RESTRICTED  
  
GPA/TN1994/3/Rev.2  
11 December 2003  
(24-2760) Page: 1/35 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994  
  
REVISION OF THE AGREEMENT ON GOVERNMENT PROCUREMENT  
AS AT 28 NOVEMBER 2003*,** 
Revision  
The purpose of this note is to reflect the state of the negotiations on the revision of the text of the 
Agreement on Government Procurement under Article XXIV:7 as at the end of the meeting of the 
Informal Group of the Committee on Government Procurement of 26 -28 November 2003.  
 
_______________  
 
 
 
 
 
 
* In English only.   
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs119 ) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.2  
- 2 - 
  TABLE OF CONTENTS  
Article I  Definitions  ................................ ................................ ................................ ...... 3 
Article II  Scope and Coverage  ................................ ................................ ........................  5 
Article III  General Principles  ................................ ................................ ............................  8 
Article IV  Publication of Procurement Information  ................................ ...............................  9 
Article V  Publication of Notice of Intended Procurement  ................................ .....................  9 
Article VI  Time-Periods for Tendering  ................................ ................................ ..............  10 
Article VII  Information on Intended Procurements  ................................ ..............................  12 
Article VIII  Conditions for Participation  ................................ ................................ ..............  14 
Article IX  Negotiation  ................................ ................................ ................................ .... 17 
Article X  Limited Tendering  ................................ ................................ ...........................  18 
Article XI  Treatment of Tenders and Contract Awards  ................................ ........................  19 
Article XI bis Use of Electronic Means  ................................ ................................ ...................  20 
Article XII  Transparency of Contract Award Information  ................................ ......................  21 
Article XIII  Non-Disclosure of Information  ................................ ................................ ..........  23 
Article XIV  Developing Countries  ................................ ................................ ......................  23 
Article XV  Exceptions to the Agreement  ................................ ................................ ............  26 
Article XVI  Modifications and Rectifications to Coverage  ................................ .......................  27 
Article XVII  Challenge Procedures  ................................ ................................ ......................  30 
Article XVIII  Consultations and Dispute Settlement  ................................ ................................  31 
Article XIX  Institutions  ................................ ................................ ................................ .... 33 
Article XX  Final Provisions  ................................ ................................ ..............................  33 
 GPA/TN1994/3/Rev.2  
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  Preamble  
 
Parties to this Agreement (hereinafter referred to as "Parties"),  
 
Recognizing  the need for an effective multilateral framework for government procurement, with a 
view to achieving greater liberalization and expansion of, and improving the framework for, the 
conduct of international trade;  
 
Recognizing  that measures regarding govern ment procurement should not be prepared, adopted or 
applied so as to afford protection to domestic suppliers, goods or services or discriminate among 
foreign suppliers, goods or services;  
 
Recognizing  that the integrity and predictability of government pro curement systems are integral to 
the efficient and effective management of public resources, the performance of the Parties' 
economies, and the functioning of the multilateral trading system;  
 
Recognizing  that the procedural commitments under this Agreemen t should be sufficiently flexible 
to accommodate the specific circumstances of each Party;  
 
[Recognizing  the need to take into account the development, financial and trade needs of developing 
countries, in particular the least -developed countries;]1 [NB: To be revised in light of revision 
of relevant provisions related to developing countries.]  
 
Recognizing the desirabi lity of transparent measures regarding government procurement and the 
importance of carrying out procurements in a transparent and imp artial manner, avoiding conflict of 
interest and corrupt practices, in accordance with relevant international instruments.  [NB: The 
status of this paragraph is related to the status of Article III:3bis]  
[Recognizing the importance of encouraging the use of  electronic means for procurement covered 
by this Agreement;]US,SWI 
 
Desiring  to encourage acceptance of and accession to this Agreement by WTO Members not party 
to it; 
 
Having undertaken  further negotiations in pursuance of these objectives;  
 
Hereby agree  as follows:  
 
Article I  Definitions  
For purposes of this Agreement:  
 
[build -operate -transfer contract  and public works concession contract mean  any contractual 
arrangement the primary purpose of which is to provide for the construction or rehabilitation of 
physical infrastructure, plant, buildings, facilities or other government -owned works and under 
which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity 
grants to the supplier, for a specified period of time, temporary ownership or a right to control and 
operate, and demand payment for th e use of such works for the duration of the contract;]US [Market 
Access Issue ] 
 
commercial goods and services  mean goods and services [of a type]US,CDA,JPN [with the same 
technical specifications as those]EC,SW I of goods and services that are sold or offer ed for sale to, and 
customarily purchased by, non -governmental buyers for non -governmental purposes ; [it includes 
goods and services with modifications customary in the commercial marketplace,]JPN,US ,CDA [as well 
as minor modifications not customarily avai lable in the commercial marketplace that do not 
 
1 Unattributed brackets [ ] indicates language that Parties are still considering.  GPA/TN1994/3/Rev.2  
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  significantly alter the nongovernmental function or essential physical characteristics or change the 
purpose]US; 
 
construction services contract  means a contract that has as its objective the realization by 
whatever means of civil or building works[, in the sense of Division 51 of the Provisional U.N. Central 
Product Classification (CPC)] ; [Bracketed Language - Market Access Issue ] 
 
country or countries  include any separate customs territory that is a Party to  this Agreement . In 
the case of a separate customs territory that is a Party to this Agreement, where an expression in 
this Agreement is qualified by the term "national", such expression shall be read as pertaining to 
that customs territory, unless otherwise specified;  
 
days means calendar days;  
 
[electronic auction  means  an iterative process involving [a computer networking environment]US 
[an electronic device]EC for the presentation of new prices [or]US,EC revised [downwards,]EC or new 
values conce rning certain elements of tenders, which occurs after an initial full evaluation of the 
tenders, enabling them to be ranked using automatic evaluation methods;]EC,US [NB: Canada 
questions the need for the phrase "which occurs after an initial full evaluati on of the 
tenders" and whether it is necessary to prejudge the sequence of the evaluation and 
auction. ] 
 
[electronic means  means using [a computer networking environment]US [electronic equipment]EC 
for the processing (including digital compression) and storage of data [that]US,EC is transmitted, 
conveyed and received by Internet, by wire, by radio, by optical means or by other electromagnetic 
mean;]EC,US  [NB: Canada, Japan and Israel reserve their position on this definition because 
of its links to other provisions.]  
 
in writing  or written  means any worded or numbered expression that can be read, reproduced 
and later communicated . It may include electronically transmitted and stored information;  
 
limited tendering  means a procurement method where the procuring entity contacts a supplier or 
suppliers of its choice, [only under the conditions specified in [paragraph … of Article X]and may 
choose not to apply Articles [ ] ]EC;  [NB: Japan proposes to de lete this definition.]  
 
measure  means any law, regulation, procedure, [or any act of a procuring entity relating to  a 
covered procurement]EC [procurement -specific requirement,]US,NOR,JPN [NB: The EC ; Hong Kong, 
China ; and Singapore support the concept but consider the need for further drafting. ] 
administrative guidance or practice [administrative ruling of general application]CT; [NB: The 
United States proposes two alternatives to address concerns with the bracketed text : (1) 
"...administrative guidance, practice or requirement applied in a particular procurement" ; 
or (ii) "...administrative guidance, practice or other requirement."]   
 
multi -use list  means a list of suppliers that a procuring entity has determined satisfy the conditions 
for parti cipation in that list, and that the procuring entity intends to use more than once;  
 
notice of intended procurement  means a notice published by a procuring entity in accordance 
with Article V inviting interested suppliers to submit tenders;  
 
offsets  in gov ernment procurement means any [measures,]CT conditions or undertakings that 
encourage local development or improve a Party's balance -of-payments accounts, such as the use 
of domestic content, domestic suppliers, the licensing of technology, technology tran sfer, 
investment, counter -trade and similar actions [unless such conditions or undertakings are necessary 
to enable the contracts to be performed]HKC; [NB: Hong Kong, China is concerned that the 
addition of "domestic suppliers" and, along with Korea and Is rael, that "technology 
transfer" expands the scope of offsets.]  
 GPA/TN1994/3/Rev.2  
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  open tendering  means a procurement method where all interested suppliers may submit a tender 
[in response to [a notice of intended procurement]US [an invitation to tender]SGP; [NB: Japan 
prop oses to delete this definition . Canada reserves its position on this issue . The EC 
considers it unnecessary to add any of the bracketed texts, but if any bracketed language 
is kept it would support the US bracket. ] 
 
;  
person  means a natural person or a juridical person;  
 
[procurement  means the process by which a [government]US [procuring entity]JPN,CT obtains the 
use of or acquires goods or services, or any combination thereof, for governmental purposes and 
not with a view to  commercial sale or resale, or use in the production or supply of goods or services 
for commercial sale or resale;]JPN,US [Market Access Issue ] 
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of Appendix I of each Party;  
 
qualified suppl ier means a supplier that a procuring entity recognizes as having satisfied the 
conditions for participation in a procurement;  
 
[recurring contracts  mean contracts, not based on an initial contract or agreement, which are 
regular in nature or which are int ended to be renewed within a given period;]EC,CT 
 
selective tendering  means a procurement method where only suppliers satisfying the conditions 
for participation are invited by the procuring entity to submit a tender ; [NB: Japan proposes to 
delete this definition. Canada reserves its position on this issue.]  
 
services  includes construction services, unless otherwise specified;  
 
[standard  means a document approved by a recognized body, that provides, for common and 
repeated use, rules, guidelines or characteristics for products or services or related processes and 
production methods, with which compliance is not mandatory . It may also include or deal exclusively 
with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, process or production method;]JPN,EC,US 
 
supplier  means a person or group of persons that provides or could provide goods or services;  
 
[technical regulation  means a document which lays down characteristics of a product or a service 
or their related processes and production methods, including the applicable admin istrative 
provisions, with which compliance is mandatory . It may also include or deal exclusively with 
terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, process or production method;]JPN,EC 
 
technical s pecification  means a tendering requirement that:  
 
(a) lays down the characteristics of goods or services to be procured, including quality, 
performance, safety and dimensions, or the processes and methods for their production 
or provision ; or 
 
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they 
apply to a good or service.  
 
Article II  Scope and Coverage  
Application of Agreement  
 
1. This Agreement applies to any measure regarding a procuring entity's procurement of goods, 
services or any combination thereof that is covered by this Agreement.  GPA/TN1994/3/Rev.2  
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  2. This Agreement applies to procurement:  
 
(a) by any contractual means, including purchase ; lease; rental or hire purchase, with or 
without an option to buy [and build-operate -transfer contracts and concessions for 
public works contracts;]US  [with or without utilization of the funds and the managerial 
or technical ability of the private sector]JPN; and [ Bracketed Language - Market 
Access Issue ] 
 
(b) for which the value as estimated, in accordance with paragraph 6, equals or exceeds 
the relevant threshold specified in Appendix I, at the time of publication of a notice in 
accordance with Article V.  
 
[2bis. Without prejudice to Article [Exceptions], this Agreement app lies to any procurement:  
 
(a) of central government entities where the value is estimated to equal or exceed:  
- [   ] SDR for contracts for supply of goods and services;  
- [   ] SDR for contracts for construction services;  
 
(b) of sub -central government en tities where the value is estimated to equal or exceed:  
- [   ] SDR for contracts for supply of goods and services;  
- [   ] SDR for contracts for construction services;  
(c) of entities according to Appendix I, Annex 3 where the value is estimated to equal or 
exceed:  
- [   ] SDR for contracts for supply of goods and services;  
- [   ] SDR for contracts for construction services.]EC 
[Market Access Issue ]  [NB: Korea does not support the text (2 bis) proposed by the EC.]  
 
3. For each Party, Appendix I shall be divided into five Annexes:  
 
(a) Annex 1 specifies the central government entities whose procurement is covered by this 
Agreement;  
 
(b) Annex 2 specifies the sub -central government entities whose procurement is covered 
by this Agreement;  
 
(c) Annex 3 specif ies all other entities whose procurement is covered by this Agreement;  
 
(d) Annex 4 specifies the services covered by this Agreement ; and 
 
(e) Annex 5 specifies the construction services covered by this Agreement.  
Compliance  
 
4. Each Party shall [take such  reasonable measures as may be available to it to]CDA,HKC ensure 
that the procuring entities listed in its Appendix I comply with the provisions of [Articles VII to X 
of]CDA this Agreement in conducting procurement covered by this Agreement . [NB: The EC, the US, 
Switzerland, Singapore, Japan and Korea have reservation on the bracketed language. ] 
 
5. Where a procuring entity, in the context of procurement covered by this Agreement, requires 
persons not listed in Appendix I to procure in accordance with particular requirements, Article III 
shall apply mutatis mutandis  to such requirements.  
 
Valuation  
 
6. In estimating the value of a procurement for the purpose of ascertaining whether that 
procurement is covered by this Agreement, a procuring entity shall:  GPA/TN1994/3/Rev.2  
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  (a) neither divide a procurement into separate procurements nor select or use a particular 
valuatio n method for estimating the value of a procurement with the intention of totally 
or partially excluding it from the application of this Agreement;  
 
(b) take into account all forms of remuneration, including any premiums, fees, 
commissions, interest, [other  revenue streams that may be provided for under the 
contract]US,CDA [Market Access Issue ] and, where the procurement provides for the 
possibility of option clauses, the total maximum value of the procurement, inclusive of 
optional purchases ; and 
 
(c) witho ut prejudice to the terms of paragraphs 7 and 8, [where the procurement is 
conducted in multiple parts, with contracts to be awarded at the same time or over a 
given period to one or more suppliers,]CDA,US base the calculation on:  
 
(i) the total maximum va lue of the procurement over its entire duration where 
the procurement is conducted in multiple parts, with contracts to be 
awarded  to one or more suppliers, at the same time or over a given 
time; or 
 
(ii) [[the total maximum value of]EC the contracts, [in case of framework 
purchasing ]EC, that are to be awarded over a given period to one or more 
suppliers.]EC,US; or 
 
(iii) [on the total estimated maximum value of the procurement over its entire 
duration when the total price of the procurement is not specif ied.]SWI,CDA 
 [NB:  . Japan questions the  need for subparagraph (c).]  
 
[7. In the case of a recurring procurement [ other than framework purchasing ]EC, the calculation 
of the estimated value shall be based on the total of:  
 
(a) the actual aggregate value of recurring contracts with similar characteristics awarded 
during the preceding 12 months or fiscal year, adjusted where possible to take account 
of anticipated changes in quantity or value over the subsequent 12 months ; or  [NB: 
Hong Kong, China co nsiders that the scope of "recurring co ntracts with similar 
characteristics" should be clarified.]  
 
(b) the estimated aggregate value of recurring contracts to be awarded during the 
12 months subsequent to the initial contract or during the procuring entit y's fiscal year, 
whichever is greater.]EC 
[NB: Korea , Switzerland and Canada question the meaning and application of this 
paragraph. ] 
 
8. In the case of procurement by lease, rental or hire purchase of goods or services, [or 
procurement for which a total price is not specified,] the basis for valuation shall be, with respect 
to: [NB: Switzerland and Canada propose to delete from the first sentence the words "or 
procurement for which a total price is not specified".]  
 
(a) fixed-term contracts, where t he term is 12 months or less, the total contract value for 
their duration, or, where the term exceeds 12 months, the total value including any 
estimated residual value ; or 
 
(b) contracts for an indefinite period, the monthly instalment multiplied by 
[48].EC,JPN,NOR,US,KOR,HKC  Where there is doubt as to whether the contract is to be a 
fixed-term contract, this basis for valuation shall be used.  
 GPA/TN1994/3/Rev.2  
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  Article III  General Principles  
National Treatment and Non -Discrimination  
 
1. With respect to any measure and any procurement covered by this Agreement, each Party 
[and each procuring entity, respectively,]US,EC,NOR,SW I,JPN ; shall accord immediately and 
unconditionally to the goods and services of any other Party and to the suppliers of any other Party 
offering the g oods or services of any other Party, treatment no less favourable than the treatment 
the Party [or the procuring entity]US,EC,NOR ,JPN accords to:  
 
(a) domestic goods, services and suppliers ; and 
 
(b) goods, services and suppliers of any other Party.  
 
2. With respect to any measure and any procurement covered by this Agreement, neither a Party 
nor a procuring entity shall:  
 
(a) treat a locally established supplier less favourably than another locally established 
supplier on the basis of degree of foreign aff iliation or ownership ; nor 
 
(b) discriminate against a locally established supplier on the basis that the goods or services 
offered by that supplier for a particular procurement are goods or services of any other 
Party.  
 
Procurement Methods  
 
3. A procuring entity shall conduct procurement covered by this Agreement in a manner that is 
consistent with this Agreement, and, except where specifically provided otherwise in this Agreement, 
in a transparent [and impartial]EC,US manner, using methods such as open tendering, selective 
tendering and limited tendering.  
 
[3bis. A procuring entity[, [in Annexes 1]JPN and 3,]US shall ensure that [a procurement official] does 
not prepare or [make]US [take] decisions in a [procurement co vered by this Agreement]NOR,US where 
the official’s impartiality may] [the impartiality of its procurement process may not]JPN be affected 
by family ties, business links, cross representation or other reasons that may cause a conflict of 
interest[, in acco rdance with the measures of the Party of the procuring entity].JPN]NOR,US,CDA,HKC,SW I,JPN 
[Procuring entities shall ensure that procurement is conducted in a transparent and impartial 
manner.]EC  [NB: The Parties have agreed to add provisions to the preamb le that may serve 
as alternatives to this paragraph, but have agreed to defer further discussion of this 
paragraph to the next session. ] 
 
Rules of Origin  
 
4. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods  or services imported from or supplied by another Party that are different from the rules of 
origin the Party applies  [at the same time ]EC,CDA in the normal course of trade [at the time of the 
transaction in question]JPN to imports or supplies of the same goods or services from the same Party. .  
 
Offsets  
 
5. With regard to procurement covered by this Agreement, a procuring entity shall not seek, take 
account of, impose or enforce offsets in the qualification and selection of suppliers, goods or services, 
in the evaluation of tenders or in the award of contracts, prior to or in the course of a procurement 
process . [NB: Hong Kong, China is concerned that the use of "enforce" expands the scope 
of the provision.]  
 
Measures Not Specific to Procurement  GPA/TN1994/3/Rev.2  
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  6. 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 or formalities, and measures affectin g trade in services other than measures 
regarding procurement covered by this Agreement.  
 
Article IV  Publication of Procurement Information  
Each Party shall:  
 
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general 
application, standard contract clauses that are mandated by law or regulation and are 
incorporated by reference in notices and tender documentation and procedure regarding 
procurement covered by this Agreement, and any modifications thereof, in off icially 
designated electronic or paper media that are widely disseminated and remain readily 
accessible to the public and that are in the appropriate publications listed in Appendix 
IV; and 
 
(b) provide an explanation thereof to any Party, on request.  
 
Article V  Publication of Notice of Intended Procurement  
1. For each procurement covered by this Agreement, except in the circumstances described in 
Article X, a procuring entity shall publish a notice of intended procurement . The notice shall be 
published in the appropriate publication listed in Appendix II . Such publications shall be in [electronic 
or] paper media that are widely disseminated and remain readily accessible to the public [.]SGP  [For 
procuring entities in Annex 1  s]US,HKC [S]uch publications  where electronic shall be accessible free of 
charge [through a single point of access ]SGP].EC,NOR, US,KOR,SW I,HKC [Procuring entities in Annexes 2 and 
3 shall be encouraged to make such publications available free of charge through a single point of 
access. ]US  
 
2. [Each notice of intended procurement shall include]EC [A procuring entity shall include the 
following information in each notice of intended procurement ]CDA: 
 
(a) the name and address of the procuring entity and other information necessary to contact 
the procuring entity and obtain all relevant documents relating to the procurement, and 
their cost and terms of payment, if any;  
 
(b) a description of the procurement, including the nature and the quantity of the goods or 
services to be procured  or, where the quantity is not known, the estimated quantity;  
 
- [whether the procuring entity is inviting offers for purchase, lease, rental or hire 
purchase, or more than one of these methods;]EC 
 
- [any options]EC,CDA,NOR,US [for further procurement and , if possible, an estimate of 
when such options may be exercised;]EC 
 
- [for recurring contracts, if possible, an estimate of the timing of subsequent 
notices of intended procurement;]EC  [NB: The US, Japan, CT , Singapore  and 
Canada continue to believe tha t it is not necessary to require the 
inclusion of these three items of the notice.]  
 
(c) the time -frame for delivery of goods or services or the duration of the contract;  
 
(d) the procurement method that will be used and whether it will involve negotiation, 
[electronic means ]EC [or electronic auction]CDA,US; 
 GPA/TN1994/3/Rev.2  
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  (e) the address and the time -limits for the submission of tenders and, where applicable, 
any time -limits for the submission of applications to qualify for participation in the 
procurement, as well as the language or languages in which they must be submitted, if 
other than an official language of the Party of the procuring entity;  
 
(f) a list and brief description of any conditions for participation of suppliers [including any 
specific documents or certifications required from suppliers in connection 
therewith]EC,CDA,ISR,US; [NB: Hong Kong, China maintained that it was not 
necessary to include information in (f) in the notice of intended procurement 
because such information would be included in the tender documentation .] 
 
(g) where, pursuant to Article VIII, a procuring entity intends to select a limited number of 
qualified suppliers to be invited to tender, the criteria that will be used to select them 
and, where applicable, any l imitation on the number of suppliers that will be permitted 
to tender ; and 
 
(h) an indication that the procurement is covered by this Agreement.  
 
Notice of Planned Procurement  
 
3. Procuring entities are encouraged to publish as early as possible in each fi scal year a notice 
regarding each procuring entity's future procurement plans . The notice should include the subject 
matter of the procurement and the planned date of the publication of the notice of intended 
procurement . When the published information is in accordance with Article VI.3  (a), a procuring 
entity may apply Article VI.3 for the purpose of establishing shorter time -periods for tendering of 
procurements covered by this Agreement .  
[4. A procuring entity in [Annex [1,]CT 2 and] Annex 3 may use a n otice of planned procurement, 
as provided for in paragraph 3, as a notice of intended procurement provided that it [contains in 
addition the statement that]EC [no further notices will be published]EC [includes as much of the 
information in paragraph 2 as i s available].CDA,JPN,EC  [NB: The relationship of this paragraph with 
paragraph 3 needs to be re visited.] 
 
Summary Notice  
 
5. For each case of intended procurement, a procuring entity shall publish [in a paper media 
listed in Appendix 2]ISR a summary notice in one of the official languages of the WTO . [In addition, 
t]ISR [The notice [may be published also in electronic media and contain the following information:]ISR 
[shall contain at least the following information]:  
 
(a) the subject -matter  of the procurement;  
 
(b) the time -limits set for the submission of tenders or, where applicable, of applications to 
be invited to tender or for inclusion on multi -use lists ; and 
 
(c) the addresses from which documents relating to the procurement may be requested .  
[NB: Canada , Chinese Taipei and Hong Kong, China have reservations on this paragraph.]  
 
Article VI  Time -Periods for Tendering  
General  
 
1. A procuring entity shall ensure that any prescribed time -limit, including any extension  of this 
time-limit, is common for all interested  or participating suppliers and is adequate to allow suppliers 
of other Parties as well as domestic suppliers:  [NB: Drafting with respect to "interested or 
participating" may need review.]  
 GPA/TN1994/3/Rev.2  
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  (a) to prepare an d submit tenders ; and 
 
(b) where a procuring entity requires suppliers to meet conditions of participation to 
participate in tendering, to submit applications requesting participation.  
 
In determining any such time -limit, a procuring entity shall, consiste nt with its own reasonable 
needs, take into account such factors as the complexity of the intended procurement, the extent of 
subcontracting anticipated, and the normal time for transmitting tenders from foreign as well as 
domestic points.  
 
Deadlines  
 
2. Except as provided for in paragraphs 3 and 4 [and 5]CDA, a procuring entity shall provide no 
less than 40 days:  
 
(a) from the date on which the notice of intended procurement is published to the final date 
for the submission of tenders ; or 
 
(b) where the en tity has used procedures provided for in Article VIII:  [5]US [[8] or 9] [, 
whether or not it uses a multi -use list,] from the date on which the entity notifies 
[initially]JPN suppliers that they will be permitted to submit tenders to the final date for 
the submission of tenders.  
 
3. Under the following circumstances, a procuring entity may establish a time -period for 
tendering [or for submitting applications as specified in Article VIII:8]CDA that is less than 40 days 
[or 25 days, respectively,]CDA from publication of a notice of inte nded procurement or an invitation 
to submit tenders  [or applications]CDA, provided that such time -period is sufficient to enable suppliers 
to prepare and submit responsive tenders [or applications]CDA and is in no case less than 10 days 
prior to the final date for submission [s]CDA: [The same shall apply to the 25 -day requirement for 
submitting applications specified in Article VIII:[8].]CT,EC,JPN  [NB: The EC has reservations on the 
new proposed language, in particular the EC is wondering if the reduction of  the time 
period for submitting the app lication should occur for all the following circumstances 
foreseen by the Article. ]  
 
(a) where [a separate notice, including]US,CDA,JPN a notice of planned procurement under 
Article V:3 has been published at least 40 days and not more than 12 months in 
advance, [and such notice contains: a description of the procurement ; the approximate 
time-limits for the submission of tenders or, when a ppropriate, applications for 
qualification ; a statement that interested suppliers should express their interest in the 
procurement to the procuring entity; and the address from which documents relating 
to the procurement may be obtained]US,CDA,JPN [togethe r with as much information under 
Article V.2 as is available]EC,CDA; 
 
[(b) in the case of the second or subsequent publication of notices dealing with contracts 
based on an initial agreement or contract ;]EC,US[where a procuring entity chooses to 
publish a  second or subsequent notice based on an initial agreement or contract]CDA,HKC  
[NB: Canada has proposed and is still considering this bracketed language. ] 
 
(c) [where the procuring entity procures commercial goods or services;] JPN,CDA,US 
 
(d) where a sta te of urgency duly substantiated by the procuring entity renders 
impracticable the periods specified in paragraphs 2.  
 
[(e) [where a procuring entity in [Annex [2 or] 3] selects suppliers that will be invited in 
accordance with Article VIII ,]CDA [when ]EC the period for the submission of tenders 
referred to in paragraph 2, [for procurements by a procuring entity in [Annex [2 and] 
3]]EC, [may be]CDA [has been ]EC fixed by mutual agreement between the procuring entity GPA/TN1994/3/Rev.2  
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  and the selected suppliers . In the absence of agreement, the procuring entity may fix 
periods which shall be sufficient to enable responsive tendering].EC,CDA  
 
4. When a procuring entity publishes a notice of intended procurement in accordance with Article 
V in an electronic media listed in Appendix II, the procuring entity may reduce the time -periods 
provided for in this Agreement by up to five days . In addition, when the complete tender 
documentatio n is made available electronically from the beginning of the publication of the notice, 
the procuring entity may reduce the time -periods provided for in this Agreement by up to an 
additional five days . [In addition, when the tenders may be received electro nically, the procuring 
entity may reduce the time -periods provided for in this Agreement by up to an additional five 
days.]CT,KOR,JPN,SWI  The use of this provision, however, shall in no case result in the reduction of those 
time-periods to less than 10 da ys from the date on which the notice of intended procurement is 
published . [NB: In any case, Israel opposes shortening time -periods by any more than five 
days. ] 
 
[5. Notwithstanding any other time -periods in this Article, when a procuring entity is purchas ing 
commercial goods or services and the notice of intended procurement and the tender documents 
are published electronically, and the tenders may be received electronically, the entity may reduce 
the time -period to no less than [10]SWI,EC [5]CDA,US days, provided such time is adequate to allow 
suppliers to submit responsive electronic tenders.]CDA,EC,US,SW I 
. ;  
 
Article VII  Information on Intended Procurements  
Tender Documentation  
 
1. A procuring entity shall provide to suppliers tender documentation that includes all information 
necessary to permit suppliers to prepare and submit responsive tenders . Unless already provided in 
the notice of intended procurement, such documentation shall include a complete description of:  
 
(a) the procurem ent, including the nature and the quantity of the goods or services to be 
procured or, where the quantity is not known, the estimated quantity and any 
requirements to be fulfilled, including any technical specifications, conformity 
certification, plans, dr awings or instructional materials;  
 
(b) any conditions for participation of suppliers  including a list of information and 
documents that suppliers are required to submit in connection therewith; 
 
(c) all criteria, including any cost factors [, such as tra nsport, insurance and inspection 
costs]EC,SW I, to be considered in the awarding of the contract, and the relative 
importance of such criteria;  
 
(d) where there will be a public opening of tenders, the date, time and place for the opening 
and, where appropr iate, the persons authorized to be present ; and 
 
(e) any other terms or conditions, including terms of payment and any limitation on the 
means by which tenders may be submitted, e.g. paper or electronic means.  
 
2. In establishing any delivery date for the goods or services being procured, a procuring entity 
shall take into account such factors as the complexity of the procurement, 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.  
 
3. A procuring entity shall promptly:  
 
(a) provide, on request, the tender documentation to any supplier participating in the 
procurement ; and GPA/TN1994/3/Rev.2  
- 13 - 
  (b) reply to any reasonable request for relevant information by  a supplier participating in 
the procurement, provided that such information does not give that supplier an 
advantage over its competitors in the procurement.  
 
Technical Specifications  
 
4. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe 
any conformity assessment procedure with the purpose or the effect of creating unnecessary 
obstacles to international trade.  
 
5. In prescribing the technical specifications for the goods or services being procured, a pr ocuring 
entity shall, where appropriate:  
 
(a) specify the technical specification, in terms of performance and functional requirements, 
rather than design or descriptive characteristics ; and  [NB: The EC would prefer 
using "or" instead of "and" at the end of this sentence.]  
 
(b) base the technical specification on international standards, where such exist otherwise, 
on [national technical regulations,]CDA recognized national standards or building codes[, 
provided that the notice of intended procurement or t he tender documents shall state 
that equivalent solutions shall be considered].EC,SW I 
 
6. A procuring entity shall not prescribe technical specifications that require or refer to a 
particular trademark or trade name, patent, copyright , design or type, spec ific origin, producer or 
supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement 
requirements and provided that, in such cases, words such as "or equivalent" are included in the 
tender documentation.  
 
7. A procuring entity shall not seek or accept, in a manner that would have the effect of 
precluding competition, advice that may be used in the preparation or adoption of any technical 
specification for a specific procurement from a person that may have a com mercial interest in the 
procurement.  
[8. For greater certainty, this Article is not intended to preclude a Party from preparing, adopting, 
or applying technical specifications to promote the conservation of natural resources or protect the 
environment [pro vided that such technical specifications are consistent with paragraphs 4 
through  7].JPN,EC]JP,EC,US,SWI ,NOR  [NB: Chinese Taipei reserves its position on the last bracket. ] 
[NB: Canada disagrees with the entire paragraph.]  
 
[8bis. Requirements and evaluat ion criteria which require subjective assessment or professional 
judgment should be kept to a minimum and should only be used where justified.]HKC 
 
Modifications  
 
[9. If, [during the course of a procurement]US [prior to the award of a contract]HKC [before the 
time set for the receipt and/or opening of tenders]CDA, a procuring entity modifies the criteria or 
technical requirements set out in previous notices and tender documentation provided to 
participating suppliers, [or]US amends or reissues the notice, i t shall transmit all such modifications 
or amended or re -issued notice in writing:  
 
(a) to all the suppliers that are participating at the time the information is [modified or]US 
amended, if [the identities of the suppliers are]US known, and in all other cases, in the 
same manner as the original information  [was transmitted]US; and 
 
(b) in adequate time to allow such suppliers to modify and re -submit amended tenders, as 
appropriate.]CDA,US 
 GPA/TN1994/3/Rev.2  
- 14 - 
  [If, after publication of a notice of intended procurement, but before the time set for the opening or 
receipt of tenders as specified in the notices or the tender documentation, [a procuring entity]US [it 
becomes necessary to]EC amend[s] or re -issue[s] the notice, [the entity shall circulate]US the 
amendment or th e re-issued notice [shall be given the same circulation as]EC [in the same manner 
as]US the original documents upon which the amendment or re -issued notice is based . [A procuring 
entity shall provide]US [A]ny significant information [given] to [all supplie rs at the same time]US [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].EC,JPN,US,HKC ,CDA 
 
Article VIII  Conditions for Participation  
General Requirements  
 
1. A procuring entity shall limit any conditions for participation in a procurement to those that 
are essential to ensure that a supplier has the legal, commercial, technical and financi al abilities to 
undertake the relevant procurement.  
 
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity 
shall:  
 
(a) evaluate the financial, commercial and technical abilities of a supplier on the basis of 
that supplier's business activities both inside and outside the territory of the Party of 
the procuring entity, and may not impose the condition that, in order for a supplier to 
participate in a procurement, the supplier has previously been awarded one or more  
contracts by a procuring entity of a given Party [or that the supplier has prior work 
experience in the territory of a given Party]US,EC,CDA,KOR,NOR,JPN,SW I; and  [NB: 
Hong  Kong, China proposes deletion of this bracket and suggest s a new 
paragraph 2 bis.] 
 
(b) base its determination on the conditions that the procuring entity has specified in 
advance in notices or tender documentation.  
 
[2bis. If essential for the satisfactory performance of the contracts, the procuring entities may 
specify that the suppliers have prior and relevant working experience in the territory provided that 
this is not used to discriminate against suppliers of any other Parties.]HKC 
 
3. A procuring entity shall allow [all]US [each]EC,JPN domestic supplier [s]EC,JPN and supplier [s]EC,JPN 
of [an]US other  Part[ies]EC,JPN[y]US that satisf [y]EC,JPN[ies]US the conditions for participation in a 
particular procurement to submit a tender, unless the procuring entity has indicated that it may limit 
the number of suppliers that it will inv ite to submit tenders and sets out [any limitation on the 
number of suppliers that will be permitted to tender]US the criteria for such limitation in the notice 
of intended procurement [[or]JPN,US [and]EC tender documentation].EC,JPN,US [NB: Ther e has been 
discussion on the link between this paragraph and paragraph 9, including whether 
paragraph 9 would be necessary if language relating to the public availability of tender 
documentation and it being free of charge were added to paragraph 3.]  
 
[[3]JPN [5]ECbis. Each Party shall ensure that:  
 
(a) each procuring entity and its constituent parts follow a single qualification procedure, 
except in cases of duly substantiated need for a different procedure ; and 
 
(b) efforts be made to minimize differences in qualification procedures between procuring 
entities.]JPN,SW I,EC 
 GPA/TN1994/3/Rev.2  
- 15 - 
  4. Nothing in this Article shall preclude the exclusion of a supplier on grounds such as bankruptcy 
or false declarations or significant deficiencies in performance of any substantive requ irement or 
obligation under a prior contract.  
 
Multi-Use Lists  
 
5. A procuring entity that maintains a multi -use list of suppliers that have satisfied the conditions 
for participation shall annually publish [or otherwise make available continuously in elec tronic 
form]US,CDA ,KOR a notice inviting interested suppliers to apply for inclusion on the list . Such notice 
shall be published in the appropriate publication listed in Appendix III . The notice shall include:  
 
(a) a description of the goods and services, or categories thereof, for which the list may be 
used;  
 
(b) the conditions for participation to be satisfied by suppliers and the methods that the 
procuring entity will use to verify a supplier's satisfaction of the conditions;  
 
(c) the name and address of  the procuring entity and other information necessary to contact 
the entity and obtain all relevant documents relating to the list;  
 
(d) the date on which the list will terminate and the means for its renewal or termination, 
[or where a date is not provide d, an indication of the method by which notice will be 
given of the termination of use of the list]CDA,US ,JPN; and 
 
(e) an indication that, for procurement covered by this Agreement, the list may be used.  
 
[6. Where a multi -use list is valid for a period of three years or less, a procuring entity shall 
publish the notice referred to in paragraph 5 at least once, at the commencement of the use of the 
list, provided that this provision is not used to circumvent th is Agreement and the notice states that 
further notices will not be published.]EC,US  [NB: Switzerland , Canada, Singapore  and Japan 
question the extent to which this paragraph is compatible with paragraph 5, which 
foresees an annual publication. ] 
 
7. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi -use list 
and shall include on the list all suppliers that satisfy the conditions for participation within a 
reasonably short time.  
 
[Notice Inviting Applications]CDA,JPN [Selective Tendering]EC,US 
 
8. Where a procuring entity intends to [limit the submission of tenders to all qualified supplier s 
or to a limited number of qualified suppliers selected by the procuring entity]CDA,EC,US [set a time -limit 
for submitting applications to recognise suppliers as having satisfied the conditions for participation 
in a procurement or to select a limited num ber of qualified suppliers]JP,KOR, [whether or not it uses a 
multi-use list,]EC [, except where a notice of a multi -use list has been readily accessible in electronic 
form for a reasonable period of time,]US,CDA the entity shall publish in the notice of in tended 
procurement the time -limit for submitting applications[, which must be a minimum of 25 days from 
the date of publication of the notice.]EC,CDA 
 
[Such time -limit shall be:  
 
(a) a minimum of [15]SWI days from the date of publication of the notice wher e it uses a 
multi-use  list ; or  [NB: Switzerland supports shortening the time -period for 
submitting applications when using a multi -use list to 15 days, but notes that 
the time -period should not be further shortened when using electronic means, 
owing to t he complexity of the projects requiring selection of qualified 
suppliers.]  
 GPA/TN1994/3/Rev.2  
- 16 - 
  (b) a minimum of [25] days from the date of publication of the notice where it does not use 
a multi -use list.]JPN,KOR 
 
[If an application is submitted within the time -limit, a proc uring entity shall examine it]CDA,EC,US and 
[may not exclude the supplier from consideration in respect of the procurement on the grounds that 
the procuring entity has insufficient time to examine the application]EC,US[, provided that the entity 
is able to  complete the examination of the application within the time -period allowed for 
tendering.]US. [A procuring entity may limit submission of tenders to qualified suppliers that have 
submitted applications within this time -limit.]JPN  [NB: Hong Kong, China preferred deleting the 
sentence "may not exclude the supplier from consideration in respect of the procurement 
on the grounds that the procuring entity has insufficient time to examine the application" 
as experience showed that it might take considerable tim e to complete the qualification 
process .] 
 
9. Where a procuring entity selects a limited number of qualified suppliers that it will permit to 
submit tenders, the procuring entity shall include in the notice of intended procurement, or the 
tender documentat ion [if it is made publicly available], the following additional information:  
 
(a) an indication that the entity will limit the qualified suppliers permitted to submit tenders ; 
and 
 
(b) the criteria on which the selection will be based, including, where applicable, any 
limitation on the number of suppliers that will be permitted to tender .  
[NB: . See note to paragraph 3 on the link between these two provisions. ] 
 
[10. The time -period provided for in paragraph 8 may be reduced to [10] days where:  
 
(a) the conditions for participation for a procurement are the same as or a sub -set of the 
conditions for participation for a multi -use list ; [and]EC 
 
(b) the procurement is for commercial goods or services ; and 
 
(c) the procuring entity has p ublished a notice establishing that multi -use list for at least 
[25] days and that notice [has]CDA,US [and all relevant documents relating to the list 
have]EC remained readily accessible in electronic form since its initial date of 
publication.]CDA,EC,US  [NB: The US and Canada are proposing to delete 
subparagraphs (a) and (c) . The EC is reconsidering the whole paragraph.]  
 
Annex 2 and 3 Entities  [NB: The EC, Canada, Norway and Switzerland are considering to 
reduce the scope of this paragraph, in particular  Annex 2 . Japan is considering both Annex 
2 and Annex  3.] 
 
11. A procuring entity listed in Annexes [2]US or [3]SWI,US,CDA,NOR,EC may use a notice inviting 
suppliers to apply for inclusion on a multi -use  list as a notice of intended procurement, provided 
that: 
 
(a) the notice sets out, in addition to the information required in paragraph 5, as much of 
the information required in Article V:2 as is available and contains a statement that it 
constitutes a notice of intended procurement [or that only the suppl iers on the multi -use 
list will receive further notice of procurements that are covered by the multi -use 
list]US,CDA; 
 
(b) the entity promptly provides to suppliers that have expressed an interest to the entity 
in a given procurement, sufficient information to permit them to have a meaningful 
opportunity to assess their interest in the procurement, including all remaining 
information required in Article V:2, to the extent such information is available ; [and]  
 GPA/TN1994/3/Rev.2  
- 17 - 
  [(c) a supplier having applied for inc lusion on a multi -use list in accordance with paragraph  7 
shall be entitled to tender in a given procurement, if there is sufficient time to examine 
whether it satisfies the conditions for participation].EC,SW I 
 
[(d) the time -period between the publication of the notice inviting suppliers to apply for 
inclusion on a multi -use list and the intended procurement should not be more than 
90 days.]SWI 
 
Information on Procuring Entities' Decisions  
 
12. A procuring entity shall promptly advise a supplier  of the success or failure of its application 
for inclusion on a multi -use list and of any decision by the entity to include the supplier on a multi -
use list.  
 
13. Where a procuring entity has required suppliers to apply for recognition that they have 
satisfied the conditions for participation in accordance with paragraphs 8 or [9] [11]EC, the entity 
shall promptly notify all such suppliers of the results of their applications and [at the same 
time]US,EC,CDA shall [allow all successful applicants to submit tenders .],JPN,US,CDA [send invitations to 
tender to all successful applicants .]EC 
 
14. Where a procuring entity has taken action under paragraph 12 or 13, the entity shall, on 
request of a supplier, promptly provide the supplier with a written explanation of the reasons for the 
entity's action.  
 
Article IX  Negotiation  
1. A Party may provide for its procuring entities to conduct negotiations:  
 
(a) in the context of procurements in which they have indicated such intent in the notice of 
intended procurement in  paragraph 2 of Article V ; or 
 
(b) it appears from the evaluation that no one tender is obviously the most advantageous 
in terms of the specific evaluation criteria set forth in the notices or tender 
documentation.  
 
2. A procuring entity [shall treat tende rs in confidence. In particular, it]EC,ISR,SW I [shall not provide 
information intended to assist particular participants to bring their tenders up to the level of other 
participants.]EC,ISR,SW I,CT  [NB: Canada , the US  and Korea believe that this issue is already 
addressed by Article s XI:2 and XIII:3, and suggest to delete this paragraph.]  
 
3. A procuring entity shall ensure that any elimination of tenderers in negotiations is carried out 
in accordance with the criteria  set out in the notices or tender documentation.  
 
4. A procuring entity shall transmit, in writing, any modifications to the criteria made in the 
course of negotiations to tenderers whose tenders have not yet been eliminated according to the 
criteria set out in the notices or tender documentation, and when negotiations are concluded will 
provide a common deadline for the remaining tenderers to submit any new or revised tenders.  
 
[5. Where negotiations are used, the procuring entity shall maint ain a written record which 
demonstrates that the contract was awarded to the tenderer providing the most advantageous 
tender.]CDA, SW I  [NB: EC, Korea and US believe that this provision overlaps with 
Article  XII:4.]  
 GPA/TN1994/3/Rev.2  
- 18 - 
  Article X  Limited Tendering  
1. Provided  that it does not use this provision for the purpose of avoiding competition among 
suppliers or in a manner that discriminates against suppliers of the other Parties, or that protects 
domestic suppliers, a procuring entity may [contact a supplier or suppli ers of its choice]CDA,JPN,US,SW I 
[use a limited tendering procedure]EC and may choose not to apply Articles [ ...] in the following 
circumstances : [NB: Switzerland finds it useful to mention that limited tendering refers to 
"contact a supplier or suppliers of its choice" ; it should also be defined in Article I as it is 
explicitly mentioned under Article  III, §3 (Procurement methods) . Canada and the US 
propose mat ching the Articles in the current Agreement ; Japan proposes to make 
reference to Articles V, VI, VII:1, 2, 3, and 8, VIII, IX and XI. ] 
 
(a) provided that the requirements of the tender documentation are not substantially 
modified:  
 
(i) where no tenders were submitted or no suppliers applied to meet the 
conditions for participation;  
 
(ii) where no tenders that conform to the essential requirements of the tender 
documentation were submitted;  
 
(iii) where no suppliers satisfied the conditions for participation ; or 
 
(iv) where the tenders submitted have been collusive;  
 
(b) where the goods or services can be supplied only by a particular supplier and no 
reasonable alternative or substitute goods or services exist for the following reasons:  
 
(i) the requirement is for a work of art;  
 
(ii) the protection of patents, copyrights or other exclusive rights[, or 
proprietary information]US,CDA,JPN; or 
 
(iii) due to an absence of competition for technical reasons;  
 
(c) for additional deliveries of goods or services [by the original supplier]EC,JPN,US that are 
intended either as replacement parts, extensi ons, or continuing services for existing 
equipment, software, services or installations, where a change [of goods or services]CDA 
[of supplier]JPN,US,EC ,KOR would compel the entity to procure goods or services [not 
meeting requirements of interchangeabilit y with existing equipment, software, services, 
or installations]JPN,KOR [that would : [NB: Switzerland notes that the relationship 
between (c) and (g) needs further scrutiny.]  
 
(i) alter the operation or use of the existing goods or  services ; or 
 
(ii) due to the change of goods or services, require existing equipment or 
services to be altered;]CDA,US 
 
(d) in so far as is strictly necessary where, for reasons of extreme urgency brought about 
by events unforeseeable by the procuring entity, the goods or servi ces could not be 
obtained in time under tendering procedures consistent with Articles [ ];  
 
(e) for goods purchased on a commodity market ; or 
 
(f) [when ] [where]US a procuring entity procures a prototype or a first [product ] [good]US 
or service that is dev eloped at its request in the course of, and for, a particular contract 
for research, experiment, study or original development . [Original development of a GPA/TN1994/3/Rev.2  
- 19 - 
  first good or service may include limited production or supply in order to incorporate 
the results of  field testing and to demonstrate that the good or service is suitable for 
production or supply in quantity to acceptable quality standards [; it]EC,JPN [, but]US does 
not [extend to ]EC,JPN [include]US quantity production or supply to establish commercial 
viability or to recover research and development costs;]EC,JPN ,US 
 
(g) when additional [construction]JPN,CDA,US ,KOR services which were not included in the initial 
procurement but which were within the  objectives of the original tender documentation 
have, through unforeseeable circumstances, become necessary to complete the services 
described therein, and the entity needs to award contracts for the additional services to 
the contractor carrying out the services concerned since the separation of the additional 
services from the initial procurement would be difficult for technical or economic reasons 
and cause significant inconvenience to the procuring entity . However, the total value of 
contracts awarded for the additional services may not exceed 50 per cent of the amount 
of the main procurement ; [NB: Switzerland, Norway and the EC question why this 
should be limited to construction?]  
 
(h) for new [construction]JPN,CDA,US ,KOR services consisting of the repetition of similar services 
which conform to a basic project for which an initial contract was awarded following an 
open or selective procurement method and for which the procuring entity has indicated 
in the notice of intend ed procurement concerning the initial service, that a limited 
procurement method might be used in awarding contracts for such new services;  [NB: 
Only Chinese Taipei would like to add the words "goods and" before "services" 
in the first line.]  
 
(i) for purc hases made under exceptionally advantageous conditions which only arise in 
the very short term in the case of unusual disposals such as arising from liquidation, 
receivership or bankruptcy and not for routine purchases from regular suppliers ; and 
 
(j) in the case of [a] contract awarded to the winner of a design contest provided that:  
 
(i) the contest has been organized in a manner that is consistent with the 
principles of this Agreement, notably as regards the publication of a notice 
of intended procuremen t; and 
 
(ii) the participants are judged by an independent jury with a view to design 
contracts being awarded to the winner.  
 
2. A procuring entity shall prepare a report in writing on each contract awarded under 
paragraph  1. Each such report shall include  the name of the procuring entity, the value and kind of 
goods or services procured and a statement indicating the circumstances and conditions described 
in paragraph 1 that justified the use of such procedures.  
 
Article XI  Treatment of Tenders and Contrac t Awards  
Receipt and Opening of Tenders  
 
1. A procuring entity shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process.  
 
2. A procuring entity shall treat tenders in confidence at least un til the award of the contract.  
 
3. A procuring entity shall not penalize any supplier whose tender is received after the time 
specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring 
entity.  
 GPA/TN1994/3/Rev.2  
- 20 - 
  4. When a procuring entity provides suppliers with opportunities to correct unintentional errors 
of form between the opening of tenders and the awarding of the contract, the procuring entity shall 
provide the same opportunities to all participating suppliers.  
 
Award ing of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
comply with the essential requirements of the notices and tender documentation and be from a 
supplier that satisfies any conditions for participa tion. 
 
6. A procuring entity shall not use option clauses in a manner that circumvents the provisions of 
this Agreement.  
 
7. Unless a procuring entity determines that it is not in the public interest to award a contract, 
it shall award the contract to the supplier that the entity has determined to be fully capable of 
undertaking the contract and whose tender is either the lowest price or the tender that the entity 
has determined to be the most advantageous solely on the basis of the requirements and eva luation 
criteria specified in the notices or tender documentation.  
 
8. Where a procuring entity receives a tender with a price that is abnormally lower than the 
prices in other tenders submitted, it may verify with the tenderer that it can comply with the 
conditions of participation and be capable of fulfilling the terms of the contract.  
 
[9. A procuring entity shall not cancel a procurement or modify awarded contracts in a manner 
that circumvents the obligations of this Agreement.]US.EC 
 
[Article XI bis Use of Electronic Means ]   
[NB: Switzerland supports this new article and is reviewing the text in detail . Israel is still 
considering this proposed Article . . Canada is questioning whether 2 (b) and 3 (d) are 
necessary.]  
 
1. [The use of electronic means for procurement covered by this Agreement is encouraged.]SGP  
[Procurement covered by this Agreement conducted, exclusively or not, by electronic means shall 
be subject to the provisions of this Agreement.]EC,SGP,KOR 
 
2. Where a procuring entity intends to con duct a procurement using electronic means, either 
wholly or partially, it shall:  
 
[(a) state [in the notice of intended procurement]US its intention to [require that tenders be 
submitted by electronic means]US;] 
 
(b) ensure that any means and tools used for communicating electronically including 
authentication, integrity of data and encryption are [non -discriminatory], [generally 
available and interoperable with the information and communication technology 
products in general use and will not impose an unreasonable burden on other Parties' 
suppliers access to the tendering procedure] ; [NB: Japan , Canada and the US have 
reservations on th is subparagraph .] 
 
(c) ensure that all information necessary to permit potential suppliers to meet the 
specification s for using the necessary electronic means and tools is available to 
interested parties and is included by the procuring entity in the tender documentation ; 
and [NB: Canada and the US wonder whether this should be a paragraph 2 in 
Article VII.]  
 
(d) use me chanisms which clearly and unambiguously guarantee that, pending the expiry 
of the deadlines set, the integrity of data is preserved, access to tenders and request GPA/TN1994/3/Rev.2  
- 21 - 
  to participate is prohibited and the timing of receipt of tenders and request to participate  
is accurately established.  
 
3. A procuring entity that intends to hold an electronic auction in a procurement covered by this 
Agreement shall : [NB: Japan and Israel are wondering whether the requirements of 
confidentiality allow for the use of electronic auction.]  
 
[(a) state their intention to use electronic auctions in the notice of intended procurement;]   
[NB: Canada wonders whether this is not already addressed by Article V:2.]  
 
(b) indicate in the tender documents the features on which the electronic auction will be 
run, provided that such features are quantifiable and can be expressed in figures or 
percentages, and the conditions and rules under which the auction will be carried out ;   
[NB: Canada and the US believe this should be located i n Article VII relating to 
evaluation criteria.]  
 
(c) provide participants, before starting the electronic auction, with the evaluation factors 
that will be used, including [any]US [the]EC mathematical formula determining the 
automatic ranking during the electronic auction when the contract is to be awarded on 
the basis of the most economically advantageous tender ; [NB: Canada believes this 
should be located in Article VII relating to evalu ation criteria.]  
(d) ensure that electronic auctions operate in full accordance with the general principles of 
this Agreement, in particular, equal treatment, non -discrimination and transparency.  
 
[4. Procuring entities shall ensure full traceability of th e award procedures conducted by electronic 
means.]EC,US ,KOR   [NB: Japan , the US  and the EC suggest to include some time -limit for 
traceability . Canada, the US and Singapore wonder whether this is not addressed in Article 
XII:4.] 
 
Article XII  Transparency of Contract Award Information  
Information Provided to Suppliers  
 
1. A procuring entity shall promptly inform [participating]EC suppliers [that have submitted 
tenders]CDA,JPN,US of the entity's contract award decisions [on request, in writing]EC,SW I. Subject to 
Article XIII, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation 
of the reasons that the entity did not select its tender and the r elative advantages of the successful 
supplier's tender.  
 
Publication of Award Information  
 
2. Not later than 72 days after the award of each contract covered by this Agreement, a procuring 
entity shall publish a notice in an officially designated publicati on listed in Appendix II that may be 
in an electronic or paper medium . Where only an electronic medium is used, the information shall 
remain readily accessible for a reasonable period of time . The notice shall include at least the 
following information:  
 
(a) a description of the goods or services procured;  
 
(b) the name and address of the procuring entity;  
 
(c) the name and address of the successful supplier;  
 
(d) the value of the successful tender or the highest and lowest offers taken into account 
in the award of the contract;  
 GPA/TN1994/3/Rev.2  
- 22 - 
  (e) the date of award ; and 
 
(f) type of procurement method used, and in cases where limited tendering was used 
pursuant to Article [X ( Limited Tendering) ], a description of the circumstances justifying 
the use of such procedure.  
 
Provision of Award Information to Parties  
 
3. On request of any other Party, [and subject to Article XIII:[2] [1]EC]EC without prejudice to 
the provision under Article XVIII Dispute Settlement, a Party shall provide promptly such information 
on the award  of a contract, including information on the characteristics and relative advantages of 
the successful tender and on the contract price, as may be necessary to determine whether the 
procurement was conducted fairly, impartially and in accordance with this Agreement . [In cases 
where release of this information would prejudice competition in future tenders, t]EC,SWI [T]he Party 
that receives t hat information shall not disclose  it to any supplier, except after consultation with, 
and agreement of, the Party that provided the information .  [NB: The US states that the 
modification s are proposed to clarify the sentence . The EC and Switzerland would like to 
retain the current text.]  
 
Maintenance of Documentation and Reports  
 
4. Each procuring entity shall maintain documentation and reports of tendering procedures and 
contract awards relating to procurement covered by this Agreement, including the reports provided 
for in Article [X ( Limited Tendering) ], and shall retain such documentation and reports for a p eriod 
of at least three years from the award of the contract.  
 
Collection and Report of Statistics  
 
5. Each Party shall collect and report to the Committee statistics on its contracts covered by this 
Agreement . Each report shall cover one year and be submi tted within two years of the end of the 
reporting period, and shall contain:  
 
(a) For Annex 1 procuring entities:  
 
(i) the number and total value, for all such entities, of contracts covered by 
this Agreement;  
 
(ii) the number and total value of all contracts covered by this Agreement 
awarded by such entities, broken down by [categories of] goods and 
services [according to a[n internationally recognized]CDA,US uniform 
classification system] ; and  [NB: Switzerland suggests the deletion of 
"by categorie s of goods and services according to an internationally 
recognized uniform classification system" ; this should be left 
optional to Members depending on the use they may have from 
these statistics . The EC is considering the need for a uniform 
classification  system to be agreed upon among the GPA Parties. ] 
 
(iii) the number and total value of contracts covered by this Agreement 
awarded by each such entity under limited tendering.  
 
[(iv) the total value of contracts awarded under derogations to the Agreement 
contained in the relevant Annexes.]CDA [NB: All parties, except Canada, 
agree to delete this subparagraph. ] 
 
(b) For Annex 2 and 3 procuring entities:  
 GPA/TN1994/3/Rev.2  
- 23 - 
  (i) the number and total value of contracts covered by this Agreement 
awarded by all such entities, broke n down by Annex;  
 
[(ii) the value of contracts covered by this Agreement awarded by such entities 
under limited tendering, broken down by Annex].CDA [NB: All parties, 
except Canada, agree to delete this subparagraph.]  
 
(c) Where data to be provided under s ubparagraph [(a) and]EC,US,JPN (b) is not available, 
estimates shall be provided.  
 
6. Where a Party publishes its statistics on an official website, the Party may substitute a 
notification of the website address for the submission of the data, with any instructions necessary 
to access and use such statistics. 
 
7. Where a Party requires notices concerning awarded contracts, pursuant to Article  XII.2, to be 
published electronically and where such notices are accessible to the pub lic through a single databa se 
in a form permitting [automatic ] analysis  of the covered contract s, the Party may substitute a 
notification of the website address for the submission of the data, with any instructions necessary 
to access and use such data.  
 
Article XIII  Non-Disclosure of Information  
[NB: The United States suggests that the order of the following paragraphs 1 and 2 should 
be reversed and subparagraph 1 (b) should be deleted as unnecessary.]  
1. Nothing in this Agreement shall be construed to require a Party  or procuring entity [or an 
authority or review body under Article XVII [or XVIII ]EC]EC,US to release  [confidential]CDA,JPN 
information under this Agreement where release:  
 
(a) would impede law enforcement;  
 
(b) [might prejudice fair competition between suppliers; ] 
 
(c) would prejudice the legitimate commercial interests[, including the protection of 
intellectual property,]CDA,US,JPN of particular persons ; or 
 
(d) would otherwise be contrary to the public interest.  
 
[except to the exte nt that it may be required to be disclosed in the context of proceedings under 
Articles XVII or XVIII.]EC 
 
2. Notwithstanding any other provision of the Agreement, a Party or a procuring entity shall not 
provide information to a particular supplier that mi ght prejudice fair competition between suppliers.  
 
Article XIV   Developing Countries  
[NB: All parties are reviewing this Article]  
 
[1. In negotiations on accession to this Agreement and in the implementation and administration 
of this Agreement, the Partie s shall take due account of developing and least -developed countries' 
(thereafter developing countries) development, financial and trade needs and circumstances, 
recognizing that these may differ significantly from country to country. In this context, [the  Parties 
shall give due consideration to a request by a developing country to take market access 
commitments in Appendix I with [a limited scope of coverage and ]SWI,JPN transitional measures [, 
and, to request exceptions ]SWI,JPN.]SWI,JPN ,US,CDA : [bearing in mind the importance attached to the 
concept of development, in particular as it refers to small and medium enterprises from developing GPA/TN1994/3/Rev.2  
- 24 - 
  countries, the Parties shall give due consideration to a request by a developing country to invoke 
the use of  "offsets" as defined in Article I and under the conditions stated below.]ISR 
[1bis. Developing countries acceding to this Agreement are entitled to benefit from special and 
differential treatment as provided for by this Article . In the course of the accession process and when 
agreeing on the content of transitional measures and on the duration of transition periods, GPA 
Parties shall give special consideration to the specific needs and situation of developing countries . 
To this aim, least -developed co untries shall be granted transitional measures with higher price 
preferences and a longer transition period.]EC 
[2. Where, in the course of accession negotiations, the Parties agree to [limited scope of 
coverage ]SWI,JPN, transitional measures [or exception s]SWI,JPN provided for in paragraph 1 of this 
Article, each Party shall give due consideration to the possibility of applying this Agreement, 
immediately upon accession, to the goods, services and suppliers of the acceding country with 
respect to all procu rement covered by Appendix  I of the Agreement . [However, taking due account 
of the scope of [coverage, ]JPN any transitional measures [requested]US,CDA [or exceptions ]JPN and with 
a view to maintaining appropriate reciprocal trade opportunities under this A greement, any Party 
may agree with the acceding country to limit the scope of coverage that the Party provides to the 
acceding country  [during the agreed transition period]US,CDA.]JPN,US,CDA  Any such limitations shall be 
clearly identified in the Committe e's relevant accession decision and in each Party's relevant annexes 
or notes to Appendix  I [and reviewed periodically during the transition period]US,CDA [and reviewed 
[with the acceding country’s regime modifications]SWI [when the acceding country reques ts to modify 
its Appendix I with a view to expanding the scope of coverage or ceases to apply its transitional 
measures or exceptions in its Appendix I.]JPN]SWI,JPN]SWI,JPN ,US,CDA  [NB: The EC  does not support 
the possibility of limiting the scope of coverage that a Party provides to an acceding 
country.]  
 
[Offsets  
 
(a) Notwithstanding Article III:5, require the incorporation of local content, offset 
procurement, [transfer of technology], or any other measures that are consistent with 
the meaning of "o ffsets" under Article I to this Agreement.  
 
(b) Requirements regarding the imposition of offsets shall be stated clearly in notices of 
intended procurements and in any other relevant documentation.]ISR  [NB: Israel and 
Korea are  still considering their position on "transfer of technology".]  
[2bis. Developing countries shall enjoy all the benefits of the Agreement upon accession . Each 
developed country Party shall immediately provide the goods, services and suppliers of the acceding 
developing country the mo st favourable treatment offered by that developed country Party under 
Appendix I.]EC 
 
[3. On the request  of a developing country , the Committee on Government Procurement may 
extend transitional periods for measures under paragraph 1 where  a developing country 
demonstrates particular difficulties in implementing the provisions of this Agreement  during the 
agreed transition period . In considering such a request, the Committee on Government Procurement 
shall take into account the individual needs and circumstances of the Party in question. ]US,CDA,SWI 
[NB: The United States and Canada can support the first sentence  with the modification s 
noted, but question the need for the second sentence.]   
 
[3bis. Upon accession, developing countries shall be entitled to an implementation period as set out 
in paragraph 4 and a transition period as set out in paragraph 5.]EC 
 
[4. A[fter the Agreement h as entered into force for a]US,CDA Party that is a developing country [, 
the Party]US,CDA may request application of a [transitional measure ] [temporary waiver]SGP,HKC in 
special circumstances unforeseen during the accession process [, after the Agreement has entered 
into force for that Party ]SWI,JPN. The [Committee may approve the]US,CDA application of [a]US,CDA 
[transitional measure ][temprorary waiver]SGP,HKC[s]SWI,JPN [for a specific period, and shall]US,CDA [shall 
be temporary, ]SWI,JPN review [ed]SWI,JPN [it at least]US,CDA every two years and [require its removal at GPA/TN1994/3/Rev.2  
- 25 - 
  the end of the agreed transition period or earlier if]US,CDA [removed when the ]SWI,JPN special 
circumst ances [that justified it are]US,CDA [have been ]SWI,JPN eliminated . [Any Party facing substantial 
declines in contract awards subsequently to the implementation of a transitional measure may 
request compensations.]SWI,JPN]SWI,JPN,US,CDA [NB: The EC and Israel do not support the last 
sentence . The United States and Canada can support the first sentence with the 
modifications noted, but question the need for the second sentence. ] 
 
[4bis. (a) Developing country Parties shall have an implementation period in  which to bring their 
legislation into conformity with the Agreement, while ensuring that Article [III] [non -
discrimination] is respected.  
 
(b) The implementation period shall be [ ] years . At the end of this period, the Agreement 
will apply fully to covered procurement of the developing country Party.  
 
(c) Developing country Parties shall report regularly to the GPA Committee their progress 
in bringing their national legislation into conformity with the Agreement.]EC 
 
[5. A Party benefiting from a transitional measure provided for under paragraphs 1 and 4 shall 
take such steps as may be necessary to ensure the fulfilment of all obligations at the end of the 
transitional period . The Party shall notify the Committee of such steps , including of any spe cial 
technical cooperation needs. ]US,CDA  [NB: Switzerland proposes to review this paragraph in 
the light of its links to paragraph 2.]  
 
[5bis. Notwithstanding paragraph 4, developing country Parties may, upon their accession, and after 
the agreement of th e GPA Parties, retain or adopt the following measures, during a transition period:  
 
(a) Developing country Parties may retain or adopt a price preference system so as to 
enable them to support their economic development . The price preference may be 
differe ntiated by sector . Any such system will:  
 
(i) provide a preference only to the part of the tender incorporating goods or services 
originating in the Party applying the preference or goods or services originating 
in other developing countries which have pre ferential agreements with the Party 
applying the preference, provided that a substantial part of the value of the tender 
is made up of goods or services originating in the Party applying the preference 
or other developing countries with which it has such a greements;  
 
(ii) be quantifiable and transparent ; and 
 
(iii) provide for the progressive removal and complete elimination of the margin of 
preference by the end of the transition period.  
 
(b) Developing country Parties may impose offsets during the transit ion period, provided 
that: 
 
(i) any requirement for the imposition of offsets together with the methodology 
describing how they will be evaluated and taken into account is clearly stated in 
notices of intended procurement and in any other relevant document ation; and 
 
(ii) offsets are used in a non -discriminatory manner and limited to specific sectors.  
 
(c) Price preference systems, and offsets, as agreed upon accession, shall be listed in Annex 
5 of developing country Parties' Appendix I.  
 
(d) The transition period shall be [ ] years for developing countries and [ ] for 
least-developed countries . Any measures maintained pursuant to this provision shall be 
eliminated by the end of the transition period.]EC 
 
[6. During a developing country's accession process or after the entry into force of this Agreement 
for that country, the Parties shall give due consideration to any request by such a developing country 
for technical cooperation in relation to the implementation of this Agreement and the e xercise of the 
rights under this Agreement, including drawing on the benefits of its  participation [in this GPA/TN1994/3/Rev.2  
- 26 - 
  Agreement. ]JPN,SWI,US,CDA  [NB: The EC supports the approach in paragraph 6 and believes it 
deserves further consideration.]  
 
[6bis. (a) During the transition period, a developing country Party may request a waiver from 
certain of its obligations should it face serious difficulties, or the threat of such 
difficulties, with regard to certain sectors due to the repeated opening of its public 
procurement  market to foreign competition in accordance with the provisions of this 
Agreement . Any such waiver will be granted by decision of the GPA Committee on the 
basis of a two -thirds majority . The waiver may consist of establishing higher price 
preference level s and different modalities of their elimination, than those contained in 
Annex 5 . These measures should be temporary, reviewed every year and removed, 
when the above -mentioned circumstances cease to exist.  
 
(b) For least -developed countries, the measures m entioned above may also include 
extending the transition period . When considering such a request, the GPA Committee 
shall take into account the individual needs and circumstances of the least -developed 
country in question.]EC 
 
[7. Each Party shall establis h an information centre to respond to reasonable requests from 
developing country Parties for information related to those Parties' efforts to fully benefit from their 
participation in this Agreement . Such information may include information relating to pr ocurements 
plans, procedures or requirements with respect to procurement covered by this 
Agreement. ]JPN,SWI,US,SWI. 
 
[7bis. Consistently with the provisions of this Agreement, each Party shall, in the preparation and 
application of laws, regulations and pr ocedures affecting government procurement, bear in mind the 
special problems of least -developed countries and of those countries at early stages of economic 
development with a view to facilitating increased participation of developing countries in covered 
procurement. ]EC 
 
8. The Committee shall review on a three -year basis the operation and effectiveness of this 
Article and, after each [five]SWI,ISR [six]JPN 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 
[five]SWI,ISR [six]JPN-year reviews and with a view to achieving the maximum implementation of the 
provisions of this Agreement, including in particular Article III, and having regard to the needs of 
the developing countries concerned, the Committee shall examine [scope of coverage,]SWI,JPN 
transitional measures and exceptions provided for in accordance with the provisions of this 
Article.]SWI,JPN,ISR [NB: Israel and the United States question the feasibility and necessity to 
maintain such an obligation.]  
 
[8bis. (a) Upon request, the GPA Committee and each developed country Party shall provide all 
techni cal cooperation and assistance which may be deemed appropriate to developing 
countries in relation to the implementation and the exercise of the rights under this 
Agreement.  
 
(b) Each developed country Party shall, upon request, provide assistance which it  may deem 
appropriate to potential tenderers in least -developed countries in submitting their 
tenders and selecting the products or services which are likely to be of interest to its 
entities as well as to suppliers in least -developed countries, and likewi se assist them to 
comply with technical regulations and standards relating to products or services which 
are the subject of the intended procurement. ]EC 
 
[9. The GPA Committee shall review every five years the operation and effectiveness of this 
Article.]EC 
 
Article XV   Exceptions to the Agreement  
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or 
not disclosing any information that it considers necessary for the protection of its essential security GPA/TN1994/3/Rev.2  
- 27 - 
  interests relating to the procurement of arms, ammunition or war materials, or to procurement 
indispensable for national security or for national defence purposes.  
 
2. Subject to the requirement that such measures are not applied in a manner that would 
constit ute a means of arbitrary or unjustifiable discrimination between Parties where the same 
conditions prevail or a disguised restriction on international trade, nothing in this Agreement shall 
be construed to prevent any Party from imposing or enforcing measu res: 
 
(a) necessary to protect public morals, order or safety;  
 
(b) necessary to protect human, animal or plant life or health;  
 
(c) necessary to protect intellectual property ; or 
 
(d) relating to goods or services of handicapped persons, of philanthropic institutions or of 
prison labour.  
 
[3. The Parties understand that Paragraph 2(b) includes environmental measures necessary to 
protect human, animal or plant life or health]CDA,US [or natural resources].CT]US,CDA,CT [NB: 
Hong  Kong, China ; Korea ; the EC and Japan considered this paragraph not necessary, 
given paragraph 2(b) .] 
 
[4. [Having regard to general policy considerations relating to tied aid, including the objective of 
developing countries with respect to untying of such aid, this Agr eement does not apply to 
procurement made in furtherance of tied aid to developing countries so long as it is practised by 
Parties.]SWI,JPN [NB: Location needs to be reconsidered.]   [Market Access Issue ] 
 
Article XVI   Modifications and Rectifications to Coverage  
[NB: This Article reflects only the views of Japan, Korea and the United States . The EC 
reserves its position on this article and the right to submit its own drafting at a later stage . 
Switzerland , Singapore  and Canada are  still reviewing this article.]  
 
[1. For purposes of this article, where a procuring entity that is the subject of a proposed 
rectification, transfer, modification or withdrawal, pursuant to paragraph 2 or 3 of this Article is 
required to accord the treatment des cribed in Articles VII to X to goods, services or suppliers of 
another party, then the latter party shall be considered an ‘affected party’.]US  [NB: The United 
States proposes the addition of this paragraph to address the concern that it raised in the 
following paragraph .] 
 
[2]US [1. (a)]JPN,KOR [A Party shall notify the Committee of any]US Rectification [s]JPN,KOR, 
transfer [s]JPN,KOR of an entity from one Annex to another or, in exceptional cases, other 
modification [s]JPN,KOR [(hereinafter collectively referred to as "modification"]US [relating 
to]JPN,KOR [of]US Appendices I through IV [shall be notified to the Committee ]JPN,KOR, alon g 
with information as to the likely consequences of the change for the mutually agreed 
coverage provided in this Agreement . [The Committee shall circulate the notification.]US 
If [no affected Party submits to the Committee an objection in writing to]US the 
[proposed]US [rectifications, transfers or other ]JPN,KOR modification [s are of a purely 
formal or minor nature, they ]JPN,KOR [within 30 days of circulation of the notification, the 
proposed modification]US shall become effective [provided there is no obje ction in 
writing, notified by any Party the benefits of which under this Agreement may be 
affected by the proposed modification (referred to in this Article as the "affected Party") 
within 30  days. ]JPN,KOR;   [Where and aff ected Party submits an objection that the 
proposed modification is not of a purely formal or minor nature,]US [In other 
cases, ]JPN,KOR the Chairman of the Committee shall promptly convene a meeting of the 
Committee . The Committee shall consider the proposal and any claim for com pensatory 
adjustments [made by any affected Party]JPN,KOR, with a view to maintaining a balance GPA/TN1994/3/Rev.2  
- 28 - 
  of rights and obligations and a comparable level of mutually agreed coverage provided 
in this Agreement prior to such notification . In the event of an agreement  not being 
reached , the matter may be pursued [by any affected Party]JPN,KOR in accordance with 
the procedures [provided for]US [contained]JPN in Article XVIII [or arbitration].JPN  
[NB: The US continues to oppose the addition of "arbitration" in the absen ce 
of a clarification the operation of such a process in this context.]  
 
[(b) If no affected Party has requested the procedures contained in Article  [XXII]JPN,KOR 
[XVIII]US [or arbitration] within [120]KOR [210] days from the date of circulation of the 
proposed modifications under subparagraph (a), the proposed modifications shall 
become effective . The period under this subparagraph may be extended by mutual 
agreement.]JPN,KOR  
 
[(c) (the same provisions as paragraph (2)(e) below.)]JPN 
 
[3]US [2.]JPN,KOR (a) Where a Party wishes[, in exercise of its rights,]JPN,KOR to withdraw an entity 
from Appendix I on the grounds that government control or influence over it has 
been effectively eliminated, that Party [(referred to in this Article as the "modifying 
Party")]JPN,KOR shall notify the Committee . [The Committee shall circulate the 
notification . If no affected Party submits to the Committee an objection in writing to 
the proposed withdrawal within 30 days of circulation of the notification, the 
proposed withdrawal]US [Such modification ]JPN,KOR shall become effective the  day 
after the end of the following meeting of the Committee, provided that the meeting 
is no sooner than 30  days from the date of [circulation of the]US notification and no 
[affected Party submits a written]US objection [has been made by any Party the 
benefits of which under this Agreement may be affected by the proposed 
modification (referred to in this Article as the "affected Party")]JPN,KOR [within 30 days 
of the circulation]US. [NB: The United States proposes the modifications noted 
in caps and strike out to clarify the operation of the paragraph.]  
 
[(b) The notification shall contain evidence that government control or influence over it has 
been effectively eliminated, including information [that addresses]US [on]JPN the 
following [factors]US [criteri a]JPN,KOR: [NB: Hong Kong, China would  like to clarify 
whether consideration of a request to remove an entity from Appendix I will 
be based on all the factors for which the information is required or whether 
such consideration can be based on the informati on provided for a single 
factor . HKC considers that the modifying Party does not need to provide in his 
notification of modifications information to address all the factors/criteria 
listed in this paragraph .] 
 
- [whether there is a legal nexus or relationship between the government and the 
entity;]US  [NB: Hong Kong, China does not see a need for the above factor 
since the relationship and/or linkage between the entity and the 
government could be addressed in other factors.]  
 
- [whether]US the gove rnment [does not control a majority of]JPN,KOR [holds a direct 
or indirect controlling interest in]US the entity's capital [nor]JPN,KOR [and]US voting 
rights;  
 
- [whether]US the government [does not]JPN,KOR appoint[s]US more than half of the 
members of the  entity's managing board [or such other number as would have]US 
[which has]JPN,KOR the power to decide on operations;]JPN,KOR,US  
 
- [whether the government provides support to or subsidizes the entity, and, if so, 
whether such support represents a one -time public investment or a continuous 
operating subsidy;]US 
 GPA/TN1994/3/Rev.2  
- 29 - 
  - [the operation of the entity is financed by its business revenue, not by 
government subsidies]JPN [Not more than 50 pe rcent of the entity's financing 
comes from the State or public bodies];  
 
- [whether the government exercises formal or informal oversight or supervision 
of an entity's business decisions, beyond the normal regulatory oversight for all 
suppliers in a particular industry;]US  [NB: Hong Kong, China would like 
illustratio n of this factor/criteria.]  
 
- [whether there are any personnel linkages between the entity and the 
government;]US  [NB: Hong Kong, China does not see a need for the above 
factor since the relationship and/or linkage between the entity and the 
government c ould be addressed in other factors.]  
 
- [the government does not have control or influence over the entity's procurement 
decisions;]JPN 
 
- [the government does not provide the entity with any special or exclusive rights 
to operate;]JPN [whether the governm ent has granted special or exclusive legal or 
economic rights or benefits that may alter the competitiveness of an entity's 
goods or services in a commercial market or otherwise influence the entity’s 
business decisions;]US [and]CT,US  [NB: Hong Kong, Chin a would like 
illustration of the US bracket .] 
 
- [whether the entity is exclusively engaged in the provision of goods or services 
in commercial markets subject to genuine competition, or whether it has mixed 
governmental and commercial functions.]US  [there are more than one [entity] 
[supplier]CT that engage in the provision of goods or services on the market.]JPN  
[NB: Hong Kong, China would like illustration of the US bracket .] 
 
[(b)bis The market in which the entity operates is directly exposed to compet ition on 
markets to which access is not restricted, it being acknowledged that government 
control or influence over an entity through shareholding, participation on the 
management board, financing or any other means may be neutralized insofar as the 
entity 's procurement is concerned where the entity is exposed to competition on 
markets to which access is not restricted.]  [NB: The US does not support this 
paragraph.]  
 
(c) In the event of an objection  notified , in writing, by any affected Party]JPN,KOR,US the 
modifying Party shall enter into consultations with such affected Party . If agreement is 
not reached between the modifying Party and any affected Party [within [120]KOR [210] 
days from the date of circulation of the proposed modifications under subparag raph 
(a)]JPN,KOR [, or within 90 days where the information provided with the notification 
pursuant to subparagraph (b) is comprehensive],] the matter may be pursued [by such 
affected Party]JPN,KOR in accordance with the procedures on consultations and dis pute 
settlement contained in Article XVIII [[or arbitration] by written request, including 
reasons why the affected Party objects to the proposed modification].JPN  [In considering 
the proposed modification to Appendix I and any consequential compensatory 
adjustment, allowance shall be made for the market -opening effects of the removal of 
government control or influence.]JPN,US 
 
[(d) If no affected Party has requested the procedures contained in Article XVIII [or 
arbitration] within [30 days after the expir y of]KOR the [120]KOR [210] -day period of 
consultations under subparagraph (c), the proposed modification shall become 
effective . The period of consultation may be extended by mutual agreement.]JPN,KOR 
 GPA/TN1994/3/Rev.2  
- 30 - 
  [(e) If the modifying Party implements its proposed w ithdrawal and does not comply with 
the findings of the arbitration, any affected Party that  participated in the arbitration may 
modify or withdraw substantially equivalent benefits under its Appendix I in conformity 
with those findings . Notwithstanding Art icle III, such modification or withdrawal may be 
implemented solely with respect to the modifying Party.]JPN 
 
[3. The Committee on Government Procurement shall establish procedures for rectifications or 
modifications to Appendices . Any Party wishing to rec tify or modify its Appendices in accordance 
with preceding paragraphs shall comply with such procedures.]JPN,KOR 
 
Article XVII  Challenge Procedures  
[Consultations between the Procuring Entity and Supplier  
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement 
arising in the context of a procurement covered by this Agreement in which the supplier has, or has 
had, an interest, each Party shall encourage the procuring entity and supplier to seek resolution of  
the complaint through consultations . The procuring entity shall accord impartial and timely 
consideration to any such complaint in a manner that is not prejudicial to [the supplier's participation 
in ongoing or future procurement]US,CDA the supplier's rig hts to seek corrective measures under the 
challenge system.  
 
Challenge  
 
2. Each Party shall provide timely, effective, transparent and non -discriminatory means for a 
supplier to challenge an alleged breach of this Agreement arising in the context of a proc urement 
covered by this Agreement, in which it has, or has had, an interest[, without prejudice to the 
supplier's participation in ongoing or future procurements].US,CDA  The procedural rules for all  
challenges shall be in writing and made generally availa ble. 
 
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, 
which in no case shall be less than 10 days from the time when the basis of the complaint became 
known or reasonably should have become known to the supp lier. 
 
4. [Supplier challenges relating to procurement covered by this Agreement shall be reviewed by 
an]EC [Each Party shall establish or designate at least one]US,CDA impartial administrative or judicial 
authority that is independent of its procuring ent ities [to receive and review complaints of suppliers 
arising in the context of a procurement covered by this Agreement].US,CDA 
 
[5. Where a body other than an authority referred to in paragraph 4 initially reviews a complaint, 
the Party shall ensure that t he supplier may appeal the initial decision to an impartial administrative 
or judicial authority that is independent of the procuring entity that is the subject of a 
challenge.]US,CDA ,EC 
 
6. A review body that is not a court shall either be subject to judi cial review or shall have 
procedures which provide that:  
 
(a) the procuring entity shall respond in writing to the complaint and disclose all relevant 
documents to the review body;  
(b) the participants to the proceedings shall have the right to be heard prior to a decision 
of the review body being made  on the complaint;  
 
(c) the participants to the proceedings shall have the right to be represented and 
accompanied;  
 GPA/TN1994/3/Rev.2  
- 31 - 
  (d) the participants to the proceedings shall have access to all proceedings[, subject to 
Article XIII (Non -Disclosure of Information)]US; 
 
(e) the participants to the proceedings shall have the right to request that the proceedings 
take place in public[, subject to Article XI II (Non -Disclosure of Information),]US and that 
witnesses may be presented ; and 
 
(f) [decisions or]EC,US [findings and]CDA recommendations relating to supplier [challenges]EC 
[complaints]US shall be provided, in a timely fashion, in writing, with an explan ation of 
the basis for each decision or recommendation.  
 
7. [Each Party shall adopt or maintain procedures that]US,CDA [Challenge procedures shall]EC 
provide for:  
 
(a) rapid interim measures[, pending the resolution of a complaint,]US,CDA [to correct 
breac hes of the Agreement and ] to preserve the supplier's opportunity to participate in 
the procurement . Such interim measures may result in suspension of the procurement 
process [.]EC [, including contract award or the performance of a contract that has 
already been awarded. ]US,CDA  However, procedures may provide that overriding adverse 
consequences for the interests concerned, including the public interest, may be taken 
into account when deciding whether such measures should be applied . In such 
circumst ances, just cause for not acting shall be provided in writing ; [NB: The United 
States proposes deletion of "to correct breaches of the Agreement abd|  since 
such actions would be taken only in the final action of the Court.]  
 
[(b) an assessment and a possi bility for a decision on the justification of the challenge;] JPN 
[and]  [NB: Parties are re -examining the need for this provision in light of 
subparagraph 6 (f). ] 
 
(c) correction of the breach of the Agreement or compensation for the loss or damages 
suffered, which may be limited to costs for the preparation of the tender or [complaint]US 
[protest]EC[challenge]EC[; and 
 
(d) protection of the confidentiality of information subject to Article XIII:1]EC 
 
Article XVIII  Consultations and Dispute Settlement  
1. [The provisions of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes under the WTO Agreement (hereinafter referred to as the "Dispute Settlement 
Understanding") shall be applicable except as otherwise provided bel ow.]CDA,EC,JPN [The provisions of 
Article XXII and XXIII of GATT[, except Article XXIII:1(c),]US as elaborated and applied by the 
Understanding on Rules and Procedures Governing the Settlement of Disputes under the WTO 
Agreement (Dispute Settlement Understanding) shall apply to consultations and the settlement of 
disputes under this Agreement, except  as otherwise specifically provided herein.]US,SW I 
 
[2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement 
is bei ng impeded as the result of the failure of another Party or Parties to carry out its [or their]CT 
obligations under this Agreement, [or the application by another Party or Parties of any measure, 
whether or not it conflicts with the provisions of this Agre ement,]CDA,KOR,JPN it may with a view to 
reaching a mutually satisfactory resolution of the matter, [request consultations.]EC,CDA [make 
written representations or proposals to the other Party or Parties which it considers to be concerned . 
Such action shal l 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 pr oposals made to 
it.]KOR,CDA,JPN  [Whenever a Party to this Agreement other than the consulting Parties considers that 
it has a substantial trade interest in such consultations, it may notify the consulting Parties and the GPA/TN1994/3/Rev.2  
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  Dispute Settlement Body (DSB), wit hin 10 days after the date of the circulation of the request for 
consultations under this paragraph, of its desire to be joined in such consultations.]EC [NB: Japan 
and the EC indicated that further thinking should be devoted to avoiding that third Parties  
be entitled to join consultations in the context of disputes related not only to the GPA but 
also to other WTO Agreements . Japan indicated that the DSU renegotiations still need to 
address the whether the standard should be "substantial trade interest". ] 
 
[2bis. Where the dispute concerns the award of a specific procurement, paragraphs 8 and 9 of 
Article  4 of the Dispute Settlement Understanding (DSU) may be invoked by the complaining 
Party.]EC 
 
3. Where a dispute exclusively concerns provisions of this Ag reement, only Parties to this 
Agreement shall participate in decisions or actions taken by the DSB under this Agreement.  
 
4. [In the case of a dispute in which provisions both of this Agreement and of one or more other 
Agreements listed in Appendix 1 of th e Dispute Settlement Understanding are invoked by one of the 
parties to the dispute, [paragraph 3 shall apply only to those parts of the panel report concerning 
the interpretation and application of this Agreement]KOR,JPN,CT [only Members of the WTO that a re 
Party to this Agreement shall participate in decisions or actions taken by the Dispute Settlement 
Body with respect to those parts of the dispute concerning this Agreement].US,CDA]KOR,JPN,CT,US,SW I,CDA 
[A Member of the WTO may seek to join in consultati ons pertaining to this Agreement, pursuant to 
Article 4.11 of the DSU, only if that Member is also a Party to this Agreement.]US 
 
[5. Panels established by the DSB to examine disputes under this Agreement shall include persons 
qualified in the area of gove rnment procurement.]US,KOR,JPN,CT,SW I,CDA 
 
[5bis. Panels shall adopt appropriate procedures to protect confidentiality of information subject to 
Article XIII:1.]EC 
 
6. [Every effort shall be made to accelerate the proceedings to the greatest extent 
possible.]KOR,JPN,CT,US  [Notwithstanding the provisions of paragraphs 8 and 9 of Article 12 of the 
Dispute Settlement Understanding, the panel shall attempt]CDA,JPN,CT [Where the dispute concerns 
the award of a specific procurement the panel shall aim,]EC,SWI to provide its final report to the parties 
to the dispute not later than [three months]EC [four months, and in case of delay not later than seven 
months,]CDA,JPN,CT, after the date on which the composition and terms of reference of the panel are 
agree d. Consequently, every effort shall be made to reduce also the periods foreseen in paragraph 
1 of Article 20 and paragraph 4 of Article 21 of the Dispute Settlement Understanding by 
[two]CDA,JPN,CT [three]EC months . Moreover, notwithstanding the provisions  of paragraph 5 of Article 
21 of the DSU, the panel shall attempt to issue its decision, in case of a disagreement as to the 
existence or consistency with a covered Agreement of measures taken to comply with the 
recommendations and rulings, within 60 days. ]EC,JPN,CT 
 
[6bis. (a) In the communication referred to in Article [21.3] of the DSU, the Party concerned shall 
inform the DSB whether it is possible to bring the measures found to be inconsistent 
with this Agreement into conformity with the Agreement . If the Party concerned 
indicates that it is not possible to bring the measures found to be inconsistent with this 
Agreement into conformity with the Agreement, that Party shall, immediately after 
having made that communication, enter into consultations with a  view to developing 
mutually acceptable compensation.  
 
(b) Any Party which has entered into such consultations, may at any time request an 
arbitration to determine the level of nullification or impairment that was caused by the 
measure found to be inconsistent with this Agreement.  
 
(c) Unless a request for arbitration has been made, the Party concerned shall, within 
30 days from the request for consultations, submit to all Parties who have entered into 
such consultations, a proposal for mutually acc eptable compensation.  GPA/TN1994/3/Rev.2  
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  (d) When an arbitration has been requested, the Party concerned shall submit such a 
proposal within 30 days of the award of the arbitrator . Any such proposal shall be 
consistent with the award of the arbitrator.  
 
(e) Such arbitration shall be carried out by the original panel, if members are available, or 
by an arbitrator, which term shall be interpreted as referring to an individual or a group, 
appointed by the Director -General and shall be completed within 60 days after the 
request f or arbitration.  
 
(f) If no proposal for compensation has been submitted within the periods referred to in 
subparagraphs (c) or (d), or if no agreement has been reached within 60 days from the 
submission of the later of:  
 
(i) a proposal for mutually accepta ble compensation ; or 
 
(ii) such a proposal made subsequent to an arbitration award,  
 
the complaining Party shall be entitled to request authorization from the DSB to suspend the 
application to the Party concerned of concessions and other obligations under the covered 
agreements that is appropriate in light of the level of nullification or impairment that was caused by 
the measure.]EC 
 
[7. Notwithstanding paragraph 2 of Article 22 of the Dispute Settlement Understanding, any 
dispute arising under any Agreeme nt listed in Appendix 1 to the Dispute Settlement Understanding 
other than this Agreement shall not result in the suspension of concessions or other obligations 
under this Agreement, and any dispute arising under this Agreement shall not result in the 
suspension of concessions or other obligations under any other Agreement listed in the said 
Appendix  1.]CDA,KOR,JPN,US,CT,ISR 
 
Article XIX  Institutions  
Committee on Government Procurement  
 
1. A Committee on Government Procurement composed of representatives from each of the 
Parties shall be established . This Committee shall elect its own Chairman and shall meet as 
necessary, but not less than once a year, for the purpose of affording Parties the opportunity to 
consult on any matters relating t o the operation of this Agreement or the furtherance of its 
objectives, and to carry out such other responsibilities as may be assigned to it by the Parties.  
 
2. The Committee may establish working parties or other subsidiary bodies that shall carry out 
such functions as may be given to them by the Committee.  
 
Observers  
 
3. Any WTO Member that is not a Party to this Agreement shall be entitled to participate in the 
Committee as an observer upon submission of a written notice to the Secretariat . Any [governm ent 
eligible to apply for WTO membership] [WTO observer]CT,EC ,US may submit a written request to the 
Secretariat to participate in the Committee as an observer, and may be accorded observer status by 
the Committee.  
 
Article XX   Final Provisions  
Acceptance  and Entry into Force  
 
1. This Agreement shall enter force on [ ] for those WTO Members whose agreed coverage is set 
out in Annexes  1 through  5 of Appendix  I, and which have, by signature, accepted this Agreement GPA/TN1994/3/Rev.2  
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  on [ ], or have, by or on that date, signed  the Agreement subject to ratification and have 
subsequently ratified the Agreement before [ ].  
 
Transitional Arrangements  
 
2. Between the Parties to this Agreement that are also Parties to the Agreement on Government 
Procurement dated 15 April 1994 ("1994 Agreement"), [the rights and obligations of this Agreement 
shall supersede those under]JPN the 1994 Agreement [shall cease to apply [for each of its Members 
upon acceptance of this Agreement]SWI]EC,SW I,US]EC,US,SW I When all Parties to the 1994 Agreement 
have accepted this Agreement, the 1994 Agreement shall be terminated . [NB: May need to 
revisit. ] 
 
Accession  
 
3. Any Member of the WTO that is not a Party to this Agreement may accede to this Agreement 
on terms to be agreed between that Member and the Parties . Accession shall take place by deposit 
with the Director -General of the WTO of an instrument of accession that states the terms so agreed . 
This Agreement shall enter into force for an acceding Member on the 30th day following the date of 
its accession to this Agreement.  
 
Reservations  
 
4. No Party may enter any reservation in respect of any provisions of this Agreement.  
 
National Legislation  
 
5. Each Party shall ensure, not later than the date of entry into force of  this Agreement for it, 
the conformity of its laws, regulations and administrative procedures, and the rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
6. Each Party shall inform the Committee of an y changes in its laws and regulations relevant to 
this Agreement and in the administration of such laws and regulations.  
 
Reports and Future Work  
 
7. The Committee shall annually inform the General Council of the WTO of developments relating 
to the impleme ntation and operation of this Agreement.  
 
[7bis. 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]EC [without prejudice to the needs of developing countries]ISR.]EC,ISR [NB: Hong Kong, China 
suggested deleting "and achieving the greatest possible e xtension of its coverage among 
all Parties", since "with a view to improving this Agreement" is already general and fine .] 
 
[8. The Parties shall seek to avoid introducing or continuing discriminatory measures and practices 
that distort open procurement an d shall, in the context of negotiations, seek to eliminate those which 
remain on the date of entry into force of this Agreement.]HKC  [Market Access Issue ] 
 
9. Following the conclusion of the work programme for the harmonization of rules of origin for 
goods 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,]CDA,EC,US,HKC the Parties shall tak e the results of that work 
programme and those negotiations into account in amending Article [ ] as appropriate . [NB. May 
have to revisit in light of developments in the work programme.]  
 GPA/TN1994/3/Rev.2  
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  Amendments  
 
10. The Parties may amend this Agreement having regard, inter alia , to the experience gained in 
its implementation . Such an amendment, once the Parties have concurred in accordance with the 
procedures established by the Committee, shall [not enter into force for any Party until it has been 
accepted by such Party]US,HKC [take effect for the Parties that have accepted them upon acceptance 
by two thirds of the Parties and thereafter for each other Party upon acceptance by it].EC,JPN 
 
Withdrawal  
 
11. Any Party may withdraw from this Agreement . The withdrawal sha ll take effect upon the 
expiration of 60 days from the date the Director -General of the WTO receives written notice of the 
withdrawal . Any Party may upon such notification request an immediate meeting of the Committee.  
 
12. If a Party to this Agreement cea ses to be a Member of the WTO, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 
Non-application of this Agreement between Particular Parties  
 
13. This Agreement shall not apply as between any two Parties if either Party, at t he time it 
accepts or accedes to this Agreement, does not consent to such application.  
 
Appendices  
 
14. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
15. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
16. This Agreement shall be deposited with the Director -General of the WTO, who shall promptly 
furnish to each Party a certified true copy of this Agreement, of each rectification or modification 
thereto pursuant to paragraph [ ] and  of each amendment thereto pursuant to paragraph  10, and a 
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  11. 
 
Registration  
 
17. This Agreement shall be registered in accordance with th e provisions of Article  102 of the 
Charter of the United Nations.  
 
Done at [ ] this [ ] day of [ ] in a single copy in the English, French and Spanish languages, each 
text being authentic, except as otherwise specified with respect to the Appendices hereto . 
 
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