WORLD TRADE
ORGANIZATIONWT/WGTGP/W/33
3 October 2002
(02-5319)
Working Group on Transparency
in Government Procurement
WORK OF THE WORKING GROUP ON THE MATTERS RELATED TO ITEMS VI-XII
OF THE LIST OF THE ISSUES RAISED AND POINTS MADE
Note by the Secretariat
1. This note has been prepared in response to a request made at the informal meeting that was
held on 12 March 2002 that the Secretariat prepare, for each of the two substantive meetings in 2002,
short background papers summarizing the work that has already taken place in the Working Group on
the matters related to the sub-items to be discussed, drawing on and listing the documentation of theGroup.  A note on items I to V prepared for the May 2002 meeting of the Working Group has been
circulated in document WT/WGTGP/W32.
2. This note covers items VI to XII of the Info rmal Note by the Chairman, "List of the Issues
Raised and Points Made" (JOB(99)/6782, dated 12 November 1999), namely Transparency of
Decisions on Qualification, Transparency of D ecisions on Contract Awards;  Domestic Review
Procedures;  Other Matters Related to Transparency;  Information to be Provided to Other
Governments (Notification);  WTO Dispute Settleme nt Procedures;  and Technical Cooperation and
Special and Differential Treatment for Developing Countries.
3. Similar to the approach taken in the note on items I to V, the aim is to provide a more concise
note than the Informal Note by the Chairman as well as to take into account subsequent discussions in
the Working Group and papers submitted.  Being a summary, this note does not contain all the details
of the points made and explanations given.  For this information delegations should consult theInformal Note by the Chairman and the other documentation of the Working Group, a list of which
can be found in the Annex to WT/WGTGP/W/32.
4. This note first briefly sets out the information that was considered by the Working Group on
provisions in existing international instruments
1 and on national procedures and practices concerning
items VI to XII.  It will be recalled that at the outset of its work the Working Group soughtinformation from other intergovernmental organizations on relevant international instruments (in
particular from UNCITRAL and the World Bank
2 and requested the Secretariat to provide a note
synthesizing the information available on transparency related provisions in existing international
                                                     
1 The United Nations Commission on International Trade Law (UNCITRAL) Model Law on
Procurement of Goods, Construction and Services of 1993;  the Guidelines for Procurement under IBRD Loans
and IDA Credits and the Guidelines for Selection and Employment of Consultants by the World BankBorrowers, last revised in 1999;  and the WTO Agreement on Government Procurement of 1994.
2 WT/WGTGP/W/1-2.This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTO.WT/WGTGP/W/33
Page 2
instruments on government procurement procedures and on national practices.3  Under each of the
items, this note then summarizes the discussions in  the Working Group, outlining the issues raised and
main points made.
VI. TRANSPARENCY OF DECISIONS ON QUALIFICATION
(a) Information on provisions in existing international instruments and national procedures and
practices
5. In international instruments and national legisla tion provisions with respect to transparency of
procedures for qualification of suppliers relate to four main issues:  qualification criteria;  fair and
non-discriminatory application of qualification procedures;  listing and registration of suppliers;  and
notification of qualification decisions.
6. With regard to qualification criteria, a key transparency requirement is that the evaluation of
suppliers and decisions relating to their qualification be based on criteria which have been previously
set forth in the pre-qualification documents and pre-disclosed.4  These provisions also emphasize that
qualification criteria be linked to the capability of interested suppliers to perform and be capable of
objective application.5  The UNCITRAL Model Law sets forth the range of criteria that procuring
entities may require the suppliers to meet in order to qualify for participation in procurementproceedings.
6  The World Bank Guidelines stipulate that the qualification criteria should be geared to
establishing the capability and resources of the supplier to perform in relation to the requirements of
the contract and lists the factors that should be taken into account.7  The Agreement on Government
Procurement (GPA) requires that any conditions for participation in tendering procedures be limited
to those which are essential to ensure the firm's capability to fulfil the contract in question.8
7. In national practice, any particular requirements and conditions regarding qualification
procedures are normally set forth in invitations to tender and tender documents, thereby ensuring that all
suppliers are informed in advance of the relevant requirements.9  Qualification criteria employed may
include information needed to establish a supplier's professional and technical capability to perform
the terms of the contract and may also include additional requirements, such as pertaining to legalcapacity to enter into procurement contracts, financial capacity and stability of suppliers, tax
obligations or professional risk indemnity insurance.
10  Additionally, entities may base their
qualification requirements on some other considerations , for example protection of health and safety of
workers and employment equity for men and women.  Entities sometimes use negative criteria for
disqualifying suppliers.11
8. All three international instruments prescribe a number of procedures to ensure that the
qualification process is fair and does not lead to discrimination among suppliers.  The Model Lawrequires that same criteria must be applied to all suppliers participating in the procurement process.
12
The GPA emphasizes that entities must not discri minate among suppliers of other GPA Parties and
between domestic suppliers and suppliers of other Parties and among suppliers of other Parties with
regard to conditions of participation.  In certain cases, c ountries make the eligibility of suppliers of
                                                     
3 WT/WGTGP/W/6.
4 WT/WGTGP/W/6, paragraph 70.
5 WT/WGTGP/W/6, paragraphs 68-70.
6 WT/WGTGP/W/6, paragraph 69.
7 WT/WGTGP/W/6, paragraph 69.
8 WT/WGTGP/W/6, paragraph 69.
9 WT/WGTGP/W/6, paragraph 74.
10 WT/WGTGP/W/6, paragraph 72.
11 WT/WGTGP/W/6, paragraph 73.
12 WT/WGTGP/W/6, paragraph 70.WT/WGTGP/W/33
Page 3
other countries to participate in a procurement de pend on these countries prov iding reciprocal treatment
to its suppliers.13
9. All three instruments have specific requirements on the provision of information on
qualification decisions.  Under the Model Law, each supplier that has submitted an application to
pre-qualify must be notified whether or not it has been pre-qualified.  The GPA requires the entityconcerned to advise any supplier having requested to become a qualified supplier of its decision in
this regard.  The World Bank Guidelines require Borrowers to inform all applicants of the results of
the pre-qualification.  Under the Model Law and the GPA, the procuring entity must, upon request,
communicate to suppliers whose application to qualify was rejected or whose qualification has been
brought to an end the grounds therefor.
14  The information available to the Group to date on national
systems does not provide details of how decisions on qualification systems are notified to suppliers.
10. Many procuring entities maintain either permanent or occasional lists of qualified suppliers
for procurement of specific categories of products, services and public works, in particular in the case
of complex projects.15  Such lists serve to create a pool of readily available information on approved
suppliers which the procuring entities may use to request proposals for bids or to evaluate bids.  In the
case of selective tendering procedures under the GPA, entities maintaining lists of qualified suppliers
are required to publish the conditions to be fulfilled by suppliers, the methods of verification of theconditions by entities, up-to-date approved lists of qualified s uppliers and the period of validity of the
lists.
16  Entities are required to notify the qualified suppliers included on permanent lists of the
termination of any such lists or of their removal from them.17  In order to avoid exclusivity in the
preparation and maintaining of lists of qualified suppliers and in the procurement process itself, new
suppliers are provided with an opportunity to be adm itted to the lists of qualified suppliers at any time.18
The APEC Non-binding Principles require entities to ensure access for potential new suppliers to
procurement opportunities.19
11. In some national practices, tenderers applying for qualification may be required to prove their
enrolment in a professional or trade register.20  In certain countries, all potential suppliers, both local
and foreign, are required to be enrolled in a centralized registration system as a prerequisite forparticipation in government procurement contracts in certain categories of tenders, for instance related
to public works.  In some countries, foreign natural persons wit hout domicile in the country or foreign
legal persons without a branch in the country are required to accredit an agent domiciled in the
country who is duly empowered to submit tenders and sign contracts and also to represent them both
legally and in non-legal matters.
(b) Discussions in the Working Group
12. The discussions in the Working Group on this matter have focused on three broad issues,
namely qualification criteria;  lists of qualified suppliers;  and provision of information on
qualification decisions.
                                                     
13 WT/WGTGP/W/6, paragraph 72.
14 WT/WGTGP/W/6, paragraph 80.
15 WT/WGTGP/W/6, paragraph 82.
16 GPA Articles IX:9 and VIII(a).
17 GPA Article VIII (f).
18 GPA Article VIII (d)-(e).
19 WT/WGTGP/W/24.
20 WT/WGTGP/W/6, paragraph 72.WT/WGTGP/W/33
Page 4
(i) Qualification criteria
13. On the first of these issues, the point has been made that transparency of qualification criteria
should reinforce the objective of an open, transparent, efficient and equitable procurement process;
ensure uniform provision of information to potential suppliers;  and secure sufficient information in
relation to suppliers.  A key principle of transparency in this respect is that decisions on qualificationof suppliers should be taken only on the basis of criteria that had been identified and established early
in the procurement process and pre-disclosed to suppliers sufficiently in advance.
21  In this respect,
the suggestion has been made that decisions on supplier pre-qualification should be taken on the basis
of conditions and criteria including technical specifications22 and other requirements23 which have
been made known in advance (e.g. through a tender notice or tender documentation)24, or that have
been specified in the qualification documentation or other information that has been provided to all
participating suppliers.25  Also, any changes in qualification requirements should be made known to
all interested suppliers.
14. The view has also been expressed that qualification criteria should be limited to necessary
requirements only, such as the relevant financial, commercial and technical capacities of suppliers.26
On the other hand, the view has been held that establishment of qualification criteria should be leftwithin the purview of procuring entities and national authorities which should have sufficientflexibility in developing qualification criteria suit ed to different types of procurement, sectors and
circumstances.
27  Also, the prescription of any harmonized qualification criteria or an illustrative
listing in an agreement would not be feasible and did not have any bearing on the work on
transparency.28
15. With regard to application of qualification criteria, one view has been that the qualification
criteria that are set out in invitations to pre-qualify or in tender documents should be applied in a
non-discriminatory manner as regards transparency.  There could be non-discrimination as regards
transparency notwithstanding discriminatory treatment in favour of domestic suppliers, or suppliers
from other countries, being built into the criteria th emselves pursuant to, for instance, preferences or
other domestic sourcing requirements.29  In response, it has been said that application of the principles
of objectivity and non-discrimination to pre-qualification criteria went beyond the concept of
transparency.30
(ii) Lists of qualified suppliers
16. On the second of these issues, the point has been made that, where pre-qualification and
registration systems are maintained, such systems shou ld not be exclusive.  New suppliers meeting the
qualification criteria in time to participate in a tender should be given the same or, in one view, at
least a reasonable opportunity to participate in that and subsequent tenders.  Qualification systemscould be re-opened at periodic intervals to new suppliers.
31
                                                     
21 WT/WGTGP/M/10, paragraph 44;  WT/WGTGP/M/11, paragraph 29.
22 WT/WGTGP/W/26, 7.1.
23 WT/WGTGP/W/27, VIII.1;  Job No. 5803, IV.I.
24 WT/WGTGP/W/26, 7.1.
25WT/WGTGP/W/27, VIII.1.
26 Job No. 4099.
27 JOB(99)/6782, paragraph 76.
28 JOB(99)/6782, paragraph 76.
29 JOB(99)/6782, paragraph 78.
30 JOB(99)/6782, paragrapgh 79.
31 WT/WGTGP/M/11, paragraph 29;  JOB(99)/6782, paragraph 74.WT/WGTGP/W/33
Page 5
(iii) Provision of information on qualification decisions
17. With regard to transparency of qualification de cisions, it has been suggested that information
on the basis for selecting suppliers and the way in which the qualification process is conducted should
be publicly available to all potential suppliers32 or on request from a supplier of a Member.33
Moreover, entities should provide unsuccessful suppliers, upon request, with information as to the
reasons for the denial of their request to become a qualified supplier.34  On the other hand, the view
has been held that provision of ex post information  on qualification decisions could be impracticable
in developing countries especially where a large number of suppliers are involved.35
18. The view has been expressed that suppliers should have the right to challenge qualification
decisions if the rules of the system have not been followed.  In response, it has also been said that,
under certain tendering methods, it is not possible to overturn decisions on qualification even if
certain other suppliers could be considered to be qualified in terms of the pre-published criteria.36
VII. TRANSPARENCY OF DECISIONS ON CONTRACT AWARDS
(a) Information on provisions in existing international instruments and national procedures and
practices
19. Government procurement regimes and each of the three instruments put great emphasis on
decisions on the award of the contracts not only bein g objective but also being seen to be objective.
Being seen to be objective in decision-making requires, first, that the evaluation criteria, including
technical specifications, be objective in nature and publicly announced in advance and, second, that
arrangements for the receipt and opening of tend ers are such as to ensure their regularity.
Transparency in decision-making further entails the availability ex post  of information on the
decisions taken.
(i) Transparency of evaluation criteria
20. All three instruments covered by the Secretariat's note on the Synthesis of the Information
Available in WT/WGTGP/W/6 provide that tender documents should contain the criteria, includingany factor other than price, to be considered by the procuring entity in determining the successful
tender and for awarding the contract.  They also emphasize that entities should evaluate tenders only
on the basis of the criteria that have been previously published.  The provisions of the Model Law on
examination, evaluation and comparison of tenders require the procuring entity to evaluate and
compare the tenders in order to ascertain the successful tender in accordance with the procedures and
criteria set forth in the tender documents and prohibit the use of any criterion that has not been set
forth in the tender solicitation documents.
37   The GPA also explicitly provides that awards should be
made in accordance with the criteria and essential requirements specified in the tender
documentation.38  The World Bank Guidelines require that bidding documents shall specify the
relevant factors, in addition to price, to be considered in bid evaluation and the manner in which they
will be applied for the purpose of determining the lowest evaluated bid.39
                                                     
32 Job No. 5803, IV.1.
33 Job No. 5239, 3.2.
34 WT/WGTGP/W/27, VIII.2.2;  Job No. 5803, IV.3.
35 WT/WGTGP/M/11, paragraph 29;  JOB(99)/6782, paragraph 79.
36 JOB(99)/6782, paragraph 79.
37 Model Law Article 34(4)(a), Article 39(1) and Article 48(3).
38 GPA, Article XIII:4(c).
39 World Bank Guidelines on goods and works, paragraph 2.51.WT/WGTGP/W/33
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21. Particular attention is given in the three in struments to ensuring the transparency and
objectivity of technical specifications criteria and their evaluation.  The GPA and the Model Law
stipulate that technical specifications40 prescribed by procuring entities shall not be prepared, adopted
or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.41
The GPA and the World Bank Guidelines require that technical specifications prescribed by procuring
entities shall be based on international standards, where such exist, otherwise, on national technical
regulations, recognized national standards or other equivalent standards, or building codes.42  The
GPA has an explicit preference for the use of specifications based on performance rather than design
or descriptive characteristics.  The Model Law requires that any specifications, plans, drawings,
designs and requirements or descriptions be based on the relevant objective technical and quality
characteristics of the goods.43
22. As regards national practices to guarantee the transparency of evaluation criteria, in some
countries, the basic principles and criteria for selecting tenders are established in the procurement
legislation44;  in others, there are no centrally prescribed contract award criteria and agencies
determine the criteria that are appropriate in the context of individual procurements.45  Certain criteria
and procedures are common to the process of evaluation of tenders in most countries.  It is invariably
required that all evaluation criteria be made available in advance to suppliers in the tender notice or inthe tender documents
46;  that only those criteria previously announced be taken into account in the
evaluation of bids47;  and that selection of the winning tender be made in accordance with the
evaluation criteria and relative importance of each criterion previously announced.  It may be required
that the criteria that are communicated to the potential suppliers in the invitation to tender and tender
documents cannot be modified without notifying all of the potential bidders through the samechannels used to transmit the invitations and the tender documents.
48  Contracts are awarded, in
general, to the tenders which have the lowest price  or to the tenders determined to be economically the
most advantageous  in terms of the specific evaluation criteria.
23. All three instruments have provisions regarding the application of the principle of
non-discrimination in respect of participation in tenders and award of contracts.  The Model Lawprovides that any restrictions on procurement from foreign sources with the purpose of protecting
certain economic sectors or on account of certain legal obligations should only be on grounds
specified in the procurement regulations or should be pursuant to other provisions of law.
49  T h e
objective of transparency is promoted by requiring a procuring entity to declare any limitations on
participation on the basis of nationality in the invitations to tender and to include in the record of the
procurement proceedings a statement of the grounds and circumstances on which a procurement entity
has relied for limitation of participation on the basis of nationality.  In these cases, the procuring entityis exempted from the obligation to give wide international circulation to the invitation to tender or
invitation to pre-qualify.
50  The Model Law also provides for the possibility that, in evaluating and
comparing tenders, a procuring entity may grant a margin of preference in favour of local goods,
services and suppliers which permits the procuring entity to select the overall lowest-priced tender of
                                                     
40 Such as quality, performance, safety and dimensions, symbols, terminology, packaging, marking and
labelling, or the procedures and methods for their production and requirements relating to conformityassessment procedures prescr ibed by procuring entities.
41 GPA, Article VI:1;  Model Law Article 16(1).
42 World Bank Guidelines on goods and works, paragraphs 2.19 and 2.20.
43 Model Law Article 16(2).
44 S/WPGR/W/11/Add.3, Add.8, Add.12, Add.17, Add.19.
45 S/WPGR/W/11/Add.4, Add.11.
46 E.g., in section "m" of tender documents published in the Commerce Bulletin Daily of the
United States.
47 S/WPGR/W/11/Add.11, Add.12, Add.17, Add.18, Add.20.
48 S/WPGR/W/11/Add.18.
49 Guide to Enactment of UNCITRAL Model Law, page 58 and Model Law Article 8(1).
50 Model Law Article 23.WT/WGTGP/W/33
Page 7
a local supplier when the difference in price between that tender and the lowest-priced tender falls
within the range of margin of preference.51  The rules for calculation of such preference margins
should be set forth in the procurement regulations.  Moreover, the use of a margin of preference is to
be pre-disclosed in the tender documents and reflected in the record of the procurement proceedings.52
24. Under the International Competitive Bidding (ICB) procedures, the World Bank Guidelines
provide that a margin of preference may be granted to domestically manufactured goods and domestic
contractors in the evaluation of bids at the request of the Borrower and under conditions to be agreed
under the Loan Agreement.53  The bidding documents should clearly indicate any preferences to be
granted, the information required to establish the eligibility of a bid for such preference, and the
method that will be followed in the evaluation and comparison of bids.54  Moreover, for procurement
of goods and works, which by its nature or scope is not expected to be of interest to foreign bidders,
the competitive bidding procedure normally used for public procurement in the country of theborrower, National Competitive Bidding (NCB), may be preferred to the ICB procedures but the use
of this procedure is subject to specified conditions.
25. Under the GPA and in respect of procurement covered by the Agreement, governments
Parties to the Agreement are required to give the products, services and suppliers of any other Party to
the Agreement treatment "no less favourable" than that  given to their domestic products, services and
suppliers and not to discriminate among the goods, services and suppliers of other Parties
(Article III:1).  Furthermore, each Party is required to ensure that its entities do not treat a locally
established supplier less favourably than another locally established supplier on the basis of the
degree of foreign affiliation or ownership and do not discriminate against a locally established
supplier on the basis of the country of production of the good or service being supplied (Article III:2).Certain derogations from the fundamental principles of the Agreement are provided for in national
schedules appended to the Agreement.  In addition, special and differential treatment for developing
countries under Article V of the GPA allows for agreed exclusions from the requirement of national
treatment under the GPA.  Furthermore, the GPA prohibits the use of offsets which are defined as
measures used to encourage local development or improve the balance-of-payments accounts bymeans of domestic content, licensing of technology, investment requirements, counter-trade or similar
requirements.
55  However, a developing country may at the time of its accession negotiate conditions
for the use of offset requirements, to be used only for qualification of suppliers and not as criteria for
awarding contracts.56
26. The procurement practices of a number of countries provide for award criteria to take into
account considerations such as the promotion of dom estic supplies and/or suppliers.  To this end, the
criteria may include factors such as price preference margins, offset requirements, set-asides for small
and medium-sized enterprises or for minority business.   Some countries have stated that the procuring
entity must give suppliers prior information at the in vitation to tender stage of the procedures if domestic
preferences or any other conditions in  a procurement proceeding are applied.57
                                                     
51 Guide to Enactment of UNCITRAL Model Law, page 58;  Model Law Article 34(4)(d) and 39(2).
52 Model Law Articles 27(e), 34(4)(d) and 39(2).
53 World Bank Guidelines on procurement of goods and construction services, paragraphs 2.54
and 2.55.
54 World Bank Guidelines on goods and works, paragraph 2.54 and Appendix 2, paragraphs 2-5.
55 GPA, Article XVI:1.
56 Article V.
57 S/WPGR/W/11/Add.12, Add.17.WT/WGTGP/W/33
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(ii) Receipt and opening of tenders
27. All the three instruments have provisions to ensu re the regularity of the receipt and opening of
tenders and awarding of contracts.  The GPA provisi ons require that procedures and conditions for the
receipt and opening of tenders guarantee the regularity of the openings and be consistent with thenational treatment and non-discrimination provisions of the GPA.
58  The Model Law and the World
Bank Guidelines set forth detailed conditions which are aimed at preventing any non-transparent
action or decision by the procuring entity in the process of the opening of tenders and at enabling
suppliers to observe that the entity complies with the procurement criteria and procedures.
28. The three instruments set forth a number of other provisions that safeguard transparency at
the bid evaluation stage.  The procuring entity may ask bidders for clarifications of their tenders that
are needed to evaluate them, but no changes are to be asked or permitted with a view to makingunresponsive bids responsive except for the correction of arithmetical errors appearing in the tender.
59
The GPA requires that any opportunity that may be given to tenderers to correct unintentional errorsof form between the opening of tenders and the awardi ng of the contract shall not be permitted to give
rise to any discriminatory practice.
60  The World Bank Guidelines preclude the alteration of bids after
the deadline for receipt of bids.61  Under the GPA, negotiations with entities may only take place
where prior notice has been given or where no one tender is obviously the most advantageous in terms
of the specific evaluation criteria set forth earlier in the notices or tender documentation.62  The Model
Law prohibits negotiations between the procuring entity and a supplier with respect to a tender
submitted by the supplier.63
29. With regard to the confidentiality of tenders, the World Bank Guidelines require that
information relating to the examination, clarification, and evaluation of bids and recommendations
concerning awards shall not be disclosed to bidders or other persons not officially concerned with the
bidding process until the successful bidder is notified of the award.64  Under the procedures on
negotiations in the Model Law and in the GPA, entiti es are required to treat information in tenders, in
particular any technical, price or other market information, confidentially and not to provideinformation intended to assist particular participan ts to bring their tenders up to the level of other
participants.
65
30. As regards, national practices on receipt and ope ning of tenders and award of contracts, the
countries on which information is available follow  procedures that are set forth in the generally
applicable procurement laws66 or established by individual procuring agencies for their own use.67  The
details of the procedures and practices on submissi on and receipt and opening of tenders can be found in
paragraphs 109 to 113 of WT/WGTGP/W/6.
                                                     
58 GPA, Article XIII:3.
59 Model Law Article 32(1).
60 GPA, Article XIII:1(b).
61 World Bank Guidelines on goods and works, paragraph 2.45.
62 GPA, Article XIV:1.
63 Model Law Article 35.
64 World Bank Guidelines on goods and services, paragraph 2.46.
65 Model Law Article 49(3) and GPA, Article XIV:3.
66 S/WPGR/W/11/Add.10.
67 S/WPGR/W/11/Add.4, Add.8, Add.11.WT/WGTGP/W/33
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(iii) Ex post information on contract awards
31. The three instruments lay down provisions requ iring procuring entities to inform the public
and, in particular, the suppliers that have participated in the procurement process of their award
decisions.  The Model Law and the GPA require entities to publish a notice award after the award ofeach contract.
68  The publications in which individual GPA Parties publish such notices are identified
in Appendix II to the GPA.  The GPA sets forth in detail the type of information that such notices, to
be published within a specified time-limit after the award of each contract, must contain.  In addition
to the publication of a notice of contract award, the GPA goes on to require entities to promptly
inform directly those suppliers that have participat ed in a tender of the decision on the contract award,
in writing if requested.69  Under the Model Law, the procuring entity is required to give a notice to
other suppliers after it has entered into a contract with a supplier, specifying the name and address ofthe supplier and the contract price.
70  Furthermore, the Model Law and the GPA allow an unsuccessful
tenderer to seek and obtain pertinent information concerning the reasons why its tender was not
selected.  The GPA also requires the provision of information on the characteristics and relative
advantages of the tender selected as well as the name of the winning tenderer.  Under the Model Law,
however, the procuring entity is not required to  justify the grounds for its rejection of tenders.71
32. As regards the treatment of confidential information on contract awards, the GPA foresees
that entities may decide to withhold certain information on contract awards where release of such
information may impede law enforcement or otherw ise be contrary to public interest or would
prejudice the legitimate commercial interests of particular enterprises or might prejudice fair
competition between suppliers.72  The provisions of the Model Law bar the procuring entity from
disclosing certain information, including that rela ting to the examination, evaluation and comparison
of tenders so as to safeguard the public interest or the commercial interest of parties involved in the
proceedings.73
33. As regards national practice on ex post  information, the information available suggests that in
most countries, entities are required to announce publicly the results of the contract award periodicallyor within stipulated time periods which varies from three days to three months.
74  The content of the
information may be specified in national procurement legislation, regulations or guidelines, as well as
the media for publication which in some cases may be the same as that for the procurement notice.  In
addition to the award notification, some countries  require the procuring entity to inform all
unsuccessful tenderers of the results of the contract award.75  In some countries, unsuccessful
suppliers may be entitled to a debriefing by the procuring entity as to how their tenders performed.
Further details of national practices can be found in paragraphs 120 to 122 of WT/WGTGP/W/6.
34. As regards confidentiality of information on co ntracts awarded, in some national practices a
procuring entity may decide that certain information on the contract award be withheld where
divulgence of such information would prejudice the legitimate commercial interests of the winning
tenderer or would be contrary to the public interest.76
                                                     
68 Model Law Article 14(1) and (2);  GPA Article XVIII:1.
69 GPA Article XVIII:3.
70 Model Law Article 36(6).
71 Model Law Article 12(1) and GPA Article XVIII:2.
72 GPA Article XVIII:4.
73 Model Law Articles 45 and 34(8).
74 S/WPGR/W/11/Add.1, Add.2, Add.3, Add.6,  Add.8, Add.9, Add.10, Add.17, Add.18.
75 S/WPGR/W/11/Add.9.
76 S/WPGR/W/11/Add.4, Add.6, Add.10;  WT/WGTGP/W/5.WT/WGTGP/W/33
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(b) Discussions in the Working Group
(i) Evaluation criteria
35. The point has been made that a key requirement with regard to transparency of evaluation
criteria is that the evaluation of tenders be conducted77 and contract award decisions based strictly on
evaluation criteria, including technical specifications and other relevant information, conditions or
other requirements78, which have been pre-established and made known in advance79, for example
through a tender notice or tender documentation.80  Such criteria should be clear and be capable of
objective application, and should be communicated and applied non-discriminately.  In this
connection, the view has also been expressed that a transparency agreement would not, as a general
rule, set out what those criteria should be.
36. The point has also been made that it is necessary to adopt a flexible approach in order to
allow for certain situations – for instance, where negotiations may have to be held in order to obtain
better terms, or in cases of force majeure81 where the criteria set out in tender documents cannot be
strictly adhered to.82  Other aspects of the transparency of evaluation criteria are also discussed under
item IV in document WT/WGTGP/W/32 relating to Information on Procurement Opportunities,Tendering and Qualification Procedures and under item VI in the present document on Qualification
Procedures.
(ii) Receipt and opening of tenders awarding of contracts
37. The view has been expressed that procuring entities should have appropriate procedures to
ensure that all tenders are received and opened under procedures and conditions guaranteeing the
regularity and impartiality of the opening process
83 and that there is no opportunity to manipulate the
specific elements of tenders or to provide a par ticular tenderer with information on other tenders.84  In
response, it has been said that setting out the proc edures on how tenders received by procuring entities
should be handled to ensure the regularity and impartiality of the procurement proceedings is notwithin the ambit of the work on transparency.  The objective sought can be achieved through ex post
information.
85
38. The suggestion has been made that each Member should ensure that only bids of suppliers
whose tenders have been received before the previously published final date for submission of tenders
may be considered.86
39. The point has been made that each Member shall ensure that its governmental agencies treat
tenders in confidence.87
                                                     
77 Job No. 5803, V.1.
78 Job No. 5803, VI.1;  WT/WGTGP/W/26, 7.1;  WT/WGTGP/W/27, VIII.
79 Job No. 4099;  Job No. 5239, 4.3 and 4.4;  WT/WGTGP/W/26, 7.1.
80 WT/WGTGP/W/26;  WT/WGTGP/W/27,  VIII.1;  Job No. 5803, VI.1.
81 JOB(99)6782, paragraph 81.
82 JOB(99)/6782 (6th Rev.), paragraph 82.
83 JOB(99)/6782 (6th Rev.), paragraph 83.;Job No. 5239, 4.2.
84 JOB(99)/6782 (6th Rev.), paragraphs 80 and 83.
85 JOB(00)3276, VI, paragraphs 1.1-5.2.
86 WT/WGTGP/W/26, 7.1; Job No. 5239, 4.1.
87 Job No. 5239, 4.2.WT/WGTGP/W/33
Page 11
(iii) Ex post information on contract awards
40. The provision of ex post information on contract awards has been said to be one of the crucial
elements of transparency in government procurement especially in cases where certain information
might not have been provided ex ante.88
41. The suggestion has been made that entities should make information on contract awards
publicly89 available.90  Such information should be made available publicly for a reasonable period of
time.91  One view has been that any requirement to publish contract award decisions should only be in
cases of "less transparent" procurement methods such as single-source procurement or limited
tendering.  Another view has been that they s hould be published regardless of the procurement
method used.92   On the other hand, the view has been held that decisions on contract awards should
be provided in accordance with national practices.93  Individual Members should be able to determine
whether to notify or debrief unsuccessful tenderers on the outcome of their bids or to publish contract
award information as provided in national legislation.94
42. There has been exchange of views in the Working Group in relation to the minimum content
of ex post  information to be published.  It has been suggested that it should include:
- the name of the procuring entity95;
- a description of the goods and services procured96;
- other information necessary to identify the procurement97;
- if a contract is awarded, the name of the awarded98/winning99 supplier and the value of the
winning award100;
- if a contract is not awarded to any supplier, the reasons for the decision.101
43. A further view in this connection has been that the ex post  information in contract award
notices could be less detailed than the information to be provided directly to individual suppliers.
Another view expressed in this connection has been th at the type of information to be provided should
be left to the discretion of the procuring entity.102
                                                     
88 JOB(00)3276, VI, paragraphs 5.1-5.2;  JOB(99)5239, Article 4.4.
89 WT/WGTGP/W/27, VIII.3.
90 WT/WGTGP/W/27;  Job No. 5803, VII.1(a); WT/WGTGP/W/26, 7.2.
91 WT/WGTGP/W/27.VIII.3.
92 JOB(99)6782, paragraphs 85-86.
93 WT/WGTGP/M/10, paragraph 45.
94 JOB(99)6782, paragraphs 85-86 and WT/WGTGP/M/10,para 45.
95 WT/WGTGP/W/27, VIII.3.
96 WT/WGTGP/W/27, VIII.3.
97 Job No. 5239, 4.4(a).
98 Job No. 5239, 4.4(b).
99 WT/WGTGP/W/27, VIII.3.
100 Option in WT/WGTGP/W/27, VIII.3;  Job No. 5239, 4.4(b).
101 Job No. 5239, 4.4(c).
102 WT/WGTGP/M/10, paragraph 45.WT/WGTGP/W/33
Page 12
44. A further suggestion with regard to ex post  information has been that, upon request,
unsuccessful suppliers should be provided with more detailed103 information and explanation as to the
reasons for their non-selection and/or why the winning bid has been chosen.104  It has also been
suggested that any debriefing provided by the entity should be available to all participating suppliers
on a non-discriminatory basis.105 A further point has been that debriefing should be a complementary
measure rather than a substitute for public availability of contract award information.106
45. In response, the point has been made that ex post provision of information to unsuccessful
bidders could be burdensome and costly for procuring entities, and that some national practices do not
provide for this.107
46. The point has been generally made that information considered confidential, on grounds of
commercial or public interest, should be treated as such, and a number of the proposals submitted
make provision for this.108
VIII. DOMESTIC REVIEW PROCEDURES
(a) Information on provisions in existing international instruments and national procedures and
practices
47. Review procedures are often considered a key component of transparency and accountability
of government procurement practices.  The rules set out in the Model Law and the GPA establish the
basic features that national review mechanisms must have without going into great detail.  The
purpose of these provisions is to give suppliers believing that an entity has breached national law or,
in the case of the GPA, the rules of the GPA itself, a right of review.109
48. Under the Model Law and the GPA, as an initial step, complainants are encouraged to seek
resolution of their complaints through consultations w ith the procuring entity itself prior to recourse to
an administrative review body.110  Under the Model Law, unless the complaint is resolved by mutual
agreement, the procuring entity shall, within prescr ibed time-limits, issue a written decision including
a statement on the reasons for the decision and indicating any corrective measures that are to be
taken.111  If the matter is not settled through this procedure, the complainant is entitled, under the
Model Law, to seek an administrative review.112  The functions of an administrative review may be
vested in an existing appropriate administrative  body or a body whose competence is exclusively to
resolve disputes in procurement matters and which is independent of the procuring entity.  The
decisions of the review bodies or failure to make a decision within prescribed time-limits shall be
subject to judicial review.113  The Model Law also lays down certain procedures to ensure the
openness and fairness of review procedures.114  Under the GPA, Parties may confer the authority to
hear challenges by suppliers on national courts or on an impartial and independent review body of anadministrative nature.  In the event that a bid challenge is heard by a review body which does not have
the status of a court of law, either its decisions must be subject to judicial review or it must follow the
                                                     
103 WT/WGTGP/W/26, 7.2.
104WT/WGTGP/26, 7.2;  WT/WGTGP/W/27, VIII.2.2;  Job(99)5803, VII.1(b);  WT/WGTGP/M/10,
paragraph 46.
105 WT/WGTGP/W/27,VIII.2.2; Job(99) 5803, VII.2 (c).
106 Job (00)/3276, page 17.
107 JOB(99)6782, paragraphs 83.
108 JOB(99)6782, paragraphs 85; WT/WGTGP/W/26, Article 9.
109 Model Law Article 52;  GPA Article XX:1.
110 GPA Article XX:1.
111 Model Law Article 53.
112 Model Law Articles 54 and 55.
113 Model Law Article 57.
114 Model Law Article 55.WT/WGTGP/W/33
Page 13
criteria laid down in detail in Article XX:6(a)-(g).  These minimum standards are mainly designed to
ensure the openness, fairness and equity of the proceedings.115  The World Bank carries out prior or
post reviews of the procurement documents, bid evaluations, award recommendations and the contract
to ensure that the process is carried out in conformity with the Guidelines.116 In addition the World
Bank Guidelines allow a bidder or a consultant who wishes to ascertain the grounds on which its bidor proposal is not selected, after notification of award, to address a request for explanation to the
Borrower country or agency.  If the bidder or consultant is not satisfied with the explanation given, it
may seek debriefing with the World Bank.
117
49. Under the GPA, a review body must have the au thority to order the correction of a breach of
the Agreement or compensation for the loss or damages suffered by a supplier, but this may be limited
to costs for tender preparation or protest.  Pending the outcome of the challenge, the review body must
be able to order rapid interim measures, including the suspension of the procurement process, tocorrect breaches of the GPA and to preserve commercial opportunities.
118  However, procedures may
provide that overriding adverse consequences for the interests concerned, including the public
interest, may be taken into account in deciding whether such measures should be applied.  The
provisions of the Model Law also provide for the suspension of procurement proceedings which takes
account of the need of the procuring entity to conclude a contract in an economic and efficient waywithout undue disruption and delay in the procurement process.
119
50. Many countries have procedures which allow aggrieved suppliers to lodge complaints against
any alleged breaches of the applicable rules and to seek review of the procurement proceedings of an
entity, including award decisions.  The procedures fo r review of complaints and remedies available to
successful complainants are sometimes provid ed explicitly in procurement legislation120 and, in other
cases, they may result from more general possibilities to appeal administrative decisions.  Regarding
the conditions of recourse to review, complaints may be raised on the grounds that the applicable
procurement laws and regulations have been violated121 or, where a country is a party to an
international agreement, an alleged breach of the rules of that agreement.122  In most cases, procedures
are available to any person who has or has had an interest in obtaining a particular contract or who hasbeen or risks being harmed by an alleged infringement.
51. Complaint-based procedures in national practice s generally have the following main features.
Suppliers are encouraged, in the first instance, to ta ke up the matter directly with the procuring entity
for an early resolution.
123  In some cases, mediation or good offices of an independent authority can be
sought.  Finally, suppliers can bring an action against the procuring entity before an independent body
or a court.  Most countries have designated administrative or judicial authorities to handle
procurement-related challenges.  The nature of the review authorities varies and, when review bodies
are not judicial in character, their decisions are often subject to judicial review.124  The review may be
handled either by a specialized body established to review challenges in the area of government
                                                     
115 GPA Article XX:6(a)-(g).
116 World Bank Guidelines on goods and works, Appendix 1,paragraghs 1,2 and on consultants'
services, Appendix 1, paragraphs 1, 2 and 4.
117 World Bank Guidelines on goods and works, Appendix 4, paragraph 15 and on consultants'
services, Appendix 4, paragraph 15.
118 GPA Article XX:7(a)-(c).
119 Model Law Article 56.
120 S/WPGR/W/11/Add.1, Add.3, Add.19.
121 S/WPGR/W/11/Add.3, Add.17, Add.20.
122 E.g., GPA, NAFTA and the Government Procurement Agreement between Australia and
New Zealand.
123 S/WPGR/W/11/Add.3, Add.4, Add.6, Add.9, A dd.11, Add.12, Add.20, Add.21;  WT/WGTGP/W/5;
APEC Survey – Philippines.
124 S/WPGR/W/11/Add.10, Add.12, Add.13, Add.15, Add.17, Add.18, Add.20.WT/WGTGP/W/33
Page 14
procurement, an administrative authority with a broader mandate or courts of law.125  Apart from
complaint-based procedures, the mechanisms that are used in some instances for monitoring the
procurement process include the internal audits of pr ocuring authorities, external control or audits by
an administrative body in charge of overseeing the proper conduct of procurement proceedings;  or
oversight by the legislative authorities in some countries.126  In those countries where procurement
procedures are decentralized, each entity has its own procedures which may vary from one entity to
another.127
52. The remedies available to successful complainants differ from country to country and may
include the following:
- interim measures, including the suspension of the procurement procedures and of the
implementation of any decision of the procuring authority taken unlawfully in order
to preserve the rights of suppliers128;
- recommendations to entities to bring their procurement proceedings and decisions in
line with the rules in force129;
- damages awarded to the aggrieved supplier130 which are sometimes limited to the
financial costs of tendering131.
National laws sometimes provide for the public interest to be taken into account in deciding whether
to suspend or cancel a procurement decision; cancelling of procurement procedures or setting-aside
decisions and awards.132
(b) Discussions in the Working Group
53. A widely-held view appears to be that any provisions on review in a transparency agreement
should not require one model for every Member or introduce elaborate  obligations on the particular
characteristics of national systems that should be maintained.133 The matter of domestic review
procedures was within the purview of domestic legislation and that the primacy of national legislation
should be maintained.134 Any provisions should be flexible enough to allow Members to design their
domestic review mechanisms in accordance with their national legislation and to rely on
administrative or judicial review mechanisms that are appropriate to their national legal systems and
to accommodate different Members' existing indepe ndent administrative or judicial tribunals and
review procedures.135  
54. Those advocating the inclusion of a requirement in a transparency agreement in relation to
domestic review procedures base their arguments on the role of such procedures in guaranteeing the
overall transparency of the procurement process and the need for an appropriate mechanisms toensure the enforcement of underlying rules.  With re gard to the first of these points, the point has been
                                                     
125 S/WPGR/W/11/Add.1, Add.2, Add.8, Add.10, Add.14, Add.15.
126 S/WPGR/W/11/Add.4, Add.15, Add.18, Add.19.
127 S/WPGR/W/11/Add.15.
128 S/WPGR/W/11/Add.1, Add.2, Add.3, Add.6, Add.13, Add.17.
129 In Australia, while compliance by an entity with a recommendation of the review authority for a
remedy is not mandatory, the review authority may report to the Prime Minister and then to the Parliament if theentity does not act upon a recommendation adequately.
130 S/WPGR/W/11/Add.1, Add.11.
131 S/WPGR/W/11/Add.2.
132 S/WPGR/W/11/Add.1, Add.3, Add.10, Add.12, Add.18.
133 WT/WGTGP/W/15 and 17.
134 WT/WGTGP/M/14, para 58.
135 WT/WGTGP/M/10, paragraph 47 and WT/WGTGP/M/12.WT/WGTGP/W/33
Page 15
made that the availability of a bid challenge mechanism adds to the transparency of the
decision-making process, increases confidence in the effective functioning of the overall procurement
system and enables the system to be seen to be transparent.  Review procedures should also be in
place in the interest of introducing due process and public accountability of decision-making through
the procurement process.136  Domestic review mechanisms are necessary to ensure that the applicable
transparency rules are respected by all involved in a procurement process.137
55. The view has also been expressed that there should be no provisions on domestic review
mechanisms in a transparency agreement.138  According to this view, domestic administrative or
judicial review mechanisms are in place for the purpose of public accountability at the domestic level,
a matter not within the ambit of a transparency agreement.139  The issue of domestic review goes
beyond that of transparency and therefore the mandate of the Working Group.  A further comment in
this respect has been that, since the purpose of domestic procedures in many countries is to reviewwhether procurement has been made in accordance with domestic law and procedures, it might not be
feasible to limit the application of review procedures to obligations in a WTO agreement, the scope of
which will be limited to transparency.  Moreover, the concern has been expressed  in this connection
that review provisions in a transparency agreement might be used as a means by certain vocal private
parties to create complications in the domestic political arena and that additional review proceduresmight increase the number of challenges and create unnecessary costs for procuring entities.
140
56. A further approach that has been put forward envisages leaving the choice of review
procedure to individual Members provided the review mechanism itself was transparent and provided
a guarantee of independence.141  Another view has been that the requirements on domestic review
procedures in a transparency agreement should be limited to the provision of information on availablenational review mechanisms and procedures.  All that is necessary is that suppliers are made aware
that such national mechanisms exist and are provid ed with information as to how they work.  A
further suggestion has been that a transparency ag reement could contain an exhortation to Members or
a best endeavours obligation to provide on and maintain domestic review mechanisms.
142  It has also
been suggested that provision of ex post information to unsuccessful suppliers and debriefing by
procuring authorities  would be sufficient and obviate the need for provisions on review143 (see also
Section VII and X).
57. By way of precedents for review and appeal mechanisms in the WTO system, attention has
been drawn to the mechanisms that can be found in a number of WTO agreements, for example the
Agreements on Countervailing Measures and Anti-Dumping Practices, Customs Valuation, Import
Licensing, Rules of Origin, Preshipment Inspection and TRIPS and in paragraph 3(b) of Article X of
the GATT 1994.144  A note by the Secretariat that was prepared in response to a request by the
Working Group, reproduces the relevant provisions in the WTO Agreements.145  In response, the
point has been made that WTO agreements do not have a consistent approach towards domestic
review procedures.  It might not be feasible to transpose the provisions regarding review mechanisms
in other WTO Agreements into a transparency agreement since the scope of the rules under those
Agreements went beyond simple transparency obligations.
                                                     
136 WT/WGTGP/W/17.
137 WT/WGTGP/W/17.
138 WT/WGTGP/M/10.
139 WT/WGTGP/M/14, paragraph 58.
140 JOB(99)6782, paragraphs 99.
141 WT/WGTGP/M/12 and WT/WGTGP/W/15.; WT/WGTGP/M/10.
142 WT/WGTGP/M/12.
143 WT/WGTGP/W/17.
144 WT/WGTGP/W/15.
145 WT/WGTGP/W/3.WT/WGTGP/W/33
Page 16
58. Observations have been made regarding the basic features that domestic review mechanism
should have in order to ensure effective, open, fair and transparent review of procurement decisions.
While the point has been made that a domestic review mechanism could be achieved through a variety
of means, certain features common to most domestic mechanisms and that could be taken into account
in developing provisions in this respect have been suggested.146
59. Regarding the provisions in a transparency agreement on access to review, the point has been
made that a review should be available to all interested or potential suppliers or to all suppliers who
have participated in the procurement process147 and are directly or individually affected by the
practice or the action148, including suppliers from other WTO Members.149
60. Observations have been made on the grounds for domestic review under a transparency
agreement.  In relation to a transparency agreem ent, one suggestion has been that reviews should
relate to practices and actions that may be inconsis tent with the requirements of a future transparency
agreement150, as implemented by Members.151  In this respect, it has been stated that the obligation to
provide for review procedures in a transparency agreement should only concern actions within the
scope of that agreement, not the substance of preferential measures relating to market access in
government procurement.152
61. With regard to review bodies, it has been said that a review provision should permit flexibility
as to whether a country chooses to provide opportunities to seek review through judicial, arbitral or
administrative bodies.153  Nevertheless, it should clearly require that such bodies be impartial154 and
operate independently155 of the procurement entity.
62. With regard to review process itself, the importance of promptness156of the process and
timeliness of decisions of procuring entities157, the point has been made that there should be
procedures encouraging suppliers, in the first instance, to take up the matter directly with the
procuring entity for an early resolution through consultations between the procuring entity and
suppliers.158
63. With regard to ex post information, the point has been made that review procedures should
result in reasoned conclusions that should be notified to interested suppliers in writing159 and/or be
published in a medium that is publicly or widely available or readily accessible.160
64. Another suggestion with regard to ensuring transp arency of review procedures has been that a
transparency agreement should require procurement entities to maintain comprehensive administrative
written records of the procurement process161, for instance for a three-year period162 in order to ensure
                                                     
146 JOB(99)/5803, WT/WGTGP/W/27 and Job No. 4099.
147 WT/WGTGP/W/26 and 27.
148 WT/WGTGP/W/26 and 27.
149 WT/WGTGP/W/17 and Job No. 4099.
150 WT/WGTGP/W/15.
151 WT/WGTGP/W/27.
152 WT/WGTGP/W/15.
153 WT/WGTGP/W/15, 26 and 27.
154 Job No. 4099.
155 Job No. 4099, JOB(99)/5803 and WT/WGTGP/W/26 and 27, JOB(99)/5239.
156 JOB(99)/5239 and WT/WGTGP/W/26.
157JOB(99)/5803, WT/WGTGP/W/15 and WT/WGTGP/W/26 and 27.
158 WT/WGTGP/W/27, JOB(99)/5803 and WT/WGTGP/W/15.
159 JOB(99)5239.
160 WT/WGTGP/W/17, JOB(99)/5803, WT/WGTGP/W/27 and JOB(99)/5239.
161 WT/WGTGP/W/26.
162 WT/WGTGP/W/27.WT/WGTGP/W/33
Page 17
that review bodies had an adequate factual basis fo r review. This issue is discussed  under  item IX A
of this note.163
65. In connection with remedies, the point has been made that a review provision should provide
for adequate remedies to protect the interests of suppliers and to deter procurement entities from
engaging in future actions that would be inconsistent with WTO transparency provisions.  Remediesshould include the possibility of re-tendering procurements or damages to cover legitimate claims
164
and provide relief to complainants. It has been said  that most national review systems already provide
remedies for suppliers whose rights have been denied under the applicable laws and regulations.165
66. The point has been made that review of complaints or other dispute settlement mechanisms
are often initiated after the contract has been awarded, making it difficult or impossible to overturn a
procurement decision, cancel a contract and start the procurement process all over again.  A review
provision should ensure that claims from interested suppliers could be heard and decided upon in amanner that did not prejudice their interests in the procurements in question.  Such guarantees could
be available through rapid decisions on challenges or through suspension of the procurement process
while claims are pending or remedies which could include compensation after administrative or
judicial procedures have determined that an injury or an economic loss has flowed from the
inconsistency of a procurement process with the applicable legislation.
166  In cases in which the
procurement process may be suspended, there could be provision for continuing with the award of
procurements in the public interest.167  Since suspension could be detrimental to the public interest
and create difficulties in cases of urgent procurements, most national review procedures and the
provisions of the GPA provided for exceptions enabling, in circumstances so warranting, public
interest considerations to override the interest in suspending a procurement process.
67. In response, it has been said provisions requiring adequate remedies would fall outside the
scope of the work on transparency. Prescribing obligations on remedies might have counter-
productive repercussions on the procurement practices of governmental authorities;  to the extent that
procuring authorities would be liable to remedies, they might have a tendency to restrict access to
foreign suppliers in order to minimize any such risks.168
68. The Group also had an exchange of views on the way in which WTO dispute settlement
procedures and domestic procedures might interact and in particular whether WTO dispute settlement
procedures should apply to obligations with respect to domestic review. A common starting point for
the discussion on this point appears to be that the legal criteria for domestic reviews and WTO dispute
settlement are different.  A distinction should be made between domestic review mechanisms which
involve responding to complaints by suppliers against procuring authorities under the law of a country
and dispute settlement procedures between governments under the law and procedures of the WTO.169
69. The concern has been expressed that WTO dispute settlement procedures should not give rise
to situations in which the procurement decisions of government authorities could be overturned by
recourse to them.  In this respect, the view has been expressed that WTO dispute settlement should
only apply in respect of obligations of governments in their capacity as regulators.  Any procurement
decisions taken by them, including contract award decisions, in their capacity as purchasing entitiesshould not be subject to WTO dispute settlement procedures but to domestic review procedures.
WTO dispute settlement procedures should apply to issues relating to the consistency of laws of
                                                     
163 WT/WGTGP/W/15.
164 WT/WGTGP/W/15.
165 Job No. 4019.
166 JOB(99)6782, paragraphs 104.
167 WT/WGTGP/W/15.
168 JOB(99)6782, paragraphs 105.
169 WT/WGTGP/W/26 and WT/WGTGP/M/10.WT/WGTGP/W/33
Page 18
general application with the rules of a transparen cy agreement and should not be invoked with regard
to decisions resulting from national review procedures concerning a particular procurement.  The
scope of the application of WTO procedures to domestic review provisions should be limited to
actions relating to the implementation, through domestic laws and procedures, of the requirements of
the transparency agreement in this respect.170
70. On the other hand, it has been said that challenges of individual award decisions under the
provisions of a transparency agreement were unlikely.  Moreover, the point has been made that
recourse to WTO dispute settlement procedures bein g a prerogative of governments, could not be had
by suppliers who might challenge procurement procedures of government entities.171
71. The view has also been expressed that provisions should reflect the principles of exhaustion
of domestic judicial review mechanisms before recourse to WTO dispute settlement procedures.172  A
further point has been made that the possibility for foreign suppliers to have recourse to effective and
independent domestic review procedures, as a first avenue for resolving complaints, would minimize
the likelihood that such complaints might eventually  rise to the level of government-to-government
disputes.173
IX. OTHER MATTERS RELATED TO TRANSPARENCY
(a) Information on provisions in existing international instruments and national procedures and
practices
72. Four main areas have been identified in th e discussions in the Working Group in relation to
this item.  These are  maintenance of records of proceedings;  information technology;  language;  and
fight against bribery and corruption.  The treatment of these matters in the three international and in
national practices are presented in turn in the following sections.
(i) Maintenance of records of proceedings
73. Both the Model Law and GPA have provisions for the maintenance of records of procurement
proceedings.  The GPA requires that this information be retained by procuring entities for use, ifrequired, under various procedures such as provision of information by entities (Article XVIII),
between governments (Article XIX), under bid cha llenge procedures (Article XX) and under dispute
settlement (Article XXII).
174  Moreover, where limited tendering – rather than open or selective
procedures have been adopted, the GPA requires a specific report to be prepared on each such
occasion of limited tendering.175  The Model Law establishes an explicit requirement for the
maintenance of a record of the key decisions and ac tions taken by the procuring entity during the course
of the procurement proceedings.  As is explained in  the Guide to the Enactment of the Model Law, the
maintenance of a record is one of the principal mech anisms for ensuring adherence to the rules and also
facilitates the exercise of the right of aggrieved suppliers to seek review.176  They both also set out the
minimum content of information to be maintained ;  these cover the procurement requirement, the
procuring entity, suppliers and evaluation of tenders.177  APEC Non-binding principles require that
                                                     
170 JOB(99)6782, paragraph 102.
171 JOB(99)6782, paragraph 131.
172 JOB(99)6782, paragraph 131.
173 JOB(99)6782, paragraph 132.
174 WT/WGTGP/W/6, paragraph 138;  GPA Article XIII:3.
175 WT/WGTGP/W/6, paragraph 139.
176 UNCITRAL Model Law on Procurement of Goods, Construction and Services with Guide to
Enactment, pages 61 and 71.
177 WT/WGTGP/W/6, paragraphs 136, 137;  Model law, Guide to Enactment, pages 61 and 71;  Model
Law Article 11(a)-(m);  GPA Article XVIII:1(a)-(g).WT/WGTGP/W/33
Page 19
records should be kept in relation to every cont ract awarded.  The information recorded should be
sufficient to justify decisions taken in the procurement process.178
74. In two instances where information about national practices has been provided, procuring
entities are required to maintain certain mini mum records about every procurement or contract
award.179
(ii) Information technology
75. Information technology can play, and in some c ountries is already playing, a major role in
enhancing transparency.  The GPA recognizes the useful role that information technology could play
in government procurement and, at Article XXIV:8, provides for the Committee on Government
Procurement to consult regularly in the light of unfolding developments with the aim, in particular, of
using information technology to promote transparent, efficient, open and non-discriminatorygovernment procurement.
180  In the context of the renegotiation of the Agreement under
Article XXIV:7(b), the Committee on Government Procurement has initiated work on possible
amendments to the relevant provisions of the GP A to reflect recent developments in information
technology.181
76. In the area of information technology national practices appear to have substantially advanced
in recent years.  Information available indicates that a substantial number of countries, including
developing countries, have implemented electronic procurement, electronic tendering or other forms
of application of information technology to  government procurement182, though the use is not
uniform.183  For instance, Chile, Mexico and Brazil have reported to the Working Group their
implementation of electronic tendering and procurement systems.  Information available suggests thatinformation technology in government procurement has tended to be focused on the development and
maintenance of electronic databases which provide information on tender opportunities, contract
award notices and similar information.  The information provided, nevertheless, suggest a broad thrust
of initiatives to take advantage of the benefits offered by information technology in government
procurement.
184 In some electronic procurement implementations reported, a dual system has been
adopted, involving the obligation on procuring entities to publish information – and receive tenders –
both in paper form and electronically, to cater to the needs of those suppliers who may not have
access to appropriate information technology facilities.185
(iii) Language
77. The three international instruments have varyin g provisions as regards language.  Under the
Model Law, the language of documentation is generally the official language(s) of the enacting State,
or, in certain specified cases, in a language customar ily used in international trade.  The formulation
and submission of tenders can be in any language in which the tender notices have been     issued  or
in any other language stipulated by the procuring entity.186  Under the GPA, a summary of the
invitation to tender has to be submitted in a WTO official language, and, if an entity allows tenders to
be submitted in several languages, then one of those must be an official WTO language.187  The World
Bank Guidelines stipulate that qualification and tender documents – and the ensuing contract – in the
                                                     
178WT/WGTGP/W/24
179 GPA/10;  WT/WGTGP/W/5.
180 WT/WGTGP/W/6, paragraph 146.
181 GPA/8.
182 WT/WGTGP/M/12, paragraphs 11-15.
183 WT/WGTGP/W/6, paragraph 142.
184 WT/WGTGP/W/6, paragraphs 142-145.
185 WT/WGTGP/M/12, paragraph 12.
186 WT/WGTGP/W/6, paragraph 146.
187 WT/WGTGP/W/6, paragraphs 146- 147;  GPA Articles IX:8 and XII:2.WT/WGTGP/W/33
Page 20
case of international competitive bidding, shall be in either English, French or Spanish, but that a
subsequent contract entered exclusively with a local supplier may be in the national language.188  In
the case of local tendering and contracting, such as under national competitive bidding procedures, the
World Bank Guidelines provide that the national language may be the medium of communication and
also used in documentation.189
78. As regards national practices, generally procurement information is provided in official
national  language(s).  In some instances, summaries are provided in languages traditionally used in
international trade.  Where countries have several official languages, the information may be provided
in all, or provided in one and summarised in the others.190
(iv) Fight against bribery and corruption
79. Neither the GPA nor the Model Law have explicit provisions specifically directed at the fight
against bribery and corruption.  The World Bank Guidelines require all participants in Bank-financedprojects – including borrower countries together with beneficiary organizations, and bidders, suppliers
and contractors - to observe the highest standards of ethics during the procurement and execution of
contracts.  Where a fraudulent or corrupt practice is determined to have taken place, the Bank's
Guidelines provide for a number of measures, including:  rejection of a proposed contract award,
cancellation of the portion of a loan so affected or declaration of the affected supplier as ineligible toparticipate in further Bank-financed programmes for a stated or an indefinite period of time.
191  The
Bank also reserves the right to inspect, under certain circumstances, the records and accounts of
suppliers and have these audited by independent auditors appointed by it192, and in large contracts to
have suppliers give an undertaking to observe a borrower country's laws on bribery, fraud and
corruption.193  A number of international instruments have also been established by international
forums for fighting bribery and corruption, including the OAS and the OECD.194
(b) Discussions in the Working Group
(i) Maintenance of records of proceedings
80. The point has been made that the maintenance of a record of procurement proceedings and the
availability of non-confidential information contained in it to interested parties is one of the principal
mechanisms for ensuring adherence to agreed rules and is of particular importance in the functioning
of an administrative or judicial review process.  Such records provide the basis for an audit trail and
support any evaluation of the procurement and thus introduce an element of accountability into the
process.  It has also been said that the length of time that records of proceedings should be maintained
could be linked to the time provided to domestic suppliers in domestic legislation to challenge a
procurement decision and to seek a review of a procurement process. Suggestions have been made asregards the type, form and duration of information to be maintained in records.
195 On the other hand, it
has been said that a transparency agreement should not have provisions stating explicitly in what form
and for how long records should be maintained by entities.
                                                     
188 WT/WGTGP/W/6, paragraph 146, WB Procurement Guidelines, paragraph 2.15.
189 WB Guidelines, paragraph 3.14.
190 WT/WGTGP/W/6, paragraph 148.
191 WB Guidelines, paragraph 1.15 (a)-(d).
192 WB Guidelines, paragraph 1.15(e).
193 WB Guidelines, paragraph 1.16.
194 JOB(99)6782, paragraph 118.
195JOB(99)6782, paragraphs 109-112;  WT/WGTGP/M/10, paragraph 48;  WT/WGTGP/W/26,
Part III:6.1;  JOB( 99)5239, paragraph 6.WT/WGTGP/W/33
Page 21
(ii) Information technology
81. There has been a wide recognition that the use of information technology offers enormous
opportunities to level the playing field by increasing access to information at low cost to all suppliers.
As such, it has been suggested that a transparency agreement could encourage its use as an alternative
means of disseminating information about procurement opportunities and contract awards incomparison to more traditional methods of communication.  The view has been expressed that
electronic tendering using Internet-based systems provides efficient and non-discriminatory access to
tender information with minimum equipment requirements and technological know-how.
196 Amongst
the other advantages that can be offered are provision of a single point of registration, access to
information by suppliers, access to price information by procuring entities, information on tenders and
contract awards, and access to supplier information by procuring entities.  In some cases, the national
systems also provide useful statistical information on government procurement which assists themonitoring, control and justification of government expenditures.
197
82. The view has also been expressed that given the different stages of development amongst the
countries, the use of information technology could disadvantage some suppliers – for instance small
and medium-scale enterprises in less developed countries, who may not have access to such
technology – and accordingly should be optional.  A balance should be found whereby a transparencyagreement would not constitute an unnecessary barrier to progress in the area of information
technology and would accommodate its increasing application in Members, while ensuring that the
use of information technology would not result in discrimination against countries which did not have
a competitive edge in this area.
198 In this respect, the suggestion has been made that the use of
information technology might be promoted in a transparency agreement through the use of a bestendeavours clause.
199
(iii) Language
83. The discussion in the Working Group on the issue of language has revolved around whether
information on procurement opportunities should be made only in Members' official languages, or
additionally should be made in a WTO language. The general view appears to be that informationshould continue to be provided in the official language(s) of Members.  It has been suggested that,
where possible, however, information could be provided in a WTO language, where a procurement
opportunity is likely to provide international interest.
200  Certain types of information, such as
notification of enquiry points and matters to do with dispute settlement or consultations, should be
made in an official WTO language. 201
(iv) Fight against bribery and corruption
84. The view has been expressed that there is an important relationship between transparency in
government procurement and reducing the incidence of bribery and corruption in government
procurement practices.  In response, the point has been made that, while the initiatives in international
fora such as the OAS and the OECD have been useful in attacking the problem from various angles,
so far there have not been any studies, negotiations or agreements on the relationship between the
fight against bribery and transparency in government procurement in a specific and systematicmanner.  The view has also been expressed that transparency, by itself, is not enough and therefore
needed to be supplemented by other appropriate action and measures. A further  view has been                                                     
196 JOB(99)6782, paragraphs 113-114.
197 See WT/WGTGP/M/12, paragraphs 10-14
198 JOB(99)6782, paragraph 114; WT/WGTGP/M/12, paragraph 15.
199 See WT/WGTGP/M/10, paragraph 49.
200 JOB(99)6782, paragraph 116;  WT/WGTGP/W/2 6, Article 10, JOB(99)5239, paragraph 7;
WT/WGTGP/W/27, Article IX:3.
201JOB(99)5239, Part III:7.1 and 2.4.WT/WGTGP/W/33
Page 22
expressed questioning the appropriateness of expanding the scope of the work of the Working Group
to matters of bribery and corruption which might be more appropriately dealt with in other fora. This
view suggests that there should be no explicit linkage between transparency and bribery and
corruption in a transparency agreement, and Members should deal with this issue through their own
national legislation.202
X. INFORMATION TO BE PROVIDED TO OTHER GOVERNMENTS
(NOTIFICATION )
(a) Information on provisions in existing international instruments and national procedures and
practices
85. The GPA, being an international instrument that sets contractual rights and obligations
between governments in the area of government procurement, includes provision on exchange ofprocurement-related information between governments.  The relevant provisions relate to provision of
information on national legislation;  notification of national legislation;  provision of information on
contract awards;  and statistical reporting.
86. The GPA Parties are required, in response to a request by any other GPA Party, to explain
their government procurement procedures
203;  supply copies of laws, re gulations, judicial decisions,
administrative rulings or other measures relevant to the Agreement; and provide information concerning
procurement by covered entities and their individual contract awards.204
87. As regards the establishment of enquiry points, the provisions on special treatment for
developing countries in the GPA require developed country Parties to establish information centres to
respond to reasonable requests from developing country Parties for information relating to, amongothers, laws, regulations, procedures and practices regarding government procurement, addresses of
the entities covered by the Agreement, and the nature and volume of products or services procured or
to be procured, including available information about future tenders.
205  The coordinates of the contact
points of GPA Parties have been notified to the GPA Committee.  Furthermore, contact points have
also been designated by individual APEC member  countries pursuant to the work of the Group of
Experts on Government Procurement.  These are included in the APEC Surveys and can be accessed
through the APEC Home Page on Government Procurement at the Internet
(http://www.apecsec.org.sg/gphome.html).
88. A regards the notification of national legislation and any changes, the GPA Committee has
adopted relevant procedures for such notifications, including responses to a checklist of issues.206
GPA Parties are required to submit the complete texts of their basic legislation (laws and regulations)on government procurement, including the basic legal instruments pursuant to which effect is given tothe provisions of the Agreement, in the original language to the Secretariat.  Each Party is also
required to provide a summary of the implementing legislation in a WTO language.
                                                     
202 JOB(99)6782, paragraphs 120-121;  WT/WGTGP/M/10, paragraph 50.
203 GPA Article XIX:1.
204 GPA Article XIX:3.
205 GPA Article V:11.
206 GPA/1/Add.1 and GPA Article XXIV:5(a) and (b).WT/WGTGP/W/33
Page 23
89. Further to the obligations of entities under the GPA relating to the provision of information by
procuring entities to an unsuccessful tenderer207, the GPA allows the government of an unsuccessful
tenderer to seek such additional information on the c ontract award as may be necessary to ensure that
the procurement was made fairly and impartially.  To this end, the procuring government is required
to provide information on both the characteristics and relative advantages of the winning tender andthe contract price.  The government may disclose the information thus obtained provided it exercises
this right with discretion.  In cases where the release of such information would prejudice competition
in future tenders, this information shall not be di sclosed except after consultation with and agreement
of the Party which gave the information to the government of the unsuccessful tenderer.
208
90. The GPA has a general provision in Article XI X:4, requiring that confidential information
provided to any government Party to the GPA shall not be revealed without formal authorization from
the Party providing the information.209
91. As a means of monitoring procurement covered by the GPA, Article XIX:5 of the GPA requires
each Party to collect and provide to the Committee on an annual basis statistics on its procurements
covered by the GPA.  The type of information that su ch reports shall contain is stipulated in detail in
Article XIX:5, paragraphs (a) to (d).  Statisti cal reports of GPA Parties can be found on the WTO
website.
(b) Discussions in the Working Group
92. The issues that have been raised  in regard to the type of information that could be provided to
other governments relate to notification of national legislation, provision of information on national
legislation and practices upon request from interested parties in other Members, for instance throughenquiry points established for this purpose, and statistical reporting.  The general remark has been
made that any requirements relating to the provisi on to other governments of information on rules and
procedures should apply only to the extent that such rules and procures are within the scope of a
transparency agreement.  Attention has been drawn to the distinction between the use of notification
and that of publication or availability of laws and regulations (summarized under item III in documentWT/WGTGP/W/32).
(i) Notification of national legislation
93. A suggestion has been made that Members should be required, on request, to provide relevant
information about their laws, regulations, procedures and practices affecting the implementation of a
transparency agreement.
210  The possibility of using the relevant provisions in GATT 1994 Article X
and GATS Article III for purposes of a transparency agreement has also been mentioned.  With regard
to notification of information on basic laws and regulations and any amendments thereof, a suggestionhas been made that the relevant information about the laws and regulations be provided to the WTO
Secretariat,
 which should then make it publicly available through an electronic medium.211  I n
response, a concern has been expressed that notification of all national laws, regulations and
administrative guidelines, including those of sub-central and other levels of government covered,
might prove to be unduly burdensome212.
                                                     
207 GPA Article XVIII:2(c).
208 GPA Article XIX:2.
209 GPA Article XIX:4.
210 WT/WGTGP/W/26, Article 12;  WT/WGTGP/W/27, Article V:3.
211 WGT/WGTGP/M/10, paragraph 52;  WT/WGTGP/W/26, Article 11.
212 JOB(99)/6782, paragraph 123.WT/WGTGP/W/33
Page 24
94. It has also been suggested that Members should be required to provide a list in one of the
WTO languages of the relevant generally applicable instruments213, but not copies of each and every
law and regulation.214  There has also been a suggestion regarding the use of checklists or
questionnaires to obtain relevant information on the responsiveness of national laws and regulations to
the requirements of a transparency agreement.  A further point that has been made in this connectionhas been that any requirements for notification should apply only to matters that fell within the scope
of a transparency agreement, and otherwise should not apply to market access issues.
215 The point has
been made that a requirement to notify information on national legislation, regulation and
administrative procedures might prove burdensome for some Members, for instance, if it included
relevant information at the sub-central level, and also had to be notified in a WTO language.
Particular concerns have been expressed about sharing of confidential information.216
(ii) Enquiry points
95. With reference to the establishment of enquiry points, it has been suggested that each Member
should establish enquiry point(s) and notify its details to other Members.217  Other  suggestions in this
connection have been that there should be a single access point for obtaining information and it
should be free of charge.218   On the other hand, the point has been made that the establishment of a
single enquiry point might require coordination between different government departments andagencies which might present some difficulties for national authorities.
219  The issue of enquiry points
has also been taken up in relation to item III as noted in document WT/WGTGP/W32.
(iii) Information on contract awards
96. The main discussion on this issue has been reflected under item VII of the present note. The
suggestion has been made that the government of an unsuccessful tenderer might be entitled to seekinformation on the contract award in question fr om the government whose entity conducted the
procurement.
220  Such information could be limited to how the commitments on a transparency
agreement are being complied with in the contract award process221.  On the other hand, the view has
been expressed that the provision of such post-c ontract award decision may not be necessary in a
transparency agreement, the scope of which will not extend to market access.222
(iv) Statistical reporting
97. A view expressed on this matter has been that statistical reporting should not be an obligation
in a transparency agreement, but that governments may provide relevant information on a voluntary
basis.223
                                                     
213 WT/WGTGP/W/26.
214 JOB(99)/6782, paragraph 123.
215 JOB(99)6782, paragraph 126.
216 JOB(99)6782, paragraph 123;  WT/WGTGP/M/10, paragraph 52.
217 JOB(99)5239, Part III:2.1-2.4;  WT/WGTGP/W/27, Article V:3-5;  WT/WGTGP/W/26, Article 14.
218 WT/WGTGP/M/10, paragraph 51.
219 WT/WGTGP/M/10, paragraph 51.
220 JOB(99)/6782, paragraph 123.
221 JOB(99)/6782, paragraph 123.
222 JOB(99)6782, paragraph 123.
223 JOB(99)6782, paragraph 125;  WT/WGTGP/M/10, paragraph 53.WT/WGTGP/W/33
Page 25
XI. WTO DISPUTE SETTLEMENT PROCEDURES
(a) Information on provisions in existing international instruments and national procedures and
practices
98. Under the GPA d isputes between Parties are subject to the procedures of the WTO Understanding
on Rules and Procedures Governing the Settlement of Disputes.224  Dispute settlement procedures are
applicable to all the rules of the Agreement.   Because of the area covered and of the plurilateral nature of
the Agreement, GPA provisions on dispute settlement contain a number of special rules or procedures, for
instance on composition of panels, time-periods for pa nel proceedings and disallowing cross-retaliation in
case of disputes arising under other WTO Agreements.225  Moreover, under the GPA, the DSB has the
authority to authorize consultations among parties to the dispute regarding remedies when withdrawal of
violating measures is not possible.226 By their nature, the issue of government-to-government dispute
settlement does not arise in the other two international instruments.
(b) Discussions in the Working Group
99. It has been said that the approach to the application of government-to-government dispute
settlement in a transparency agreement should reflect the general approach adopted in the WTO.
WTO dispute settlement procedures applied to the provisions in the Agreement Establishing the WTO
and transparency-related rules and other procedural disciplines in other WTO agreements, for instance
GATT Article X.227  The view has been held that WTO dispute settlement procedures are intended to
guarantee the integrity and consistency of the WTO system and to create confidence in it.  Withoutclear provisions on dispute settlement, a future agreement would not have any merits.
228  A n
enforcement mechanism is necessary in order to  ensure that all Members have a consistent
understanding of what their commitments are under an agreement.229
100. Three of the draft texts of an agreement presented contain proposals suggesting that
consultations and settlement of disputes with re spect to any matter affecting the implementation and
operation of the Agreement should follow the provisions of GATT Articles XXII and XXIII and
GATS Articles XX and XXIII, respectively, as elaborated and applied by the Understanding on Rules
and Procedures Governing the Settlement of Disputes under WTO Agreements.230  Two of these
proposals set out provisions which take into account the specificity of government procurement
disputes, suggesting  specific provisions in relation to the composition of panels231 and the non-
applicability of decisions of a panel or the Appellate Body regarding the inconsistency of a measure
with respect to prior contract awards.232
101. On the other hand, comments have been made that the question of whether or not there should
be a link between WTO dispute settlement procedure and a future agreement would depend on the
nature of the obligations and their substance.233  Regarding the nature of obligations, the view has
been expressed that provisions subjecting a transparency agreement to dispute settlement procedures
would not be necessary if its obligations would be of the 'best-endeavours' type since any decisionsreached by the Dispute Settlement Body under such an agreement could not be enforceable
234  A n
                                                     
224 GPA Article XXII:1.
225 GPA Article XXII:5, 6 and 7.
226 GPA Article XXIII:3
227JOB(99)/6782;  WT/WGTGP/M/10 and 11.
228 WT/WGTGP/M/11.
229 JOB(99)/6782.
230 JOB(99)5803;  WT/WGTGP/W/26 and 27.
231 WT/WGTGP/W/26 and 27.
232 WT/WGTGP/W/27.
233 JOB(99)/6782;  WT/WGTGP/M/11.
234 WT/WGTGP/M/11.WT/WGTGP/W/33
Page 26
agreement on transparency could be in the form of guidelines or a code.  A further view has been that
WTO agreements and DSU are part of the single undertaking.  If WTO dispute settlement procedures
were to apply to a future transparency agreemen t, it would be necessary to ensure that it was
incorporated in the single undertaking.235  A further suggestion has been that Article X of GATT
could be the basis for dispute settlement in cases involving violation of obligations on transparency.236
102. Questions have been asked seeking clarification on the types of measures that would be the
subject of a WTO dispute settlement and in what circumstances the WTO dispute settlement
procedures would apply,237 for instance in relation to  obligations on scope and definition,
procurement  methods or time-periods in a transparency agreement.238  Moreover, a comment has
been made questioning the application of dispute settlement procedures with significant results in the
absence of commitments on market access.239  Finally, comments have been made expressing the
view that it would be premature to consider the ap plicability of dispute settlement procedures before
the elements of a transparency agreement have been  more clearly identified and the rules have been
prescribed.240
103. By way of an alternative to the WTO dispute settlement mechanism, one suggestion has been
that implementation of the rules could be ensured through a peer review mechanism in the committee
administering the agreement. Another view has been that domestic review mechanisms existing inMembers provide an adequate mechanism to address disputes related to transparency in government
procurement.
241
104. The following questions have been asked regarding the application of specific aspects of
WTO dispute settlement procedures: how would suspension of concessions be envisaged under a
transparency agreement242;  whether DSB decisions concerning a breach of transparency obligations
could apply retroactively;  whether national legislation would need to be adapted to take account of
the application of WTO dispute settlement procedures243;  and whether there should be provisions
regarding non-violation complaints.244  One observation has been that, in terms of paragraph 3 of the
DSU, any decisions under the DSU would not alter the rights and obligations of Members.245
105. The matter of the relationship between dispute settlement procedures and domestic review
mechanism have been addressed in two of the draft  texts of an agreement presented.  One proposal
suggests that WTO dispute settlement procedures should apply to decisions of domestic review
bodies.246  Another proposal suggests provisions enco uraging the use of domestic review procedures
before the invocation of WTO dispute settlement procedures.  This proposal also suggests that all
available formal judicial remedies under domestic laws against the inconsistent measure should be
exhausted before WTO dispute settlement procedures can be invoked.247 Another view has been that
the WTO dispute settlement procedures should not give rise to situations in which the procurement
                                                     
235 WT/WGTGP/M/11.
236 WT/WGTGP/M/11.
237 WT/WGTGP/M/10 and 11.
238 WT/WGTGP/M/11.
239 JOB(99)/6782;  WT/WGTGP/M/11.
240 JOB(99)/6782.
241 JOB(99)/6782.
242 WT/WGTGP/M/11.
243JOB(99)/6782.
244 WT/WGTGP/M/11.
245 WT/WGTGP/M/11.
246 WT/WGTGP/W/26.
247 WT/WGTGP/W/27.WT/WGTGP/W/33
Page 27
decisions of government authorities could be overturned  by recourse to them.248 This matter is further
discussed under item VIII of the present note.
XII. TECHNICAL COOPERATION AND SPECIAL AND DIFFERENTIAL
TREATMENT FOR DEVELOPING COUNTRIES
A. TECHNICAL COOPERATION AND SUPPORT FOR CAPACITY -BUILDING
(a) Information on provisions in existing international instruments, activities of international
intergovernmental organizations and national practice
106. The UNCITRAL Model Law and the World Bank Guidelines do not have specific provisions
related to technical cooperation.  The obligations of GPA Parties in this respect are set out in Article
V of the Agreement under which developed countries are required to provide technical assistance
which they may deem appropriate to developing countries.  The provision of technical assistance is
upon request, on mutual agreement between the Party making the request and the donor Party.  Thetypes of assistance envisaged in the GPA include the solution of particular technical problems relating
to the award of a specific contract, translation of qualification documentation and tenders made by
suppliers of developing countries into an official WTO language and resolving any other problems in
the field of government procurement.
249  There are also specific provisions for technical assistance to
least-developed countries.  These require developed country Parties to provide assistance to potentialtenderers in such 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, and likewise assist them to comply with
technical regulations and standards relating to products or services which are subject of the intended
procurement.
250
107. An overview of technical cooperation activities of IGOs (intergovernmental organizations) in
the area of government procurement is contained in a note by the Secretariat (WT/WGTGP/W/29).
This note, which has been prepared in response to a request by the Group in 2000251, describes in
broad terms the main features of the assistance available and gives examples of activities based on the
relevant information that has been made available to the Group or elsewhere in the WTO.  In response
to an earlier request by the Group252, information was sought by the Secretariat on the relevant
activities of ten IGOs (UNCITRAL, OECD, the As ian Development Bank, the African Development
Bank, APEC Government Procurement Experts Group, the European Bank for Reconstruction and
Development, ITC, UNDP, the World Bank and UNOPS) and was circulated to the Group in 1998 in
documents WT/WGTGP/W/20 and Addenda 1 to 9.
108. In light of the information available to the Group, the following appear to be the major
aspects of technical cooperation provided by the IGOs:  ensuring the proper application of the
principles and rules of the organization in question by interested governments;  facilitatingparticipation in activities aimed at the development of international disciplines and rules on
government procurement to be agreed by governments pursuant to the more general objectives of the
respective international or regional agreements or arrangements;  providing support to procurement
reform activities in individual countries by establishing or improving the regulatory framework of
procurement in individual countries, particularly from the perspective of ensuring that such countriesare aware of the standards and the principles that ar e codified in the existing international instruments
on government procurement;  and strengthening and supporting public procurement institutions to
                                                     
248 JOB(99)782, paragraph 102.
249 GPA Article V, paragraphs 8-10.
250 GPA Article V:13.
251 GPA/M/10.
252 GPA/M/5.WT/WGTGP/W/33
Page 28
increase their capacity.253  The latter forms of technical cooperation relate to the formulation of new,
or the improvement of existing, laws, regulations, administrative guidelines and procedures and tender
documents;  and supporting the establishment or reinforcement of public procurement offices and
agencies.  Furthermore, assistance to the development of human resources to build up and to sustain
capacity in the area of public procurement is provided in the form of training of procurement officialsand the organization of workshops, seminars and symposia.  Application of information technology to
government procurement has recently become an another important area of technical cooperation.
254
109. A number of Members have shared information on their past and future initiatives relating to
technical cooperation in the area of government procurement.  A submission by one Member gave
some of the reasons it provides technical assistance in the area of government procurement.255  B y
way of contribution towards the commitment undertaken pursuant to Doha Declaration, several new
initiatives and programmes have been planned by the Secretariat as well as individual Members..256
(b) Discussions in the Working Group
110. The discussions in the Working Group have related to both technical cooperation and support
for capacity-building before and as part of a transparency agreement. This note focuses on the latter
aspect.
111. The view has been expressed that ensuring compliance with the rules and requirements of a
future transparency agreement might require change s in national rules and procedures and building up
of new institutions in individual countries.  Technical cooperation and support for capacity-building
would help in responding to some of the administ rative and technical challenges in fulfilling the
obligations in a transparency agreement.257 As regards the types of areas in which technical
cooperation and support for capacity-building w ould be beneficial, the following have been
mentioned: development and improvement of national legislation and procedures258; institution
building259; access to information by suppliers including establishment of enquiry points, in particular
provision of information to developing country suppliers as to what entities in developed countries
usually procure260; provision of information on national legislation and procedures261; application of
information technology including assistance related to hardware, software and the expertise necessaryto disseminate procurement information
262; identifying ways in which suppliers in developing
countries and small and medium-sized enterprises could participate in procurement by government
entities in developed countries263; training264; divulging information on how government procurement
could influence employment and development in general265; technical advice and other experience-
sharing activities such as twinning between deve loped and developing country agencies and study
tours.266
                                                     
253 WT/WGTGP/W/29, Section I.
254 WT/WGTGP/W/29, Section II.
255 WT/WGTGP/W/18.
256 WT/WGTGP/M/14, paragraphs 73 and 68.
257 WT/WGTGP/M/14.
258 JOB(99)/6782;  WT/WGTGP/W/27;  JOB(99)5239.
259 JOB(99)/6782;  WT/WGTGP/W/27.
260 JOB(99)/6782;  WT/WGTGP/W/27.
261 WT/WGTGP/M/14, paragraph 70.
262 JOB(99)/6782;  WT/WGTGP/W/26;  WT/WGTGP/W/27;  WT/WGTGP/M/14, paragraph 70.
263 WT/WGTGP/M/14, paragraph 64.
264 JOB(99)/6782;  WT/WGTGP/W/27;  JOB(99)5239.
265 WT/WGTGP/M/14, paragraph 64.
266 WT/WGTGP/M/14, paragraphs 70 and 71.WT/WGTGP/W/33
Page 29
112. The Working Group has also addressed the issue of the types of provisions on technical
cooperation and support for capacity-building that should be included in a transparency agreement.
One suggestion has been that the relevant provisions should match the specific requirements in a
transparency agreement.  In this connection, reference has been made to the provisions of Article 66.2
of TRIPS and Article 67 of TRIPS in terms of  which developed country Members should make
available technical and financial cooperation, on mutually agreed terms, in response to requests from
developing country Members.267  A further suggestion has been that a transparency agreement should
specify the areas in which technical cooperation and support for capacity-building could be provided
and the form it might take.268 The draft texts of an agreement presented contain provisions on
technical assistance.  According to these proposals, technical assistance should be provided on
request269;  on mutually agreed terms and conditions270;  and specify the areas in which such
assistance could be provided.
113. With respect to the modalities, the view has been expressed that technical assistance and
support for capacity-building be based on the needs and requests to be identified by the Members that
face challenges in meeting the requirements of a transparency agreement.271 It has also been suggested
that the committee to be established under a transparency agreement should have procedures in place
to monitor and assess technical assistance on an ongoing basis.272 Another  suggestion made has been
that a framework should be developed under a transparency agreement for keeping track of and
rationalizing the various technical assistance activities at the bilateral, regional and multilateral
levels.273 In response, it has been said that establishment of bureaucratic structures in this respect
should be avoided.274
B. SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES
(a) Information on provisions in existing international instruments, activities of international
intergovernmental organizations and national practice
114. The UNCITRAL Model Law and the World Bank Guidelines do not have specific provisions
related to special and differential treatment.  The provisions of Article V of the GPA on special and
differential treatment mainly relate to obligations of developed countries and agreed exclusions fordeveloping countries from the coverage. The first of these are aimed at promoting exports from
developing countries.  GPA Parties are required, in the preparation and application of laws,
regulations and procedures, to facilitate increased imports from developing countries.  Moreover,
developed countries, in the preparation of their coverage lists under the GPA, are required to
endeavour to include entities procuring products and services of export interest to developing
countries.
275 As to the second of these, the agreed exclus ions from coverage granted are in the form of
exclusions from the rules on national treatment with re spect to selected entities, products and services
products.  These exclusions can be granted to a developing country either at the time of its accession
to the Agreement, i.e. in the negotiations of its Schedule of offers or through modifications of its
coverage lists after its accession to the Agreement.276  Moreover, exceptions from the non-
discrimination obligation are allowed to developing countries participating in regional or global
arrangements among developing countries.277  In addition the provisions in Article V allow
                                                     
267 JOB(99)/6782.
268 WT/WGTGP/M/10.
269 WT/WGTGP/W/26;  WT/WGTGP/W/27;  JOB(99)5239.
270WT/WGTGP/W/26;  WT/WGTGP/W/26;  JOB(99)5239.
271 WT/WGTGP/M/10,12 and 14.
272 WT/WGTGP/M/10;  WT/WGTGP/W/27.
273 WT/WGTGP/W/27.
274 JOB(99)/6782.
275 GPA Article V:2 and 3.
276 GPA Article V:4 and 5.
277 GPA Article V:4 and 5.WT/WGTGP/W/33
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developing countries at the time of their accession to the agreement to negotiate offset requirements
for qualification of suppliers, a measure that is prohibited under the GPA .278
(b) Discussions in the Working Group
115. It has been emphasized that provisions on special and differential treatment are necessary in
light of differences in capacity among Members in the area of government procurement and thespecial circumstances in developing countries.
279
116. With regard to the question of how special and differential treatment should be addressed in a
transparency agreement, one view has been that it should be reflected in the substantive provisions in
order to allow developing countries to comply with  them only to the extent that they are capable of
undertaking them. The view has also been expressed that the issue of special and differential
treatment may be more appropriately addressed once the elements of a future agreement are
defined.280
117. As to the types of special and differential treatment in a transparency agreement the
suggestions that have been made relate to:
- provision of transitional periods281;
- the application of higher level threshold values282;
- exemptions from coverage, for instance in relation to entities at sub-central levels or
services.283
118. With regard to transitional periods, a suggestion has been made that  developing countries and
least-developed countries should be allowed respectively one year and two years during which they
would apply the agreement on a best endeavours basis.  There is also a suggestion that such atransition period could be combined with a standsti ll clause regarding  any modifications to the laws
and regulations in the countries that will benefit from it.
284
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278 GPA Article XVI:2.
279 WT/WGTGP/M/10.
280 JOB(99)/6782.
281 WT/WGTGP/M/10 and 12.
282 WT/WGTGP/M/10 and 12.
283 WT/WGTGP/M/10 and 12.
284 JOB(99)5792.