RESTRICTEDWORLD TRADE
ORGANIZATIONWT/WGTGP/M/10
1 August 2000
(00-3148)
Working Group on Transparency
in Government Procurement
REPORT ON THE MEETING OF 7 JUNE 2000
Note by the Secretariat
1. The Working Group on Transparency in Government Procurement held its tenth meeting on
7 June 2000 under the chairmanship of Ambassador Ronald Saborío Soto (Costa Rica).
2. The agenda for this meeting consisted of:  (i) transparency-related provisions in existing
international instruments on government procurement and national procedures and practices;
(ii) observer status of international intergovernmental organizations;  and (iii) other business.
A. TRANSPARENCY-RELATED PROVISIONS IN EXISTING INTERNATIONAL
INSTRUMENTS ON GOVERNMENT PROCUREMENT AND NATIONAL
PROCEDURES AND PRACTICES
3. The Chairman said that he had made available, on his own responsibility, an annotated draft
agenda which aimed to facilitate discussion in the Working Group by suggesting issues under each of
the substantive agenda items that, in his view, could be the subject of further discussion.  The list of
issues in the annotated agenda did not purport to be exhaustive and delegations should feel free to
raise other issues which they considered important.  The note by the Chair "List of the Issues Raised
and Points Made" (Job(99)/6782) continued to be the basis of the discussion of the Working Group.
As an auxiliary informal paper for the use of Members wanting to draw on it, delegates also had
available to them a revision of the informal note by the Secretariat "List of Proposals on Items II-VIIof the Checklist" (Job(00)/3276).
(a) Proposal for a work programme on technical assistance
4. Before the Working Group took up the discussion of the substantive agenda items, the
representative of the United States introduced a proposal for a work programme for coordinating
international technical assistance with implementation of a potential agreement on transparency in
government procurement (WT/WGTGP/W/28).  Th e work programme would proceed simultaneously
with ongoing work of the Group in developing the elements of an appropriate agreement.  The United
States believed that working concurrently in both those areas would help the Group to move forward
and would help to ensure that all Members could fully benefit from the results of the work undertakenby the Group.  The need for capacity building in this area had already been raised by some delegations
during the past discussions of the Working Group.  Capacity-building issues had already been
factored into many of the proposals that had b een made with respect to specific elements of
transparency.  Those proposals were intended to be flexible enough to be effectively implemented in a
wide range of circumstances in different Members’  domestic procurement systems.  Nevertheless, it
was understood that there were concerns about the capacity of some national systems to consistently
apply the elements that had been discussed throughout their procurement systems.  To address that
issue, the United States envisaged a work programme that would be designed, first, to identify
specific capacity-building needs relating directly to  the transparency elements that had been discussedWT/WGTGP/M/10
Page 2
and, second, to identify available international sources of technical assistance which were best suited
to addressing such needs.  This phase of work could draw on the previous submissions made to the
Working Group on this issue in 1997 and 1998 (listed in document Job No. 3414).  In order to make
the best practical use of the information that would be gathered, the information could be organized
into categories, such as issues relating to the development of legal and administrative rules and
procedures, human resources development, and phy sical infrastructure and other technical needs.
Once that work had been completed, a second phase of the work programme could focus on finding
ways to operationalize the information as efficiently as possible.  He suggested that the Chairman
might hold informal consultations on this issue prior to the next meeting so as to enable the Working
Group to agree on a concrete plan of action for addressing the issue of capacity building at the next
meeting.
5. The representative of Pakistan, joined by the representatives of Malaysia , India  and Egypt ,
said that the proposal by the United States to provide technical assistance in relation to the elements of
an appropriate agreement made the assumption that  there was already such an agreement and, hence,
was premature.  The representative of Brazil stat ed that the proposed work programme should not
prejudge the final establishment of an agreement.
6. The representatives of the European Communities, Switzerland , Venezuela , Norway , Canada ,
Australia, Iceland , New Zealand , Hungary , the Czech Republic , Iceland , Israel , Korea  and Hong
Kong, China said that their delegations supported the broad thrust of the United States proposal.  It
was an attempt to address some of the administrative and technical challenges in applying the
principles of transparency in government procurem ent that had been raised in the Working Group and
were reflected in the Chair's note "List of the Issues Raised and Points Made".  The representative ofNew Zealand said the work programme could help to point out the elements that should be addressed
in the Group and thus could be seen as working in parallel with the Group's discussions.  Therepresentative of Australia stated that Members' capacity to implement a future agreement was an
issue that needed to be examined seriously in the context of drawing up any potential agreement.  The
representative of Korea said that there was a need to address the work programme as soon as possible.
7. The representatives of the European Communities, New Zealand  and Australia  said that
Members would need to have a better understanding of a number of issues in relation to the United
States proposal, for instance how the technical co operation would work in practice and how it would
be financed.  The representative of Norway said that the question of financing in the long run should
be borne in mind in developing a work programme.
8. The representative of Switzerland suggested that the work programme should be demand-
driven.  Those countries that faced challenges in relation to the various areas under discussion in the
Working Group should come up with proposals identifying their concerns that could be addressed
though technical assistance.
9. The representative of Indonesia stated that technical assistance and capacity building were not
issues exclusive to the area of government procurement.  They should be considered in a
comprehensive manner since the same problems existed in many areas covered by WTO agreements.
10. The representatives of Canada, Argentina  and the Czech Republic  said that there would be
value in the Chair conducting informal consultations  in advance of the next meeting to explore the
most efficient way the work programme might be structured.  The representatives of Malaysia,
Pakistan and Egypt  said that they were not in a position to  join any consensus to request the Chair to
hold informal consultations on this issue prior to the next meeting.WT/WGTGP/M/10
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11. The representative of Pakistan said that basic information on the technical assistance activities
of international intergovernmental organizations had been made available to the Group
(WT/WGTGP/W/20 and Addenda 1-8).  Supported by the representatives of Hong Kong, China and
Korea, he suggested that the Secretariat might be requested to prepare a note compiling this
information in a succinct form in order to enable  delegations to consider how this issue could be
developed further.  The representative of Argentina said that the Group should also consider the
survey recently initiated by the Secretariat, through the Director-General, in which all Members andintergovernmental organizations were invited to identify sources of technical assistance relating to
WTO agreements.
12. The representative of the United States stated that its proposal was intended to be a positive
response to the concerns that some delegations had raised in the past.  The United States supported the
view that a demand-driven work programme would enable delegations that had specific problemsrelated to capacity building to contribute to the establishment of a framework for proceeding with the
work in this area.  He stressed that his delegation had deliberately left open a number of questions,
including how this type of work programme might be developed, because the United States wanted to
hear the views of other delegations as to how a pr ocess, that the Group would be comfortable with,
could be developed by consensus.  His delegation saw benefit in addressing these issues proactivelyduring the process leading up to a potential agreement and to mitigate future problems rather than
waiting until the Working Group finalized its work.  This process would be without prejudice to what
might be included in a future agreement.
13. In concluding the discussion on the proposal by the United States, the Chairman said that the
Group should revert to the proposal by the United States at its next meeting.  The Secretariat would
prepare a note summarizing the information that had been made available to the Group or elsewhere
to the WTO on technical cooperation activities of intergovernmental organizations in the area of
government procurement.
(b) General comments
14. By way of general comments under this agenda item, the representative of India reiterated the
views that his delegation had expressed at the earlier meetings of the Working Group.  He said that
the Working Group should confine itself to the Singapore mandate.  The Group's work was still in the
study phase which Members, especially developing country Members, would use to fully understand
the issues involved and to appreciate their rights and obligations.  As indicated by the note by the
Chair "List of the Issues Raised and Points Made", there were serious differences of view among
Members on basic issues.  Not all Members were at the same level of development and, therefore, it
should be appreciated that Members at lower levels of development would find it difficult to agree onsome of the elements that might appear to be very  basic to other Members.  It was important for the
developed country Members to appreciate the concerns and problems of developing country Members
before reaching a common understanding regarding the various elements of transparency in
government procurement.  He also stressed the following points as important to his delegation.  First,
government procurement was an important tool ava ilable to governments to pursue their social and
developmental objectives.  Governments should be able to retain flexibility in this regard as they were
fully obliged to pursue these objectives to deal with problems such as poverty, illiteracy, social
backwardness and to provide food security.  Secondly, the transparency exercise should not include
procurement that was open only to domestic bidders.  Members, especially developing country
Members, should retain the flexibility of providing price preferences to domestic bidders.  Thirdly,India was opposed to introducing market access issues into the work of the Working Group.  Fourthly,
the right of governments to make domestic public procurement rules and regulations and to modify
them should be maintained.  He added that India was committed to transparency in government
procurement and that, in fact, that principle was being broadly followed in India's domestic policy.WT/WGTGP/M/10
Page 4
15. The representative of Egypt stated that Egypt ag reed with the main thrust of India's statement,
in particular the reference to the need to pursue social and developmental objectives in developing
countries.
16. The representative of Malaysia said that the agreement should not be prescriptive in nature;  it
should merely serve to ensure the provision of information on the procurement practices of
governments.
17. The representative of Canada stated that Canada supported continuing work on the elements
of an agreement in transparency as outlined in the Singapore mandate.  In relation to transparency, a
simple and realistic approach with regard to what could be achieved was preferable from Canada's
point of view.
18. The representative of Indonesia stated that the Working Group needed to continue exploring
the issues that were being discussed with the intention of increasing awareness as well as creating a
certain level of confidence for delegations.  Thus the study, as mandated by the Singapore Ministerial
Declaration, should be carried out before the Group could embark upon any negotiations on an
agreement.  Discussions should be limited to transparency issues.  A transparency agreement should
not be seen as a building block for an agreement on market access.  There should be no review
provisions in the agreement allowing the possibility of further negotiations on market access.  Thediscussion on transparency should be based on national policies and objectives and should respect
Members' domestic legislation and their right to regulate in this area.
(c) Issues raised
(i) Definition and scope of government procurement
19. A number of observations were made on the question of whether, in order to determine the
scope of any commitments, a general definition of government procurement was necessary and, if so,
whether this could be achieved by reference to the definitions in GATT Article III:8 and GATS
Article XIII:2 or whether it would be sufficient to rely on the definition used by each Member as it
was established in its national legislation.  The representative of the United States, joined by the
representatives of Canada, the European Communities , Egypt , Brazil  and Mexico  said that the Group
could draw on the existing definitions of govern ment procurement in GATT Article III:8 and GATS
Article XIII:2 as a basis for its work to develop an appropriate definition in a transparency agreement.
The representative of Korea, joined by the representatives of Brazil , Argentina  and New Zealand , said
that, while it would be useful to draw on the existing language in GATT and GATS, a mere referenceto GATT Article III:8 and GATS Article XIII:2 would not be sufficient for the purposes of a future
agreement.  The representatives of Korea and Hong Kong, China
 said that, for example, the
interpretation of the term "governmental purposes" in the relevant GATT and GATS Articles might
cause problems.  The representative of Brazil, joined by the representative of Indonesia , said that the
Group should also consider the feasibility of relying on the definitions stipulated in the respectivenational legislation of Members.  The representative of Mexico said that the definition of government
procurement would depend on what was agreed in respect of other elements of the agreement as wellas its scope.
20. Observations were made on the question of whether the rules of a transparency agreement
should extend to procurement by entities at all levels of government or at the central level of
government only.  The representatives of Malaysia, Switzerland
, Hong Kong, China , the European
Communities and Norway  stated that an agreement should cover entities at all levels of government
including at sub-central levels.  The representative of Switzerland said that, otherwise, a large part of
government procurement would be left outside the scope of the transparency agreement.  The
representatives of Australia, Korea  and Japan  said an agreement should be applied to procurement byWT/WGTGP/M/10
Page 5
central government entities and to entities at the highest level of sub-central governments.  The
representative of Argentina said that, even in the case of an agreement that focused on transparency, it
would be difficult to ensure compliance at all levels of government.  Developing countries withfederal government structures should be accorded special and differential treatment with regard to
obligations of entities at sub-central levels.  The representatives of India, Egypt
, Canada , Mexico ,
Indonesia and Brazil  said that the scope of the agreement should be limited to procurement by
central/federal government entities.  The representative of Brazil stated that it would not be feasible to
negotiate an international agreement on behalf of sub-central entities in his country without a mandate
from them.
21. With regard to the question of whether purchases by state enterprises should be covered, and,
if so, which, the representatives of the European Communities, Norway , Mexico  and Switzerland
stated that coverage should also include procurement by such enterprises.  The representative of
Switzerland said that state enterprises often had monopoly positions and, therefore, did not always
pursue commercial interests.  The representative of the United States stated that his delegation's
preference would be to provide for coverage of state enterprises through an agreed definition of
procurement.  For instance, a state-owned enterprise that purchased for governmental purposes would
presumably be covered under a definition of procurement which would refer to "procurement forgovernmental purposes".  The representative of Argentina stated that, since in other WTO fora
transparency was seen as a key to dealing with m onopolies, the issue of coverage of state enterprises
in an agreement focused on transparency might be further explored.  The representatives of India and
Egypt said that procurement by state enterprises should be excluded from the coverage of a
transparency agreement.  The representative of Kore a stated that including state enterprises in the
coverage of a transparency agreement might be burdensome for some Members.  The representative
of Indonesia stated that state enterprises should not be covered under a transparency agreement as
GATT Article XVII already dealt with the issue.
22. With regard to the question of what the scope of an agreement should be in terms of coverage
of goods and services, the representatives of Malaysia, India , Indonesia  and Egypt  stated that the
scope should be limited to goods.  The representative of Egypt said that the Group should consider,
however, how to deal with cases where it was difficult to de-link goods procurements from services
procurements.  The representative of India said that public procurement in the services sector in the
case of most developing countries was less systematized than that in the goods sector.  He also saidthat the issue of procurement of services was already being handled by the Working Party on GATS
Rules.  The representatives of the United States, Australia
, Switzerland , Brazil , Hong Kong, China ,
Canada, Norway , Argentina  and New Zealand  stated that the agreement should encompass both goods
and services.  There was no good reason not to apply transparency rules to services as well as togoods.  Moreover, there were often mixed contracts that involved both goods and related services or
services and related goods.  In practice, it might be difficult in many situations to distinguish between
a goods procurement and a services procurement.  The representative of the United States said that
any commitments that Members might make with resp ect to transparency would be without prejudice
to other aspects of the trade regime including, for example, GATS commitments or border measures.
23. Observations were made on the question of whether the coverage of an agreement should be
limited to procurements above a certain threshold level and, if so, what should that level be and
should it differ according to the level of government, the level of development of the Member in
question and/or the nature of the obligation in question?  The representatives of Malaysia, India ,
Egypt, Korea , Japan , the European Communities , Brazil , Hong Kong, China  and Canada  stated that
there should be a minimum threshold level below which transparency obligations would not apply.The representatives of India, Egypt
, Malaysia  and Indonesia  said that threshold levels should be
higher for developing countries.  Including minor procurements within the scope of a transparency
agreement might impose an undue burden on entities in developing countries.  The representative ofMexico said that the objective of setting thresholds below which the rules would not apply wasWT/WGTGP/M/10
Page 6
important from the point of view of efficiency.  Different threshold levels might apply according to
the purchasing entity, whether a federal or central entity or a state enterprise, on the basis of the
objective of the procurement or depending upon whether the procurement was for goods, services or
construction services.  Compliance with transparency obligations should not result in a situation that
would be too onerous for the procuring entity, nor should the rules be a hindrance to the properfunctioning of government procurement systems.  The representative of Norway stated that, while, in
principle, an agreement should not be limited to procurement contracts above a certain threshold
level, certain provisions could be included to prov ide flexibility in the application of rules to small-
value contracts.
24. The representatives of the United States, Australia  and Switzerland  stated that their
delegations had an open mind on the issue of thresholds.  The representative of the United States said
that, for the purposes of transparency, particularly for open tendering procedures, the costs of
transparency were generally very low and the benefits were very high.  For that reason, it did not
make sense to apply a high level of threshold for procurement under open tendering procedures.  The
representatives of Argentina and New Zealand  stated that there should be transparency in all public
procurement transactions whatever the size of procurement contracts.  It was unclear why  differentlevels of thresholds would be necessary in an agreement which would not set obligations on marketaccess.
25. In response to the question of the extent to which concessions and BOT (build-operate-
transfer) contracts should be covered and, if covered, how they should be defined, the representatives
of Brazil, Malaysia
, India  and Mexico  stated that the scope of the agreement should not extend to
concessions.  The representative of Mexico stated that, in Mexico's system, concessions were not
regarded as falling within the scope of government procurement given that there were a number of
juridical and legal differences between the two.  The representative of Brazil said that the difficulty
associated with extending the scope of an agreem ent to concessions was not simply a legal problem
stemming from the fact that concessions and government procurement were regulated under different
legislation.  The philosophy and objectives underlying concessions were completely distinct from thephilosophy and objectives of government procurement.  In some cases involving concessions, what
occurred was exactly the opposite of what occurred in the case of procurements.  The representative
of Argentina said that there might be services that were contracted by a government for its own
purposes that were not concessions.  The representative of the United States stated that the definition
of a "concession" varied from system to system.  In some systems, what was considered to be a
concession was a fairly narrow range of government activities and, in other systems, it could be
almost synonymous with the term "services".  He  also said that his delegation would be very
concerned by suggestions that all services that were called "concessions" in some jurisdictions would
not be subject to basic transparency requirements.  It would be useful to consider this issue in more
detail.
26. The representatives of Egypt, India  and Argentina  stated that BOT contracts should not be
covered under a future agreement.  The representative of the United States said that, in his
delegation's view, arrangements relating to BOT contracts were simply a different arrangement of
payment for a procurement of facilities.  To the extent that that was the case, the United States could
not see why these arrangements would be treated differently from a general procurement involving a
simple transfer of funds.  BOT arrangements might simply be a way of compensation other than a
direct transfer of funds.  If that were the case, the United States considered that such arrangements
should be subject to general transparency requirements.
27. Following a suggestion by the representative of Pakistan, supported by the representative of
New Zealand, the Working Group agreed  to request the Secretariat to prepare a note identifying the
various issues that were involved in concessions and BOT contracts from the perspective their
treatment or not as a form of government procurement.WT/WGTGP/M/10
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28. With regard to the question of whether there should be a general exception clause along the
lines of GATT 1994 Articles XX and XXI, the representatives of Argentina, Canada , Egypt  and
Indonesia stated that an agreement should have a general exception clause along the lines of GATT
Articles XX and XXI.  The representative of Switzerland, supported by the representative of
New Zealand, stated that whether or not exceptions were necessary would depend upon the specific
commitments to be undertaken by Members.  In an agreement with obligations limited to
transparency, it might be unnecessary to include a general exception clause along the lines of GATT
Articles XX and XXI.  The representative of India stated that, in addition to the general exceptions
provisions contained in GATT relating to security and other matters, Members should have thefreedom to indicate additional exceptions such as procurement for public distribution systems,
procurement for achieving social and development objectives and procurement for domestic price
stabilization of essential commodities.  With regard to procurement involving social policy and otherobjectives, the representative of the United States noted that a number of jurisdictions in the
United States imposed, for example, recycled content requirements or energy efficiency requirements,which were aimed at meeting social and public policy goals in undertaking procurement.
Nevertheless, the United States questioned why the use of those types of procurement objectives
would in any way diminish a government's interest or capacity to achieve transparency.  The UnitedStates believed that the interest to achieve transparency would be the same whether or not those types
of objectives were incorporated into a procurement procedure.
29. Comments were made on the question of whether transparency obligations should be
applicable only to the extent that procurement was open to suppliers from other Members.  The
representatives of Japan, Mexico
, Canada  and Switzerland  stated that a transparency agreement
should apply to all procurement irrespective of whether or not a procurement was open to foreign
suppliers.  The representative of Argentina, joined by the representative of Canada , stated that the
agreement should not call into question the preferences that a Member granted to domestic suppliersand should not require Members to modify their legislation in this regard.  However, that did not
mean that other Members could not have information made available to them on the relevant nationallegislation and procedures in other Members.  The representatives of Malaysia, India
 and Egyp t stated
that an agreement on transparency should exclude  procurement limited to domestic bidders.  The
representative of the European Communities asked for clarification as to how a transparency
agreement which only applied to procurements that were open to foreign participation would work.Would there be two different legal systems relating to transparency in public procurement, one system
that applied in cases where only domestic participants could participate in the procurement and a
second system in cases where procurement was open to other countries?  In response, therepresentative of India stated that India considered that there was no transparency issue involved in
relation to procurement that was not open to foreign competition.  The representative of Pakistan
stated that Pakistan would have a separate system of rules for the two types of procurement.  The
representative of Malaysia stated that in his country transparency principles were applicable whether
or not procurements were open to foreign participation.  However, that did not mean that it should be
agreed that contracts that were open for domestic bidding only should be subjected to the same
rigorous obligations that would have to be adhered to under a WTO transparency agreement for
procurement that involved foreign participation.
30. The representative of New Zealand said that a number of questions raised under definition
and scope were intrinsically linked with some of the other elements under consideration in the Group.
Accordingly, some of his delegation's views on the scope of an agreement might be affected by the
outcome of the discussion on those other issues.
(ii) Procurement methods
31. Comments were made on the question of whether an approach should be adopted which
called upon Member governments to be transparent about their actual use of limited tendering.  TheWT/WGTGP/M/10
Page 8
representatives of the United States and Venezuela  said that procuring entities in different Members
used different criteria for determining which type  of method would be appropriately used in the
circumstances of a given procurement.  National legislation set out such criteria based on national
conditions and procurement policy objectives.  The representative of the United States, joined by the
representative of the European Communities, said that the most important consideration for ensuring
transparency in the use of procurement methods was that, notwithstanding the difference in the
selection criteria used by procurement entities in different Members, the decisions regarding the
choice of a particular procurement method should be taken on the basis of the criteria that were
established in national legislation and which were made known to suppliers in advance.  The
representative of India, joined by the representatives of Mexico , Egypt  and the European
Communities, said that a transparency agreement should not have provisions prescribing the particular
method that should be used in a particular circumstance.  The provisions should allow procuringentities to retain flexibility in applying the proc urement method that was best suited to their objectives
in a particular procurement in the interests of efficiency, competition and transparency.  Procuring
entities should decide which method to choose provided that they followed the criteria established in
national legislation.  The representative of New Zealand stated that transparency disciplines in a
future agreement should not affect a Member's practice regarding the application of various
procurement methods.  The representative of the United States said that the draft text for an agreement
of November 1999, submitted by the delegations of Hungary, Korea, Singapore and the United States,contained a provision requiring Members to have rules in their national legislation describing the
conditions under which it was appropriate to use different procurement methods (WT/WGTGP/W/27,
paragraph V.2).  No provisions were suggested on what those conditions should be.  On the question
of whether an effort should be made to define the circumstances in which limited tendering could be
employed, the representatives of India, Indonesia
, Mexico  and Egypt  said that drawing up an
illustrative list of such circumstances would not allow any flexibility to procuring entities in the use ofthis method.  The representatives of Mexico, the United States
, Venezuela  and Egypt  s a i d  t h a t  a
transparency agreement should have a provision requiring Members to indicate in their national
legislation the exceptional  circumstances warranting the use of limited tendering.
32. With regard to procurement methods, the representative of Pakistan asked how the use of
"Requests for Proposals" method where there could be direct negotiations between suppliers and the
procuring entities after the receipt of initial proposals could be accommodated within a transparency
agreement.  In response, the representative of the United States stated that procedures or any
requirements decided upon by the Group must be flexible enough to incorporate procurementprocedures that may involve negotiations given that such procedures could be an extremely effectiveway for entities to achieve the value for money that taxpayers expected.  There were at least three
ways in which transparency was particularly important when those types of procedures were used:
the first being at the initial announcement of a particular procurement opportunity or the
announcement that a procedure was under way, as in the case of other procurement procedures;  the
second being that participating suppliers should have access on a non-discriminatory basis toinformation.  Thirdly, there should be information on the contract award so that interested parties had
information on the results of the procurement procedure and also were given an opportunity for
receiving an explanation of the reason for the contract award.
(iii) Publication of information on national legislation and procedures
33. On the question of whether there should be a requirement for the establishment of an enquiry
point from which information on national legislation or procedures could be obtained by interested
parties, the representative of India said that the establishment of enquiry points would require
coordination among numerous government departments, hence the need for a careful study of itsfeasibility.  The representative of Bolivia said that there was no need for the establishment of an
enquiry point in his country since the relevant information was available in official publications.WT/WGTGP/M/10
Page 9
34. Comments were made on a number of issues on points of detail such as the scope of the
information on national legislation and procedures that should be made available, the mode through
which this should be done and the treatment, if any, of costs.  The representative of the United States
said that the draft text for an agreement of No vember 1999, submitted by the delegations of Hungary,
Korea, Singapore and the United States (WT/WGTGP/W/27, paragraph V.1), suggested that allnational laws, regulations, and requirements of general application should be published.  Joined by the
representative of Bolivia, he said that this did not call for the publication of the details of the
procurement procedures of individual procurement entities, but covered legislation and administrationguidelines that applied to a broad range of procurement decisions.  The representative of India said
that the publication of information relating to judicial decisions, policy guidance and administrativeguidelines would be onerous.  The representative of Hong Kong, China said that there should be no
requirement to publish or make available to the public in any other form administrative rules and
regulations internal to the government.   The representative of India said that  Members should have
flexibility in respect of the mode through which information should be made available.  On the
treatment of costs, he said that government entiti es should have the flexibility to impose appropriate
fees for the provision of information on national legislation, provided that such fees were charged on a
non-discriminatory basis.  The representative of Hong Kong, China said that there should be a general
exceptions provision with regard to the obligations on publication of information on national
legislation and procedures along the lines of the provisions in Article XX and GATS Article XIV.
(iv) Information on procurement opportunities, tendering and qualification procedures
35. Comments were made on the question of the minimum information that should be made
available on procurement opportunities during the procurement process.  The representatives of theEuropean Communities, Australia
 and Canada  said an agreement should set out certain guiding
principles regarding the minimum information content of the documentation on procurementopportunities.  The representative of Argentina said that, rather than specifying in a transparency
agreement what the minimum information content should be, there should be a provision requiringMembers to set out the minimum information that should be made available in national legislation.The representative of India, joined by the representatives of Hong Kong, China
 and Indonesia , said
that any provisions establishing a uniform set of rules in the agreement in respect of provision ofinformation on procuring opportunities would be too prescriptive.  The representative of India further
said that the level of detail of information varied  considerably in national practices depending on the
particular procurement contract or the procurement methods used.
36. Comments were made on the question of whether national preferences or other measures
favouring certain supplies or suppliers should be made known in advance in the tender notices and/ortender documents and, if so, whether such information should be set out in full;  or whether it would
be sufficient to make an explicit reference to the applicable legislation in those documents;  or
whether such information should only be required when it had not already been adequately provided
through laws or regulations of general application.  The representatives of Canada, the European
Communities, Switzerland  and Australia  said that provision of advance information on national
preferences allowing suppliers to make decisions on whether or not to bid for a  procurementopportunity was critical.  The representative of the European Communities said that a reference to the
applicable legislation in the tender documentation would not be sufficient.  Procedures relating to theapplication of national preferences should be clearly stated in tender documents.  The representative
of Switzerland said that an explicit reference to the applicable legislation could be considered
adequate, although detailed information on the preferences would be preferable.
37. In regard to the question of what guidance should be included as regards the media used for
the provision of information on procurement opportunities, tendering and qualification procedures, the
representatives of India, Canada , the European Communities  and Switzerland  said that procuring
entities should have the flexibility to choose the medium for providing information on procurementWT/WGTGP/M/10
Page 10
opportunities.  The representative of Canada said that it was important to specify the source through
which the relevant information was made available.
38. On the issue of transparency on lists of qualified suppliers, the representative of Australia said
that Members should be encouraged to provid e information periodically on the timing and the
frequency of the opening of qualification lists so as to enable the inclusion of new suppliers.
39. With regard to technical specifications, the representatives of Argentina and Indonesia  said
that, since in their view, they were not within the scope of a transparency agreement, any transparency
agreement should thus not have any provisions relating to this matter.
40. In addressing the question of whether there should be a requirement to provide summary
information on procurement opportunities in a WTO language, the representative of Switzerland said
that this would enhance transparency.  The representatives of Brazil, Australia , Argentina  and
Indonesia  said that a mandatory requirement to publish tender notices in a language other than in a
Member's national language would entail Members incurring burdensome translation costs.
41. The representative of India said that the obligation on provision of information on
procurement opportunities should be limited to procurement open to foreign suppliers.  The
representative of Argentina said that procuring entities should provide such information regardless of
whether the procurement opportunity was open or not to foreign suppliers and even under direct
procurement procedures.  The representative of Hong Kong, China said that there should be a general
exception provision regarding the obligations on provision of information on procurementopportunities along the lines of GATT Article XX and GATS Article XIV.   
(v) Time–periods
42. Comments were made on the question of whether it was accepted that a transparency
agreement should have a provision on time-periods couched in terms of the considerations that should
be taken into account in setting those periods rather than in terms of prescribing minimum periods
and, if so, what those considerations should be.  The representatives of Argentina, Australia , the
United States, Egypt , the European Communities  and Mexico  said that an agreement should not have
provisions prescribing minimum time-periods.  The representatives of Australia, the European
Communities and Mexico  said that a principles-based approach would be preferable.  Joined by the
representatives of the United States, Egypt  and Cuba , the representative of Mexico  said that  procuring
entities should retain flexibility to set appropriat e time-frames according to the nature and the specific
circumstances of a particular procurement.  The representative of Indonesia said that provisions on
time-periods should make reference to national legisl ation.  The representative of India said that the
issue of time-periods was not related to transparency.  Given the divergences in national legislation in
this respect, procuring entities should be able to decide time-periods on a case-by-case basis.  Therepresentative of the European Communities said that allowing procuring entities to take decisions on
time-periods on a case-by-case basis would create uncertainty.  The representative of Mexico said
that, under national legislation, procuring entities might not be able to set time-periods in a
discretionary manner and on a case-by-case basis.
43. With regard to the question of what consideration should be taken into account in setting
time-periods, the representatives of Australia and Mexico  said that suppliers should be allowed
sufficient time for the preparation and submission of bids and the same time-periods should be appliedto all bidders.  The representative of the European Communities said that time-periods should be
commensurate with the particular circumstances of the procurement and the complexity of theintended procurement.  The representative of Mexico said that there should be provisions foreseeing
the application of reduced time-periods in emergency situations.WT/WGTGP/M/10
Page 11
(vi) Transparency of decisions on qualification
44. With respect to the transparency of decisions on registration and qualification of suppliers, the
representative of the United States said that, whatever the qualification criteria procuring entities may
use, the key principle was that the decisions be taken only on the basis of criteria that had been madeknown to suppliers in advance.
(vii) Transparency of decisions on contract awards
45. In addressing the question of whether the minimum information that contract award notices
should contain should be specified and, if so, what should be included, the representative of the
United States said that most national legislation contained a requirement to provide certain basic
information in the notices of contract awards.  The representative of India said that the type of
information that contract award notices should contain should be left to the discretion of procuring
entities.
46. In regard to the method for the provision of ex post information on contract awards, the
representatives of the European Communities and the United States  said that unsuccessful bidders
should have the possibility to obtain information on the reasons for the rejection of their bids.Interested parties should have the ability to request explanations or additional information on contract
award decisions.  The representative of India said that decisions on contract awards should be
conveyed to the bidders in accordance with national practices.
(viii) Domestic review procedures
47. On the question of whether there should be a requirement that a domestic review procedure be
maintained, the representative of India said that the specification of minimum characteristics of
domestic review mechanisms would go beyond the scope of a transparency agreement.  Members
should retain the right to design their own domesti c administrative and judicial review mechanisms
for ensuring that applicable domestic rules and regu lations had been followed by all involved in a
procurement process.  The representative of Egypt said that there should be no provisions on domestic
review mechanisms in a transparency agreement.
(ix) Other matters related to transparency
48. With regard to the question of whether there should be provisions stating in what form and for
how long records of decisions and actions taken during the procurement process should be maintained
by entities, the representative of Mexico said that the maintenance of records of procurement
proceedings was an important guarantee of transparency.  Record keeping was particularly useful inthe review process of procurement decisions.  The representatives of Brazil and Indonesia
 said that an
agreement should not specify in what form and for how long records should be maintained by
procuring entities.
49. On the question of how a transparency agreement might promote the use of information
technology in government procurement, the repr esentatives of the European Communities, Korea ,
Pakistan, Brazil , India , Egypt , Mexico , Indonesia  and Cuba  said that an agreement should have a best-
endeavours clause in this respect encouraging the use of information technology.  The representatives
of Pakistan, Australia  and Cuba  said that information technology was an area where technical
cooperation might be relevant.  The representative of Mexico said that Mexico had carried out
technical cooperation in this area sharing its recent  experience in the establishment of systems with
other countries.WT/WGTGP/M/10
Page 12
50. As regards the question of whether the link between transparency in government procurement
and the fight against corruption and bribery should be explicitly recognized in a transparency
agreement, the representatives of Hong Kong, China, Cuba , Pakistan , India  and Indonesia  said that the
issue was not within the ambit of a WTO working group and was not within the scope of atransparency agreement.  The representatives of Egypt and Indonesia
 said that the matters related to
the fight against corruption might be best handled by Members at the domestic level.  The
representative of Brazil said that transparency in government procurement and the fight against
corruption were separate matters.  There should be no explicit recognition of the linkage that mightexist between the two in a transparency agreement.  The representative of Mexico said that, while her
delegation considered that the WTO was not the appr opriate forum for dealing with the subject, the
establishment of an agreement on transparency in government procurement would be one of the best
ways to fight corruption.  The representative of Australia said that greater transparency was the key to
removing corruption.  The representative of Venezuela said that improving transparency in
government procurement and the fight against corruption were complementary.  Believing that allcountries would benefit from transparency in the fight against corruption, he recalled that his
delegation had submitted a non-paper that identified the elements of transparency that could
contribute to the fight against corruption.
(x) Information to be provided to other governments
51. With regard to a requirement on the establishment of enquiry point(s) by each Member, the
representative of Korea said that there should be a single access point for obtaining information free
of charge.  The representative of India said that the establishment of enquiry points would involve
coordination with different government departments and agencies.  The issue might need to bereconsidered once Members had a clearer idea of the scope and coverage of an agreement.  The
representative of Brazil said that, notwithstanding the difficulties of coordination among national
authorities, the establishment of enquiry points would be useful.
52. Addressing the question of how adequate notification of laws and regulations should be
secured, while ensuring that such requirements were  not unduly burdensome, especially in regard to
translation into a WTO language, the representative of Brazil said that an agreement should require
Members to notify only the lists of basic laws and regulations in a WTO language.  The representativeof the European Communities said that according to the proposal submitted by his delegation in
November 1999 concerning the notification of laws and regulations, Members should only berequired to provide a list in one of the WTO languages of the relevant generally applicable
instruments (WT/WGTGP/W/26, Article 11 on notification requirements).
53. On any statistical reporting requirements, the representatives of Brazil and Canada
 said that  a
transparency agreement should not have provisions in this respect.
54. In responding to the question of whether the government of an unsuccessful tenderer should
be entitled to seek information on a contract awar d from the government whose entity had conducted
the procurement in question, the representatives of Brazil and the European Communities  said that
this matter was linked to the issues under the item on the WTO dispute settlement procedures.
(xi) WTO dispute settlement procedures
55. The representatives of India, Egypt , Indonesia  and Pakistan  said that their delegations were
opposed to the creation of a link between the rules on transparency and the WTO dispute settlement
procedures.  Members had domestic review mechanisms to address procurement disputes adequately.WT/WGTGP/M/10
Page 13
56. The representatives of the United States, Switzerland  and Japan  said that disputes under a
future transparency agreement should be governed by the DSU.  Government-to-government dispute
settlement procedures applied to the Agreement Establishing the WTO and other WTO agreements
which incorporated procedural rules.  The represen tative of the United States further said that any
concern about the perceived implication that dispute settlement procedures might be used to pursue
objectives that went beyond transparency had no basis in light of paragraphs 3.2 and 19.2 of the DSU.
Under these paragraphs, the recommendations and rulings of the DSB or panel and appellate body
recommendations could not add to or diminish the rights and obligations provided in the covered
agreements.
57. The representative of Brazil, joined by the representatives of Japan , Bolivia  and Argentina
said the Working Group should discuss how and in what circumstances the WTO dispute settlement
procedures could apply to the obligations under a transparency agreement.
(xii) Technical cooperation and special and differential treatment for developing countries
58. Addressing the question of whether transitional  periods should be provided for developing
countries, the representative of India said that provisions on special and differential treatment were
necessary in light of the differences in capacity of WTO Members in the area of governmentprocurement.  The representatives of Indonesia and Egypt
 said developing countries should be
provided long transitional periods.  The representatives of Egypt, Malaysia  and India  said that
transitional periods alone were not adequate for a meaningful special and differential treatment ofdeveloping countries.
59. On the question of what other forms of special and differential treatment  might be provided,
the representatives of Indonesia and Malaysia
 said that the issue of higher threshold values for
developing countries and the extent to which sub-central governments should be covered for
developing countries should be addressed.  The representative of Bolivia said that any provisions on
special and differential treatment should be formulated on a contractual basis and not as a statement ofintent.
60. On the issue of technical cooperation, the representative of the European Communities said
that all technical assistance should be based on requests formulated by recipient Members.  This
formulation of the needs by the recipient countries would minimize the cost involved as well as giving
a certain focus in addressing such needs.  The representative of Indonesia said that the provisions on
technical cooperation should specify the areas in which technical cooperation might be provided, theform it might take and the resources available.  There should be provisions for multilateral procedures
aimed at monitoring the provisions of technical assistance on an ongoing basis under a WTO body.
B. OBSERVER STATUS OF INTERGOVERNMENTAL ORGANIZATIONS
61. The Working Group agreed to revert to the requests from intergovernmental organizations for
observer status (OECD, SELA and OIC) in the light of the consultations that were currently being
held by the Chairman of the General Council on this matter.
C. DATE OF THE NEXT MEETING
62. The Working Group agreed to hold its next meeting in late September 2000.
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