procurement to 
procurement.  There may be a risk that, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
In relation to the charging of fees:  
 
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount and terms of payment of any sum payable for the tender documentation".  Parties 
should be given the flexibility to impose a reasonable charge, even for technical specifications 
and tender documents which are downloaded from the Internet.  [Job No. 5074]  
• Some form of charges may be necessary to ensure that documents are not downloaded 
indiscrimin ately.  Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore;  Canada]  
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs associated with providing th e documents by mail.  Providing 
documents free of charge will increase transparency and, in particular, will benefit small and 
medium enterprises seeking opportunities in procurement markets.  [EC] GPA/TN1994/2/Rev.4  
- 64 - 
  Article XVIII:1  
 
Information and Review as Regards Obligati ons of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each 
contract under Articles  XIII through  XV. These 
notices shall contain:  
 1. Entities shall publish a notice in the 
appropriate publication listed in 
Appendix  II not later than 72 days after the 
award of each contract under Articles XIII 
through XV.  These notices shall contain at 
least:  
 
(a) the nature and quantity of products or 
services in the contract award;  
 (a) the nature and quantity of products 
or services in the contract award 
[by referring to the relevant CPV 
code, if applicable[Singapore – 
Job No. 5271]];  
[EC – GPA/W/87 ] 
 
(b) the name and address of the entity 
awarding the contract;  
 (b) the name and address of the entity 
awarding the contract;  
 
(c) the date of award;  
 (c) the date of award;  
 
(d) the name and address of winning 
tenderer;  
 (d) the name and address of winning 
tenderer;  
 
(e) the value of the winning award or the 
highest and lowest offer taken into 
account in the award of the contract;  
 (e) the value of the winning award or 
the highest and lowest offer taken 
into account in the award of the 
contract;  
 
(f) where  appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article  IX or justification 
according to Article  XV for the use of 
such procedure;  and 
 (f) where appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article IX or 
justification according to Article XV 
for the use of such procedure ; and 
 
(g) the type of procedure used.  
 (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
 GPA/TN1994/2/Rev.4  
- 65 - 
  Article XVIII:2, 3, 4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a 
supplier of a Party, promptly provide:  
  
(a) an explanation of its procurement 
practices and procedures;  
  
(b) pertinent information concerning the 
reasons why the supplier's application 
to qualify was rejected, why its existing 
qualification was brought to an end and 
why it was not selected;  and 
  
(c) to an unsuccessful tenderer, pertinent 
information concerning the reasons 
why its tender was not selected and on 
the characteristics and relative 
advantages of the tender selected as 
well as the name of the winning 
tenderer.  
  
3. Entities shall prompt ly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.  
  
4. However, entities may decide that certain 
information on the contract award, contained in 
paragraphs  1 and 2(c), be withheld where 
release of such inform ation would impede law 
enforcement or otherwise be contrary to the 
public interest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or private, or might prejudice fair 
competition between suppliers.  
  
 
Comments  
 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso that electronic doc uments may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
• This change may not be necessary.  Further, the clause does not specify the form by which 
entities are required to produce and record information.  [Hong Kong, China]  GPA/TN1994/2/Rev.4  
- 66 - 
  Article XIX:1, 2, 3, 4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative 
ruling of general application, and any procedure 
(including standard contract clauses) regarding 
government procurement covered by this 
Agreement, in the appropriate publications listed 
in Appendix IV and in such a manner as to enable 
other Parties and suppliers to become acquainted 
with them.  Each Party shall be prepared, upon 
request, to explain to any other Party its 
government procurement procedures.  
  
2. The government of an unsuccessful 
tenderer which is a Party to this Agreement may 
seek, without prejudice to  the provisions under 
Article  XXII, such additional information on the 
contract award as may be necessary to ensure 
that the procurement was made fairly and 
impartially.  To this end, the procuring 
government shall provide information on both 
the characteri stics and relative advantages of the 
winning tender and the contract price.  Normally 
this latter information may be disclosed by the 
government of the unsuccessful tenderer 
provided it exercises this right with discretion.  In 
cases where release of this in formation would 
prejudice competition in future tenders, this 
information shall not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
  
3. Available informatio n concerning 
procurement by covered entities and their 
individual contract awards shall be provided, 
upon request, to any other Party.  
  
4. Confidential information provided to any 
Party which would impede law enforcement or 
otherwise be contrary to the p ublic interest or 
would prejudice the legitimate commercial 
interest of particular enterprises, public or 
private, or might prejudice fair competition 
between suppliers shall not be revealed without 
formal authorization from the party providing the 
informa tion. 
  GPA/TN1994/2/Rev.4  
- 67 - 
  Article XIX:5  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement.  Such 
reports shall contain the following information 
with respect to contracts awarded by all 
procurement entities covered under this 
Agreement:  
 . 
(a) for entities in Annex  1, statistics on the 
estimated value of c ontracts awarded, 
both above and below the threshold 
value, on a global basis and broken 
down by entities;  for entities in 
Annexes  2 and 3, statistics on the 
estimated value of contracts awarded 
above the threshold value on a global 
basis and broken down b y categories of 
entities;  
  
(b) for entities in Annex  1, statistics on the 
number and total value of contracts 
awarded above the threshold value, 
broken down by entities and categories 
of products and services according to 
uniform classification systems;  for 
entities in Annexes  2 and 3, statistics 
on the estimated value of contracts 
awarded above the threshold value 
broken down by categories of entities 
and categories of products and 
services;  
  
(c) for entities in Annex  1, statistics, 
broken down by enti ty and by 
categories of products and services, on 
the number and total value of contracts 
awarded under each of the cases of 
Article  XV; for categories of entities in 
Annexes  2 and 3, statistics on the total 
value of contracts awarded above the 
threshold v alue under each of the cases 
of Article  XV; and 
  GPA/TN1994/2/Rev.4  
- 68 - 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) for entities in Annex  1, statistics, 
broken down by entities, on the 
number and total value of contracts 
awarded under derogations to the 
Agreement contained in the relevant 
Annexes;  for categories of entities in 
Annexes  2 and 3, statistics on the total 
value of contracts awarded under 
derogations to the Ag reement 
contained in the relevant Annexes.  
  
To the extent that such information is available, 
each Party shall provide statistics on the country 
of origin of products and services purchased by 
its entities.  With a view to ensuring that such 
statistics are comparable, the Committee shall 
provide guidance on methods to be used.  With a 
view to ensuring effective monitoring of 
procurement covered by this Agreement, the 
Committee may decide unanimously to modify 
the requirements of subparagraphs ( a) through 
(d) as regards the nature and the extent of 
statistical information to be provided and the 
breakdowns and classifications to be used.  
  
 
Comments  
 
• A note by the Chair presenting a draft revision of the text of Article XIX:5 was circulated in a 
separate document.  GPA/TN1994/2/Rev.4  
- 69 - 
  Article XX:1  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Consultations  
  
1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement 
in the context of a procurement, each Party shall 
encourage the supplier to seek resolution of its 
complaint in consultation with the procuring 
entity.  In such instances the procuring entity 
shall accord impartial and timely consideration to 
any such complaint, in a manner that is not 
prejudicial to obtaining corrective measures 
under the challenge system.  
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement in the context of a procurement, 
each Party shall encourage the supplier to 
seek solution of its complaint in 
consultation with the procuring entity . In 
such instances the procuring entity shall 
accord impartial and timely consideration 
to any such complaint, in a manner that is 
not prejudicial to obtaini ng corrective 
measures under the challenge system.  Such 
encouragement may take place in particular 
through the designation of one or more 
bodies which can offer their good advice in 
trying to solve the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The last sentence in this paragraph should be clarified.  The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC's proposed amendment and the 
challenge bodies referred to in paragraph 6 of the existing agreement should be clarified.  
[Japan;  Hong Kong, China]  
• It was not intended that the proposed amendment would have the result of imposing a new 
authority on procuring entities.  Rather, the intent was to have a central point to address any 
problems in an unbureaucratic fashio n, informally and rapidly.  It would be left to Parties to 
decide how to organize these bodies.  [EC] 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
• Rather than create a completely new body, the relevant aspects of the approach pro posed by 
the EC could be incorporated into the existing procedures.  [Singapore]  GPA/TN1994/2/Rev.4  
- 70 - 
  Article XX:2, 3, 4, 5, 6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  
  
2. Each Party shall provide 
non-discriminatory, timely, transparent and 
effective procedures enabling suppliers to 
challenge alleged breaches of the Agreement 
arising in the context of procurements in which 
they have, or have had, an interest.  
  
3. Each Party shall provide its challenge  
procedures in writing and make them generally 
available.  
  
4. Each Party shall ensure that 
documentation relating to all aspects of the 
process concerning procurements covered by 
this Agreement shall be retained for three years.  
  
5. The interested supp lier may be required to 
initiate a challenge procedure and notify the 
procuring entity within specified time -limits from 
the time when the basis of the complaint is 
known or reasonably should have been known, 
but in no case within a period of less than 
10 days.  
  
6. Challenges shall be heard by a court or by 
an impartial and independent review body with 
no interest in the outcome of the procurement 
and the members of which are secure from 
external influence during the term of 
appointment.  A review body whi ch is not a court 
shall either be subject to judicial review or shall 
have procedures 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;  
  GPA/TN1994/2/Rev.4  
- 71 - 
  Article XX:7  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) proceedings can take place in public;  
  
(e) opinions or decisions are given in 
writing with a statement describing the 
basis for the opinions or decisions;  
  
(f) witnesses can be presented;  
  
(g) documents are disclosed to the review 
body.  
  
7. Challenge procedures shall provide for:  
  
(a) rapid interim measures to correct 
breaches of the Agreement and to 
preserve commercial opportunities.  
Such action may result in suspension of 
the procurement process.  However, 
procedures may provide that overriding 
adverse consequences for the interests 
concerne d, including the public 
interest, may be taken into account in 
deciding whether such measures 
should be applied.  In such 
circumstances, just cause for not acting 
shall be provided in writing;  
  
(b) an assessment and a possibility for a 
decision on the jus tification of the 
challenge;  
  
(c) correction of the breach of the 
Agreement or compensation for the 
loss or damages suffered, which may 
be limited to costs for tender 
preparation or protest.  
  GPA/TN1994/2/Rev.4  
- 72 - 
  Article XX:8  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the 
challenge procedure shall normally be completed 
in a timely fashion.   
 9. The Parties undertake to designate or 
establish an independent body with a view 
to solve informally problems encountered 
in gaining access to contracts.  
[EC - GPA/W/87 ] 
 
Comments  
 
• Clarification is required in relation to what is meant by the new paragraph 9.  [Japan;  
Hong Kong, China]  
 GPA/TN1994/2/Rev.4  
- 73 - 
  Article XXI:1, 2  
 
Institutions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established.  This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary but not less than once a 
year for the purpose of affording Parties the 
opportunity to consult on any matters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to car ry out 
such other responsibilities as may be assigned to 
it by the Parties.  
  
2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
  
 GPA/TN1994/2/Rev.4  
- 74 - 
  Article XXII:1, 2  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter re ferred to as the "Dispute 
Settlement Understanding") shall be applicable 
except as otherwise specifically provided below.  
  
2. If any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any objective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of this Agreement, it may with a view 
to reaching a mutually satisfactory resolution of 
the matter, make written representations or 
proposals to the other Party or Parties which it 
considers to b e concerned.  Such action shall be 
promptly notified to the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred to as 
"DSB"), as specified below.  Any Party thus 
approached shall give sympathetic consideration 
to the representations or proposals made to it.  
  GPA/TN1994/2/Rev.4  
- 75 - 
  Article XXII:3, 4, 5  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB  shall have the authority to 
establish panels, adopt panel and Appellate Body 
reports, make recommendations or give rulings 
on the matter, maintain surveillance of 
implementation of rulings and 
recommendations, and authorize suspension of 
concessions and o ther obligations under this 
Agreement or consultations regarding remedies 
when withdrawal of measures found to be in 
contravention of the Agreement is not possible, 
provided that only Members of the WTO Party to 
this Agreement shall participate in decision s or 
actions taken by the DSB with respect to 
disputes under this Agreement.  
  
4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of 
the panel:  
  
 "To examine, in th e light of the relevant 
provisions of this Agreement and of (name 
of any other covered Agreement cited by 
the parties to the dispute), the matter 
referred to the DSB by (name of party) in 
document ... and to make such findings as 
will assist the DSB in mak ing the 
recommendations or in giving the rulings 
provided for in this Agreement."  
  
In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix  1 of the Dispute 
Settlement Understanding are in voked by one of 
the parties to the dispute, paragraph 3 shall 
apply only to those parts of the panel report 
concerning the interpretation and application of 
this Agreement.  
  
5. Panels established by the DSB  to examine 
disputes under this Agreement shall include 
persons qualified in the area of government 
procurement.  
  GPA/TN1994/2/Rev.4  
- 76 - 
  Article XXII:6, 7  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible.  
Notwithstanding the provisions of paragraphs 8 
and 9 of Article 12 of the Dispute Settlement 
Understanding, the panel shall attempt to 
provide its final report to the parti es to the 
dispute not later than four months, and in case 
of delay not later than seven months, after the 
date on which the composition and terms of 
reference of the panel are agreed.  Consequently, 
every effort shall be made to reduce also the 
periods fore seen in paragraph 1 of Article 20 and 
paragraph 4 of Article  21 of the Dispute 
Settlement Understanding by two months.  
Moreover, notwithstanding the provisions of 
paragraph  5 of Article 21 of the Dispute 
Settlement Understanding, the panel shall 
attempt to  issue its decision, in case of a 
disagreement as to the existence or consistency 
with a covered Agreement of measures taken to 
comply with the recommendations and rulings, 
within 60 days.  
  
7. Notwithstanding paragraph  2 of Article 22 
of the Dispute Sett lement Understanding, any 
dispute arising under any Agreement listed in 
Appendix  1 to the Dispute Settlement 
Understanding other than this Agreement shall 
not result in the suspension of concessions or 
other obligations under this Agreement, and any 
disput e arising under this Agreement shall not 
result in the suspension of concessions or other 
obligations under any other Agreement listed in 
the said Appendix  1. 
  GPA/TN1994/2/Rev.4  
- 77 - 
  Article  XXIII:1, 2  
 
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be 
construed to prevent any Party from taking any 
action or not disclosing any information which it 
considers necessary for the protection of its 
essential security interests relating to the 
procur ement of arms, ammunition or war 
materials, or to procurement indispensable for 
national security or for national defence 
purposes.  
  
 
Comments  
 
• The provisions of Article  XXIII should be aligned with those in the corresponding provisions of 
GATT  1994. [Job No. 5074]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such 
measures are not applied in a manner which 
would constitute a means of arbitrary or 
unjustifiable discrimination between countries 
where the same conditions prevail or a disguised 
restriction on international trade, nothing in this 
Agreement shall be construed to prevent any 
Party from imposing or enforcing measures : 
necessary to protect public morals, order or 
safety, human , animal or plant life or health or 
intellectual property;  or relating to the products 
or services of handicapped persons, of 
philanthropic institutions or of prison labour.  
  
 
Comments  
 
• An article containing definitions of the various terms used in the Agreement should be 
considered.  [Job No. 5074]  
 GPA/TN1994/2/Rev.4  
- 78 - 
  Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
  
This Agreement shall enter into force on 
1 January  1996 for those governments8 whose 
agreed coverage is contained in Annexes 1 
through 5 of Appendix I of this Agreement and 
which have, by signature, accepted the 
Agreement on 1 5 April 1994 or have, by that 
date, signed the Agreement subject to 
ratification and subsequently ratified the 
Agreement before 1 January  1996. 
 
8 For the purpose of this Agreement, the term 
"government" is deemed to include the competent 
authorities of the European Communities.  
  
2. Accession  
  
Any government which is a Member of the WTO, 
or prior to the date of entry into force of the WTO 
Agreement which is a contracting party to 
GATT  1947, and which is not a Party to this 
Agreement may accede to this Agreement on 
terms to be agreed  between that government 
and the Parties.  Accession shall take place by 
deposit with the Director -General of the WTO of 
an instrument of accession which states the 
terms so agreed.  The Agreement shall enter into 
force for an acceding government on the 30th  
day following the date of its accession to the 
Agreement.  
  GPA/TN1994/2/Rev.4  
- 79 - 
  Article  XXIV:3  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
(a) Hong Kong and Korea may delay 
application of the provisions of this 
Agreement, except Articles  XXI 
and XXII, to a date not later than 
1 January  1997.  The commencement 
date of their application of the 
provisions, if prior to 1  January  1997, 
shall be notified to the Director -General 
of the WTO 30 days in advance.  
  
(b) During the period between the date of 
entry into force of this Agreement and 
the date of its application by 
Hong Kong, the rights and obligations 
between Hong Kong and all other 
Parties to this Agreement which were 
on 15  April 1994 Parties to the 
Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed by the 
substantive 9 provisions of the 1988 
Agreement, including its Annexes as 
modified or rectified,  which provisions 
are incorporated herein by reference 
for that purpose and shall remain in 
force until 31  December  1996.  
 
9 All provisions of the 1988 Agreement except the 
Preamble, Article  VII and Article  IX other than 
paragraphs 5(a) and (b) and paragra ph 10.  
  
(c) Between Parties to this Agreement 
which are also Parties to the 1988 
Agreement, the rights and obligations 
of this Agreement shall supersede 
those under the 1988 Agreement.  
  
 GPA/TN1994/2/Rev.4  
- 80 - 
  Article  XXIV:4, 5  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) Article  XXII shall not enter into force 
until the date of entry into force of the 
WTO Agreement.  Until such time, the 
provisions of Article  VII of the 1988 
Agreement shall apply to consultations 
and dispute settlement under this 
Agreement, which provisions are 
hereby incorporated in the Agreement 
by reference for that purpose.  These 
provisions shall be applied under the 
auspices of the Committee under this 
Agreement.  
  
(e) Prior to the date of entry into force of 
the WTO Agreement, references to 
WTO bodies shall be construed as 
referring to the corresponding GATT 
body and references to the 
Director -General of the WTO and to the 
WTO Secretariat shall be construed as 
references to, res pectively, the 
Director -General to the CONTRACTING 
PARTIES to G ATT 1947 and to the GATT 
Secretariat.  
  
4. Reservations  
  
Reservations may not be entered in respect of 
any of the provisions of this Agreement.  
  
5. National  Legislation  
  
(a) Each government accepting or 
acceding to this Agreement shall 
ensure, not later than the date of entry 
into force of this Agreement for it, the 
conformity of its laws, regulations and 
administrative procedures, and the 
rules, procedures and practices applied 
by the entities contained in its lists 
annexed hereto, with the provisions of 
this Agreement.  
  GPA/TN1994/2/Rev.4  
- 81 - 
  Article  XXIV:6  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall inform the Committee 
of any changes in its laws and 
regulations relevant to this Agreement 
and in the administration of such laws 
and regulations.  
  
6. Rectifications or Modifications  
  
(a) Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other modifications 
relating to  Appendices  I through IV 
shall be notified to the Committee, 
along with information as to the likely 
consequences of the change for the 
mutually agreed coverage provided in 
this Agreement.  If the rectifications, 
transfers or other modifications are of 
a purely formal or minor nature, they 
shall become effective provided there is 
no objection within 30 days.  In other 
cases, the Chairman of the Committee 
shall promptly convene a meeting of 
the Commit tee. The Committee shall 
consider the proposal and any claim for 
compensatory adjustments, with a 
view to maintaining a balance of rights 
and obligations and a comparable level 
of mutually agreed coverage provided 
in this Agreement prior to such 
notificati on. In the event of agreement 
not being reached, the matter may be 
pursued in accordance with the 
provisions contained in Article  XXII. 
  GPA/TN1994/2/Rev.4  
- 82 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence over it 
has been effectively eliminated, that 
Party shall notify the Committee.  Such 
modification shall become effective the 
day after the end of the following 
meeting of the Committee, provided 
that the meeting is no sooner than 30 
days from the date of notification and 
no objection has been made.  In the 
event of an objection, the matter may 
be pursued in accordance with the 
procedures on consultations and 
dispute settlement contained in 
Article  XXII. In considering the 
proposed modification to Appendix I 
and any consequential compensatory 
adjustment, allowance shall be made 
for the market -opening effects of the 
removal of gover nment control or 
influence.  
 Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee.  Such mod ification 
shall become effective the day after the end 
of the following meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made.  In the event of an 
objection, the matter may  be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XXII.  In considering the 
proposed modification to Appendix  I, it 
shall be deemed that government control or 
influence over the entity in question has  
been effectively eliminated if all of the 
following conditions are met:  
 
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, paragraph 6(b) 
would need to be modified as suggested above . [Japan]  
• The present provisions are a carefully balanced outcome of the negotiations between Parties 
and reflects the uncertainties in market access opportunities which might be associated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of g overnment 
control or influence.  Its purpose was to ensure that any future changes to an agreed annex 
does not affect the negotiated balance.  [Job No. 5189]  
 GPA/TN1994/2/Rev.4  
- 83 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the government does not provide 
the entity with any special and 
exclusive right to operate;  
 
(b) the government does not appoint 
more than half of the members of 
the entity's managing board which 
has the power to decide on its 
operations;  and 
 
(c) the operation of the entity is 
financed by its business revenue, 
not by government subsidies or 
equity infusion.  
 
Unless these conditions are met, a 
compensatory adjustment may be sought 
for any remaining government control or 
influenc e. 
[Japan – Job No. 860]  
 
 
 
Comments  
 
• The proposed criteria may not be the only ones for establishing that an entity was no longer 
under government control or influence.  There might be other criteria that might be used as 
evidence of market opening effect s. [Job No. 5189]  
• Regarding the requirement in subparagraph (a) that the government not provide the entity 
with any special or exclusive rights, a wide variety of private companies are granted such 
rights by the government.  For instance a corner store migh t be authorized to sell fishing 
licences or postage stamps.  [Job No. 5189]  
• It is unclear whether a company that is granted a special right to operate, for instance a bus 
company that is no more within the government sphere given a franchise to operate by t he 
government on certain routes in competition with other forms of transport, would fall within 
the scope of proposed subparagraph (a).  [Hong  Kong, China]  
• An effect of proposed paragraph (b) would be that it would not allow consideration of 
compensatory adjustment if, for example, an entity that was unilaterally withdrawn from 
Appendix I still had 48 % government membership on its board.  [US] 
• The requirement that the government in subparagraph (b) might not be sufficient to ensure 
that the gov ernment control or influence is effectively removed.  What would be an appropriate 
percentage in this respect?  [Job No. 5189]  
• With regard to the criteria in paragraph (c), in some circumstances, government subsidies to 
privatized entities may still be neces sary if the subsidies are linked to lowering the cost of 
provision of basic services and where the beneficiaries are the members of the general public.  
[Korea]  GPA/TN1994/2/Rev.4  
- 84 - 
  • The criterion in subparagraph (c) might not be appropriate in all cases.  For instance, a number 
of entities in both Annex 1 and Annex 3 of the United States, while operating on the basis of 
their own business revenues, continue to be considered as government agencies conducting 
government procurement.  If the entity was mainly financed by its b usiness revenue, some 
non-voting equity infusions by the government would not affect the degree of government 
control or influence.  [Job No. 5189]  GPA/TN1994/2/Rev.4  
- 85 - 
  Article  XXIV:7  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations  and Future Work  
  
(a) The Committee shall review annually 
the implementation and operation of 
this Agreement taking into account the 
objectives thereof.  The Committee 
shall annually inform the General 
Council of the WTO of developments 
during the periods covered by such 
reviews.  
 . 
(b) Not later than the end of the third year 
from the date of entry into force of this 
Agreement and periodically thereafter, 
the Parties thereto shall undertake 
further negotiations, with a view  to 
improving this Agreement and 
achieving the greatest possible 
extension of its coverage among all 
Parties on the basis of mutual 
reciprocity, having regard to the 
provisions of Article  V relating to 
developing countries.  
  
(c) Parties shall seek to avo id introducing 
or prolonging discriminatory measures 
and practices which distort open 
procurement and shall, in the context 
of negotiations under 
subparagraph  (b), seek to eliminate 
those which remain on the date of entry 
into force of this Agreement.   
 GPA/TN1994/2/Rev.4  
- 86 - 
  Article  XXIV:8, 9, 10  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
With a view to ensuring that the Agreement does 
not constitute an unnecessary obstacle to 
technical progress, Parties shall consult regularly 
in the Committee regarding developments in the 
use of information technology in government 
procurement and shall, if necessary, negotiate 
modifications to the Agreement.  These 
consultations shall in particular aim to ensure 
that the use of information technology promotes 
the aims of open, non -discriminatory and 
efficient government procurement through 
transparent procedures, that contracts covered 
under the Agreement are clearly identified and 
that all available information r elating to a 
particular contract can be identified.  When a 
Party intends to innovate, it shall endeavour to 
take into account the views expressed by other 
Parties regarding any potential problems.  
  
9. Amendments  
  
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation.  Such an amendment, once the 
Parties have concurred in accordance with the 
procedures established by the Committee, shall 
not enter into force for an y Party until it has been 
accepted by such Party.  
  
10. Withdrawal  
  
(a) Any Party may withdraw from this 
Agreement.  The withdrawal shall take 
effect upon the expiration of 60 days 
from the date on which written notice 
of withdrawal is received by the 
Director -General of the WTO.  Any Party 
may upon such notification request an 
immediate meeting of the Committee.  
  
 
Comments  
 
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to 
the Agreement in relation to the u se of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.4  
- 87 - 
  Article  XXIV:11, 12, 13, 14  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) If a Party to this Agreement does not 
become a Member of the WTO within 
one year of the date of entry into force 
of the WTO Agreement or ceases to be 
a Member of the WTO, it shall cease to 
be a Party to this Agreement with effect 
from the same date.  
  
11. Non-application of this Agreement 
between Particular Parties  
  
This Agreement shall not apply as between any 
two Parties if either of the Parties, at the time 
either accepts or accedes to this Agreement, 
does not consent to such application.  
  
12. Notes,  Appendices and Annexes  
  
The Notes, Appendices and Annexes to this 
Agreement constitute an integral part thereof.  
  
13. Secretariat  
  
This Agreement shall be serviced by the WTO 
Secretariat.  
  
14. Deposit  
  
This Agreement shall be deposited with the 
Director -General of the WTO, who shall promptly 
furnish to each Party a certified true copy of this 
Agreement, of each rectification or modification 
thereto pursuant to paragraph  6 and of each 
amendment thereto pursuant to paragraph  9, 
and a notification of each acceptance thereof or 
accession thereto pursuant to paragraphs  1 and 
2 and of each withdrawal therefrom pursuant to 
paragraph  10 of this Article.  
  GPA/TN1994/2/Rev.4  
- 88 - 
  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
  
This Agreement shall be registered in accordance 
with the provisions of Article 102 of the Charter 
of the United Nations.  
  
Done at Marrakesh this fifteenth day of April 
one thousand  nine hundred  and ninety -four in a 
single copy, in the English, French and Spanish 
languages, each text being a uthentic, except as 
otherwise specified with respect to the 
Appendices hereto.  
  
 
NOTES  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
The terms "country" or "countries" as used in this 
Agreement, including the Appendices, are to be 
understood to include any separate customs 
territory Party to this Agreement.  
 
In the case of a separate customs territory Party 
to this Agreement, where an expression in this 
Agreement is qualified by the term "national", 
such expression shall be read as pertaining to 
that customs territory, unless otherwise 
specified.  
 
Article 1, paragraph 1  
 
Having regard to general policy considerations 
relating to tied aid, including the objective of 
developing countries with respect to the untying 
of such aid, this  Agreement does not apply to 
procurement made in furtherance of tied aid to 
developing countries so long as it is practised by 
Parties.  
  
 
__________