RESTRICTED  
  
GPA/TN1994/2/Rev.13  
 
7 November 2002  
(24-2646) Page: 1/224 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994    
 
* Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs75) was derestricted on 8 November 2023.  
SUGGESTED DRAFTING CHANGES TO THE 1994 AGREEMENT * 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of 7 October 2002, it was agreed that the note by the Secretariat on the 
article -by-article examination of the Agreement at the informal meetings held from February  1999 
to May 2002 (Job No. 7423) would be updated to reflect the discussions and proposals made at that 
meeting.  This note has been prepared accordingly and includes the proposals that have been 
submitted at that meeting  by Japan (Job No. 7790 and 7823) and Chinese Taipei (Job No. 7872).  It 
should be read with the notes by the Secretariat on the discussions of the issues in, respectively, 
basket 1 (revised) and baskets 2 and 3 of the work programme.  
 
The attachment to thi s note contains a summary of the views expressed so far regarding the 
simplification and improvement of the Appendices.  
 
_______________  
  GPA/TN1994/2/Rev.13  
 
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  Table of Contents  
PREAMBLE  ................................ ................................ ................................ .......................  3 
DEFINITIONS  ................................ ................................ ................................ ...................  6 
Article I - Scope and Coverage  ................................ ................................ ...........................  16 
Article II - Valuation of Contracts  ................................ ................................ .......................  25 
Article III - National Treatment and Non -discrimination  ................................ .........................  34 
Article IV - Rules of Origin  ................................ ................................ ................................ . 39 
Article V - Special and Differential Treatment for Developing Countries  ................................ .... 40 
Article VI - Technical Specifications  ................................ ................................ ....................  58 
Article VII - Tendering Procedures  ................................ ................................ ......................  69 
Article VIII - Qualification of Suppliers  ................................ ................................ ................  78 
Article IX - Invitation to Participate Regarding Intended Procurement  ................................ ...... 98 
Article X - Selection Procedures  ................................ ................................ .......................  116 
Article XI – Time-limits for Te ndering and Delivery  ................................ .............................  119 
Article XII - Tender Documentation  ................................ ................................ ..................  139 
Article XIII - Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  ..............  144 
Article XIV - Negotiation  ................................ ................................ ................................ . 153 
Article XV - Limited Tendering  ................................ ................................ .........................  156 
Article XVI - Offsets  ................................ ................................ ................................ ....... 170 
Article XVII - Transparency  ................................ ................................ .............................  172 
Article XVIII - Information and Review as Regards Obligations of Entities  ...............................  173 
Article XIX - Information and Review as Regards Obligations of Parties  ................................ .. 180 
Article XX - Challenge Procedures  ................................ ................................ .....................  186 
Article XXI - Institutions ................................ ................................ ................................ .. 197 
Article XXII - Consultations  and Dispute  Settlement  ................................ ............................  198 
Article  XXIII - Exceptions to the Agreement  ................................ ................................ ....... 201 
Article XXIV - Final Provisions  ................................ ................................ ..........................  202 
ATTACHMENT - ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS  
REGARDING THE SIMPLIFICATION AND IMPROVEMENT OF  THE APPENDICES TO THE  
AGREEMENT  ................................ ................................ ................................ ..................  223 
 
Comment  
 
• A table of contents to the text of the Agreement facilitates reference to the text and is more 
presentable.  [Hong Kong, China]  
 
_______________  
 GPA/TN1994/2/Rev.13  
 
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  Preamble  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Parties to this Agreement  (hereinafter referred 
to as "Parties "), 
 Parties to this Agreement (hereinafter referred 
to as "Parties "), 
 
 Recognizing  the need for an effective 
multilateral framework of rights and obligations with 
respect to laws, regulations, procedures and practices 
regarding government procurement with a view to 
achieving greater liberalization and expansion of world 
trade and improv ing the international framework for 
the conduct of world trade;  
 Recognizing  the need for an effective 
multilateral framework of rights and obligations 
with respect to measures regarding government 
procurement, with a view to achieving greater 
liberalizati on and expansion of world trade and 
improving the international framework for the 
conduct of world trade;  
[US – Job No. 2867]  
 
 Recognizing that laws, regulations, 
procedures and practices regarding government 
procurement should not be adopted or applied so 
as to afford protection to domestic suppliers, 
products or services or discriminate among 
foreign suppliers, products or services;  
[EC - Job No. 4312]  
 
Comment  
 
• In the US proposal, "measures " is used instead of "laws, regulations, procedures and practices ". 
The word "measures " is too general and not defined in Article 1.  Therefore, it may be subject to 
different interpretation.  The implications of the use of this term instead of the current 
terminology needs to be considered.  The wording in the ex isting Agreement seems better.  
[Hong  Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Recognizing  that it is desirable to provide 
transparency of laws, regulations, procedures and 
practices regarding government procurement;  
 Recognizing  that the transparency, 
integrity and predictability of government 
procurement systems are integral to the efficient 
and effective management of public resources, 
the overall quality of governance, the economic 
performance of the Parties ' societies, and the 
functioning of the multilateral trading system;  
 
 Recognizing  that the procedural 
commitments under this Agreement should be 
sufficiently flexible to accommodate the specific 
circumstances of each Party and limited to what 
is necessary to achieve the Parties ' objectives of 
this Agreement;  
[US – Job No. 2867]  
 
Comme nt 
 
• It is not clear how "procedural commitments " would be related to "flexibility to accommodate 
the specific circumstances of each Party "? [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
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  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Recognizing  that laws, regulations, procedures 
and practices regarding government procurement 
should not be prepared, adopted or applied to foreign 
or domestic products and services and to foreign or 
domestic suppliers so as to afford protection to 
domestic products or services or domestic suppliers 
and should not discriminate among foreign products or 
services or among foreign suppliers;  
 Recognizing the need for an effective 
multilateral framework for government 
procurement with a view to achieving greater 
liberaliz ation and expansion of international 
trade and improving the framework for the 
conduct of international trade;  
[EC - Job No. 4312]  
 Recognizing  the need to establish international 
procedures on notification, consultation, surveillance 
and dispute settleme nt with a view to ensuring a fair, 
prompt and effective enforcement of the international 
provisions on government procurement and to 
maintain the balance of rights and obligations at the 
highest possible level;  
  
 Recognizing  the need to take into account  the 
development, financial and trade needs of developing 
countries, in particular the least -developed countries;  
  
 Desiring , in accordance with paragraph 6(b) of 
Article IX of the Agreement on Government 
Procurement done on 12  April 1979, as amended on 
2 February  1987, to broaden and improve the 
Agreement on the basis of mutual reciprocity and to 
expand the coverage of the Agreement to include 
service contracts;   
 
Comments  
• Clarification is needed in relation to the rationale regarding the US proposal to drop the 5th 
paragraph of the current preamble, which refers to special and differential treatment and the 6th 
paragraph, which refers to the need to broaden and improve the Agreement on the basis of 
mutual reciprocity.  [Canada;  EC; Israel]  
• Since one of the aims of the review is to encourage and to create a situation where developing 
countries will be more motivated to become a Party to the Agreement, the importance of 
development and the needs of developing countries is an issue that deserves r ecognition in the 
preambular language.  [Israel]  
• Developing countries would prefer to see concrete provisions in the text of the Agreement rather 
than a general statement of interest or intent where it is unclear what is meant by such 
statements.  It is more  important to consider what the Agreement does as compared to what it 
says it does in the Preamble.  It is necessary to make sure that the preambular paragraphs make 
sense and there is not necessarily a need to carry a paragraph over to the new agreement ju st 
because it is contained in the existing Agreement.  However, it is true that the fact that a 
paragraph in the existing agreement is dropped could send a signal and that fact should be taken 
into account.  [US] GPA/TN1994/2/Rev.13  
 
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  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Desiring  to encourage acceptance of and 
accession to this Agreement by governments not party 
to it; 
 Desiring  to encourage acceptance of and 
accession to this Agreement by governments not 
party to it;  
 Having  undertaken  further negotiations in 
pursuance of these objectives;  
 Having undertaken  further negotiations 
in pursuance of these objectives;  
 Hereby agree  as follows:   Hereby agree  as follows:  
[US – Job No. 2867]  
 
General comments  
• It is doubted whether the review of the Agreement should attempt to revamp the Preamble.  The 
original Preamble covers a much wider perspective and adheres more closely to the fundamental 
principles of the WTO.  In particular, the language on non -discrimination is the cor nerstone of 
the Agreement and should not be removed or undermined.  [Hong Kong, China;  EC] 
• All the issues that have been removed from the existing preamble are addressed in the text of 
the Agreement itself.  To what extent is it necessary to make a general s tatement in the Preamble 
for every element contained in the text of the Agreement?  [US] 
  GPA/TN1994/2/Rev.13  
 
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  Definitions  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article I  
Definitions  
 
 For purposes of this Agreement:  
 
 build -operate -transfer contracts and public 
works concession contracts mean any 
contractual arrangement the primary purpose of 
which is to provide for the construction or 
rehabilitation of physical infrastructure, plant, 
buildings, facilities or other gove rnment -owned 
works and under which, as consideration for a 
supplier 's execution of a contract, an entity 
grants to the supplier, for a specified period of 
time, temporary ownership or a right to control 
and operate, and demand payment for  the use of 
such w orks for the duration of the contract;  
 [US – Job No. 1051]  
 
Comments  
• The language in the US proposal is broad and is intended to reflect that, in some systems, works 
that are constructed under a BOT contract or public works concession contract are often  publicly 
owned as soon as they exist or shortly thereafter.  [US] 
• Regarding the reference in the US definition to "public works concession contracts ", details are 
required as to how these concessions would operate.  [Switzerland;  Jordan]  Given the broad 
range of public works, does this term include contracts for the maintenance of public works?  
[Jordan]  
• Explanatory Note with examples of BOT "Contracts and Concessions for Public Works " 
(Job No. 1043) seeks to clarify the various types of contractual modalities that would fall within 
the definition that has been proposed.  [US] 
• The US list of contractual modalities that would fall within the definition of BOT contracts refers 
to some elements of the definition of government procurement but does not cons titute a 
comprehensive definition of government procurement.  A comprehensive definition of 
"government procurement " does not currently exist.  [Switzerland]  
• Comments regarding whether a definition is necessary  
• Delete the definition of BOT contract.  [Japan – Job No. 7790]  
• Although Parties may not have the same understanding of what is meant by build -operate -
transfer contracts, a simple text defining such contracts is not necessarily an appropriate 
solution.  A dilemma exists in choosing between having a simple, streamlined text and seeking 
to clarify the situation in a particular area.  [EC; Switzerland ] 
• While there is a broad range of range of contractual arrangements and it is necessary to clearly 
understand what Parties ' expectations are with respect to the GPA, the US paper seeks to make 
a first step in considering what should be included and what should be excluded from a definition 
of BOT contracts.  [US] 
• Among the Parties to the GPA and also outside the Agreement, there has been a significant 
increa se in the use of BOT contracts.  The use of such contracts appears to be for the purpose of 
replacing traditional contractual procurement.  Governments that do not have sufficient funds 
are increasingly using BOT contracts for the same purpose as traditional  methods, although they 
involve different procedures, particularly in relation to compensation of the contractor.  If this 
issue is not dealt with in the Agreement, there may be more uncertainty or a reduction in the 
effective coverage of the Agreement, par ticularly with respect to construction services.  [US] 
• Japan disagrees with the US interpretation put forward in its paper (Job No. 1043) in conjunction 
with the  propos ed draft regarding Article I:2 and the proposed new definition of "build-operate -GPA/TN1994/2/Rev.13  
 
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  transfer  contracts and public works concession contracts ". Japan takes the position that the 
Agreement  shall apply to the contracts for PFI projects (including BOT, BTO, and BOO types) 
where there is no transfer of facilities to the procurement entity at the end of the contract.  Japan  
cannot support the US position t o limit the scope of application of the Agreement to those types 
of contracts that have the purpose of "transferring " constructed works to a procuring entity.  
[Japan – Job No. 7790 ] 
Comments regard ing characteristics of concessions for public works and BOT contracts  
• The US proposal focuses on determining whether the primary purpose of the contract is the 
acquisition or use of a public work by the government.  If the primary purpose of the contract 
from the point of view of the government is the acquisition of a public work, it would fall within 
the definition of a BOT contract.  In some cases, the contractor that performs a construction 
service may have commercial considerations in mind and there may b e incidental commercial 
activities associated with the contract, particularly when a concession is involved.  However, any 
private sector contractor that enters into a contract with the government will be doing so for 
commercial reasons.  Accordingly, it is necessary to consider what the commercial activity is and 
who is undertaking that activity.  [US] 
• If the primary purpose of a contract is the acquisition of ownership by the government after a 
certain period of time, there is a strong presumption that such a transaction should be considered 
to be government procurement, even if such acquisition involves the granting of a short -term 
concession instead of direct payment for acquisition.  [US] 
• Public work contracts and BOT contracts are not the same, even if it is recognised that there are 
similarities.  In particular, the level of economic risk that the private contractor bears differs 
under the two different types of contracts.  [EC] The issue of the degree of risk assumed by the 
private contractor is of interest  and should be explored in more detail.  [US] 
• If the underlying purpose of a contract is not the acquisition of a public work - e.g. the granting 
of a concession to operate a commercial facility on government property or on government land 
where the governm ent does not obtain anything through such a contract - that would not be 
considered to be a BOT contract, nor would it be considered to be government procurement.  
[US] 
• There may be cases in which services contracts or concessions may involve some incidenta l 
improvement of public facilities.  In such cases, it is necessary to focus on the primary purpose 
of a contract.  If the primary purpose is the construction or rehabilitation of public works, it should 
be considered to be a construction services contract o r a BOT contract.  However, if the primary 
purpose was to grant a concession or to award a services contract and in either case there is 
some incidental improvement of public facilities, such incidental improvement should not be 
considered to be defining in  terms of how the contract should be categorized.  [US] 
• The term "BOT" includes a large variety of contracts.  Experience has indicated that some 
contracts that have been labelled as BOT contracts are actually public work contracts, 
concessions of public works or public services concessions.  [EC] 
• Concrete examples are needed to determine how the proposed definition would work, under 
what conditions BOT contracts are used, and the conditions under which the public work is 
returned to the government.  [Switzerland;  EC; US] 
• See the explanatory note by the US on Job No. 1043.  
• See also the communication from the United States in Job No. 6800.  
• How can BOT contracts and services contracts be distinguished?  The Explanatory Note 
(Job No.6772) indicates that th ere is an emphasis on the creation of fixed assets or public works.  
[Canada]  
• There are a number of features that distinguish procurement from concessions for public works 
or BOT contracts.  First, the concessionaire does not receive a sum of money in exchan ge for the 
building works performed but, rather, receives the right to operate the infrastructure.  Secondly, 
concessions or BOT contracts may involve funds being transferred from the private sector to the 
public sector.  Thirdly, a concession or BOT contrac t which entails the right to operate 
infrastructure is, in substance, a transfer or delegation of power from the entity that would have 
ordinarily carried out the activity.  These differences mean that it is necessary to separate the 
concept of procurement from concessions and BOT contracts.  Further, the issue of coverage of GPA/TN1994/2/Rev.13  
 
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  concessions and BOT contracts relates more to the issue of the expansion of the coverage of the 
Agreement and is not merely a clarification of the existing text.  [EC] 
• Contracts other tha n concessions for public works, including procurement contracts, may entail 
a delegation of powers that entities would ordinarily possess.  [Canada]  
• The awarding of public works contracts usually entails delegations of power over long periods of 
time. During such periods, the private concessionaire operates the infrastructure in the place of 
the public authority.  [EC] 
• The GPA is not concerned with the content and terms of procurement contracts but rather with 
the procurement process.  However, the distin ctions made by the EC such as those relating to 
the allocation of risk or financing, concern more the content of procurement of contracts and the 
allocation of risk between the government entity/buyer and the private sector supplier rather 
than the procure ment process.  Contracts where the government essentially acquires a public 
construction for its own use and its own purposes has the characteristics of procurement within 
the expression "procurement by any contractual means " in the GPA.  [US] 
• While the comm ents that have been made relate to the content of the contract, they are relevant 
to the process adopted by the public authority in choosing a private contractor.  [EC] 
• The proposal suggests that management contracts and the sale of government shares in pub lic 
companies are covered under the Agreement.  However, neither is mentioned in the definition of 
"build-operate -transfer ". [Jordan]  
• Paragraph 11 of the Explanatory Note in Job No. 1043 indicates that contracts for the 
management and operation of facilitie s are a form of "PPP" or public -private partnership that is 
separate from BOT.  Are contracts for the management and operation of facilities considered to 
be services contracts within the context of the GPA?  [Canada]  
• Such management and operation contracts would not be BOT contracts or construction services 
contracts.  They are management contracts which entail the provision of services.  [US] 
• The common characteristics of the BOT or equivalent projects are summarized as follows:  
(a) use of funds and  managerial or technical abiliti es of private sector ; (b) the main purpose of 
the contract is the provision of public facilities (including construction, operation, maintenance 
and management of facilities ) and the provision of planned services for the pub lic; and 
(c) procuring entities purchase goods (e.g. energy produced by heating or new energy 
production facilities) or services (e.g. education, culture or tourism services)  produced or 
supplied by the projects.  These characteristics show that procurement  of the BOT or equivalent 
projects fit the elements of the concept of procurement under the GATT Article III:8(a) and the 
GATS Article III:1.1 [Japan –Job No. 7790 ] 
Other comments  
• What would the situation be when the government contracts, for example, for cafeteria services 
that are provided on government land?  [Canada ] Such contracts are services contracts and do 
not involve the construction of any public works, facilities etc.  Therefore, they are unlikely to be 
categorised as BOT contracts.  [US] 
• In cases whether the central or local government procures land or buildings but nothing more, 
would the GPA apply?  [Japan ] 
• In cases where the central or local government provides subsidies for suppliers but nothing is 
procured from suppliers, would the  GPA apply?  [Japan ] It is important to avoid defining BOT 
contracts too broadly in the GPA so that it would include transactions that are not government 
procurement, such as subsidies.  [US] 
• There are an increasing number of variations of BOT contracts and it is likely that more varieties 
will emerge in the future.  Since how and to what extent the government is involved in BOT 
projects depends on the type of BOT, there is need for more discussion on what types of BOT 
are appropriately treated as government p rocurement.  It is unclear whether future forms of BOT 
contracts would be caught by the definition contained in the US proposal.  [Japan ] 
• The US definition attempts to clarify the meaning of the term "BOT" in a way that ensures that 
it is not too wide.  [US] 
 
1 Internal note:  See paragraphs 12, 4 and 5 of Job No. 7790.  GPA/TN1994/2/Rev.13  
 
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  • Is the scope of procurements covered by the GPA likely to expand in accordance with the 
definition of the BOT contracts and the public works concession contracts under the US proposal?  
[Switzerland]  
• Are contracts subject to the GPA in the cases where:  projects are conducted independently in 
terms of financing (i.e. all project costs are fully covered by fees charged by the private sector 
contractor and paid by the users of the facilities); and facilities are transferred to public entities 
without compensati on? In the affirmative, how should the value of the contract be determined?  
[Japan;  Job No. 5474 ] 
• See also the comments on the proposed amendments to Article I:2 on Scope and Coverage.  
  GPA/TN1994/2/Rev.13  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 international standard means a standard that is 
developed in a manner consistent with the 
decisions of the WTO Committee on Technical 
Barriers to Trade, as elaborated in "Decisions and 
Recommendations adopted by the Committee 
since 1 Januar y 1995, "G/TBT/1/Rev .7, 
28 November 2000, Section IX ( "Decision of the 
Committee on Principles for the Development of 
International Standard, Guides and 
Recommendations with relation to Articles  2, 5 
and Annex 3 of the Agreement "). 
[US – Job No. 105 1] 
 
Comments  
• Document G/TBT /1/Rev.7  contains guidelines for entities or institutes that are responsible for 
developing international standards.  There is a risk that international standards that are being 
developed do not conform to that document.  How would procuring entities know which 
international standards conform?  Further, the TBT Decision referenced by the US proposal is a 
recommendation by WTO Members to standards -making bodies and is, therefore, of a legally 
non-binding nature, whi le the definition of international standards in the GPA will be legally 
binding.  What would be the legal implications of including such terminology in the definition?  
[Japan]  
• The current GPA uses the term "international standard ", but does not define that term, nor does 
it indicate how an entity should determine what is an "international standard ". The definition 
proposed by the United States should serve to give guidance to entities in determining what is 
an "international standard ". Since the TBT Committe e developed principles for the development 
of international standards and it is the expert body in standards, it would be appropriate to look 
to that body for guidance on the issue.  The proposed definition is not a close definition.  The 
most logical refere nce is the document of the TBT Committee which has set out principles for 
the development of international standards.  [US] 
  GPA/TN1994/2/Rev.13  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 construction services contract means a contract 
that has as its objective the realization by 
whatever means of civil or building works, in the 
sense of Division 51 of the Central Product 
Classification (CPC);  
[US – Job No. 2867]  
 
 country or countries  include any separate 
customs territory Party to this Agreement.  In the 
case of a separate customs territory Party to this 
Agreement, where an expression in this 
Agreement is qualified by the term "national ", 
such expression shall be read as pertaining to 
that customs territory, unless otherwise 
specified;  
[US – Job No. 2867]  
 
 government  is deemed to include the competent 
authorities of the European Communities;  
[US – Job No. 2867]  
 
Comments  
• The definition of "in writing " or "written " is contained in a proposed revision to the US Federal 
Acquisition Regulation (FAR), which was published in the US Federal Register on 
1 November  2000.  As of 30 March 2001, the Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Cou ncil continue to review this regulatory proposal.  The United States 
reserves its right to modify the language of this submission, based on ongoing internal 
consultations.  [US] 
• We support the definition of "in writing or written " as it recognizes electronic  expressions, that 
can be read, reproduced, and stored.  [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 limited tendering procedures are those 
procedures that the entity makes no public 
invitation for participation in the tendering 
exercise;  
[Hong Kong, China]  
 
  GPA/TN1994/2/Rev.13  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procurement means the process by which a 
government obtains the use of or acquires goods 
or services, or any combination thereof, for 
governmental purposes and not with a view to 
commercial sale or resale, or use in the 
production or supply of goods or services for 
commercial sale or resale  
[US – Job No. 1051]  
 
 procurement means the process by which a 
procuring  entity  obtains the use of or acquires 
goods or services, or any combination thereof, 
for governmental purposes and not with a view 
to commercial sale or resale , or use in the 
production of goods  or the supply of services for 
commercial sale or resale.  
[Japan – Job No. 7790 – Option 2 ] 
 
Comments concerning a definition of government procurement  
• The proposed definition of procurement is based upon the Agreement 's existing definition of 
scope and definitions of government procurement contained in the GATT and the GATS.  It is 
considered useful to define "procurement " in the GPA so that all Parties understand their specific 
commitments.  [US] 
• There is a risk that if a definition of "government procurement " is included in the GPA, the scope 
and coverage of  the current GPA offers could be expanded or, at least, that impression could be 
conveyed to outsiders.  [EC] 
• Including a definition in the GPA would be useful to non -Parties who may be considering 
accession in so far as it might assist them to understand w hat the major commitments under 
the Agreement would be.  [US] 
• This Article should contain a definition of the term "government procurement " which focuses on 
the status of the end -users rather than on the purchasing agent.  [Hong Kong, China ] Some 
specific su ggestions with respect to this comment should be provided . [US; Canada]  
• The proposed US text uses four terms, seemingly interchangeably – namely, "contract ", 
"procurement ", "procurement contract " and "intended procurement ". "Procurement " is the 
process of procurement which results in one or more contracts being entered into.  Therefore, 
the term "procurement " should be used in relation to the procurement process.  In turn, 
"contract " should be used in relation to the outcome of the process of procurement.  It is unclear 
how the term "measures " fits in relation to the other terms that have been referred to.  [Canada]  
• Further examination may be needed of the EC 's decision to withdraw its proposed definition of 
"government procurement ". It may be  necessary to determine whether the EC 's concerns are 
addressed in the definition of "government procurement " that has been proposed by the US.  
[US] 
Comments regarding the definition by Japan  
• The concept of "government procurement " consists of the followin g five elements – that the 
government procurement is : (a) conducted by a government al agency ; (b) a purchase of 
products or services;  (c) for governmental purpose s; (d) not for commercial resale;  and (e) not 
for use in the production of goods or the supply  of services for commercial sale.2 [Japan – 
Job No. 7790.]  
 
2 Internal note:  See paragraphs 5 and 4 of Job No. 7790.  GPA/TN1994/2/Rev.13  
 
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  • The EC does not necessarily follow the approach that GPA covers what is a carve out of what is 
excluded from GATT, and have concerns as to the transparency of such an approach.  This 
approach might undermine legal certainty, as it is difficult to ascertain the use to which a good 
or service is to be put.  How would this apply to 'mixed contracts ' where the result of a 
procurement is for both public and private use.  How transparent is th e distinction and who makes 
the analysis?  Appendix I of the Agreement already provides various definitions of government 
procurement.  Japan 's approach to government procurement might reduce the coverage of 
Parties which have not specified in their Annexes that they do not cover procurement with a 
view to commercial sale or resale.  [EC, in reference to Japan 's definition of government 
procurement, Job No. 7790 ] 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 measure means any law, regulation, procedure, 
requirement, administrative guidance or practice  
[US – Job No. 1051]  
 
Comment  
• The proposed definition of "measure " is deliberately intended to be broad.  [US] 
 
  GPA/TN1994/2/Rev.13  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procuring entity means an entity covered under 
Annexes 1, 2 and 3 of Appendix I of each Party;  
[US – Job No. 2867]  
[Japan – Job No. 7790 – Option 2 ] 
 
Comment  
• If "procuring entity " is a defined term, it should be consistently used throughout the text instead 
of using the term "entity " or "entities " elsewhere in the text.  [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 services includes construction services 
contracts, unless otherwise specified;  
[US – Job No. 2867]  
 
Comments  
• Clarification is sought as to why "services " has been defined to include construction service 
contracts "unless otherwise specified ". Where should reference be made  to determine whether 
something has been "otherwise specified " as per this definition?  [Japan]  
• Most of the Annexes already contain the definition of "services " that has been included in the 
definition that has been proposed by the US.  In the interests of c onsolidating the Agreement 
and making it easier to understand, the definition has been included in the proposed article on 
definitions that it can be referred to when interpreting the Agreement and the Annexes.  [US] 
 
  GPA/TN1994/2/Rev.13  
 
- 15 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT ( 1994)  PROPOSED MODIFICATIONS  
 supplier means a natural person or enterprise 
that has provided or could provide goods or 
services in response to a procuring entity 's call 
for tenders;  and 
[US – Job No. 2867]  
 
 technical specification means a tendering 
requirement that lays down the characteristics of 
goods to be procured or their related processes 
and production methods or the characteristics of 
services to be procured or their related operating 
methods, including any applicable administrative  
provisions.  It may also include or deal exclusively 
with terminology, symbols, packaging, marking 
or labelling requirements as they apply to a good, 
process, or production or operating method.  
[US – Job No. 2867]  
 
General comments on a new article in the  Agreement on definitions  
• An article containing definitions may be useful to ensure that all Parties understand the terms 
that are being used in making commitments vis-à-vis other Parties.  [US] 
• We have no strong view on whether to have an article on defini tions or to define terms 
individually by means of footnotes or otherwise.  However it is done, the terms to be defined 
should be kept to the minimum necessary, e.g. confining definitions to technical terms or terms 
having a meaning other than the literal on e. In this regard, we have doubts on whether 
"construction services contract ", "procuring entity " and "supplier " need to be defined.  
[Hong  Kong, China]  
• Why is the term "related processes and production methods " (PPMs) included in the definition 
unless the procuring entity prescribes the PPMs in tender documents.  In practice it is the type 
of products and services required that matter, not the PPM through which the products are 
procured.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 16 - 
 
  Article I  - Scope and Coverage  
Article I:1  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, regulation, 
procedure or practice regarding any procurement by 
entities covered by this Agreement, as specified in 
Appendix I.  
 
Footnote 1 : 
 
1. For each Party, Appendix I is divided into five 
Annexes:  
 
- Annex 1 contains central government entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contains all other entities that procure 
in accordance with the provisions of this 
Agreement.  
- Annex 4 specifies services, whether listed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction services.  
Relevant thresholds are specified in each Party 's 
Annexes.   
 
 1. This Agreem ent applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I, except 
procurements with a view to commercial resale 
or with a view to use in the production of goods 
or supply of services for commercial sale.  
[Chinese Taipei – Job No. 3193]  
 
Comment  
• Would the elimination of the footnote listing the Annexes in Appendix I and its replacement by 
the words "as specified in Appendix I ", imply a different structure for Appendix I?  [Canada]  
 GPA/TN1994/2/Rev.13  
 
- 17 - 
 
  Article I:1  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. This Agreement applies to any measure 
specifically governing an entity 's procurement, 
by any contractual means,  including purchase;  
lease;  rental or hire purchase, with or without an 
option to buy; and build -operate -transfer and 
concessions for public works contracts.  
[US – Job No. 1051]  
 
Comments on "entity " 
• The definition of "procurement " in the proposed definition section is a broad one that is not 
specifically related to the scope of the Agreement.  In particular, it defines procurement 
regardless of whether or not it is covered under the Agreement.  [US] 
• The proposed Article I refers to a n "entity " but not to Appendix I.  "Entity " is defined in the 
proposed definitions section as an entity listed in Appendix I.  Therefore, Article I would 
effectively refer to Appendix I through the reference to "entity ". The objective of this change is 
to simplify language through the incorporation of some concepts into the proposed definitions 
section.  [US] 
• Article I refers to "entity " whereas the definition of "procurement " refers to the term 
"government " which, in turn, is defined to mean central and local  government entities.  The 
entities listed in Annex 3 of Appendix I are not government agencies and, therefore, do not fall 
within the definition of "government ". [Japan]  
Comments on "any measure " 
• Paragraph 1(a) of the US proposal seems to suggest that the scope of the Agreement should be 
both measures -based and procurement -based.  Perhaps a measures -based approach is more 
consistent with other trade obligations.  Will the Agreement apply to "measures " and to 
"procurement "? The Agreement should apply to on e or the other.  [Canada]  
• It is understood that the term "measure " includes "laws, regulations, procedures or practices " 
and that "practices " can mean almost any decision that a government takes during a 
procurement process.  For example, a contract award de cision would be a "practice " as well as a 
"measure " that would be governed by the GPA.  [US] 
• Given the explanation provided in relation to the meaning of the word "measure " in the US 
proposal, it may be preferable to include a definition of that term referring to "laws, regulations, 
procedures or practices " in the proposed Article containing definitions since the word "measure " 
may be defined more broadly in other jurisdicti ons. [Hong Kong, China]  
• Do some Parties consider that some "measures " that have not been included in the list currently 
contained in the GPA should not be made subject to the GPA?  [US] 
• What kind of "measures " does the US have in mind?  In addition to the measures that are covered 
under the existing Agreement, does the US proposal seek to cover any additional measures?  If 
so, such an approach might affect the mutually agreed coverage under the existing Agreement.  
[Japan]  
• The word "measure " has often been us ed in many WTO agreements.  The term "measure " is 
much broader than "law, regulation, procedure or practice ". If this term is to be used, 
clarification is needed as to whether a definition similar to the word "measure " in Article 
XXVIII(a) of the GATS is pr eferred?  [Hong Kong, China]  
• Why is there no reference to procuring entities specified in Appendix I in paragraph 1 of the US 
proposal given that there is such a reference in paragraph 2 of the proposal?  [Japan]  
Comments on GATT and GATS definitions  
• In term s of covered procurement, it is necessary to avoid the possibility of there being any gaps 
between what is covered by GATT Article III:8 and GATS Article XIII and what is covered under 
the GPA.  [EC; US] GPA/TN1994/2/Rev.13  
 
- 18 - 
 
  • What are the potential gaps between the GPA on the on e hand and the GATT and GATS on the 
other?  [Switzerland]  
• Consideration should be given to whether the current definitions in the GATT and the GATS are 
adequate or whether a further definition of "government procurement " should be developed in 
the Agreement.  [US] 
• If a definition of "government procurement " is to be developed, such a definition should be 
included in a multilateral instrument otherwise there is a risk that there will be two definitions 
of government procurement - one in the exceptions to the GATT and the GATS and the other in 
the GPA. [EC] 
• Is it necessary to cover procurement excluded from the GATT and the GATS?  [Canada]  
• What is covered in the GPA Annexes is within the framework of the general exceptions to the 
GATT and GATS, otherwise there would be no point in coverage under the GPA. [EC] 
• It is necessary to look at the significance of the term "commercial sale " in the definition in GATT 
Article  III:8.  The term "commercial " is intended to narrow the exception to the definition of 
government procurement.  
Comments on reference to BOT  contracts  
• The issue of whether or not BOT contracts should be covered under the GPA is relevant to the 
issue of coverage and should be preceded by identification and clarification of the relevant issues 
in order to come to a common understanding as to wha t should be covered by the GPA.  [EC] 
• Does the US proposal regarding BOT contracts represent a new approach to the issue of 
coverage?  [Canada ] The question posed by Canada is a broad one and does not specifically 
relate to BOT contracts but is more related to the issue of definitions and how the GPA relates 
to the WTO system as a whole.  [US] 
• It is unclear whether proposed subparagraph 1(b) is needed since it extends the definition 
contained in the GATT, which is essentially captured in proposed subparagraph (a). [EC] 
• The US paper only seeks to clarify the coverage and scope of the Agreement rather than extend 
coverage to BOT contracts.  [US] 
• The note by the Secretariat on "Concessions and BOT Contracts " (JOB(00)/5657 ) points out that 
there may be a relationship between BOT -type contracts and the definition of government 
procurement in the GATT and the GATS.  [US] 
• Japan 's position is that the reference to "procurement by any contractual means " under 
Article  I:2 of the Agreement covers procurement  of BOT or equivalent projects, except where a 
procuring enti ty does not need to pay remuneration stipulated in  Article I:2 in which case the 
Agreement will not apply because the value of such procurement contract is zero.  [Japan – 
Job No. 7790]  
• The US considers that a build -operate -transfer contract constitutes a "contractual means ". The 
US tends to view that such contracts constitute procurement.  There are many different types of 
contractual relationships that governments  have with the private sector beyond build -operate -
transfer contracts and including other types of procurement contracts.  For example, there are a 
series of contracts including BOT, BOOT and BOO contracts, that are contractual means, some 
of which do not i nvolve ownership of any property by the government and some of which may 
be very similar to licensing or other types of operations.  The reference to build -operate -transfer 
contracts does not necessarily mean that those types of contractual means are consid ered to be 
procurement.  The reference to BOT contracts is a fairly narrow range of contractual means and 
there is a much broader range of government activities that would not be covered by that term.  
[US] 
• Reservations exist regarding the extension of cover age of the Agreement to BOT contracts 
because it is unclear whether such contracts can be regarded as government procurement.  
[Hong Kong, China;  Korea;  EC] They are a hybrid of "concessions " (whereby the government 
gives an exclusive right to an entity to operate a service) and "procurement "; and BOT contracts 
often last for many years and may involve some kind of franchise arrangement.  Concern exists 
regarding the implications of this extens ion as Parties may later request further extension of the 
Agreement to cover other concessions such as franchise and licensing agreements which are 
currently not covered under the GPA.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 19 - 
 
  • The illustrative list of contractual means contained  in the current Article I:2 of the GPA - namely, 
purchase, lease, rental or hire purchase – refers to transactions of a general nature applicable 
to procurement of any types of goods or services.  However, the revised definition of BOT 
contracts indicates t hat it now refers to particular types of works contracts.  Is such a restricted 
application possible?  [Hong Kong, China]  
• BOT contracts allow Governments to tap into and use private sector financing for projects they 
would otherwise have to pay for.  It is er roneous to conclude that GPA should not apply to a BOT 
contract where there is no government money.  A variety of other facts have to be considered, 
including the following:  (a) is the undertaking by the private sector a public work or public 
activity of so me sort?  (b) if a facility is built, whether ownership remains with the private sector 
or whether it is transferred back to the public sector at some stage.  The US view is that where 
ownership does not transfer to the government, then the procurement does not fall under GPA.  
[US] 
• There appears to be uncertainty as to whether the terms 'BOT' and 'works concessions ' are 
equivalent.  The US paper (Job No. 1051) would appear to involve an extension of the Agreement 
rather than mere clarification of text.  With re ference to Japan 's approach in Job No. 7790, two 
further issues need to be considered, i.e.: (a) whether payment is by third parties;  and (b) level 
of commercial risk.  In EC 's view, if payment is guaranteed by the procuring entity, then there is 
no commerc ial risk and the project is covered.  [EC] 
• BOT is an investment issue, as BOT projects call for the private sector to make an investment 
decision.  Does coverage of GPA apply to investment issues?  Since other WTO Agreements 
(TRIMS and GATS) deal with investm ent, this should not be dealt with under GPA.  
[Chinese  Taipei]  
• "BOT", "BTO" or "BOO" are types of projects rather than type s of contractual means.  Since t he 
procurement contract for a PFI project  in any of the three  types is generally a mixed contract 
composed of the construction  of facilities as well as the operation, maintenance and 
management etc. of the said facilities , the procurement of a PFI project is usually made by a 
contractual means including purchase, lease, re ntal or hire purchase, or any combination 
thereof . Consequently, s uch a contract for a PFI project is covered by the language of the current 
text of Article I:2.  Therefore, Japan thinks that it is not necessary to add the new definition of 
"build-operate -transfer contracts and public works concession contracts " into the current text of 
Article I:2 as suggested by the US.  [Japan  – Job No. 7790. ] 
• Taking into consideration the wide variety of names for the BOT or equivalent  projects (e.g. PFI  
(Private Finance Initiative ), PPP  (Public Private Partnership ), concessions for public works, 
franchise agreements, etc.) as well as possible changes of th ese names in future developments, 
it would not be the best way to incorporate the name o f the two specific types  
(i.e. "build-operate -transfer contracts " and "public works concession contracts ") into the 
language of Article I:2.  [Japan – Job No. 7790]  
Other Comments  
• It is unclear whether the reference to build -operate -transfer contracts in this Article is merely a 
clarification of the existing article.  The proposal could be considered to be an extension of 
coverage.  [EC] 
• Given the fact that one of the main characteristics of build -operate -transfer and concessions for 
public works contracts is to invite investment, wh ich is different from that of normal government 
procurement contracts, it is appropriate that such contracts be excluded from the coverage of 
GPA. [Chinese Taipei – Job No. 7872]  GPA/TN1994/2/Rev.13  
 
- 20 - 
 
  Article I:1  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 This Agreement applies to any law, regulation, 
procedure or practice regarding any procurement 
by entities 1 covered by this Agreement, as 
specified in Appendix I.  
 
Note 1: For the purpose of this Agreement, 
"entities " are understood to exclude those 
entities for which government control or 
influence has been effectively eliminated through 
privatization.  
 
 Note 2: For each Party Appendix I is divided into  
five Annexes:  
 
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contains all other entities that 
procure in accordance with the provisions of 
this Agree ment.  
- Annex 4 specifies services, whether listed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction 
services.  
Relevant thresholds are specified in each Party 's 
Annexes . 
[Korea – Job No. 5669]  
 
Comments  
• With respect to Korea 's proposed amendment to Articles I and XXIV:6(b) of the GPA, Korea 
considers that applying the GPA to privatized entities is neither legally consistent nor practically 
desirable.  Therefore, Korea 's proposed amendment seeks to exclude priva tized entities from the 
scope of the GPA.  The proposal involves the insertion of a new note – Note 1 - to Article I in 
addition to an amendment of Article XXIV:6(b).  [Korea]  
• With respect to the use of the term "eliminated through privatization " in the prop osed Note  1, 
guidance is needed as to what is meant by "privatization ". [US; EC] 
• Should "privatization " be defined in terms of the level of competition in the area in which the 
privatized entity will be operating?  Alternatively, what other criteria would apply?  [Switzerland]  
• The relevant Chinese Taipei law states that if the government owns less than 50 per  cent of a 
formerly government -owned enterprise, the enterprise is considered to be privatized.  
[Chinese  Taipei]  GPA/TN1994/2/Rev.13  
 
- 21 - 
 
  Article I  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. For each Party, Appendix I shall be 
divided into five Annexes:  
 
(a) Annex 1 specifies the central 
government entities whose procurement 
is covered by this Agreement;  
(b) Annex 2 specifies the sub -central 
government entities whose procurement 
is covered by this Agreement;  
(c) Annex 3 specifies all other entities whose 
procurement is covered by this 
Agreement;  
(d) Annex 4 specifies the services covered by 
this Agreement;  and 
(e) Annex 5 specifies the construction 
services covered by this Agreement.  
[US – Job No. 2867]  
 
Comment  
• Paragrap hs 1(a) and (b) of the US proposal are considered to be cumulative and together 
constitute a definition of government procurement, paragraph (a) addressing measures and 
paragraph (b) addressing the entities that take those measures.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 22 - 
 
  Article I:2  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by any 
contractual means, including through such methods as 
purchase or as lease, rental or hire purchase, with or 
without an op tion to buy, including any combination of 
products and services.  (see definition of procurement under 
"definitions "). 
 
This Agreement applies to procurement, with or 
without utilisation of the funds and the 
managerial or technical ability of the private 
sector, by any contractual means, including 
through such methods as purchase or as lease, 
rental or hire purchase, with or without an option 
to buy, including any combination of products 
and services, for governmental purposes and not 
with a view to commerci al sale or resale, or with 
a view to use in the production of goods or the 
supply of services for commercial sale or resale.  
[Japan – Job No. 7790 – Option 1 ] 
 
 (see definition of procurement  and procuring 
entity  under "definitions "). 
 
This Agreement applies to procurement, with or 
without utilisation of the funds and the 
managerial or technical ability of the private 
sector,  by any contractual means, including 
purchase , lease , rental or hire purchase, with or 
without an option to buy . 
[Japan – Job No. 7790 – Option 2 ] 
 
Comments  
• Should the GPA not apply to a PFI project let on a self -paying basis?  [EU, in reference to 
paragraph 3 of Japan 's Job No.7790]  
• Does the reference to "…with or without utilisation of the funds and the managerial o r technical 
ability of the private sector… ." define that a project conducted by the private sector on a 
self-paying basis would or would not be included in the Agreement?  [Canada, in reference to 
Option  2 of paragraphs 6 and 11 of Japan 's Job No. 7790]  
• The phrase, "with or without utilisation of the funds and the managerial or technical ability of 
the private sector ", is added to Article I:2 in order to cover any possible types such as BOT, 
BTO, BOO, PFI, PPP, or concessions for public works, franc hise agreements, etc. and to replace 
the US definition.  [Japan – Job No. 7790]  
• The phrases, "for government purposes " and "not with a view to commercial sale or resale, or 
with a view to use in the production of goods or the supply of services for commerci al sale or 
resale ", are added to Article I:2 in order to keep consistency with the concept of government 
procurement under the GATT and the GATS.  [Japan – Job No. 7790]  
• In the case of the BOT or equivalent project to be implemented by the private sector on  a 
self-paying basis by the revenue from the project (e.g. the revenue from charges for services 
paid for by users or consumers), a procuring entity does not need to pay remuneration stipulated 
in Article I:2.  Consequently, the Agreement will not apply bec ause the value of such procurement 
contract is zero.  [Japan – Job No 7790]  
 
  GPA/TN1994/2/Rev.13  
 
- 23 - 
 
  Article I:3, 4  
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in the context of procurement 
covered under this Agreement, require enterprises not 
included in Appendix I to award contracts in accordance 
with particular requirements, Article  III shall apply 
mutatis mutandis  to such requirements.  
 3. Where procuring entities, in the context of 
procurement covered by this Agreement, require 
enterprises not included in Appendix I to award 
contracts in accordance with particular 
requirements, Article III of this Agreement shall 
apply mutatis mutandis  to such  requirements.  
[US – Job No. 2867]  
 
4. This Agreement applies to any procurement 
contract of a value of not less than the relevant 
threshold specified in Appendix I.  
 4. This Agreement applies to any 
procurement contract for which the value of the 
contract is estimated, at the time of publication 
of the notice of intended procurement, in 
accordance with Article V of this Agreement, to 
equal or exceed the relevant threshold specified 
in Appendix  I. The value of a contract shall be 
estimated in accord ance with the provisions of 
paragraph 5 of this Article.  
[US – Job No. 2867]  
 
 4. Without prejudice to Article  XXIII, this 
Agreement applies to any procurement contract:  
(a) of central government entities of a value of 
not less than  
- 130,000 SDR  for contracts for supply 
of and services  
- 5,000,000 SDR for contracts for 
public works  
(b) of sub -central government entities of a 
value of not less than  
- 200,000 SDR for contracts for supply 
of and services  
- 5,000,000 SDR for contracts for 
public work s 
(c) of entities according to Appendix  I, 
Annex  3 of a value of not less than  
- 400,000 SDR for contracts for supply 
of products  and services  
- 5,000,000 SDR for contracts for 
public works  
[EC – GPA/W/87 ] 
 
  GPA/TN1994/2/Rev.13  
 
- 24 - 
 
  Comments on common thresholds  
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmo nization of thresholds should not be stipulated in the Agreement.  It would be inappropriate 
to include harmonized thresholds in the main body of the Agreement in view of the balance of 
commitments in Appendix I between Parties in relation to the coverage o f entities, goods and 
services as well as thresholds.  [Japan;  Korea]  Nevertheless, the introduction of common 
thresholds in the text of the Agreement may be acceptable at a later stage in the light of the 
outcome of the work regarding the elimination of discriminatory measures.  [Korea]  
• While harmonization of thresholds furthers the Committee 's aim to streamline the Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices a nd cannot be dealt with simply through amendments to the text.  
[US] 
• The adoption of common thresholds should not inhibit Members ' ability to tailor their offers to 
maintain a balance of interests.  [Canada]  
• Common thresholds would make the Agreement more re adable and understandable by third 
parties.  [EC] 
• Although there may be a link between thresholds and coverage, there is not necessarily a clear 
effect on the balance of offers that have been negotiated because offers relate more to the 
entities that are co vered and not necessarily to the thresholds.  [EC] 
• The adoption of common thresholds is consistent with attempts to expand coverage of the 
Agreement in the future and to make the Agreement more user -friendly.  [EC] 
• Since a BOT or equivalent project is implem ented by a complex contract including the 
construction of facilities, and supply of goods and services necessary for the operation of the 
project and for the maintenance and management of the facilities, a question may be posed as 
to which threshold in a P arty's Appendix I shall apply to each BOT or equivalent project contract.  
One method is to identify certain goods or services that compose the main part of the 
procurement in such a contract.  [Japan – Job No. 7823]  
Other Comments  
• "Public works " is merely another way of naming "construction services ". There is no substantive 
difference between the terms used in the proposal.  [EC in response to clarification sought by 
Japan and Canada]  GPA/TN1994/2/Rev.13  
 
- 25 - 
 
  Article II  - Valuation of Contracts  
Article II:1  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes of 
implementing this Agreement.  
 5. In determining whether a contract is 
covered under this Agreement, procuring entities 
shall apply the following provisions:  
[US – Job No. 2867]  
 
Drafting suggestion  
• It is too broad to say that the provisions of paragraph 5 of the US proposal shall apply in 
determining whether a c ontract is covered under the Agreement.  There are other elements which 
affect whether or not a contract is covered.  It is for the purpose of determining the value of a 
contract that one should apply paragraph  5. Hence, it is suggested that the chapeau shou ld be 
reworded as follows:  "In determining the value of a contract for the purpose of ascertaining 
whether that contract is covered under this Agreement, procuring entities shall apply the 
following provisions. " [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 This Agreement shall apply to any procurement 
contract for which the contract value is estimated 
to equal or exceed the threshold at the time of 
publication of the notice in accordance with 
Article  IX or, in cases where such notice is not 
required, at the moment at which the procuring 
entity commences the procurement procedure.  
[EC - Job No. 4312]  
 
Comments  
• Clarification is sought as to why reference is made to a "moment " in time in relation to cases 
where an Article IX notice is not required (i.e. in cases of limited tendering) since the Agreement 
only requires the publication of a contract award notice in t hose cases.  At the time of publication 
of such a notice, the value of the contract is already known.  Further, why has reference been 
made to the "moment at which the procuring entity commences the procurement procedure ". 
[Canada]  
• The intention underlying t he EC proposal was to cover limited tendering.  There was a concern 
that limited tendering for which there is no publication might not be covered by the Agreement.  
[EC] 
• Why is there a reference to "equal or exceed " rather than just to "exceed "? [Jordan]  
• Given that the objective of the review of the Agreement is to extend coverage, a reference to  
"exceed " would limit coverage rather than extend it although in practice it is unclear whether a  
reference to "equal or exceed " rather than just "exceed " would no t make a significant difference.  
[EC] GPA/TN1994/2/Rev.13  
 
- 26 - 
 
  Article II  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Footnote 2:  
 
2This Agreement shall apply to any procurement 
contract for which the contract value is estimated to 
equal or exceed the threshold at the time of publication 
of the notice in accordance with Article IX.   
2This Agreement shall apply to any procurement 
contract for which the contract value is estimated 
to equal or exceed the threshold at the ti me of 
the publication of the notice in accordance with 
Article  IX or at the time of first contact with the 
supplier in the case of limited tendering.  [Japan]  
 
 
Comment  
• What is meant by the term "first contact " and what is the rationale for the approach proposed 
by Japan in the case of limited tendering?  [Canada]  
  GPA/TN1994/2/Rev.13  
 
- 27 - 
 
  Article II:2, 3  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Valuation shall take into account all forms of 
remuneration, including any premiums, fees, 
commissions and interest receivable.  
 2. Valuation shall take into account all forms 
of remuneration, including any premiums, fees, 
commissions and interest to be paid.  
[Chinese Taipei – Job No. 3193]  
 
 (b) In calculating the value of a contract, an 
entity shall take into account all forms of 
remuneration, including premiums, fees, 
commissions, interest, other revenue 
streams provided for under the contract 
and the value of the maximum 
permis sible options provided for by the 
contract.  
[US – Job No. 2867]  
 
3. The selection of the valuation method by the 
entity shall not be used, nor shall any procurement 
requirement be divided, with the intention of avoiding 
the application of this Agreement.  
 (a) Procuring entities shall not divide an 
intended procurement into separate 
contracts or otherwise use a particular 
method for estimating the value of a 
contract for the purpose of avoiding the 
application of this Agreement.  
[US – Job No. 2867]  
 
 Procuring entities shall neither divide a 
procurement nor select or use a valuation 
method in order to circumvent the application of 
the Agreement.  
[EC - Job No. 4312]  
 
Comments  
• Do Parties include "value -added " tax in calculating the contract value?  Shoul d the bidder also 
include value -added tax in its bid?  [Chinese Taipei]  
• Further consideration is needed in relation to the issue of whether value -added tax should be 
included in determining the contract value.  [US] 
• The meaning of "other revenue streams prov ided for under the contract " in paragraph 2(b) is 
not clear.  The meanings of "intention " and "purpose " seem interchangeable and both imply a 
subjective element.  Clarification is sought from the US as to why it has been proposed to replace 
"with the intenti on of" with "for the purpose of ". [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 28 - 
 
  Article II  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Valuation shall take into account all forms of 
remuneration, including any premiums, fees, 
commissions, interest and, where the 
procurement provides for the possibility of 
option clauses, the total value of the maximum 
permissible procurement, inclusive of optional 
purchases.  the calculation of the value of 
framework agreements or similar arrang ements 
shall be based on the maximum estimated value 
of all the contracts envisaged for the total term 
of the framework agreement or arrangement.  
[EC - Job No. 4312]  
 
 Procuring entities shall neither divide a 
procurement nor select or use a valuation 
method in order to circumvent the application of 
the Agreement.  
[EC - Job No. 4312]  
 
Comment  
• It is important to incorporate provisions on valuations that relate to the many new modalities of 
procurement that are being increasingly used by the GPA Parties and have been discussed 
extensively in the Committee.  At the same time, these provisions must be as simple as possible, 
understandable, and flexible enough to apply to a wide range of emerging procurement 
modalities.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 29 - 
 
  Article II:4  
Valuation o f Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. If an individual requirement for a procurement 
results in the award of more than one contract, or in 
contracts being awarded in separate parts, the basis 
for valuation shall be either:  
 (c) Except as provided for in subparagraph 
(d) of this Paragraph, a procurement that 
is conducted in multiple parts, that is for 
an indefinite quantity, that may result in 
the award of contracts to more than one 
supplier, or tha t may result in the 
awarding of recurring contracts to a 
single supplier, shall be valued at the 
total estimated cost of the procurement 
over its entire duration.  
[US – Job No. 1051]  
 
Comments  
• In relation to construction projects that can be regarded as o ne procurement but may be 
procured pursuant to more than two contracts spanning several years, it may be impossible to 
estimate the value of the contract at the point when the first contract is entered into.  
Accordingly, the current text contained in parag raphs 4(a) and (b) is preferable to the language 
proposed by the US.  [Japan]  
• Article II:4 of the GPA refers to an "individual requirement " being awarded in separate parts 
whereas the US draft talks about "contracts ". It is fair to take into account the value of recurring 
contracts if an individual requirement is awarded in separate parts.  However, the scope of the 
word "contracts " in the US proposal is so wide that it can encompass contracts for different 
requirements.  Why should contracts that are awarded to more than one supplier be valued at 
the total estimated value if these contracts are for different requirements or in relation to 
different subject -matters?  [Hong Kong, China]  
• The use of the word "procurement " would appear to be more appropriate than the term 
"contract " since valuation takes place before the procurement process commences.  It is 
impractical to revisit the results of the valuation exercise once the procurement process has 
been completed and contracts have been issued.  In order to ensure consistency with th e current 
wording of the Agreement and in light of the fact that a contract will not actually exist at the 
time when the valuation takes place, except in the case of limited tendering, the term 
"procurements " rather than "contracts " should be used.  [Canada ] 
• How would the proposed provision apply to low -value contracts, for example those entered into 
by small local authorities?  Under such contracts, even over a period of several years, the 
threshold values stipulated in the Agreement may not be exceeded.  [Norway;  Canada]  
• It might be possible to make a determination that the total estimated value of small -value 
contracts would not exceed the GPA thresholds.  [US] 
• In response to a suggestion for further simplification of paragraph (c) [Canada],  there may be 
some  situations where more detail is necessary, for example in the case of multiple award or 
framework contracts.  [US; EC] 
• Japan is concerned about the definition of, "a (i.e. single) procurement ", which is not clear, 
especially as the U.S. proposal provides t hat "a procurement…shall be valued at the total 
estimated cost of the procurement over its entire duration ". Concrete examples illustrating our 
concerns are as follows:  With respect to the construction of a facility, there are cases where a 
considerable po rtion of the work for this facility is expected to be procured pursuant to another 
contract in the future, at an interval of more than two or three years.  Thus, the contract amount 
for this portion (to be procured in the future) is difficult to estimate at  the time of the initial 
contract.  (This case may arise when a part of the facility can perform its function to some 
extent.)  If "a procurement " refers to "procurement of a whole facility ", procuring entities would 
face some practical difficulties.  Regarding the timing of the future procurement of the portion 
mentioned, and where the estimated contract amount is small (less than the threshold), if "a 
procurement " means "procurement of a whole facility ", then the procurement costs should  be 
valued according to the amount totalled in past contracts.  Such contracts with a small amount 
of procurement would fall under the coverage of the current GPA, thus imposing a heavy GPA/TN1994/2/Rev.13  
 
- 30 - 
 
  administrative burden on procurement entities.  Certain types of mainten ance and repair services 
(painting, planting, corrosion/deterioration inspection, etc.) are often procured in adjacent 
areas, one after another, over the years, or are repeatedly executed in the same area at an 
interval of several years.  If these types of arrangements correspond to "a procurement that is 
conducted in multiple parts ", as mentioned in the US proposals, similar difficulties will arise.  
[Japan – Job No. 5474]  
• Japan presents examples of situations in which it appears that there is difficulty in establishing 
the value of individual procurements which result in contracts, and distinguishing between a 
project and a procurement.  To what extent is this difficulty resolved by the proposals made by 
both the US and EC that the valuation be based on all c ontracts that result from the procurement 
notice?  [Canada, in reference to Japan 's Job No. 5474, Section II:2, which presents Comments  
on EU proposal (Job No. 876) and US proposals (Job Nos. 1051 and 2867) ] 
• The US and EC proposals are still being reviewed in order to determine whether the concerns 
raised have been covered by the new drafting and would like to revert.  [Japan]  
  GPA/TN1994/2/Rev.13  
 
- 31 - 
 
  Article II  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) the actual value of similar recurring contracts 
concluded over the previous fiscal year or 
12 months adjusted, where possible, for 
anticipated changes in quantity and value 
over the subsequent 12 months;  or 
  
(b) the estimated value of recurring contracts in 
the fiscal year or 12  months subsequent to 
the initial contract.  
  
  (d) Contracts for which the duration is not 
known shall be valued at the actual value 
of similar previous contracts awarded 
over the most recent two -year period, 
adjusting for any anticipated changes in 
the quantity and prices of the goods or 
services to be supplied.  
[US – Job No. 2867]  
 
Comments  
• What is meant by the reference in the current Agreement to a 12 -month period?  If the final 
value of a contract which runs for more than one year, for  example, a road maintenance contract, 
is unknown until the works have been completed, should the basis of coverage be the estimated 
value for one year or the value for the full period of the contract?  Should the contract be broken 
down into one -year perio ds because of the reference to 12 months in subparagraphs (a) and 
(b)? [Hong Kong, China]  
In relation to paragraph 5(d) of the US proposal:  
• Paragraph (d) of the US proposal is unclear.  It appears to narrow the application of 
subparagraphs (a) – (c). Is such a provision necessary?  [Canada]  
• This valuation method is problematic if there are no "previous contracts awarded over the most 
recent two -year period ". [Hong Kong, China]  
• The proposed subparagraph (d) refers to similar previous contracts that have bee n awarded.  
Therefore, there would not necessarily be cases where valuation was based on a contract that 
was identical to the current contract.  An entity may need to identify a contract that was 
previously awarded that was similar in nature and use that as a basis for valuation.  [US] 
• The GPA covers a wide variety of activities.  Therefore, it is necessary to strike the right balance 
between specificity and breadth without describing valuation procedures for each and every type 
of contract covered by the Agree ment.  [US] 
• See also the Explanatory Notes in Job No. 6772, page 3.  
• The deletion of subparagraphs (a) and (b) would cause problems in some types of procurement.  
For instance with respect to the construction of a large -scale facility when a half or considerable 
portion of the works is to be procured at an interval of more than two years.  This case may arise 
where part of the facility fulfils its function to some extent and the entity will procure the 
remaining works when the demand increases.  Under A rticle II of the current GPA, if separate 
contracts for one procurement have been awarded at long intervals (more than 12 months, etc.), 
there are practical reasons that these contracts could not be put together into one contract, and 
that such a case is n ot regarded as division of contracts with the intention of avoiding the 
application of  the GPA.  It is very difficult for procuring entities to estimate the contract value of 
the portion executed in the distant future even though the works of this portion o f the contract 
are also for the same facility.  [Japan]  
• In the US proposal, the value of the remote past contract(s) should be added together with small 
contracts (less than the threshold) for the same facility to be executed in future.  If we apply this 
rule, such small contracts become subject to the GPA.  This would impose too much of an GPA/TN1994/2/Rev.13  
 
- 32 - 
 
  administrative burden on procurement entities, as compared with the provisions of Article II of 
the current GPA.  Other examples are certain types of maintenance and repair services (painting, 
planting, corrosion/deterioration inspection, etc.).  These services are often procured in adjacent 
areas one after another over years or repeatedly procured in the same area at an interval of 
some years.  Such services contracts should b e regarded as different procurements with 
considerably different timings of the contract.  However, the US proposal, which does not contain 
provisions like 4(a) and (b) of Article II of the current GPA, causes concern that the basis of 
judgement on the peri od, in which the contract value should be added together, would become 
unclear with regard to these kinds of procurements.  [Japan]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 In the case of procurement which is regular in 
nature or which is intended to be renewed within 
a given period, the calculation of the estimated 
contract value shall be based on the following:  
 
(i) either the total actual value of successive 
contracts with similar characteristics awarded 
during the pre ceding twelve months or financial 
year, adjusted where possible to take account of 
anticipated changes in quantity or value over the 
subsequent twelve months following the initial 
contracts; or  
 
 (ii) the total estimated value of successive 
contracts awarded during the twelve months 
following the first delivery, or during the 
financial year if that is longer than twelve 
months.  
  
Where a proposed procurement may result in 
contracts being awarded at the same time in the 
form of separate parts , account must be taken 
of the total estimated value of all such parts.  
[EC - Job No. 4312]  
 
Comments  
• What is the difference between "…procurement which is regular in nature or which is intended 
to be renewed within a given period… " in proposed Article II :4(a) of EC Job No. 4312 above and 
the proposal of Chinese Taipei for a general rule in the proposed Article II:2 (Job No. 3913), 
which takes into consideration all forms of remuneration, including the exercise of options?  
Under what circumstances would II :4(a) be used, and what do "regular in nature " and "intended 
to be renewed " mean?  How would the intention to renew, which would presumably be signalled 
in advance, be distinguished from an option clause?  [Canada]  
• An option clause contained in contracts all ow for the procuring entity to extend the contract.  The 
terms "regular in nature " and "intended to be renewed " within a given period can be described 
as recurring contracts.  There are, of course, different kinds of contracts.  For instance, an office 
cleani ng contract may be for a fixed -term of 12 months, but there will always be a need.  In this 
case, the distinction is explained by whether the contract provides the option  for the procuring 
entity to extend the contract for a further period, or that whether it is intended the contract will 
be renewed at the end of the period.  [EC] 
• Is it the intention that with a fixed -term contract as noted above the valuation would be grea ter 
than would be the case under the general rule in Article II:2?  [Canada]  
• Article II:2 provides a general rule.  The intention is that in specific circumstances such as 
envisioned under the proposed Article II:4(a) in EC 's Job No. 4312, this will be a 'catch-all' which 
may catch more than is in just one individual contract.  The EC will, however, re -examine and 
further clarify this issue and revert.  [EC] GPA/TN1994/2/Rev.13  
 
- 33 - 
 
  Article II:5, 6  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental or hire 
purchase of products or services, or in the case of 
contracts which do not specify a total price, the basis 
for valuation shall be:  
  
(a) in the case of fixed -term contracts, where 
their term is 12  months or less, the total 
contract value for their duration, or, where 
their term exceeds 12 months, their total 
value including the estimated residual value;  (a) in the case of fixed -term contracts, 
where their term is 12 months or less, 
the total or estimated total contract 
value for their duration, or, where their 
term exceeds 12  months, their total or 
estimated total value;  
[Chinese Taipei – Job No. 3193]  
 
(b) in the case of contracts for an indefinite 
period, the monthly instalment multiplied 
by 48. 
 (b) in the case of contracts for an indefinite 
period, the monthly instalment or 
estimated value of monthly procurement 
multiplied by 48.  
[Chinese Taipei – Job No. 3193]  
 
If there is any doubt, the second basis for valuation, 
namely (b), is to be used.  
  
6. In cases where an intended procurement 
specifies the need for option clauses, the basis for 
valuation shall be the total value of the maximum 
permissible procurement, inclusive of optional 
purchases.  
  
 
 Additio nal paragraph 7  
 
7. Valuation shall take into account any 
value -added tax to be paid by the entity to the 
contractor whether the tax is included in the 
award price or not.  
[Chinese Taipei – Job No. 7872]  
 GPA/TN1994/2/Rev.13  
 
- 34 - 
 
  Article III  - National Treatment and Non-discrimination  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the procurement of 
its covered entities takes place in a transparent, 
reasonable and non -discriminatory manner, 
treating any supplier of any Party equally, and 
ensuring the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
Comments  
• The thrust of the proposed obligations appear to be inconsistent with the contents of Appendix  I. 
Would the proposed provision still allow for the reciprocity provisions in Annex 1?  The existing 
provisions of Article III should be fully implemented before introducing new obligations . 
[Hong  Kong, China]  
• It is important to include a reference to the principle of "open and effective competition " in the 
Agreement even though this principle is not reflected in all the Annexes to the Agreement.  The 
principle of "open and effective competit ion" is not a new concept but, rather, is implicit in the 
GPA. The fact that there are many such exceptions contained in the Annexes makes it necessary 
to spell out the basic objectives of the Agreement.  The proposal makes it clear that, unless there 
is an explicit exception, the general principles of transparency and open competition should be 
applied.  [EC] 
• The principle of "open and effective competition " needs to be applied broadly rather than in a 
selective way to avoid undermining principles underlying  the agreement such as the principle of 
non-discrimination and to avoid a contrario  interpretations.  [EC] 
• Selectively citing the principle of non -discrimination in other provisions of the Agreement might 
create interpretation difficulties.  [US] 
• The princip le of "open and effective competition " should be applied in a general manner.  [US] 
• The reciprocity provisions would not be affected as implied by the wording "treating any supplier 
of any Party equally ". [EC] 
• The rationale behind the reference to the gener al principles of "open and effective competition " 
is that market forces are working and that suppliers can openly compete.  [EC in response to 
clarification sought by Japan;  the US;  Canada;  and Hong Kong, China]  
• The consistency of term "open and effective competition " with the use of selective and limited 
tendering procedures should also be clarified.  Would any adjustments need to be made in other 
specific provisions of the Agreement?  [US] 
• Article XV is an exception to the general principle of open and effective competition.  There may 
be other exceptions to the operation of the principle.  [EC] 
• The terms "reasonable ", "non-discriminatory " and "open competition " are not intended to be 
precise rules.  Rather, th ey are general principles that should influence the application of the 
provisions of the GPA.  The meaning of these terms will vary depending upon the procedures to 
which they are applied.  [EC in response to a question from Canada requesting clarification o f the 
term "reasonable "] 
• It may be useful to clearly state the principles that underlie the Agreement.  This would, for 
instance, help address issues such as non -discrimination in the context of framework contracts.  
The proposal merely increases the visibil ity of the core principles of the Agreement.  [EC in 
response to a question from Canada]  GPA/TN1994/2/Rev.13  
 
- 35 - 
 
  • Given the fact that measures in relation to transparency, reasonableness, non -discrimination, 
equality, and open and effective competition have been prescribed in vario us articles of the GPA, 
it is appropriate that such a general principle requirement be excluded from Article III.  
[Chinese  Taipei]  
Drafting suggestion  
• Perhaps the words "Except otherwise provided for in the Agreement, " should be added to the 
beginning of t he EC proposal to take account of the exceptions to the general principle of open 
and effective competition.  [Chinese Taipei]  
  GPA/TN1994/2/Rev.13  
 
- 36 - 
 
  Article III:1, 2  
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article III  
Non-discrimination  
 
 Basic Principles  
 
1. With respect to all laws, regulations, procedures 
and practices regarding government procurement 
covered by this Agreement, each Party shall provide 
immediately and unconditionally to the products, 
services and suppliers of other Parties offering products 
or services of the Parties, treatment no less favourable 
than:  1. With respect to any measure specifically 
governing procurement covered by this 
Agreement, each Part y shall accord to the goods 
and services of another Party and to the suppliers 
of another Party offering the goods or services of 
another Party, treatment no less favourable than 
the most favourable treatment the Party accords 
to: 
 
(a) that accorded to do mestic products, 
services and suppliers;  and 
 (a) its own goods, services and suppliers; and  
 
(b) that accorded to products, services and 
suppliers of any other Party.  (b) goods, services and suppliers of another 
Party.  
[US – Job No. 2867]  
 
2. With respect to all laws, regulations, procedures 
and practices regarding government procurement 
covered by this Agreement, each Party shall ensure:  2. With respect to any measure governing 
procurement covered by this Agreement, each 
Party shall ensure that:  
 
(a) that its entities shall not treat a locally -
established supplier less favourably than 
another locally -established supplier on the 
basis of degree of foreign affiliation or 
ownership;  and 
 (a) its entities do not treat a locally 
established supplier les s favourably  than 
another locally established supplier on the 
basis of degree of foreign affiliation or 
ownership;  and 
(b) that its entities shall not discriminate 
against locally -established suppliers on 
the basis of the country of production of 
the good or service being supplied, 
provided that the country of production is 
a Party to the Agreement in accordance 
with the provisions of Article  IV. (b) its entities do not discriminate against a 
locally established supplier on the basis 
that the goods or services offered by that 
supplier for a particular procurement are 
goods or services of another Party.  
[US – Job No. 1051]  
 
Comments  
In relation to the US proposal:  
• The title "National Treatment " should be retained since it is an important aspect of WTO rules.  
[Switzerland]  
• The reference to "measure " should be replaced with the reference to "laws, regulations etc. ", 
which is contained in the existing text, since the latter formulation is more comp rehensive.  
[Switzerland]  
• It is not obvious that the word "measure " is narrower than the existing text, which lists specific 
measures in an exhaustive fashion.  In fact, "measures " might be a broader term.  [US] 
• Clarification is sought as to whether there are  measures that have not been referred to in the 
existing text, which might be a vehicle for discrimination.  [US] 
• Clarification is sought as to the reason for and significance of the replacement of the word 
"products, " which appears in the current text, wit h the word "goods, " which is contained in 
proposed paragraph 1(a)?  [Switzerland]  
• The word "products " is ambiguous and can often mean services as well as goods.  [US; Canada]  
• The reference to "products " should be replaced with a reference to "goods ". [EC] GPA/TN1994/2/Rev.13  
 
- 37 - 
 
  • What is meant by "own goods, services and suppliers " and how does that differ from the 
reference in the existing text to "domestic products, services and suppliers "? [Switzerland]  
• The present Article III:1 -2 in the existing GPA is preferred over proposed Art icles III:1 -2 of US 
Job No. 2867.  Article III:2 of the US proposal in Job No. 2867 appears to impose a different 
(negative) obligation on Parties than the existing GPA Article III:2, which imposes a positive 
obligation to ensure compliance by their entities.  The existing wording is also consistent with 
other provisions of the GPA, such as Articles VI:2 -6 and XI:4.  [Hong Kong, China]  
General comments  
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership " in paragraph 2(a).  [Hong Kong, China;  US] This term seems to apply both to Parties 
and non -Parties to the Agreement.  The consistency of the scope of t his provision with that of 
paragraph 1 should be reviewed.  [Hong Kong, China]  
• Clarification is sought in relation to Hong Kong, China 's concerns in relation to the meaning of 
"foreign affiliation or ownership " in paragraph 2(a).  [Canada]  
• There may be scope  for inclusion of a provision on denial of benefits to non -Parties similar to 
that contained in Article 11 of the NAFTA Agreement.  It could be useful to clarify Members ' 
obligations under the Agreement in relation to benefits to be accorded to non -Parties.  [US] More 
detail is required in this respect.  [EC] Article 11 of the NAFTA Agreement merely clarifies parties ' 
rights.  [US] 
• GATS Article XXVII deals with the denial of benefits in relation to services.  [Secretariat]  
• Given that the GPA is a plurilateral ag reement, it is implicit that a non -signatory cannot avail 
itself of its benefits under the GPA.  [Singapore]  
• It is necessary to consider whether, because of the plurilateral nature of the GPA, it is necessary 
to adopt a different approach from, for example,  the GATS.  [US] GPA/TN1994/2/Rev.13  
 
- 38 - 
 
  Article III:3  
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall not 
apply to customs duties and charges of any kind 
imposed on or in connection with importation, the 
method of levying such duties and charges, other import 
regulations and formalities, and measures affecting 
trade in services other than laws, regulations, 
procedures and practices regarding government 
procurement covere d by this Agreement.  3. This Article shall not apply to customs 
duties and charges of any kind imposed on or in 
connection with importation, the method of 
levying such duties and charges, other import 
regulations and formalities, and measures 
affecting tra de in services other than laws, 
regulations, procedures and practices regarding 
government procurement covered by this 
Agreement.  
[EC – GPA/W/87 ] 
 
 Measures Not Specific to Procurement  
 
 6. The provisions of paragraphs 1 and 2 of 
this Article do not apply to cu stoms duties and 
charges of any kind imposed on or in connection 
with importation, the method of levying such 
duties and charges, other import regulations or 
formalities, and measures affecting trade in 
services other than measures specifically 
governing p rocurement covered by this 
Agreement.  
[US – Job No. 2867]  
 
 Additional subparagraph 4  
 
4. The provisions of paragraphs 1 and 2 shall 
not apply to circumstances where suppliers of 
Parties offering products or services of non -
Parties, or suppliers of non-Parties offering 
products or services of Parties.  
[Chinese Taipei – Job No. 7872]  
 
  GPA/TN1994/2/Rev.13  
 
- 39 - 
 
  Article IV  - Rules of Origin  
Article IV:1, 2  
Rules of Origin  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to products 
or services imported or supplied for purposes of 
government procurement covered by this Agreement 
from other Parties, which are different from the rules of 
origin applied in the normal course of trade and at the 
time of the transaction i n question to imports or supplies 
of the same products or services from the same Parties.  3. For purposes of procurement covered by 
this Agreement, no Party may apply rules of 
origin to goods imported from another Party that 
are different from or inconsist ent with the rules 
of origin the Party applies in the normal course 
of trade.  
[US – Job No. 2867]  
 
Comment  
• Since the negotiations on harmonization of rules of origin will take more time, the relevance of 
Article IV:2 is questionable.  [US] GPA/TN1994/2/Rev.13  
 
- 40 - 
 
  Article V  - Special and Differential Treatment for Developing Countries  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 Upon accession to the Agreement, a developing 
country shall enjoy all the benefits of the 
Agreement.  
It shall be obliged to comply with the obligations 
under this Agreement:  
- at central government level X years 
after accession  
- at sub -central government level  Y 
years after accession  
- as far as entities under Appendix  I, 
Annex 3 are concerned Z years after 
accession.  
[EC – GPA/W/87 ] 
 
Comments  
Regarding the EC proposal:  
• The EC proposal represents a new approach,  which attempts to facilitate the entry of developing 
countries into the GPA by simplifying and making less technical what is currently a complicated 
set of provisions.  [EC] 
• A possible effect of the proposed amendment, in particular the reference to transitional periods, 
could be that developing countries are deterred from acceding to the Agreement.  [Korea;  
Hong Kong, China]  
• The provisions of the existing Article are complicated and the Article has not served its intended 
purpose.  The current text of Article V is more likely to deter developing countries from joining 
the Agreement.  [EC] 
• The reference to compliance with "the obligations under this Agreement " might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in time.  
[US] It should mean that only the negotiated coverage would come into effect at that point in 
time. [US; EC] 
• Transitional periods are simpl y a way of accommodating developing country concerns as far as 
possible without putting the logic of the Agreement at risk.  The provisions on developing 
countries should not lead to the creation of two or three types of Members in the long term.  At 
the end  of the day, all Parties to the GPA should be full Parties and should have similar levels of 
obligations, taking into account their circumstances.  [EC] 
• Would the same transitional period apply to all developing countries regardless of their specific 
circum stances?  Providing a generic transitional period for central or sub -central government 
coverage for every developing country Party might not be appropriate.  [US] 
• How long should the transitional periods be?  [US] 
• Would the Annex 2 and Annex 3 commitments be  negotiated and finalized prior to accession of 
a developing country or would the implementation of those commitments be simply delayed?  
[US] 
• Obligations in relation to central government entities of developing countries that join the GPA 
would start from the date of accession.  However, in the case of sub -central entities as well as 
entities under Annex 3, there is a link to the provisions on "financial, trade and development " 
objectives of those countries, which are currently contained in paragraphs (a), ( b), (c) and (d) 
of Article V:1.  [Switzerland]  GPA/TN1994/2/Rev.13  
 
- 41 - 
 
  Article V:1  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
 Article ZZI  
 
Treatment for non -parties developing and  
least -developed countries  
 
1. Parties shall, in the implementation and 
administration of this Agreement, through the provisions 
set out in this Article, duly take into account the 
development, financial and trade needs of developing 
countries, in particular least -developed countries, in 
their need to:  
 ZZI:1.  Parties shall, in the implementation and 
administration of this Agreement, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least -developed countries.  
[Switzerland – Job No. 1274]  
 (a) safeguard their balance -of-payments 
position and ensure a level of reserves 
adequate for the implementation of 
programmes of economic development;  
  
 (b) promote the establishment or 
development of domestic industries 
including the development of small -scale 
and cottage industries in rural or 
backward areas; and economic 
development of other sectors of the 
economy;  
  
 (c) support industrial units so long as they 
are wholly or substantially dependent on 
government procurement;  and 
  
 (d) encourage their economic development 
through regional or global arrangements 
among developing countries presented to 
the Ministerial Conference of the World 
Trade Organizatio n (hereinafter referred 
to as the "WTO") and not disapproved by 
it.  
 
General comments  
In relation to the Swiss proposal:  
• Paragraph ZZI of the Swiss proposal attempts to consolidate existing GPA provisions dealing 
with non -Parties, developing and least-developed countries that were previously spread 
throughout the Agreement.  [Switzerland]  
• Support was expressed for simplifying the current provisions relating to developing countries.  
The Swiss proposal aims to clarify issues that are important to dev eloping and least -developed 
countries.  The proposal also seeks to streamline, re -organize and delete existing provisions that 
have proven not to be of particular use.  [Switzerland]  
• The existing Article V:1 is lengthy and contains a number of  provisions tha t probably do not have 
as much practical relevance as hoped for.  For example, in relation to the reference to balance -
of-payments, it might not be easy to identify cases where Swiss procurement has an impact on 
the balance -of-payments of some developing or  least-developed countries.  It might be more 
appropriate to replace the existing provisions with fewer words that refer to the development, 
financial and trade needs of developing countries.  [Switzerland]  
• Aruba, as a very small economy, is subject to heavy  fluctuations in foreign exchange incomes.  
Therefore, subparagraph 1(a) should not be deleted.  [The Netherlands with respect to Aruba]  
• Changes that are made should be consistent with the objectives of the Agreement.  They should 
also be realistic and operat ional.  [US] GPA/TN1994/2/Rev.13  
 
- 42 - 
 
  • The existing Article V does not make clear how or whether it addresses non -Parties whereas the 
Swiss proposal applies specifically to non -Parties.  [US] 
• Article ZZI is applied to non -Parties in response to the fact that the existing text of Article V 
contains a few sentences that refer to non -Parties but it is difficult to clearly establish the position 
in relation to such non -Parties.  [Switzerland]  
• With regard to accessions, it is important to provide flexibility to developing countries as 
appropriate in order to encourage and facilitate their participation in the Agreement as 
extensively as possible.  Flexibility should come in the form of market -access commitments and 
transitional periods rather than procedural flexibility.  In order to enjoy  the benefits of the 
Agreement, it is necessary to have transparent procedures, due process and competition etc.  
Therefore, any exceptions to those basic procedural commitments need to be considered 
carefully.  [US] 
In relation to the US Proposal (Job No. 1 235):  
• The US proposal seeks to make the language used in Article V more precise and operational and 
seeks to make Article V more flexible so as to allow the specific needs of developing countries 
to be addressed, taking into account the specific circumstan ces or needs of a particular country.  
The objective of the proposal is to ensure that developing countries are able to fully participate 
in and benefit from the GPA.  [US] 
• The existing Article V contains provisions that are favourable to LDCs.  Caution should be 
exercised with respect to the deletion of such provisions from the new GPA.  [Switzerland]  
• The US proposal shortens, simplifies and clarifies the provision relating to developing countries.  
[Switzerland]  
• The US shares the objective of resp onding to the needs, in particular, of LDCs and of doing 
everything possible to provide opportunities for such countries.  Existing Parties have already 
fulfilled the current GPA provisions relating to LDCs.  Therefore, it is questioned whether the 
current p rovision in the GPA needs to be retained or is part of a more general issue of more 
favourable treatment for LDCs.  [US] 
• It is difficult to establish criteria regarding how treatment should differ as between developing 
and least developed countries.  [EC] 
• The US proposal does not deal with adaptation of existing legislation to bring it into conformity 
with the GPA.  [Switzerland]  
  GPA/TN1994/2/Rev.13  
 
- 43 - 
 
  Article V:2  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation and 
application of laws, regulations and procedures affecting 
government procurement, facilitate increased imports 
from developing countries,  
 ZZI:2.  Consistently wit h the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and 
procedures affecting public procurement 
facilitate access to information on tendering 
opportunities for developing and least -developed 
countri es. 
[Switzerland – Job No. 1274]  
 
bearing in mind the special problems of least -developed 
countries and of those countries at low stages of 
economic development.  
 ZZI:3.  Bearing in mind the economic 
development needs of developing and least -
developed countries, the Parties shall facilitate 
increased imports for products representing 
particular export interests to these countries.  
[Switzerland – Job No. 1274]  
 
Comments  
In relation to the Swiss proposal:  
• Subparagraph 3 of Article ZZI may  violate the principle of non -discrimination, which underlies 
the Agreement.  [EC] 
• The idea underlying this proposed provision is to enable potential suppliers from developing or 
least-developed countries to, for instance, have a much better access to tende r notices and 
contracts that are going to be awarded.  This will help to increase imports from such countries.  
However, the language needs to be further sharpened to ensure that there is no ambiguity 
regarding treatment that ought to be given to non -Parties , developing and least -developed 
countries.  [Switzerland]  
  GPA/TN1994/2/Rev.13  
 
- 44 - 
 
  Article  V:3 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing countries 
are able to adhere to this Agreement on terms 
consistent with their development, financial and trade 
needs, the objectives listed in paragraph  1 shall be duly 
taken into account in the course of negotiations with 
respect to the procure ment of developing countries to 
be covered by the provisions of this Agreement.  
 
Developed countries, in the preparation of their 
coverage lists under the provisions of this Agreement, 
shall endeavour to include entities procuring products 
and services of export interest to developing countries.  ZZII:3.  In the course of accession negotiations, 
due account shall be taken of the development, 
financial and trade situation of acceding 
countries.  
[Switzerland – Job No. 1274]  
 
Comment  
• With regard to the issue of granting developing countries non -reciprocal access to procurement 
markets of Parties, should there be flexibility in offers of coverage by prospective Parties or 
should there be special provisions associated with the evaluation of offers under in dividual 
procurements by Parties?  [Canada]  
  GPA/TN1994/2/Rev.13  
 
- 45 - 
 
  Article V  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article ZZII  
 
Accession by developing and least -developed 
countries  
 
 1. Parties shall encourage countries acceding 
to the WTO as well as non -Parties developing and 
least -developed countries to accede to the 
Agreement on Government Procurement (GPA) 
and establish competitive public procurement 
regimes based on t ransparency, 
non-discrimination and national treatment.  
 
 2. Upon accession to the Agreement, an 
acceding country shall enjoy all the benefits of 
the Agreement on the basis of reciprocity.  
 
 3. In the course of accession negotiations, 
due account shall be taken of the development, 
financial and trade situation of acceding 
countries.  
 
 4. An acceding country shall adapt its 
national legislation on public procurement to 
make it compatible with this Agreement with, if 
necessary, transitional periods and review 
provisions linked with economic development.  
 
 5. An acceding country shall submit to the 
Agreement its central level government entities 
upon accession for goods and services under 
Appendix I, Annex 1.  
 
 6. An acceding country shall submit to  the 
Agreement its sub -central level government 
entities for goods and services under Appendix I, 
Annex 2, and its entities covered under 
Appendix  I, Annex 3 for goods and services with, 
if necessary, transitional periods and review 
provisions linked with economic development.  
 
  GPA/TN1994/2/Rev.13  
 
- 46 - 
 
  Comments  
• The objective of the Article ZZII is to articulate concisely some key elements associated with 
accession and to invite developing and least developed countries to seek membership.  
[Switzerland]  
• Proposed subparagraph 4 suggests that transitional periods apply in relation to substantive 
provisions of the Agreement, rather than just coverage.  The flexibility provided should be more 
in terms of coverage.  [EC] 
• Subparagraph 4 of the proposal is intended to be l inked to coverage.  If a country needs to retain 
domestic preferences for a certain period of time because of the existence of development 
programmes, it is possible to achieve that by not listing entities involved in such development 
programmes.  [Switzerland]  
• A number of the proposed provisions send some interesting signals but may have limited legal 
impact.  [EC] 
• It is hoped that there are some non -Parties who may consider acceding to the Agreement who 
are not necessarily developing or least -devel oped countries.  It is unclear whether having a 
separate provision on accessions is intended in any way to address such countries since the title 
refers to accession by developing and least -developed countries.  Article ZZIII refers to 
developing or least -developed countries which seems to confirm the impression that Article ZZII 
applies only to those types of countries.  [Canada]  
• It is proposed that the provision on accessions will be contained in the part of the Agreement 
that deals with developing and least  developed countries.  This part clearly will not apply to 
developed countries that wish to accede to the Agreement.  [Switzerland]  
• There are a wide range of circumstances in which developing countries find themselves and they 
have a wide range of needs and capabilities.  It is necessary to consider whether it is possible or 
appropriate to develop specific provisions that apply equally to that very broad and diverse group 
of countries.  [US; Canada]  
• While it is appropriate to acknowledge that there are circumst ances where special and differential 
treatment is warranted, the specifics for special and differential treatment for acceding countries 
should be a matter of negotiation and the Agreement should not become too prescriptive in this 
respect.  Given the scope  of paragraph 7, it is questioned whether the level of detail in 
paragraphs  4, 5 and 6 is necessary.  [Canada]  
• It is unclear what paragraph 2 is intended to mean and how this paragraph will work in 
conjunction with negotiated provisions.  [Canada]  
  GPA/TN1994/2/Rev.13  
 
- 47 - 
 
  Article V:4 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with other 
participants in negotiations under this Agreement 
mutually acceptable exclusions from the rules on 
national treatment with respect to certain entities, 
products or services that are included in its coverage 
lists, having regard to the particular circumstances of 
each case.  In such negotiations, the considerations 
mentioned in subparagraphs  1(a) through 1(c) shall be 
duly taken into account.   
 
A developing country participating in regional or global 
arrangements among developing countries referred to in 
subparagraph  1(d) may also negotiate exclusi ons to its 
lists, having regard to the particular circumstances of 
each case, taking into account, inter alia, the provisions 
on government procurement provided for in the regional 
or global arrangements concerned and, in particular, 
products or services w hich may be subject to common 
industrial development programmes.  ZZII:7.  Mutually acceptable temporary 
exclusions from the rules on national treatment 
with respect to certain entities, products or 
services that are included in the coverage lists of 
an acce ding country can be negotiated in 
particular circumstances linked with economic 
development.  
[Switzerland – Job No. 1274]  
 
  GPA/TN1994/2/Rev.13  
 
- 48 - 
 
  Article V:5, 6, 7  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. After entry into force of this Agreement, a 
developing country Party may modify its coverage lists 
in accordance with the provisions for modification of 
such lists contained in paragraph  6 of Article  XXIV, 
having regard to its de velopment, financial and trade 
needs, or may request the Committee on Government 
Procurement (hereinafter referred to as "the 
Committee ") to grant exclusions from the rules on 
national treatment for certain entities, products or 
services that are included in its coverage lists, having 
regard to the particular circumstances of each case and 
taking duly into account the provisions of 
subparagraphs  1(a) through 1(c).  After entry into force 
of this Agreement, a developing country Party may also 
request the Comm ittee to grant exclusions for certain 
entities, products or services that are included in its 
coverage lists in the light of its participation in regional 
or global arrangements among developing countries, 
having regard to the particular circumstances of e ach 
case and taking duly into account the provisions of 
subparagraph  1(d). Each request to the Committee by a 
developing country Party relating to modification of a list 
shall be accompanied by documentation relevant to the 
request or by such information a s may be necessary for 
consideration of the matter.  
 Article ZZIII  
 
Temporary exemptions to coverage for 
developing and least -developed countries 
Parties and further negotiations  
 
ZZIII:1.  In accordance with paragraph 6 of 
article XXIV, a developing or least -developed 
country Party may modify its coverage lists or 
may request the Committee on Government 
Procurement to grant temporary exemptions 
from the rules on national treatment for certain 
entities, products or services that are included  in 
its coverage lists, having regard to the particular 
circumstances of each case and taking duly into 
account its development, financial and trade 
situation.  
[Switzerland – Job No. 1274]  
6 Paragraphs 4 and 5 shall apply mutatis mutandis  
to developing countries acceding to this Agreement after 
its entry into force.  
  
7. Such agreed exclusions as mentioned in 
paragraphs 4, 5 and 6 shall be subject to review in 
accordance with the provisions of paragraph  14 below.  
 ZZIII:2.  Temporary exemptions shall be 
temporary, reviewed every two years, subject to 
compensations negotiations with other Parties 
and eliminated with the re -establishment of the 
previous situation.  
[Switzerland – Job No. 1274]  
 
Comment  
• Proposed paragraph ZZIII refers to temporary exemptions to coverage, such as those that can 
be sought during the implementation of the Agreement.  It consolidates and simplifies elements 
contained in Article V:7, 14 and 15 of the existing text.  [Switzerland]  GPA/TN1994/2/Rev.13  
 
- 49 - 
 
  Article V  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In negotiations on accession to this 
Agreement and in the implementation and 
administration of this Agreement, the Parties 
shall take due account of developing countries ' 
particular needs and circumstances, recognizing 
that such needs and circumstances may differ 
significantly from country to country.  In this 
context, the Parties shall give due consideration 
to a request by a develo ping country to 
incorporate within its market -access 
commitments in Appendix  I of this Agreement a 
transitional measure that addresses its particular 
needs and circumstances in relation to:  
(a) goods or services sectors in which 
the commercial viability of  it's 
domestic suppliers of such goods 
and services depends on their 
competitiveness in the country 's 
procurement markets; and  
 
(b) procurement by entities  whose 
procurements are not regulated by 
the procurement measures of the 
country 's central government . 
[US – Job No. 1235]  
 
Comments  
In relation to paragraph 1  of the US proposal:  
• Paragraphs 1 and 2 refer to "transitional measures ". The intention is to ensure that in cases 
where exceptions are negotiated, there should be a transitional mechanism which allows for a 
country 's particular needs to be addressed within a particular time -frame, but that such a 
country should fully participate as soon as possible.  The paragraph describes two situations in 
which such transitional measures might be appropri ate. The first, described in 
sub-paragraph  (a), is similar to the situation described in Article V:1(c) which concerns the 
commercial viability of domestic suppliers in developing country markets.  The second attempts 
to accommodate systems where there are differences in the organization of entities at all levels.  
[US] 
• Paragraph 1 combines language from Article V:I and 3 so that it would apply both to the 
implementation of the Agreement and to accession negotiations whereas those issues are dealt 
with separately in the existing Article.  [US] 
• With respect to paragraph 1(a), any company 's commercial viability depends upon 
competitiveness in the market.  [Switzerland]  
• The reference to "viability " in paragraph 1(a) is intended to relate to the existence or 
non-existence of a company rather than its level of commercial success.  Paragraph 1(a) is 
intended to deal with a situation where, for example, there is a rapid increase of competition in 
a market that might threaten to put a large proportion or all supplie rs in the market out of 
business.  [US] 
• With respect to paragraph 1(b), given that the GPA has been successful in stimulating open 
procurement between internal states, it might not be advisable to allow for the creation of a 
special regime for such procurem ent. [Switzerland]  
• This aspect of the proposal is closely related to Article ZZI:6 of the Swiss proposal.  It envisages 
flexibility for entities covered by the proposal.  [US] GPA/TN1994/2/Rev.13  
 
- 50 - 
 
  Article V  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT O N GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 2. For least developed countries, 
Article  III:I(a) of this Agreement 
notwithstanding, such requests for transitional 
measures may include a request to apply 
procurement price preferences in favour of 
domestic suppliers in goods or services sectors 
identified in subparagraph 1(a) of this Article.  
Any such transitional measure shall be applied 
for a limited period of time which, taking into 
account the acceding country 's particular needs 
and ci rcumstances, shall in no case exceed ten 
years.  Where the Parties agree to such a 
transitional measure:  
 
(a) all provisions of this Agreement 
except Article III:1(a) shall apply to 
procurement affected by such 
measures, and  
 
(b) in particular, the acceding  country 
shall ensure that such transitional 
measures are applied to all other 
Parties to this Agreement in 
accordance with Article III:1(b) of 
this Agreement.  
[US – Job No. 1235]  
 
Comments  
In relation to paragraph 2 of the US proposal:  
• Paragraph 2 of the  US proposal, which relates to LDCs, is an extension of paragraph 1 and 
contains exceptions to the principle of national treatment.  The proposal states explicitly that 
Parties may consider price preferences in favour of LDC enterprises during transitional periods 
to address specific needs in situations where the domestic suppliers may be vulnerable to rapid 
changes in the competitive situation.  Paragraph 2 also tries to make the relationship between 
this Article and the Article of the Agreement on national treatment more explicit.  [US] 
• The allowance of price preferences is not a substantial deviation from what is already envisaged 
in Article V:7.  Given the departures from commitments in the GPA that may potentially be 
allowed under the GPA, the transitional application of price preferences may be preferable to 
other types of exceptions and may also be more transparent.  [US] 
• Price preferences is amongst the most transparent mechanisms with which to introduce flexibility 
into this Article.  [EC] 
• Why is paragraph 2 limited to LDCs and not extended to developing countries?  [Switzerland;  
EC] GPA/TN1994/2/Rev.13  
 
- 51 - 
 
  Article V  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where, in the course of a ccession 
negotiations, the Parties agree to a transitional 
measure provided for in paragraphs 1 or 2 of this 
Article, each Party shall give due consideration to 
the possibility of applying this Agreement, 
immediately upon accession, to the goods, 
services and suppliers of the acceding country 
with respect to all procurement covered by 
Appendix I of the Agreement.  However, taking 
due account of the scope of any transitional 
measures requested and with a view to 
maintaining appropriate reciprocal trade 
opport unities under this Agreement, any Party 
may agree with the acceding country to limit the 
scope of coverage of that Party 's Appendix I that 
is provided to the acceding country during the 
agreed transition period.  Any such limitations 
shall be clearly identi fied in the Committee 's 
relevant accession decision and in each Party 's 
relevant annexes or notes to Appendix I.  
[US – Job No. 1235]  
 
 4. A request for a transitional measure 
provided for under paragraphs 1 or 2 of this 
Article may be made by a developing country 
during negotiations on accession to this 
Agreement or by a developing country Party after 
the Agreement has entered into force for that 
Party.  
[US – Job No. 1235]  
 
Comment  
• Paragraph 3 of the US proposal addresses the issue reflected in part by Article ZZII:2 of the 
Swiss proposal which contains a reference to reciprocal treatment.  Notwithstanding any 
transitional measures that may be agreed to, Parties should consider the possibility of offering 
their entire existing coverage to the rele vant acceding country.  However, there should also be 
the possibility for appropriate reciprocal arrangements to maintain a balance of interests during 
the transitional period.  [US] GPA/TN1994/2/Rev.13  
 
- 52 - 
 
  Article V:8  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 5. Upon accession, a Party benefiting from a 
transitional measure provided for under 
paragraphs 1 or 2 of this Article shall take such 
steps as may be necessary, including notifying 
the Committee of any specific technical 
cooperation needs, to ensure that the particular 
needs and circumstances warranting the 
transitional measure are appropriately 
addressed during the agreed transition period.  
[US – Job No. 1235]  
 
 
Technical Assistance for Developing Country Parties  Article ZZIV  
 
Technical assistance and information centres  
 
8. Each developed country Party shall, upon 
request, provide all technical assistance which it may 
deem appropriate to developing country Parties in 
resolving their problems in the field of government 
procurement.  ZZIV:1.  Each Member shall, upon request, 
provide all technical assistance which it may 
deem appropriate to acceding Parties and upon 
request to Parties which demonstrate ne ed for 
capacity building.  
[Switzerland – Job No. 1274]  
 
Comments  
In relation to the US proposal:  
• Paragraph 4 of the US proposal is a streamlined version of GPA Articles V:5 and 6.  [US] 
• Paragraph 5 of the US proposal specifically states that countries that  benefit from exceptions to 
the Agreement should take steps to ensure that their needs are being met during the transitional 
period.  This is to reflect the more general discussion that transitional measures should be 
needs -based.  [US] 
• While technical cooperation is important, it is unclear what technical cooperation can do in 
circumstances where the transitional measure is linked to the competitiveness of a part of an 
industry that may one day be able to become more through an increase in tec hnological levels 
or becoming more price competitive.  [Switzerland]  
• The provision on technical assistance in the US proposal is a restatement of Article V:8.  [US] 
In relation to the Swiss proposal:  
• Paragraph ZZIV contains elements from Article V:8, 9, and 11 of the existing Agreement.  The 
proposed paragraphs contains a number of additions in relation to tender procedures and 
documentation.  [Switzerland]  GPA/TN1994/2/Rev.13  
 
- 53 - 
 
  Article V:9, 10  
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on the 
basis of non -discrimination among developing country 
Parties, shall relate, inter alia, to: 
 ZZIV:2.  Technical assistance shall relate, inter 
alia, to: 
 
- the solution of particular technical 
problems relating to publications of tender 
and award notices, tender procedures, 
tender documentation, award procedures, 
remedy systems;  
 
- training of local purchasing entities.  
[Switzerland – Job No. 1274]  
- the solution of particular technical 
problems relating to the award of a specific 
contract;  and 
  
- any other problem which the Party making 
the request and another Party agree to 
deal with in the context of this assistance.  
  
10. Technical assistance referred to in paragraphs  8 
and 9 would include translation of qualification 
documentation and tenders made by suppliers of 
developing country Parties into an official language of 
the WTO designated by the entity, unless developed 
country Parties deem translation to be burdensome, and 
in that case explanation shall be given to developing 
country Parties upon their request addressed either to 
the developed country Parties or to their entities.   
 
  GPA/TN1994/2/Rev.13  
 
- 54 - 
 
  Article V:11  
Special and Differential T reatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. During a developing country 's accession 
process or after the entry into force of this 
Agreement for a developing country Party, the 
Parties shall give due consideration to any 
request by such a developing country for 
technical cooperation to address that country 's 
specific needs and circumstances in relation to 
the implementation of this Agreement and the 
exercise of the rights under this Agreement,  
including drawing on the benefits of such 
participation.  
[US – Job No. 1235]  
 
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to respond to 
reasonable requests from developing country Parties for 
information relating to, inter alia, laws, regulations, 
procedures and practices regarding governm ent 
procurement, notices about intended procurements 
which have been published, addresses of the entities 
covered by this Agreement, and the nature and volume 
of products or services procured or to be procured, 
including available information about future tenders.  
The Committee may also set up an information centre.  
 ZZIV:3.  Developed country Parties shall 
establish, individually or jointly, information 
centres to respond to reasonable requests from 
all Parties for information relating to, inter alia , 
laws,  regulations, procedures and practices 
regarding government procurement, notices 
about intended procurements which have been 
published, addresses of the entities covered by 
this Agreement, and the nature and volume of 
products or services procured or to be  procured, 
including available information about future 
tenders.  The Committee may also set up an 
information centre.  
[Switzerland – Job No. 1274]  
 
 7. Each Party shall establish an information 
centre to respond to reasonable requests from 
developing country Parties for information 
related to those Parties ' efforts to fully enjoy the 
benefits of participation in this Agreement.  Such 
information may include information relating to 
procurement plans, procedures or requirements 
with respect to procurement covered by this 
Agreement.  
[US – Job No. 1235]  
 
Comments  
In relation to paragraph 6 of the US proposal:  
• How will this paragraph be implemented given that the provision of technical assistance will take 
time and that there are many countries that would like to expedite their accession to the GPA?  
[Jordan]  
• The application of paragraph 6 would depend upon the particular needs of specific acceding 
countries.  It is difficult to anticipate what needs might exist in order to fully particip ate in the 
Agreement.  [US] 
In relation to paragraph 7 of the US proposal:  
• What is the purpose of the changes to the existing Article V:11, namely: changing the reference 
to developed country Parties with "each Party "; deleting the last sentence relating to  the 
establishment of an information centre;  and deleting the words "independently or jointly ". 
[Japan]  
• With respect to the establishment of an information centre by Parties, a developing country 
would be just as likely to be interested in procurement oppo rtunities in another developing 
country as procurement opportunities in a developed country.  Therefore, it would be useful for GPA/TN1994/2/Rev.13  
 
- 55 - 
 
  developing and developed countries alike to establish information centres.  This might be an issue 
to be addressed in the context of the provision of technical assistance in some cases.  [US] 
• With respect to the establishment of an information center by the GPA Committee, this has not 
yet been created although it is an existing obligation under Article V:11 of the GPA.  If the Parties 
intend to create the centre, then it should be created.  However, if there is no intention to do so, 
such an obligation should be removed from the Agreement.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 56 - 
 
  Article V:12, 13  
Special and Differential Treatment for Developing Countries  
 
AGREEM ENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed Countries  
  
12. Having regard to paragraph  6 of the Decision of 
the CONTRACTING PARTIES to GATT  1947 of 
28 November  1979 on Differential and More Favourable 
Treatment, Reciprocity and Fuller Participation of 
Developing Countries (BISD 26S/203 -205), special 
treatment shall be granted to least -developed country 
Parties and to the suppliers in those Parties with respect 
to products or services originat ing in those Parties, in 
the context of any general or specific measures in favour 
of developing country Parties.   
  
A Party may also grant the benefits of this Agreement to 
suppliers in least -developed countries which are not 
Parties, with respect to pro ducts or services originating 
in those countries.  
 ZZI:4.  Having regard to paragraph 6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28 November 1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD  26S/203 -205), a Party may grant the 
benefits of this Agreement to suppliers in least -
developed countries, with respect to products or 
services originating in those countries.  
[Switzerland – Job No. 1274]  
 
13. Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in least -developed 
countries in submitting their tenders and selecting the 
products or services which are likely to be of interest to 
its entities as well as to suppliers in least -developed 
countries, and likewise assist them to comply with 
technical regulations and standards relating to products 
or services which are the subject of the intended 
procurement.  ZZI:5.  Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in least -
developed countries in submitting their tenders 
and selecting the products or services which are 
likely to be of interest to its entities as  well as to 
suppliers in least -developed countries, and 
likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended 
procurement.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.13  
 
- 57 - 
 
  Article V:14 , 15 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Review  Article ZZV  
 
Review  
 
14. The Committee shall review annually the 
operation and effectiveness of this Article and, after each 
three years of its operation on the basis of reports to be 
submitted by Parties, shall carry out a major review in 
order to evaluate its effects.  As part of the three -yearly 
reviews and with a view to achieving the maximum 
implementation of  the provisions of this Agreement, 
including in particular Article  III, and having regard to 
the development, financial and trade situation of the 
developing countries concerned, the Committee shall 
examine whether exclusions provided for in accordance 
with the provisions of paragraphs  4 through 6 of this 
Article shall be modified or extended.  
 ZZV:1.  The Committee shall review on a two -
year basis the operation and effectiveness of 
Articles ZZI to ZZIV and, after each four years of 
its operation on the basi s of reports to be 
submitted by Parties, shall carry out a major 
review in order to evaluate its effects.  As part of 
the four -year reviews and with a view to 
achieving the maximum implementation of the 
provisions of this Agreement, including in 
particular Article III, and having regard to the 
development, financial and trade situation of the 
developing countries concerned, the Committee 
shall examine whether exclusions provided for in 
accordance with the provisions of Articles ZZII 
and ZZIII shall be modifi ed or extended.  
[Switzerland – Job No. 1274]  
 
15. In the course of further rounds of negotiations in 
accordance with the provisions of paragraph  7 of 
Article  XXIV, each developing country Party shall give 
consideration to the possibility of enlarging its coverage 
lists, having regard to its economic, financial and trade 
situation.  ZZIII:3.  In the course of further negotiations in 
accordance with paragraph 7 of Article XXIV, 
each developing and least -developed country 
Party shall give consider ation to the possibility of 
enlarging its coverage lists, having regard to its 
development, financial and trade situation.  
[Switzerland – Job No. 1274]  
 
Comment  
• The proposed paragraph ZZV deals with reviews of the provisions on special and differential 
treatment.  Provisions dealing with review of the whole Agreement could be placed elsewhere in 
the Agreement.  [Switzerland]  GPA/TN1994/2/Rev.13  
 
- 58 - 
 
  Article VI  - Technical Specifications  
Article VI:1  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety and 
dimensions, symbols, terminology, packaging, marking 
and labelling, or the processes an d methods for their 
production and requirements relating to conformity 
assessment procedures prescribed by procuring entities, 
shall not be prepared, adopted or applied with a view to, 
or with the effect of, creating unnecessary obstacles to 
international trade.  
 1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symbols, terminology, 
packaging, marking and labelling, or the 
processes and methods for th eir production and 
requirements relating to conformity assessment 
procedures 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.  
[EC – Job No. 876]  
 
Comment  
In relation to paragraph 1 of the EC proposal:  
• Is the word "unnecessary " needed in relation to "obstacles to international trade ". If open 
competition is sought to be achieved, any obstacle is unnecessary.  [Switzerland]  GPA/TN1994/2/Rev.13  
 
- 59 - 
 
  Article VI:2 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Technical specifications prescribed by procuring 
entities shall:  
 
(a) be in terms of performance and 
functional requirements rather than 
design or descript ive characteristics;  
and/or  
 
(b) be based on international standards, 
where such exist;  otherwise, on national 
technical regulations3, recognized 
national standards4, or building codes.  
  
 3For the purpose of this Agreement, a technical 
regulation is a document which lays down characteristics of a 
product or a service or their related processes and production 
methods, including the applicable administrative provisions, 
with which compliance is mandatory.  It may also include or 
deal exclus ively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a product, 
service, process or production method.  
4For the purpose of this Agreement, a standard is a 
document approved by a recognized body, that provides, for 
common and repeated use, rules, guidelines or characteristics 
for products or services or related processes and production 
methods, with which compliance is not mandatory.  It may 
also include or deal exclusively with terminology, symbols, 
packaging, marking  or labeling requirements as they apply to 
a product, service, process or production method.  2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in terms of performance rather 
than design or descriptive 
characteristics;  and 
 
(b) be based on international 
standards, where such exist;  
otherwise, on technical 
regulations3, recognized national 
standards4, or building codes.  
 
3 For the purpose of this Agreement, a technical 
regulation is a document which lays down 
characteristics of a product or a service or their related 
processes and production methods, including the 
applicable administrative provisions, with which 
compliance is mandatory.  It may also include or deal 
exclusively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
4 For the purpose of this Agreement, a standard 
is a document ap proved by a recognized body, that 
provides, for common and repeated use, rules, 
guidelines or characteristics for products or services or 
related processes and production methods, with which 
compliance is not mandatory.  It may also include or 
deal exclusiv ely with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
[EC – Job No. 876]  
 
Comments  
With respect to performance -based specifications:  
• The EC proposal refers to technical specifications in terms of performance standards and 
international standards and this is a warranty for the competitive use of specifications.  Any 
departure from those standards should be fully justified.  However, since an overly formalistic 
approach could also be restrictive and impose an unnecessary burden on entities, technical 
specifications that are not fully compatible with all the details of international standards that 
nevertheless meet the "essential requirements " of the procuring entity should also be considered 
in the tendering process.  Such an approach strikes a fair balance between the need to facilitate 
competition and the need to allow for innovative solutions while preserving what has been 
achieved in the field of international stan dardisation.  [EC] 
• The current text of the Agreement promoting the use of performance -based specifications where 
possible, provides scope for procuring organisations to seek innovation solutions.  Performance 
specifications that focus on the purpose or outco mes sought by government could be sufficiently 
broad to permit suppliers to propose innovative solutions.  It is unclear that any change to the 
Article is needed to achieve that objective.  [Canada]  
• The difficulty is how to make sure that the provision that is already in the Agreement on the 
promotion of performance -based standards is implemented.  [EC] 
• "Technical specifications " are not the same thing as "technical standards ". The former is the 
complete definition of the entity 's requirements t hat are needed for the procurement.  In the 
majority of procurements, especially high dollar value procurements that are covered by the 
GPA, purpose -built specifications would be relevant rather than choosing amongst different 
standards off -the-shelf althou gh those could be used for parts of a technical specification.  
However, it would be rare that there would be something off -the-shelf for everything associated 
with a covered procurement.  On that basis, when the requirements for procurement are being 
define d, it is a question of whether those requirements are defined on the basis of the GPA/TN1994/2/Rev.13  
 
- 60 - 
 
  performance that is needed for that particular requirement rather than pulling out some sort of 
defined requirement for a particular product.  [Canada]  
• The EC does not associa te "technical specifications " with "technical standards ". In its view, 
technical specifications could be achieved in different ways and one possibility is that an existing 
standard could be used for the whole of a technical specification.  In most cases, th e Party would 
define technical specification for its own purposes and this is precisely the objective of having a 
reference to performance -based standards.  This Article exists because Parties recognize that, 
because of inertia or tradition, when a Party us es traditional solutions there is a risk that that 
might block innovative solutions and might also block participation by suppliers from other 
Parties.  The basis for the solution to a real problem is already contained in the Agreement.  The 
challenge is how  to make the provision effective without unnecessarily restricting the freedom 
of the entities.  [EC] 
• Unlike the EC proposal, the US proposal excludes references to mandatory regulations and 
building codes as it is unclear whether it is necessary to state t hat a procurement has to be 
consistent with mandatory requirements.  [US] 
• It is important that technical specifications are developed in a way that ensures, to the extent 
possible, that they focus on the end -needs of the procuring entity rather than use des igned -
based specifications which would limit competition.  [US] 
• The EC proposal states that specifications should be based on international standards, where 
they exist.  The US had previously suggested that there should be a reference to international 
standa rds that are applicable to a Party.  [US] 
• The implication of the hierarchy in paragraph 2(b) of the EC proposal, and more specifically, the 
use of the words "otherwise, on " is that technical specifications would be based on international 
standards.  If such standards do not exist, then the specifications would be based on national,  
technical regulations and recognised national standards of building codes.  It is unclear whether 
such a hierarchy makes sense in practice since national technical regulations are u sually 
mandatory and there would be an expectation that entities would base any specification on 
technical regulations that are mandatory in the system in which they are operating.  [US] 
• The phrase "recognized national standards " may cause some difficulty because in the US, 
standards are not "recognized ". [US] 
• Standards change and evolve rapidly.  Usually, existing standards do not cover all technical 
aspects of a good that is to be purchased.  The objective of the proposal is to ob lige the procuring 
entity to announce at the outset of the procurement process, the details of the good on the basis 
that it will accept and assess any solution provided the quality is the same as the quality it is 
has prescribed.  [EC] 
• With respect to prop osed paragraph 2(a) of the EC proposal, the objective of discouraging the 
use of complicated government specifications - particularly, design -based specifications – is 
shared.  This paragraph should make it clear that performance standards should be used un less 
a government specification is needed.  [US] 
• Procuring entities should be allowed to prepare technical specifications in terms of design or 
descriptive characteristics, wherever appropriate, to take into account situations for instance 
where a procuring  entity hires a consulting firm to prepare the detailed design of a construction 
work and the procuring entity then uses design as part of tender documentation to invite tenders 
from construction firms.  [Chinese Taipei]  
With respect to international standards:  
• Reference to international standards may place excessive restrictions on procuring entities ' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambiguity associated with what constitutes an "international standard " and the 
procedures according to which those standards are set.  [Korea;  US] The objections that have 
been raised regarding the definition of "international standards " also apply in relation to the 
current provisions.  [EC] 
• Clarification or elaboration is needed as to what is meant by "international standards " to avoid 
different interpretations among Members.  [Japan]  
• The reference to international standards is contained in the original text.  The intention is to get 
a clearer view as to what is already contained in the Agreement.  [EC] GPA/TN1994/2/Rev.13  
 
- 61 - 
 
  • The issue of international standards is currently being discussed in the context of the triennial 
review of the TBT Agreement.  [EC; Canada]  Also, the GPA Committee should not duplicate the 
work being undertaken in the TBT Committee.  [EC; US] 
• Given that the GPA currently provides for a hierarchy with international standards taking 
precedence over national standards, what is the rationale for treating all standards as having 
equal footing, as appears to be the case under the US proposal?  [Canada]  
• If a standard is developed in an appropriate way, whether international or domestic, it should 
be considered to be a legitimate standard and, therefore, there is not a need to establish a  
hierarchy amongst standards.  [US] 
• Subparagraph (b) of the Agreement should make reference to voluntary compliance with 
market -based standards instead of international standards.  [US] 
• The proposal should be clarified whether an implication of a requirement  on procuring entities 
to accept specifications that comply with international standards would be the delegation of the 
certification process to an independent expert.  [Japan]  
  GPA/TN1994/2/Rev.13  
 
- 62 - 
 
  Article VI  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Each Party shall ensure that its entities do 
not prepare, adopt or apply any technical 
specification with the purpose or the effect of 
creating unnecessary obstacles to trade.  
[US – Job No. 2867]  
 
 3. In establishing the technical 
specifications for each good or service being 
procured, each Party shall ensure that its entities 
specify, whenever available and applicable to 
that Party, an existing domestic or international 
consensus standard, except where th e use of a 
consensus standard would fail to meet the 
entity 's program requirements or would impose 
more burdens than the use of a government -
unique standard.  
[US – Job No. 2867]  
 
 4. Each Party shall ensure that, wherever 
appropriate, any technical specif ication 
prescribed by its entities is specified in terms of 
performance requirements for the good or 
service being procured rather than design or 
descriptive characteristics.  
[US – Job No. 2867]  
 
Comments  
With respect to "consensus standards " in paragraph 3 above:  
• National standards may directly conflict with those in another country.  The existing formulation 
of this Article allows the procuring entity to choose between conflicting national standards.  
[Singapore]  
• It is important to refer to us e technical specifications that have been agreed by the largest 
possible number of potential users and buyers.  The use of traditional techniques for 
standardization may not be sufficient or optimal in some cases.  Accordingly, some flexibility has 
to be pro vided.  [EC] 
• A standard should be openly and fairly developed with input from any interested Party.  [Canada]  
• The US proposal (Job No. 2867) needs to be updated.  [US] 
With respect to "wherever appropriate ": 
(NB: The following comments were made in relation to an EC proposal that has subsequently been 
amended.  However, they may be relevant in relation to paragraph 4 of the US proposal.)  
• The proposal tries to clarify the meaning of what is meant by the term "where appropriate " in 
the current text.  The proposal allows some flexibility for procuring entities when setting up 
technical specifications while ensuring compliance with the non -discrimination principle.  [Japan]  
• The words "where appropriate " in the chapeau paragraph are too flexible and have been  deleted 
in order to clarify what is meant by the exception.  [EC] 
• Further consideration of the meaning of "appropriate " is required.  Deletion of the words "where 
appropriate " may raise the question of burden of proof in terms of what is and what is not 
appropriate.  Should flexibility be restricted further by defining more clearly what situations are 
"appropriate " and which are not?  [US] 
  GPA/TN1994/2/Rev.13  
 
- 63 - 
 
  Article VI  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would not 
apply when the procuring entity may objectively 
demonstrate that this would be ineffective or 
inappropriate for the fulfilment of the legitimate 
objectives pursued.  Procuring entities relying on 
this exception shall maintain an official record 
explaining why these conditions apply.  
[EC – Job No. 876]  
 
Comments  
• The proposed paragraph 3 makes it clear that when the requirements in paragraph 2 of the 
proposal are departed from, an entity should be prepared to provide an objective justification 
for such a departure.  [EC] 
• Would this requirement raise the burden of proof on procuring entities in relation to use of the 
exception and, if so, what would the implications of that be?  [US; Hong Kong, China]  
• The priority accorded to performance -based standards and international standards is already 
contained in the GPA.  The EC proposal attempts to clarify what that hierarchy means in practice.  
An exemption me chanism is not being proposed where entities have to first ask for permission.  
However, it is necessary to impose a minimum requirement in the Agreement to entities who 
consider it necessary to depart from the relevant principles to provide an objective ex planation.  
[EC] 
• Should records of why a particular available standard was not used in relation to every single 
procurement decision be kept or would it be possible to keep records of the decision taken as a 
general matter, that a particular standard would not meet an entity 's needs?  Would it be possible 
to record that once and not have the administrative burden of going through that process every 
time a procurement decision is made?  [US] 
• If the explanation given in the broader decision applie s to a specific procurement, then there is 
not a significant difference between having a record of the broad decision and having records of 
decisions that are made every time a procurement is made.  [EC] 
• Repeated references to record -keeping in other Articl es of the Agreement could call into question 
its interpretation in this Article.  [Canada]  
• The requirement on record -keeping is midway between the current situation which is flexible 
and the compulsory use of a certain specification which might be counterpr oductive in some 
cases.  [EC] 
• With respect to the requirement to maintain official records, does this mean that entities are 
required to record why they use design or descriptive specifications as opposed to performance -
based specifications? If so, it is unclear whether this is necessary or appropriate.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 64 - 
 
  Article VI  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. In all the cases procuring entities shall 
consider bids which do not comply with the 
provis ions of the technical specifications but do 
demonstrably meet the essential requirements 
thereof and are fit for the purpose intended.  The 
reference to the technical specifications in the 
tender documents must include words such as 
"or equivalent ". 
[EC – Job No. 876]  
 
Comments  
• The EC proposal attempts to introduce the notion of flexibility.  Technical specifications, either 
when defined in terms of performance standards or defined in terms of international standards, 
should not be absolute requirements but rather a benchmark against which solutions have to be 
measured.  [EC; Japan]  
• The distinction between essential requirements, th at is, the basic objectives of a procurement, 
and items that are ancillary should be integrated into the Agreement.  If suppliers are required 
to comply with every detail contained in a technical specification, this could be considered to be 
a barrier to tr ade in most cases.  Part of the reason why the EC has proposed this provision is 
that it has come across instances within its own system, especially with regard to international 
standards, that technology that meets essentially the same specifications, stan dards, and has 
the same performance is rejected on the basis that it does not meet the standard in question.  
That is why the EC sees it as a measure to actually open up the markets in question.  [EC] 
• How will bids which do not comply with the technical spec ifications but do demonstrably meet 
the essential requirements be treated?  [Jordan]  
• Bids that meet the essential requirements will be treated on an equal footing with all other bids. 
The solutions that will be accepted must be indicated at the inception of  the tendering procedure.  
[EC] 
• Bids that fulfil the "essential requirements " of international standards should be considered 
equally with other bids.  Further, bids that are based on international standards should be 
considered even when technical specifica tions are formulated as performance requirements, 
provided that the bids fully address the essential requirements of the specifications.  [EC] 
• What would be the implications of proving that a bid meets the "essential requirements "? [US] 
• The reference to "essential requirements " is a reference to core objectives underlying technical 
specifications irrespective of whether they were based on an international standard or a domestic 
standard.  This principle achieves a balance between providing  competitive conditions and 
allowing the procuring entity to achieve its objectives.  The burden of proof involved would only 
require the supplier to show that its solution can work.  [EC] 
• The current language could potentially allow an entity to construe th e term "essential 
requirements " narrowly and award a contract to a supplier that offers a product that appears to 
be inferior to other offered products.  There is a concern that contracts would not be awarded in 
a transparent way.  [US] 
• If a tenderer would l ike to offer an alternative solution, that is, a solution that does not meet 
the requirements of the tender documents, or is not in conformity with the tender documents, 
the supplier should request the procurement entity to revise the documents.  If the pro curement 
entity does not accept such a suggestion, then the supplier should use the challenge procedure 
mechanism to ask for a revision to the tender documents instead of submitting a proposal or 
offer that is not in conformity with the tender documents.  [Chinese Taipei]  
• There is a concern that the tender documents should be clear and legally certain.  It would be 
unacceptable to allow a party to submit any offer, regardless of what is contained in the technical 
specification.  Any solution has to fulfil the essential needs of the entity but there is also the 
possibility for new suppliers to submit alternative proposals that perhaps the contracting entity GPA/TN1994/2/Rev.13  
 
- 65 - 
 
  is not accustomed to or aware of.  Such flexibility preserves legal certainty and allows for new 
opportunit ies within the framework of the Agreement.  [EC] 
• Is Article VI the appropriate location for the consideration of the issues related to the evaluation 
of bids?  In particular, the proposal in its current form is inconsistent with the non -discrimination 
obliga tion of the Agreement, and with the fundamental aspect of the Agreement that contract 
award decisions be based on the essential requirements that have been provided in advance to 
all potential suppliers.  How could the EC proposal be implemented in a non -discriminatory way?  
Essentially, the proposal seems to be suggesting that at some point in the evaluation the 
standard on which the evaluation is based could be changed, and suppliers would have no 
advance knowledge of this.  It is very difficult to see how t hose who had bid according to the 
original specifications would consider this to be fair and non -discriminatory, or those who had 
not bid at all because they did not think that they could meet the original written specifications, 
would consider this to be non-discriminatory.  Could the EC provide some clarification as to how 
they see the Agreement would provide sufficient checks and balances to deal with those two 
situations?  [Canada]  
• The proposed paragraph could be placed in another part of the Agreement as  long as an 
agreement on the substance can be reached.  However, since the existing Article deals with 
technical specifications as does the proposed paragraph, this is probably the appropriate place 
for its inclusion.  [EC] 
• Canada 's concern about the inconsi stency of the EC proposal with the principle of 
non-discrimination is unwarranted because provided that the principle proposed by the EC is 
applied in a non -discriminatory way, it can actually have the effect of opening up markets to 
suppliers whose produc ts may not meet the specifications.  The key test to that is whether from 
a technical point of view the bid demonstrably meets the essential requirements and is fit for 
the purpose intended.  The EC considers that to be a technical issue, and it does not nec essarily 
think it is a question of discrimination.  [EC] 
• The first sentence of paragraph 4 appears to entail an evaluation process and, further, to suggest 
that the specifications or the criteria that have been prescribed in advance could be changed 
during the evaluation process.  It is also unclear whether this paragraph is consistent with the 
requirement in another EC proposal concerning the treatment of tenders and contract awards 
that "To be considered for an award, a tender must be in writing and must at  the time of opening 
conform to the essential requirements of the notices and tender documentation. " [Canada]  
• The first sentence of paragraph 4 is problematic since it may be subject to a subjective 
interpretation.  It would also result in uncertainty which , in turn, could be abused by unsuccessful 
suppliers.  [Hong Kong, China]  
• The proposal as to bids that do not comply with entities ' technical specifications but which 
"demonstrably meet the essential requirements thereof and are fit for the purpose intended ", 
can only be considered for procurement where award is made to the most advantageous bid by 
involving negotiations.  In case that an award is made to the lowest bid, bids submitted by 
interested suppliers shall meet technical specifications withou t exception or deviation.  
[Chinese  Taipei]  
With reference to "or equivalent " in the second sentence:  
• The words "or equivalent " may cause difficulties for those that have to assess whether a bid is 
"equivalent " to another.  [Japan]  
• The reference to "or equiv alent" is intended to address the issue of performance versus 
design -based specifications.  It is unclear what the equivalent of a performance -based 
specification would be since a performance -based specification would state what should be 
achieved by a part icular good or service without specifically stating how.  Accordingly, an 
alternative should not be offered in relation to performance -based specifications.  [US] 
• This Article seeks to ensure that the procuring entity keeps an open mind and considers bids 
that comply with all the "essential requirements ". This provision does not impose upon entities 
the obligation to lower its requirements nor to accept designs of a lower quality.  Rather, all 
solutions must be assessed and evaluated on an equal footing.  [EC] 
• It is an ideal conception to add the expression, or "equivalent ", to each technical specification 
and to consider equivalent specifications in all tenders in accordance with Article VIII:4 of the 
EU proposal.  However it would be difficult to decide the ext ent to which equivalent specifications GPA/TN1994/2/Rev.13  
 
- 66 - 
 
  should be considered.  Furthermore, problems, such as the possible conflict of opinions between 
procuring entities and suppliers on the measures to recognize the equivalence, the possible delay 
in contracting procedure s when the judgment of the equivalence takes some time, and the 
possible increase in burden to the procuring entities, could arise.  What solutions does the EU 
envisage to overcome these problems?  [Japan – Job No. 5474]  
• While there are cases where it is generally feasible to consider equivalent specifications, there 
are, for example, cases where:  complete conformance to the technical specifications is 
indispensable in order to secure safety and durability at a high level; and where the purposes of 
the pro curement, which include the test on specific material(s) or method(s) of construction, are 
not fulfilled unless complete conformance to the technical specifications is secured.  Taking into 
account the above cases, it is possible to apply the EU proposal to  all procurements.  Moreover, 
if one of the purposes of the EU proposal is to enhance the opportunities for new firms and 
foreign firms to participate in the tendering procedures, there would appear to exist, however, 
different approaches to improve transpa rency in the process for determining specifications.  
Among the approaches could be the system where the procuring entity finalizes the technical 
specifications, which are to be included in the tender documentation after giving all the 
interested suppliers an advance opportunity to present their opinions on, or the material for, 
technical specifications, provided that there is enough time and that it is technically feasible.  
[Japan - Job No. 5474]  
• There is a concern – especially when standards are used, and in areas where there is much 
technological change – that specifying certain technical specifications does not provide the 
flexibility and the possibility for competing suppliers whose products would also perform what 
the procuring entity requires, and that such suppliers would be excluded by a too rigid application 
of the notion of technical specifications.  The notion of "or equivalent " has to take into account 
the bids that demonstrably meet the "essential requirements " thereof and are fit for the purp ose 
intended.  Where safety and durability at a high level is indispensable that would be an "essential 
requirement ". The same applies to situations where it is "essential " that the purposes of the 
procurement are not fulfilled unless complete conformance t o the technical specifications is 
secured, in particular with regard to performance -based technical specifications.  Nevertheless, 
there are a number of cases where the too rigid use of – for instance – standards would exclude 
a number of bids that would me et the needs of the bidder.  [EC in response to Japan]  
  GPA/TN1994/2/Rev.13  
 
- 67 - 
 
  Article VI:3  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference to a 
particular trademark or trade name, patent,  design or 
type, specific origin, producer or supplier, unless there 
is no sufficiently precise or intelligible way of describing 
the procurement requirements and provided that words 
such as "or equivalent " are included in the tender 
documentation.  
 5. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and pr ovided that words such as 
"or equivalent " are included in the tender 
documentation.  
[EC – Job No. 876]  
 
 5. Each Party shall ensure that the technical 
specifications prescribed by its entities do not 
require or refer to a particular trademark or trade 
name, patent, design or type, specific origin or 
producer or supplier unless there is no 
sufficiently precise or intelligible way of 
otherwise describing the procurement 
requirements and provided that, in such cases, 
words such as "or equivalent " are included  in the 
tender documentation.  
[US – Job No. 2867]  
 
Comments  
• The words "or equivalent " seem to suggest that a government can authorize the manufacture 
of a product of a similar design as the one specified.  Would the words "or equivalent " have any 
implications under intellectual property law?  [Hong Kong, China]  
• The notion of "equivalence " is already contained in the existing paragraph 3 of Article VI and is 
aimed at ensuring that when contracting entities refer to a particular trademark in technical 
specifications because there is no other practical way of defining what is bein g sought, they 
should foresee the possibility of providing an opportunity to alternatives that do not infringe 
intellectual property rights but, nevertheless, provide the same kind of solution to the  needs of 
the contracting entity.  [EC] 
• The words "or equi valent " deal with a real practical problem, are necessary and should be 
retained.  Whereas theoretically, there may be a perception that there is an intellectual property 
problem, it is not a problem in practice.  [US] GPA/TN1994/2/Rev.13  
 
- 68 - 
 
  Article VI:4  
Technical Specifications  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a manner 
which would have the effect of precluding competition, 
advice which may be used in the preparation of 
specifications for a specific procur ement from a firm that 
may have a commercial interest in the procurement.  6. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may be 
used in the preparation of specifications for a 
specific procurement from a person that may 
have a commercial interest in the procurement.  
[EC – Job No. 876]  
 
 6. Each Party shall ensure that its entities do 
not seek or accept, in a manner that would have 
the effect of precluding competition, advice that 
may be used in the preparation or adoption of 
any technical specification for a specific 
procurement from a person that may have a 
commercial interest in that procurement.  
[US – Job No. 2867]  
 
Drafting suggestion  
• Suggest replacing the word "person " by "suppli er" as it is already defined to include both natural 
persons or enterprises.  It would be very difficult and sometimes not practically feasible to identify 
a person as the person who actually provides advice on technical specifications.  [Hong  Kong, 
China]  GPA/TN1994/2/Rev.13  
 
- 69 - 
 
  Article VII  - Tendering Procedures  
Article VII:1  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VII  
 
Tendering Procedures  Article VII  
 
Methods of Procurement  
 
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a non -
discriminatory manner and are consistent with the 
provisions contained in Articles  VII through XVI.  1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a 
non-discriminatory manner and are consistent 
with the provisions contained in Articles VII 
through XVI.  
[Singapore – Job No. 3772]  
 
Comments  
• Because Article VII and all other provisions of the Agreement are subject to Article III, the 
repetition of the non -discriminatory rule in Article VII:1 does not appear to be necessary.  
Selective repetition of this rule may in fact raise unintended interpretative questions.  [US; 
Canada]  
• The provisions on tendering procedures should be reviewed to accommodate the use of two -
stage tendering and electronic catalogues.  [Singapore]  
General comments  
In relation to the EC proposal (Job No. 876):  
• The proposal refers to the term "procurement process ". For reasons of coherence, this term 
should be used throughout the text of the Agreement.  [EC] The US proposal uses the term 
"procurement " throughout its text but defines "procurement " as a process.  [US] 
• The proposal does not attempt to alter the substanc e of Article VII.  Rather, it suggests changes 
to the definitions of the three main categories of tendering procedures.  These changes are aimed 
at explaining more clearly how the procurement process works.  [EC] 
• The changes regarding selective procurement at tempt to focus attention on the essence of the 
selective tendering process.  In particular, a selective tendering process involves a two -stage 
process. The first stage  involves the qualification of suppliers.  The second stage involves the 
submission of tend ers by the suppliers that have successfully qualified during the first stage.  
[EC] 
• The definition of limited procurement should focus on the main feature of limited procurement, 
being the fact that the procuring entity contacts a supplier/s of its choice a nd the entity may or 
may not choose not to publish a notice.  [EC] 
• The EC proposal appears to alter the most important terms in the GPA, that is the names given 
to different kinds of tendering procedure.  From a practical perspective, is there a need to amen d 
those names?  [Hong Kong, China]  
• The proposal retains reference to the three main categories of tendering procedures.  It is useful 
to retain the three categories since this familiarises users with the categorisation and enables 
countries to choose their own procurement methods. [EC]  
In relation to US proposal (Job No. 1051):  
• The proposal seeks to remove references to spe cific types of procedures – i.e. open, selective 
and limited tendering.  The objective of this change is based primarily on a perception that seems 
to be prevalent among non -Parties to the Agreement that the GPA appears to dictate the kind 
of procedures tha t can be used in particular circumstances.  Accordingly, the US proposal seeks 
to establish a basic framework of rules within the GPA that will apply to all covered procurement, 
regardless of the method of procurement used.  Parties ' entities are free to cho ose the 
appropriate method of procurement provided that any given procurement is within the 
framework of rules set out in the GPA.  [US] GPA/TN1994/2/Rev.13  
 
- 70 - 
 
  • Selective tendering is useful, for example, in relation to design consulting procurements for 
public works, where it is important to select a fixed, limited number of suppliers to submit bids 
after qualification to reduce the burden on the procurement officials.  Therefore, the removal of 
a reference to selective tendering is of concern.  [Japan]  
• It is not being suggested tha t the GPA should be amended to disallow the use of selective 
tendering.  However, it is not considered necessary to specifically state in the GPA that selective 
tendering is allowed.  Further, it may not be appropriate or efficient to specify in the Agreemen t 
the various types of procurement procedures that may be allowed within the framework of the 
GPA since that could potentially lead to reference to a long list depending upon how tendering 
or procurement procedures are defined.  [US] 
• Our experience suggests  that the real issue is not whether one has open or selective tendering 
but under which conditions the two types of tendering procedures are applied, and whether 
procurement entities are going to play by the rules or not at all, that is for instance, not t o 
publish at all.  For many procurement entities, the conditions under the relevant provisions of 
the GPA remain too far away from regular business practices.  For instance, deadlines is a factor 
keeping many entities away from applying the Agreement as such . Therefore, in order to have 
the Agreement better applied, which is our objective, we need to truly simplify it.  Whether we 
mention those procedures or not is up to us, but the selective procedure is a procedure which is 
more complex, more detailed and mo re difficult than others.  Our experience is that selective 
tendering is far less used because the risk to run into a challenge in a selective tendering 
procedure is much higher than in an open one.  The objective of entities is not to run into any 
challenge , therefore they try to apply the open procedure as much as possible because there 
are less decisions being taken, and it is easier to get it in such a way that it does not get 
challenged.  [Switzerland]  
  GPA/TN1994/2/Rev.13  
 
- 71 - 
 
  Article VII  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article VII  
 
Methods of Procurement  
 
 1. Each Party shall ensure that the 
procurement methods of its procuring entities 
comply with the principles of equality of 
treatment, transparency and non-discrimination, 
and are consistent with the provisions contained 
in Articles  VII through XVI.  
[EC – Job No 876]  
 
Comments  
• Article VII of the EC proposal restates the principle of non -discrimination.  There are a number 
of other instances in the EC proposal where the principle is restated or interpreted.  This should 
not be necessary in a streamlined and simplified text.  [Canada]  
• Paragraph 1 above and other provision contain references to the principle of non -discrimination 
to ensure that the principl e applies to or is reflected in those provisions.  Such references may 
not be necessary, depending upon how Article III which, contains the general obligation on non -
discrimination is revised.  [EC] 
• EC proposed paragraphs 1 and 2 dealing with treatment of tenders and contract awards and 
paragraph 4 dealing with the qualification of suppliers contain various formulations of the 
principle on non -discrimination.  The principle of non -discrimination is an overriding obligation 
and should apply to al l of the Articles without qualification.  [Canada]  
• All references to the principle of non -discrimination will be re -examined.  Specific references have 
been made in cases where the principle is considered to play a more critical role.  For instance, 
the short -listing of qualified suppliers is a critical phase of the procurement process.  Therefore, 
references to non -discrimination have been made in that sense.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 72 - 
 
  Article VII:2  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFIC ATIONS  
2. Entities shall not provide to any supplier 
information with regard to a specific procurement in a 
manner which would have the effect of precluding 
competition.  2. Entities shall not provide to any supplier 
information with regard to a specific 
procurement in a manner which would have the 
effect of negatively affecting competition.  
[Singapore – Job No. 3772]  
 
Comments  
• The reference to "negatively affecting competition " in paragraph 2 of the Singaporean proposal 
is a useful concept.  [EC] 
• Should information with regard to a specific procurement be provided to all suppliers 
participating in a tender or only to those suppliers who have reached a certain stage in the 
procure ment process?  [EC] 
• The EC proposal appears to have deleted paragraph 2 of the existing text.  That paragraph 
permits the procuring entities to provide information to prospective suppliers, provided that they 
do not do so in a manner which would have the eff ect of precluding competition.  [Hong Kong, 
China]  
• The EC proposal has provisionally deleted this provision.  While the provision of information to 
suppliers in way that does not harm competition is considered to be important, the provision 
should perhaps ha ve a more general scope and perhaps should be located in a place other than 
Article VII.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 73 - 
 
  Article VII  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Additional new paragraph  
 
 A person may not prepare or take decisions 
in a public tendering procedure where his 
impartiality may be affected by family ties, 
business links, cross -representation or other 
reasons that may cause a conflict of interest.  
[Norway – Job No. 7935]  
 
Comments  
• An Agreement that includes  a commitment to preventing potential conflicts of interest will:  
strengthen the underlying framework and principles for fair competition in the Agreement and 
reduce the possibility of biased decisions in the tendering procedure;  clearly state what the 
Parties expect of officials involved in procurements;  be in conformity with efforts in other 
international forums to combat corruption and promote sound public administration.  [Norway]  
• The objective of the proposal is to create an obligation that will prevent  contracting authority 
representatives who may experience a conflict of interest from preparing or taking decisions in 
public tender procedures.  Such conflicts of interest may be of a financial, professional or personal 
nature and typically arise in situat ions involving family ties, business links and 
cross-representation of contracting authority officials or bidders.  The term cross -representation 
includes situations where individuals represent the contracting authority and at the same time 
are, for example , members of a board in a firm that is competing for a public contract.  [Norway]  
• Article VII, paragraph 1 refers to the general principle of non -discrimination and commits the 
Parties to the Agreement to ensuring that the tendering procedures are applied by their entities 
in a non -discriminatory manner.  It may be argued that the scope of Article VII, paragraph 1 
includes an obligation on the Parties to prevent officials that may have a conflict of interest in 
the procurement from preparing or takin g decisions in the tendering procedure.  However, as the 
wording of Article  VII, paragraph 1 is general, this is unclear.  [Norway]  
  GPA/TN1994/2/Rev.13  
 
- 74 - 
 
  Article VII:3  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
 (a) Open tendering procedures are those 
procedures under which all interested 
suppliers may submit a tender.   
  (a) Open tenders are those which are 
posted in a medium which is [in the 
public domain] [readily available to 
both local and foreign suppliers], 
and which all interested suppliers 
may submit a tender.  
[Singapore – Job No. 3772]  
 
 2. For the purposes of this Agreement:  
 
  (a) Open procedures are those 
procurement processes under which 
all interested suppliers may submit 
a tender.  
[EC – Job No. 876]  
 
 3. (a) Open tendering procedures are 
those procedures under which, in 
consistency with the conditions for 
participation published in each 
notice of propos ed procurement 
under paragraph 6 of Article IX, all 
interested suppliers may submit a 
tender.  
[Japan – Job No. 6846]  
 
Comments  
• The phrase "in the public domain " in the proposal by Singapore is not necessary.  [Korea]  
• Does the EC proposal attempt to alter the classification of open tendering procedures and 
selective tendering procedures?  [Japan]  
• Further qualification is necessary with regard to open tendering procedures.  The Japanese 
proposal (Job No. 6846) does not intend to change the scope of open tendering procedures;  it 
just confirms that even in open tendering procedures, consistency with the conditions of 
participation published in each list of proposed procurement should be assured.  [Japan]  GPA/TN1994/2/Rev.13  
 
- 75 - 
 
  Article VII  
Tendering Procedures  
 
AGREEMENT ON GOVERN MENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Selective tendering procedures are those 
procedures under which, consistent with 
paragraph 3 of Article  X and other 
relevant provisions of this Agreement, 
those suppliers invited to do so by the 
entity m ay submit a tender.   
  (b) Selective tenders are those which, 
consistent with paragraph  3 of 
Article X and other relevant 
provisions of this Agreement, 
selected suppliers are invited to do 
so by the entity, and the information 
on the tender is not posted in a 
medium which is [in the public 
domain] [readily available to both 
local and foreign suppliers].  
[Singapore – Job No. 3772]  
 
Comments  
• It may not be appropriate to define the procedure in terms of the medium through which 
information on selective tendering opportunities is provided.  In most cases, notices of selective 
tendering are published in the same way as for open tendering procedures.  For transparency 
purposes, requirements for publication of notices of invitation to tender should a lso apply to 
selective tendering procedures.  [US] 
• With regard to the absence of a reference to selective tendering procedures in the US proposal, 
selective procedures may occur separately and independently of the qualification of suppliers 
(GPA Article VII I). The US assumes that selective tendering is feasible under the qualification 
provision of Article VIII without preparing separate provisions for selective tendering.  Would the 
selection of a fixed number of participants (e.g. 10 participants), based on the Article X of the 
current GPA, be consistent with Article VIII:(b) of the current GPA or Article VIII:4 of the US 
proposal if the conditions for qualification provided in Article VIII were applied to selective 
tendering procedures as well?  While simplif ication of the provisions of the GPA should be 
pursued, selective tendering procedures should be allowed, as under the current GPA, even if 
the provisions are reviewed and subsequently revised for the purpose of the simplification.  
[Japan ] 
• The US proposal does not include an equivalent to Article X because the US does not consider 
that it is necessary to list and define different types of tendering procedures in the Agreement.  
[US] 
• Article VII:3(b), which relates to selective tendering, refers to suppliers "invited " to submit 
tenders.  However, the EC proposal does not refer to this.  Did the EC intend to change the nature 
of selective tendering through its proposal?  [Japan]  
• What is the link between Articles VII, VIII and X?  Is selective tendering ess entially a qualification 
process?  [Japan]  
• For the EC, selection is related to qualification in that selection is based upon qualification.  
Selection pursuant to Article X must occur in a fair and non -discriminatory manner.  It is difficult 
to see how select ion can be a fair and non -discriminatory selection without the occurrence of a 
qualification procedure.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 76 - 
 
  Article VII  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 (b) Selective procurements are those 
procurement processes under which, in 
accordance with paragraphs 4 and 7 of 
Article XVI and other relevant provisions 
of this Agreement, only suppliers 
satisfying qualification requirements are 
invited by the procuring entity to submit 
a tender.  
[EC – Job No. 876]  
 
Comments  
• Does selective procurement mentioned in the EC proposal have the same scope of procurement 
as the selective tendering procedures mentioned in the current GPA or did the EC intend to 
change the scope of the Agreement in this respect.  Is the relationship between qualification and 
open/selective tendering procedures under the current GPA the same as that between 
qualification and open/selective procurement under the EC proposal?  [Japan – Job No. 5474]  
• The term "selective procure ment" in the EC proposal is used interchangeably with "selective 
tendering ". [EC] 
  GPA/TN1994/2/Rev.13  
 
- 77 - 
 
  Article VII  
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) Limited tendering procedures are those 
procedures where the entity contacts 
suppliers individually, only under the 
conditions specified in Article  XV.  (c) Limited tenders are those where the 
entity contacts suppliers 
individually, only under the 
conditions specified in Article XV.  
[Singapore – Job No. 3772]  
  (c) Limited procurements are those 
procurement processes where the 
procuring entity contacts suppliers 
of its choice, only under the 
conditions specified in paragraph 4 
of Article IX.  
[EC – Job. No. 876]  
 
Comment  
• The proposed inclusion of the words "of its choice " in the EC proposal is desirable.  [Hong Kong, 
China]  GPA/TN1994/2/Rev.13  
 
- 78 - 
 
  Article VIII  - Qualification of Suppliers  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of Suppliers  
 In the process of qualifying suppliers, entities 
shall not discriminate among suppliers of other Parties 
or between domestic suppliers and suppliers of other 
Parties.  Qualification  procedures shall be consistent with 
the following:  
 1. Entities maintaining permanent lists of 
qualified suppliers shall not discriminate among 
suppliers of other Parties or between domestic 
suppliers and suppliers of other Parties.  
Qualification procedur es shall be consistent with 
the following:  
 
General comments  
• The rules regarding qualification systems should be simplified and clarified.  However, first, it is 
necessary to determine whether Parties have a common understanding of qualification systems.  
and what is meant by "qualification procedures ". The current GPA primarily relates to situations 
involving pre -qualification - that is, situations where complex procurement is involved and there 
is a need to preview the abilities of suppliers to determine whether they are able to fulfil the 
conditions of the contract.  The pre -qualification or pre -selection of suppliers might cause 
problems and, therefore might deserve particular attention under the GPA.  [EC] 
• The US proposal may send a  signal encouraging increased use of qualification systems.  
Qualification should remain a possibility but it is necessary to strike the right balance.  [EC] 
• The US does not want to encourage the use of a qualification procedure when it is not 
appropriate.  When appropriate and necessary, qualification procedures should be available.  
However, in other cases, the unnecessary use of qualification procedures might violate the basic 
obligations underlying the Agreement.  The Agreement should address this concern.  [US] 
• Regarding the issue of whether there is a common understanding of what is meant by 
qualification procedures, it appears that sometimes references are made to "qualification 
procedures " whereas other times references are made to "pre-qualification " procedures.  Some 
governments refer to those two terms as if they are synonymous.  However, the US understands 
"qualification " to include any requirement that establishes the ability of the supplier to fulfil a 
contract.  These requirements may be very complex in  some cases, such as for construction 
projects and major consulting projects, so that pre -qualification is necessary to ensure an 
efficient process.  At the same time, there are often situations where qualification requirements 
may be relatively simple so t hat pre -qualification is not required.  Rather, tenderers may be 
required, as part of the tendering process itself, to indicate that certain qualification criteria have 
been fulfilled.  There may be a range of qualification procedures.  The most restrictive m ay involve 
lists of pre -qualified suppliers and the most liberal may involve situations where an open 
tendering procedure is used that requires demonstration of fulfilment certain "qualification " 
criteria in the tender documents.  [US] 
• Qualification is a crucial part of the tendering procedure, both when it takes place separately 
from the tendering procedure and when it takes place as part of a larger procurement procedure.  
In particular, qualifica tion may take place simultaneously with the submission of tender offers 
or prior to the submission of offers.  Some degree of detail is required in order to guarantee that 
qualification can take place without harming competition.  The US proposal is not suff icient to 
guarantee that selective procedures can take place in a non -discriminatory and competitive 
manner.  [EC] 
• The interpretation that a notice is not required in relation to selective tendering is not shared, 
although the relevant Articles in the exist ing GPA are somewhat confusing.  Streamlining is 
necessary.  Qualification is important.  Therefore, it is necessary to have appropriate disciplines 
for qualification regardless of the point when qualification actually occurs - whether it occurs in 
one or two  stages or it occurs as part of the process of choosing between tenders in an open 
tendering situation.  [Canada]  
• The US proposal apparently does not reflect two stages that may be associated with a 
qualification procedure – namely, stage one which involves  pre-qualification and stage two which 
may involve the application of additional selective procedures such as the application of GPA/TN1994/2/Rev.13  
 
- 79 - 
 
  non-discriminatory criteria such as the financial state of the company in question and its 
technical capabilities.  [Japan]  
In relation to the revised US proposal on qualification (Job No. 1051):  
• The new US proposal attempts to clarify the scope of the application of Article VIII.  The existing 
Article VIII is entitled "Qualification " whereas it might be more appropriate to refer to  the broader 
term of "conditions for participation ". For example, in many countries, including in the United 
States, there may be situations in which suppliers may be required to be included in a registry 
in order to participate in procurement.  The normal purpose of a registry is to verify certain 
generic qualifications such as financial and legal status.  Registration would seem to fall within 
the meaning of the term "conditions for participation ". The new proposal repeats the phrase 
"registration, qualific ation or any other conditions for participation " to be as clear as possible.  
However, the final draft may include a definition of the term "conditions of participation " as 
meaning "registration, qualification or any other conditions for participation ". [US] 
• Registration lists appear to be a form of qualification for which the qualification requirements 
are not particularly significant, such as a requirement to register interest and/or certain 
minimum information.  It is questioned whether a distinction shoul d be drawn between minimum 
requirement qualification and more onerous forms of qualification.  [EC] 
• With regard to all the provisions in the Agreement with respect to selective tendering and 
qualification, the function that is taking place each time the field of potential suppliers is being 
reduced is an application of some form of qualification.  This is true for registration systems 
unless they are for purely record -keeping, accounting purposes;  for government -wide supplier 
qualification systems;  for pro duct-specific lists of suppliers, whether those lists are permanent 
or temporary;  and for one -time procurement -specific lists.  The distinguishing feature of each of 
these activities is that they reduce the pool of potential suppliers, and make the eventual  
procurement process less open and transparent.  The extent of the qualification that takes place 
in any one of these circumstances can range from minimal verification of financial or legal 
capability to an extensive assessment of compliance with technical specification, or a mix of the 
two. Increasingly, with large outsourcing projects countries may undertake a multi -stage 
process.  Possible new Members identify this section of the Agreement as one of the major 
difficulties in considering membership and adop ting the procedural requirements of the 
Agreement on Government Procurement.  When GPA Parties developed the Agreement, their 
view was that less open processes should have more disciplines.  Canada believes that Members 
can continue to achieve this objective  through greatly simplified terminology and processes in 
the Agreement.  It is important that Parties all recognize that the Agreement is a framework 
within which countries may carry out their obligations in different ways, and that Parties should 
strive fo r this framework recognizing that none of the Parties have the same internal systems of 
terminology.  Parties should not be attempting to replicate their internal systems but establish 
this framework within which we can assure our suppliers that they will r eceive fair and non -
discriminatory treatment in foreign markets.  As result, Canada is concerned with some of the 
more recent proposals for these sections of the Agreement, which appear to add to the rigidity 
and level of detail in the Agreement, particular ly in the area of selective tendering.  Rather than 
trying to identify in the Agreement all the circumstances where Members are committed to 
narrow the pool of suppliers, Members should be focusing on what disciplines will apply every 
time the pool of suppl iers is narrowed.  To achieve this goal, a complete rewrite of the tendering 
procedures, qualifications and time limits sections of this Agreement is required.  [Canada]  
In relation to the EC proposal (Job No. 876):  
• Qualification may occur in the context of open, selective and limited tendering procedures.  For 
example, it may occur as part of a single process of awarding a contract.  Other times qualification 
may occur separately from the contract award process.  The EC proposal attempts to reorganise 
Article V III to make this distinction clear.  The general rules are found in the first sub -paragraph 
and apply every time an entity has to verify that the conditions for participation are met by 
actual or potential bidders in the case of open procurement.  A separate  subparagraph has been 
proposed to deal with the use of a permanent list of qualified suppliers.  A new provision has 
been inserted, which is based on the existing Article that deals with selective tendering, to deal 
with the case where selective tendering entails a two -stage procedure.  During the first stage, 
qualification is verified.  During the second stage, only qualified suppliers are allowed to submit 
bids. [EC] GPA/TN1994/2/Rev.13  
 
- 80 - 
 
  • With respect to two -stage selective tendering, selection should be based upon criteria that  are 
known in advance through publication in the notice of intended procurement.  [EC] 
• Regarding the use of permanent lists of qualified suppliers, this list must be open at all times so 
that any interested bidder is able to request inclusion in the list at any time even in cases where  
such lists are used in connection with a particular award process.  Subsequent inclusion in the 
list should not be dependent upon whether or not the entity has time to qualify since this would 
make it too easy for the en tity to say that it had no time.  [EC] 
• The proposal maintains the possibility to use permanent lists as a closed system for Annex 3 
entities because it is believed that these entities are different in important respects from Annex  1 
and Annex 2 entities.  [EC] 
• The EC 's proposal helps to clarify the relationship between Article VIII and X of the existing GPA.  
[US] 
  GPA/TN1994/2/Rev.13  
 
- 81 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) any conditions for participation in tendering 
procedures shall be published in adequate time 
to enable interested suppliers to initiate and, to 
the extent that it is compatible with efficient 
operation of the procurement process, complete 
the qualification pro cedures;  1. Procuring entities shall ensure that any 
conditions for participation in a procurement 
covered by this Agreement are limited to those 
that are essential to ensure a potential supplier 's 
ability to execute the contract in question.  
[EC – Job No. 876]  
 
 7. Suppliers requesting to participate in a 
given intended procurement who are not on the 
permanent list of qualified suppliers shall be 
given the possibility to participate in the 
procurement by presenting the equivalent 
certifications and oth er means of proof requested 
from suppliers who are on the list,  
[EC – Job No. 876]  
 
Comments  
• Consultations among the GPA Parties suggest there may not be consensus on the meaning, in 
GPA Article VIII, of the term "conditions for participation ". It may be useful to clarify how the 
provisions of that Article apply to "conditions for participation " other than qualification 
requirements, such as supplier registries.  This issue may be of particular importance to some 
countries who are in the process of acceding to the GPA or who may consider it in the future.  
Revision of the initial US proposed Article VIII would require technical modifications (mostly of 
terminology) elsewhere in the text.  [US] 
• The criteria for selection under Article X are not covered under Article VIII(a).  The GPA should 
make clear that the Article X selection criteria is cove red under Article VIII(a).  [Japan]  
In relation to paragraph 7 of the EC proposal:  
• Paragraph 7 of the EC proposal is perhaps too ambitious in that it obliges entities to consider 
every new supplier that wants to be included in the list.  The EC proposal shou ld be modified to 
take account of the burden that would be imposed upon procuring entities.  [Japan]  
• It is important to ensure that suppliers are given the possibility to participate in a procurement 
even if they are not included in a permanent list and eve n if they are not registered on condition 
that they can prove that they are as capable and competent as those that have been included 
on the list.  This ability is particularly important in cases where registries are used.  In the EC 's 
internal experience, r egistration should not be used as an exclusive means of deciding whether 
or not a supplier should be allowed to submit a bid.  Further, there may be situations where 
suppliers are interested in a particular contract but are not necessarily interested in bei ng 
included in a  permanent list or registry, for instance in registries of local chambers of commerce 
which sometimes requires payment of sums and may entail cumbersome processes.  [EC] 
• The relationship between paragraph 7 and paragraph 4 of the EC proposal  should be determined.  
[US] 
• The EU proposal provides that procuring entities, other than those listed in Annex 3, shall always 
consider those suppliers not listed in the permanent list.  However, in this case, the procuring 
entities need time to examine an applicant 's eligibility.  It would, therefore, seem clear that 
procurement entities, being short of time necessary to examine, cannot deal with applicants 
having applied just prior to the deadline for submitting tenders.  In Japan, the entities listed in 
Annex 1 and Annex 2 have been using permanent lists in most procurement cases, and all central 
government entities have been using the common permanent lists for procurement of goods and 
general services.  The possibility of application by e -mail for enrolment  in the lists has, for 
example, been made available for the convenience of suppliers.  Regarding the procurement of 
construction services, enrolment in the lists is also executed reasonably and promptly.  As long 
as a prompt enrolment in the permanent list i s secured, it is not necessary to oblige procuring 
entities to consider those suppliers not listed in the permanent list.  [Japan - Job No. 5494] GPA/TN1994/2/Rev.13  
 
- 82 - 
 
  • The concern underlying the EC 's proposal is that such lists will effectively operate in a closed 
way. The EC proposal seeks to ensure that the participation of foreign companies that may not 
have the resources to be on all the lists for all entities in a given area or country is not prevented.  
[EC] GPA/TN1994/2/Rev.13  
 
- 83 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Registration, Qualification and Other Conditions 
for Participation  
 
1. Where an entity requires suppliers to 
satisfy registration or qualification  requirements 
or any other conditions for participation in a 
procurement, the entity shall publish a notice 
inviting interested suppliers to apply for 
inclusion in a registry, qualification, or 
recognition of satisfaction of any other 
conditions for participation and shall provide no 
less than 15 calendar days prior to the final date 
for the submission of tenders for such suppliers 
to submit their applications.  This notice may be 
the same as the notice of intended procurement 
required under Article V of this Agreement or a 
separate notification rel ating to such 
requirements or conditions.  
[US – Job No. 1051]  
 
 2. Where, at any time within the 15 -day 
period referred to in paragraph 1 of this Article, 
a supplier that has not previously registered, 
qualified or satisfied any conditions for 
participation submits an application, the entity 
shall promptly start the relevant procedures and 
shall allow such supplier to participate in the 
procurement, provided there is sufficient time to 
complete the procedures within the time -period 
established f or the tendering process.  
[US – Job. No. 1051]  
 
 (b) any conditions for participation in 
tendering procedures shall be limited 
to those which are essential to 
ensure the firm 's capability to fulfil 
the contract in question.   
 
Comments  
• With respect to Article VIII:(b) of the Agreement, ways should be found to reduce administrative 
burdens on suppliers, particularly SMEs, regarding the procedures for the proof of their technical, 
financial and commercial capacity.  [Korea]  
• In relation to Article VIII(b) o f the Agreement, is it possible to have "blacklists " of suppliers and 
to provide for procedures that allow such lists to be passed between concerned entities?  [Jordan]  
• The Agreement allows each Party to disqualify suppliers that may, for some reason  (for e xample 
fraud) warrant the use of a blacklist.  However, it seems that Jordan is suggesting something 
beyond what is currently available under the Agreement.  [US] 
In relation to the reference to "registration " in paragraphs 1 and 2 of the US proposal:  
• With respect to the introduction of the new concept of a "register ", since qualification precedes 
registration, it is questioned whether reference to registration is needed and whether it helps to 
clarify.  [Switze rland]  
• While registration is normally based upon a qualification process, in some non -GPA countries, 
the registration process appears to entail more of a simple, administrative process without any 
clear relationship to qualification.  Further, in some cases , it can constitute a serious barrier to 
trade.  Therefore, the motivation for including this concept was to clarify that registration should 
serve the purpose of qualification.  [US] GPA/TN1994/2/Rev.13  
 
- 84 - 
 
  • The EC has an open mind with regard to a reference to registration require ments.  The way in 
which the registry is used in the procurement process should be compatible with the EC proposal 
in paragraph 7.  [EC] 
In relation to paragraph 2 of the US proposal:  
• Article VIII currently requires that a qualification process be open, including cases when a 
permanent list of suppliers is created under Article IX.  There should be an opportunity for 
suppliers at all times to request qualification and if there is sufficient time during the tendering 
process, to qualify and participate in t he procurement process.  That principle should continue to 
apply in cases of open and selective tendering as currently defined in the Agreement.  
Paragraph  2 of the US proposal provides that if closed list of pre -qualified suppliers are used, 
that principle will not apply.  [US] 
• There may be cases where local knowledge or experience is important.  Article VIII should be 
retained.  The phrase "provided there is sufficient time to complete the qualification procedure 
within the time -period established for the tend ering process " is problematic.  Apart from creating 
operational difficulties, it will likely lead to dispute and bid challenges because a deadline is not 
set. To be fair to both procuring entities and suppliers and in order to be predictable as 
mentioned in  paragraph 2 of the Preamble, it is strongly recommended that the phrase be 
amended as follows:  "provided the qualification procedures can be completed by the final date 
for the submission of tenders, or a later date specified by the procuring entity in th e notice 
referred to in paragraph 1 of this Article ". [Hong  Kong, China]  
• Warranties should be introduced into the system to avoid the closing of qualification systems to 
newcomers.  This could be a critical point in adapting the GPA to new electronic procur ement 
methods.  The new means offered by electronic systems to increase opportunities and to increase 
transparency should be taken into account  [EC] 
• Is it practically possible to qualify new suppliers while the tendering process is under way?  
Suppliers who fail to abide by the time -limits would have another opportunity to qualify, which 
seems unfair.  If all suppliers have equal opportunity to participate, the practicality of including 
new suppliers in an ongoing qualification would be a secondary issue.  There would be a rolling 
deadline so that suppliers could qualify at any time.  [Singapore]  
• An important provision contained in the GPA and in the US proposal is that even in the case 
where a pre -qualification process occurs and an invitation is sent to pre -qualified suppliers to 
submit tenders, the Agreement still requires publication of the invitation notice and requires 
entities to consider the possibility of qualifying suppliers who did not pre -qualify in time.  [US] 
• At some point in a qualification proce ss for a particular procurement, an entity may establish a 
time-limit beyond which it will no longer accept applications.  Both under the GPA and the US 
proposal, there should be an opportunity for interested supplies who are not qualified to apply 
for qual ification during the procurement process.  However, at some point in time, the entity 
might state that it is no longer practical to receive applications.  [US] 
Comments concerning the 15 -day period  
• Fifteen calendar days for the submission of an application f or qualification might be too short a 
period for suppliers to estimate costs after they receive notices of the result of the qualification 
process.  [Switzerland;  Japan]  
• While 15 days may be too short for many types of procurement, the reference to 15 days in 
paragraph 1 does not mean that there should be 15 days up until the final date for the submission 
of tenders but, rather, that the entity should ensure that there is at least 15 days provided for 
suppliers to submit applications for qualification and ha ve the applications for qualification 
processed.  [US] 
• If, for example, a notice requesting submission of tenders states that there will be 90 days 
between the date of issue of the notice and the final date for the submission of tenders, the 
entity must pro vide at least 15 days for the submission of applications for qualification.  The 
remaining 75  days after the submission of the applications for qualification should be left open 
for the submission and processing of tenders.  The initial period could be longe r. However, the 
US proposal suggests that that period should be a minimum of 15 days.  [US] 
• In the case of construction works contracts, open tendering procedures may be used in 
conjunction with a pre -qualification procedure, including demonstration of rele vant technical 
skills and experience.  In light of this, with respect to the reference to the completion of a 15 -GPA/TN1994/2/Rev.13  
 
- 85 - 
 
  day period in paragraph 1 of the US proposal, to which period does this refer?  Does this refer to 
the last day of the tender period or the first  day on which suppliers can apply for qualification or 
neither of these?  The GPA should provide a sufficiently long period between the day when the 
supplier knows whether or not it is qualified and the day by which tenders must be received.  In 
the case of contracts for construction works, suppliers want to commence detailed cost 
estimation after they have been informed that they have qualified for a particular tender.  The 
current GPA provides that similar considerations apply in relation to selective tender ing. 
However, the US proposal does not include such considerations.  [Japan]  
• The US proposal seeks to create a provision (paragraph 1) that would apply to situations in 
which there is one notice of intended procurement which includes qualification requireme nts that 
must be satisfied.  In that case, the qualification period would exist within the same time -frame 
as the tendering period.  It is also intended to cover the situation in which there may be two 
different notices, the first of which invites interested  suppliers to apply for qualification and the 
subsequent notice relates to the invitation to tender.  In the latter case where there are two 
separate notices, the time -period envisaged could be fulfilled before the tendering process 
begins.  In other words, if 15 days were the appropriate time -period (as compared to 25 days in 
Article VIII(b) of the current text), that could apply to the qualification period and upon 
expiration, a notice inviting tenders could be issued.  The proposal attempts to encompass both 
situations in order to make the provisions flexible enough to cover the full range of possibilities.  
[US] 
• In relation to construction works, qualification requirements relating to experience of similar 
construction works and availability of necessary qualified engineers for each individual 
construction work is widely used.  How would Article VIII:1 and 2 of the US proposal deal with 
this type of qualification.  [Japan]  
• In the case of construction works involving this type of qualification, all suppliers who wish to 
participate in tendering procedures shall be subject to the qualification procedures.  In the case 
of construction works involving qualification where suppliers are registered in the list of qualified 
suppliers, qualification procedure s are necessary only for suppliers who have not been registered 
in the list.  Therefore, suppliers (i.e. construction companies) would begin cost estimates for the 
calculation of bid price only after they have been informed of the result of qualification.  In other 
words, suppliers need a period long enough for cost estimation after they have received notices 
of the qualification result.  The current GPA takes this point into consideration for selective 
tendering (cf. Article XI:2(b)).  [Japan]  
• As for construction work projects in Japan, the qualification of a supplier occurs on the basis of 
their experience gained from similar construction works, and on the ability to secure necessary 
qualified engineers for each individual construction work, as well a s on whether the supplier is 
registered in the permanent list.  We understand that the first set of criteria (experience and 
availability of qualified engineers) is also widely used for construction works in many other 
countries.  If a construction work proj ect requires this kind of qualification, Japan notes that all 
suppliers (i.e.  construction companies) would only be willing to engage in estimating the bidding 
price after having been informed of the result of the qualification, given that this involves 
substantial costs.  Therefore, suppliers need a period that is long enough to prepare the cost 
estimation after having received notice of the qualification  result.  The "15 days " rule in 
Article  VIII:1 and 2 of the US proposal might have an effect of reducing flexibility, in that the 
period might not be long enough to prepare the cost estimation after receiving notice of the 
qualification result.  [Japan - Job No. 8474 ] 
• It would be appropriate not to prescribe an exact time -limit for the qualification of new sup pliers.  
In case that the qualification involves tests or examination of samples, it may take more time 
than the suggested time -limit to complete the qualification process.  [Chinese Taipei]  Echoing 
the views of Chinese Taipei with regard to qualification, t he EC is concerned that – given that 
one of the primary goals of the GPA is to open up access to government procurement – 
permanent lists may be used to actually foreclose those markets from access by suppliers from 
other countries.  On the one hand, the EC  proposal reflects the belief that there should be a 
minimum time specified for qualification.  "Sufficient time " is interpreted in different ways, and 
sometimes quite restrictively in certain GPA Parties.  On the other hand, this is an important 
issue in th e GPA review because often more time is needed by suppliers from other countries to 
meet qualification requirements.  This is especially the case where certificates concerning tax, 
social security, and incorporation of a company have to be provided and tran slated.  [EC] New 
suppliers should be given sufficient time to prepare their bids.  [Korea]  GPA/TN1994/2/Rev.13  
 
- 86 - 
 
  • The entities in Annex 1 and Annex 2 in Japan have been using permanent lists.  However, Japan 
has developed a common permanent list which applies to all Annex 1 entiti es. That list applies 
to all central government entities for three years.  With such a system there can be no real 
concern that such a permanent list restricts access for foreign suppliers.  [Japan]  
  GPA/TN1994/2/Rev.13  
 
- 87 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information 
necessary for establishing the 
financial, commercial and technical 
capacity of suppliers, as well as the 
verification of qualifications, shall be 
no less favourable to suppliers of 
other Parties than to domestic 
suppliers and shall not discriminate 
among suppliers of other Parties.   
 
 The financia l, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier 's global business activity as 
well as of its activity in the territory 
of the procuring entity, taking due 
account of the legal relationship 
between the s upply organizations;  
 2. Procuring entities shall evaluate the 
financial, commercial and technical capacity of a 
supplier on the basis of that supplier 's global 
business activities, and shall not impose the 
condition that, in order for a supplier to 
partic ipate in a procurement process, the 
supplier has previously been awarded one or 
more contracts by an entity of a given Party or 
that the supplier has prior work experience in the 
territory of a given Party  
[EC – Job No. 876]  
 
Entities shall:  
 
(a) limit any registration or 
qualification requirements, or 
other conditions for participation 
in a procurement, to those 
requirements or conditions that 
are essential to ensure that a 
potential supplier has the legal, 
technical and financial abilities to 
fulfil the requirements and 
technical specifications of the 
procurement;  
(b) evaluate the financial, 
commercial and technical 
abilities of a supplier on the basis 
of that supplier 's global business 
activities, including both its 
activity in the territory of t he 
Party of the supplier, and its 
activity, if any, in the territory of 
the Party of the entity.  
[US – Job No. 1051]  
 
Comment  
• Many multinational enterprises, large or small, have slightly different company names in 
different regions or economies.  Some are wholly owned subsidiaries, others are joint venture or 
other kinds of commercial arrangement.  Unless the supplier uses exactly the same name in 
pursuing its global business, it is difficult to access or prove the supplier 's global busin ess and 
legal relationship between the companies in different territories.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 88 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) the process of, and the time required for, 
qualifying suppliers shall not be used in 
order to keep suppliers of other Parties off 
a suppliers ' list or from being considered 
for a particular intended procurement.   
 8. When a procuring entity in Annex 3 uses 
the notice regarding the permanent list of 
qualified suppliers as a notice of intended 
procurement, as provided in Article IX, 
paragraph 3, suppliers requesting to participate 
who are not on the permanent list of qualified 
suppliers shall also be considered for the 
procurement pro vided there is sufficient time to 
complete the qualification procedure;  in this 
event the procuring entity shall promptly start 
procedures for qualification and the process of, 
and the time required for, qualifying suppliers 
shall not be used in order to k eep suppliers of 
other Parties off the suppliers ' list. 
[EC – Job No. 876]  
 
Comments  
• Paragraph 8 of the EC proposal seems to be overly narrow in that  it only seems to apply when 
a particular type of notice is used.  At the very least, this provision should  probably apply even 
when an entity publishes a notice regarding a permanent list and further, notices concerning 
specific procurements.  [US] 
• The flexibility provided for in paragraph 8 in the EC proposal is important in that it allows for 
suppliers to be subsequently qualified provided that sufficient time exists.  However, the 
paragraph should be amended so as to ensure that it is not more binding and strict for an entity 
as compared to paragraph 4 of the EC proposal.  [Switzerland]  
• Paragraphs 4 and 8 are n ot incompatible and should possibly be combined.  Paragraph 4 entails 
a situation where an additional selection is made after a first decision on qualification is made 
at which point the qualified suppliers are ranked.  This additional selection is made on t he basis 
of criteria that have been published.  [EC] 
• The current drafting of paragraphs 4 and 8 suggests that paragraph 8 would only apply to the 
use of permanent lists by Annex 3 entities.  A question arises as to whether a similar requirement 
to that contained in paragraph 8 should also apply to a selection process involving, for example, 
the evaluation of qualification requirements in a ranking of suppliers.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 89 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. (c) base their decisions on applications 
for registration, qualification or any 
other conditions for participation 
solely on the information they have 
specified in advance in notices or 
tender documentation;  
[US - Job No.  1051]  
 
Comment  
• Regarding "the information " referred to in this provision, procuring entities should be able to 
use, not only information from each participant concerning the tender, but also information from 
other persons or organizations.  [Japan - Job No. 5474 ] GPA/TN1994/2/Rev.13  
 
- 90 - 
 
  Article VIII  
Qualification of Supp liers 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) recognize the registration, qualification or 
satisfaction of any other conditions of 
participation of any supplier that satisfies 
the relevant  requirements or conditions;  
and 
 
(e) allow any supplier that they have 
recognized as registered, qualified or as 
having satisfied any other conditions for 
participation to participate in the relevant 
procurement.  
[US – Job No. 1051]  
Entities shall recognize as qualified  suppliers such 
domestic suppliers or suppliers of other Parties who 
meet the conditions for participation in a particular 
intended procurement.  
 
Suppliers requesting to participate in a particular 
intended procurement who may not yet be qualified shall 
also be considered, provided there is sufficient time to 
complete the qualification procedure;  4. Procuring entities shall recognize as 
qualified suppliers all domestic suppliers and 
suppliers of other Parties who meet the 
conditions for participation in a p articular 
intended procurement.  Entities shall base their 
qualification decisions solely on the conditions 
for participation that have been specified in 
advance in notices or tender documentation.  
[EC – Job No. 876 ] 
 
 Procuring entities may limit the numb er of 
qualified suppliers they will invite to tender, 
provided that they select the maximum number 
of domestic suppliers and suppliers of other 
Parties, consistent with the efficient operation of 
the procurement process, and make the selection 
in a fair an d non -discriminatory manner and on 
the basis  of the criteria indicated in the notice of 
intended procurement or in tender documents.  
[EC – Job No. 876]  
 
 The process of, and the time required for, 
qualifying suppliers to permanent lists 
maintained by the entity shall not be used in 
order to keep suppliers of other Parties off a 
suppliers ' list or from being considered for a 
particular intended procurement.  Entities shall 
recognize as qualified suppliers such domestic 
suppliers or suppliers of other Parties who meet 
the conditions for participation in a particular 
intended procurement.  [Suppliers requesting to 
participate in a particular intended procurement 
who may not yet be qualified shall also be 
considered, provided there is su fficient time to 
complete the qualification procedure.]  
[Singapore – Job No. 3772]  
 
Comments  
• Who is expected to take the initiative to respond to a tender?  Is the tender an open invitation 
and interested suppliers take the initiative as to whether or not to respond to a tender?  
Alternatively, does the procuring entity make the decision to invite particular suppliers and not 
others?  [Singapore]  
• The selective tendering method covers two types of procedures.  One type is for a specific 
procurement such as cons truction of highways for which interested suppliers submit qualification 
documents within the time -limit set out in the qualification documents.  If the qualification 
documents cannot be submitted within the time -limit or the document submitted is not in 
conformity with the tender documentation, the qualification application would be rejected.  The 
other type is the establishment of permanent lists of qualified suppliers, which allows suppliers GPA/TN1994/2/Rev.13  
 
- 91 - 
 
  to apply for qualification at any time.  Any modification to Artic le VIII should take into account 
the difference between these two types of methods of selective tendering.  [Chinese  Taipei]  
• It is preferable to separate the rules regarding permanent lists of qualified suppliers and those 
regarding qualification for an ind ividual procurement.  This approach is reflected in paragraphs  1 
to 3 of the Singaporean proposal.  [Hong Kong, China]  
• With respect to the second part of the paragraph 4 of the EC proposal, procuring entities should 
have more discretion to set the maximum nu mber of suppliers allowed to submit a bid consistent 
with the efficient operation of the procurement process as well as the non -discrimination 
principle of the GPA and on the basis of the criteria set out in the notice of intended procurement.  
This is a mo re realistic way of balancing efficiency with the interests of open competition than 
the current Article X:1.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 92 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a notice inviting applications for 
inclusion in a registry, qualification, or 
recognition of satisfaction of any other 
conditions for participation in a procurement 
process is issued separately from the notice of 
intended procurement required under Article V  of 
this Agreement, such notice shall be published in 
the same manner as the notice of intended 
procurement and shall contain at least the 
following information:  
 
 (a) a description of the intended 
procurement;  
[US – Job No. 1051;  EC – Job No. 876]  
 
 (b) the registration or qualification 
requirements and any other 
conditions for participation ; 
[US – Job No. 1051]  
 
 (c) The name and address of the 
procuring entity and other 
information necessary to contact 
the entity and obtain all relevant 
documents relating to the 
procurement;  
[US – Job No. 1051;  EC – Job No. 876]  
 
 (d) The time limits, if any, for the 
submission of applications ; and  
[US – Job. No. 1051;  EC – Job No. 876]  
 
 (e) an indication that the 
procurement is covered by this 
Agreement.  
[US – Job No. 1051;  EC – Job No. 876]  
 
Comments  
• Do the words "separately from the notice of intended procurement " mean that the US no longer 
recognises the qualification notice as a notice of intended procurement?  Under the current GPA, 
an Annex 3 entity is able to issue a notice of qualification which may also function as a notice of 
intended procurement.  [Switzerla nd] 
• The proposal does not deal with the separate question of whether Annex 3 entities should have 
flexibility with respect to the publication of notices.  The aim of this proposal is to recognize 
various options.  The first is the option is to publish a sing le notice in which both the qualification 
requirements and the tendering requirements are made available through the notice.  The second 
option is to have two separate notices for instance with respect to qualification for a  permanent 
list and subsequent no tices relating to specific procurements conducted among the supplies 
included in the list.  This is the case with which the proposal deals.  [US] GPA/TN1994/2/Rev.13  
 
- 93 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) any supplier may apply for 
qualification at any time;  and all 
qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
[Singapore – Job No. 3772]  
 
 Permanent list of qualified suppliers  
 
5. Procuring entities maintaining permanent 
lists of qualified suppliers shall ensure that 
suppliers may apply for qualification at any time;  
and that all suppliers that so request and that 
meet the qualification requirements are included 
in the lists within a reasonably short time.  
[EC – Job. No. 876]  
 
 (d) entities maintaining permanent lists of 
qualified suppliers shall ensure that 
suppliers may apply for qualification at 
any time;  and that all qualified suppliers 
so requesting are included in the lists 
within a reasonably s hort time;  
  (d) each Party shall ensure that:  
 
 (i) each entity and its constituent 
parts follow a single 
qualification procedure, 
except in cases of duly 
substantiated need for a 
different procedure, and  
 
 (ii) efforts be made to minimize 
differences in qualification 
procedures between entities;  
[Singapore – Job No. 3772]  
 
Comment  
• It would be difficult to comply with subparagraph (d)(ii) of the Singapore proposal given the 
differences in scope and nature of procurement undertaken by different entities.  [Hong Kong, 
China]  GPA/TN1994/2/Rev.13  
 
- 94 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (e) if, after publication of the notice under 
paragraph 1 of Article  IX, a supplier not 
yet qualified requests to participate in an 
intended procurement, the entity shall 
promptly start procedures for 
qualification;  
  (b) if registration as a permanent 
qualified supplier is a pre -requisite 
for participation in an intended 
procurement, and a supplier not ye t 
qualified requests to participate in 
the intended procurement, the 
[entity shall promptly start 
procedures for qualification] 
[supplier shall not be denied the 
opportunity to participate simply on 
the basis that the supplier is not on 
the entity 's perman ent list of 
qualified suppliers];  
[Singapore – Job No. 3772]  
  (c) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of 
the decision in this regard.  Qualified 
suppliers included on permanent 
lists by entities shall also be notified 
of the termination of any such lists 
or of their removal from them;  
[Singapore – Job No. 3772]  
 
  GPA/TN1994/2/Rev.13  
 
- 95 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Information on Qualification Decisions  
 
 (f) any supplier having requested to become 
a qualified supplier shall be advised by the 
entities concerned of the decision in this 
regard.   
 5. Entities shall not impose the condition that, 
in order for a supplier to participate in a 
procurement, the supplier has previously been 
awarded one or more contracts by an entity of 
that Party or that the supplier has prior work 
experience in the territory of that Party.  
[US – Job No. 1051]  
 
6. A procuring entity sh all promptly advise any 
supplier that requests qualification of its decision 
as to whether that supplier is qualified.  
[EC – Job No. 876]  
 
  Qualified suppliers included on 
permanent lists by entities shall also be 
notified of the termination of any such 
lists or of their removal from them;  
 Information on Entities ' Decisions  
 
7. Where a supplier applies for inclusion in a 
registry, qualification, or recognition that it has 
satisfied the conditions for participation in a 
procurement, the entity shall promptly advise 
such supplier of its decision with respect to the 
application.  
[US – Job No. 1051]  
  
8. Where an entity rejects supplier 's 
application to qualify, or ceases to recognize a 
supplier as registered, qualified or as having 
satisfied the conditi ons for participation, the 
entity shall inform the supplier and, on request 
of the supplier, promptly provide the supplier 
with a written explanation of the reasons for its 
decision.  
[US – Job No. 1051; EC – Job No 876]  
 
Comments  
In relation to the EC pro posal:  
• Paragraphs 5 – 8 of the EC proposal only apply to the use of permanent lists.  However, some of 
these provisions should have more general application to all procurement covered by the GPA.  
This is particularly clear with respect to paragraph 6 of the EC proposal which addresses some 
basic transparency issues.  [US] 
In relation to the US proposal:  
• With respect to paragraph 5 of the US proposal, the question arises as to whether the details in 
that proposed paragraph are necessary since there are many  conditions that could be added 
which the entity should not be able to impose upon a supplier in order for that supplier to 
participate in a procurement such as prior work experience in the territory.  [Switzerland]  
• This proposal can be a useful in ensuring  that the objectives of the GPA are achieved whereas a 
requirement that an entity might require any supplier that wishes to participate in a procurement 
to have had previous experience in the territory of that Party could constitute a serious barrier 
to new entrants and an obstacle to achieving the objectives of the Agreement.  The phrase "shall 
not impose the condition that a supplier has been previously awarded one or more contracts " 
does not necessarily exclude the possibility that experience should be ta ken into account but 
that that should not result in automatic exclusion.  [US] GPA/TN1994/2/Rev.13  
 
- 96 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (g) each Party shall ensure that:  
  
 (i) each entity and its constituent 
parts follow a single qualification 
procedure, except in cases of duly 
substantiated need for a different 
procedure;  and 
  
 (ii) efforts be made to minimize 
differences in qualification 
procedures between entities.  
  
 (h) nothing in subparagraphs (a) through (g) 
shall preclude the exclusion of any 
supplier on grounds such as bankruptcy 
or false declarations, provided that such 
an action is consistent with the national 
treatment and non -discrimination 
provisions of this Agreement.  
 3. Nothing in this Article shall preclude the 
exclusion of any supplier on grounds such as 
bankruptcy or false declarations or conviction for 
serious criminal organizations.  
[EC – Job No. 876]  
 6. Nothing in this Article shall preclude the 
exclusion of a sup plier on grounds such as 
bankruptcy or false declarations.  
[US – Job No. 1051]  
 
  (e) nothing in subparagraphs (a) 
through (d) shall preclude the 
exclusion of any supplier on grounds 
such as bankruptcy or false 
declarations, provided that such an 
action i s consistent with the 
national treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 
Comment  
• The US proposal appears to omit the existing subparagraph (g), which deals with single 
qualification procedures.  Clarification is sought as to why this change has been made.  [Korea]  GPA/TN1994/2/Rev.13  
 
- 97 - 
 
  Article VIII  
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers 
for participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreement, ensure that their 
procedures are consistent with the following:  
 
 (a) the invitation to be considered for 
pre-qualification shall be published 
in adequate time to enable 
interested suppliers to submit 
proper documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to 
those which are essential to ensure 
the firm 's capability to fulfil the 
contract in question.  Any condition s 
for participation required from 
suppliers, including financial 
guarantees, technical qualifications 
and information necessary for 
establishing the financial, 
commercial and technical capacity of 
suppliers, as well as the verification 
of qualifications, s hall be no less 
favourable to suppliers of other 
Parties than to domestic suppliers 
and shall not discriminate among 
[against] suppliers of other Parties.  
The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of t hat 
supplier 's global business activity as 
well as of its activity in the territory 
of the procuring entity, taking due 
account of the legal relationship 
between the [supply organizations] 
[business units of the supplier in 
different territories].  
[Singapo re – Job No. 3772]  
 
Comments on the proposal by Singapore  
• The reference to "other provisions in this Agreement " in subparagraph 3 of the Singaporean 
proposal should be made more specific or it should be deleted as it appears to be unnecessary.  
[Hong Kong, China]  
• The existing wording of Article VIII(a) is preferred to the proposed wording in 
subparagraph  3(a). [Hong  Kong, China]  
• Subparagraph 3(b) of the proposal is, in principle, desirable, particularly in relation to SMEs, 
since it purports to reduce administrative burdens on suppliers.  However, more details of the 
proposal are required.  [Hong Kong, China]  
• The last sentence of paragraph 3(b) of the Singaporean proposal should be deleted given that it 
is difficult to assess a suppliers ' global business and legal relationship between business units 
that are located in different territories.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 98 - 
 
  Article IX  - Invitation to Participate Regarding Intended Procurement  
Article IX:1  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, entities 
shall publish an invitation to participate for all cases of 
intended procurement, except as otherwise provided for 
in Article  XV (limited tendering).  The notice shall be 
published in the appropriate publication listed in 
Appendix  II. 
 1. In accordance with paragraphs 2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article XV (limited 
tendering).  The notice shall be published through 
means which offer the w idest possible and non -
discriminatory access to interested suppliers and 
service providers from all Parties to this 
Agreement;  these means shall be accessible 
through a single point of access.  
Each Party shall notify to the other Parties this 
single point of access.  Entities shall not charge 
for access to invitations to participate   
[Singapore – Job No. 5271]  
 
 1. In accordance with paragraphs 2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article XV (limited 
tendering).  The notice shall be published in the 
appropriate publication listed in Appendix II.  
Such appropriate publication may be electronic 
or paper.  
[Canada – Job No. 3483]  
 
 1. In accordance with paragrap hs 2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article XV.  The notice 
shall be published in the appropriate publication 
or website listed in Appendix II.  
[Chinese T aipei – Job No. 3193]  
 GPA/TN1994/2/Rev.13  
 
- 99 - 
 
  Article IX  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article IX – Notice of intended procurement  
 
1. For each intended procurement covered by 
this Agreement, except as provided for in 
paragraph 4, procuring entities shall publish a 
notice inviting interested suppliers to submit 
tenders or, where appropriate, requests for 
participation.  
[EC – Job No. 876]  
 
 The notice shall be published in the 
appropriate publication listed in Appendix III.  
Such publications shall be in electronic or paper 
media which offer the widest possible and 
non-discriminatory access to interested 
suppliers from all Parties of this Agreement and 
shall be accessible free of c harge through a 
single point of access.  
[EC – Job No. 876]  
 
General Comments  
In relation to the EC Proposal (Job No. 876):  
• The proposal attempts to restructure and reorganise the provisions on publication requirements 
with a view to simplifying the Agreement.  The proposal includes a general, universal obligation 
to publish a notice of intended procurement which applies to each entity that intends to award 
a contract.  The proposal then lists the mandatory content of such a notice.  The proposal foresee s 
the possibility of having a separate notice for the invitation of applications for qualification. 
Further, the proposal lists circumstances that allow the entity not to publish the notice of 
intended procurement.  The obligation to publish a summary notic e has been retained since it is 
considered to be important in the interests of transparency and access to information.  Further, 
the proposal regroups the provisions concerning notices for permanent lists of qualified 
suppliers, which should only be published by entities who maintain those kinds of lists.  An 
additional article has been proposed regarding notices of planned procurement. The possibility 
has been maintained in that Article to use the notice of planned procurement to reduce the 
general ti me limits that would ordinarily apply.  Annex 3 entities may still use notices of 
permanent lists and of planned procurement as an equivalent for a notice of intended 
procurement.  The peculiarities of these Annex 3 entities justify additional flexibility.  [EC] 
• The proposed approach may be confusing for suppliers.  Further, it is not really clear that it is 
necessary to specify a list of different notices with  different labels or names.  Further 
simplification could be achieved by focusing on the acts that requ ire notification and the 
appropriate timing for such notification.  [Canada]  
In relation to the proposed requirement that procurement notices should be provided 
"free of charge ": 
• This proposal raises concerns.  [Hong Kong, China]  Would there be a benefit by shifting the costs 
of publication from suppliers to taxpayers?  [Canada]  
• The intent of the additional wording by Singapore is to explicitly state what is provided free of 
charge, as opposed to a blanket free of charge formulation.  The telephone line, the co mputer, 
the Internet Service Provider fees are not free of charge.  The current subparagraph 6(g) of 
Article  IX also refers to "the amount and terms of payment of any sum payable for the tender 
documentation ". Hence, it would be better to explicitly state w hat is provided free of charge.  
[Singapore – Job No. 5271]  
• The principle of "reasonableness " might be relevant in this respect to ensure that barriers are 
not created through the imposition of excessive costs.  Any charge that is imposed should be 
non-discriminatory and closely linked to the actual cost of providing the information.  Fees 
charged for access to information should not be regarded as a source of revenue.  [EC; US] GPA/TN1994/2/Rev.13  
 
- 100 - 
 
  • The proposal to make the notice of intended procurement accessible at no cost throu gh a single 
point of access is theoretically ideal for the convenience of local and foreign suppliers.  However, 
in many countries, subscription fees are charged for the National Gazette.  Although it has 
become common for procuring entities to publish their  notices via the Internet, it does seem 
that only a limited number of Parties have ensured that notices made by all procuring entities 
are available through a single point of access.  It will thus take some a considerable period of 
time before all Parties a re ready to implement such a system.  Therefore, a progressive approach, 
for example a system including appropriate transitional periods, might be necessary.  [Japan – 
Job No. 5474]  
• It is up to the administration to see whether it can give the notices for free. A requirement of 
making notices available for free should not be included in the Agreement, but some 
recommendation could be formulated.  [Switzerland]  
• Price regulation of this activity does not belong in an Agreement on Government Procurement.  
In fac t, through the use of electronic means, most countries have greatly reduced the cost of 
notices and bid documents in recent years, and have dramatically increased the accessibility and 
availability of both notices and documents.  In Canada, suppliers have a ccess to notices for free 
but the real cost that has to be borne is paid for by charging for bid documents.  That cost in 
itself has been in recent years significantly reduced by making documents available 
electronically.  [Canada]  
In relation to single poin t of access:  
• The establishment of "a single point of access " for electronic publications of tender notices under 
the GPA, as suggested by Korea, is technically feasible.  However, it is questionable whether the 
benefits would be worth the significant cost a nd undue burden associated with introducing this 
system for Parties with decentralized systems and for developing countries.  [US] 
• Korea has a central procurement system from which all relevant information on government 
procurement can be obtained.  A single  contact point does not mean that masses of information 
need to be accumulated.  Rather, that point would merely connect interested Parties to the right 
point.  [Korea]  
• Information should be as easily accessible as possible provided that providing such acces s does 
not impose unnecessary burdens on Parties.  Having all the information available at a single point 
of access may not be practically possible and could defeat the aim of transparency since it could 
be very difficult to filter through all the informati on provided at the point.  [US] 
• It would be ideal to have a single Internet address where all relevant information could be 
obtained.  However, this could be difficult to arrange in cases where procurement systems are 
highly decentralized.  [EC] 
• A single point of entry may not be workable or necessary.  It may be easier to have information 
at a single point of entry on how to access information throughout a given system.  However, it 
may not be practical to have too much detailed information at the si ngle point of entry.  The 
difficulties may be particularly pronounced in the case of Members with decentralized 
procurement systems.  [US] 
• A single point of access is desirable.  However, perhaps there is a need to treat the 
implementation of that proposal in  a flexible manner because Members need to establish 
systems to create a single point of access for all notices of their entities.  [Japan]  
• Although the single point of access is a good idea, it is costly to establish one, in particular, in 
federal systems and may exclude some interested parties.  [Switzerland]  
• A single point of access has great benefits in terms of increasing competition by increased 
transparency.  Not that all notices would be necessarily in one place but with the use of 
hyperlinks, for exam ple, there could be one site with a search engine which makes it easier to 
search through notices that are accessible through that site.  So it is not necessary that all the 
notices be on one site.  [EC] 
• It is quite essential and appropriate to maintain a single point of access for the purposes of 
ensuring transparency.  However, the function of the single point of access needs to be clarified.  
Beyond communication, it might be used to respond to enquiries.  [Korea]  
  GPA/TN1994/2/Rev.13  
 
- 101 - 
 
  In relation to what is meant b y "widest possible access ": 
• The term "widest possible access " has been used to avoid referring to the Internet in recognition 
of the fact that other technological advances may emerge which also promote transparency.  
[EC] 
• The reference to the term "widest p ossible access " suggests that the publication of procurement 
notices must be published through the use of information technology.  The use of information 
technology should be optional.  [Japan;  Korea]  
• The intention underlying the proposed text is not to make  the use of information technology 
mandatory.  Traditional means of publication can also be used provided that they are easily 
accessible.  The EC proposal is intended to encourage the use of information technology as far 
as is possible and to facilitate its  use. [EC] 
• The reference to "widest possible access " may be too strong.  This would mean that any notice 
that did not give the widest possible access would be contrary to this requirement and a potential 
source of dispute.  "Widest possible " implies that the re is only one choice, namely that a Party 
must, for example, publish on the Internet since any other option would not be as wide.  [US] 
• Given the aim to streamline the Agreement and encouraging broader participation, the proposed 
provision on the use of th e Internet may not be appropriate.  [US] 
• A further question is whether technical specifications remain unchanged from procurement to 
procurement.  There may be a risk that, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
• Technology offers possibilities that are not always fully exploited.  There could be Internet pages 
with links.  A stronger commitment is required to use the various possibilities of electronic 
procurement to allow businesses to e asily access at least information as to where further 
information can be obtained.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 102 - 
 
  Article IX  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article V  
 
Publication of Notice of Intended Procurement  
 
 1. For each contract covered by this 
Agreement, except as provided for in Article IX of 
this Agreement, procuring entities shall publish a 
notice inviting interested suppliers to submit 
tenders for that cont ract.  The notice shall be 
published in the appropriate publication listed in 
Appendix  II. Such publications shall be in 
electronic or paper media which are widely 
disseminated and readily accessible to the 
general public.  
[US – Job No. 2867]  
 
Comments  
• A question by Hong Kong, China (No. 21) regarding the term "widely disseminated " and the 
response by the United States are contained in Job No. 5595.  
• There is a tension between the aim of simplifying the Agreement and maintaining useful aspects 
of the Agreement.  Perhaps a number of items that have been eliminated in the US proposal 
should be retained.  [EC] 
• It is important to have agreement on a predictable set of core requirements that is no more than 
necessary for suppliers to make a dec ision as to whether or not to submit a tender in a given 
case. [Canada]  
• The information required in the US proposal is considered to be the core necessary for notices 
because it is considered sufficient for a supplier to make a decision as to whether they are 
interested in the procurement and, therefore, whether to make a request for tender documents.  
In addition, it should be possible to rely upon the principle of non -discrimination requirement to 
ensure that information provided to one supplier is provide d in a non -discriminatory way to all 
interested suppliers.  It is not necessary to list everything of potential interest in a notice provided 
that suppliers who are interested in participating in a tender procedure receive all the information 
that is necess ary to submit a tender and they receive that information in a non -discriminatory 
way. Procurement notices should not be overly burdensome.  Obviously, the concern should be 
what suppliers need to know, and in our proposal we tried to limit the content to wh at we think 
is actually essential.  [US] 
• It is important not to establish unrealistic expectations regarding what might be included in 
notices.  Further, notices should be short, so that suppliers can ascertain the essential elements 
of the requirement, and should not be too costly for procurement authorities to produce.  
[Canada]  
• The supplier should be able to make a decision as to whether they are interested in the 
procurement and, therefore, whether to make a request for tender documents.  In addition, it 
should be possible to rely upon the principle of non -discrimination to ensure that information 
provided to one supplier is provided in a non -discriminatory way to all interested suppliers.  It is 
not necessary to list everything of potential interest in a not ice provided that suppliers who are 
interested in participating in a tender procedure receive all the information that is necessary to 
submit a tender and they receive that information in a non -discriminatory way.  [US] 
• Publication in electronic media is tr ansitory by nature.  An important element of transparency is 
the ability to obtain information for the relevant period of time – that is, the entire period for 
which a tender is open and not merely the day that the tender notice is issued.  How can it be 
ensured that that occurs if electronic media are used?  [Canada]  GPA/TN1994/2/Rev.13  
 
- 103 - 
 
  • The existing Article IX identifies a number of different type of notices, leaving it unclear which 
notices should be used by particular entities.  Is it necessary to list in the Agreement every ty pe 
of notice that might be used or is it preferable to refer to a certain basic set of commitments 
that will apply to the various types of notices that might be used to ensure an adequate level of 
transparency?  [US] 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Each Party shall encourage its procuring entities 
to publish as early as possible in each fiscal year 
information regarding entities ' future procurement 
plans.  Such information should include the subject -
matter of the procurement and the planned date for 
publication of the notice of intended procurement.  Each 
Party should decide about the scope of the future 
procurement plans for publication (including 
thresholds and the categories of products or s ervices) 
and should notify the Committee of such scope and the 
means of publication.  
[Japan – Job No. 6846]  
 
Comments  
• It is not possible for Japan to "encourage " its procuring entities to cover all future procurement.  
Some flexibility is needed for this "best endeavour " clause, that is why Japan added the third 
proposed sentence in this paragraph.  [Japan – Job No. 6846]  
• The requirement on publication of information on their future procurement plans as early as 
possible was the result of a request that came  out of the small business community because 
they would like to plan ahead for the tenders that they may make, and they would just like to 
know as much about a procuring entity 's plans as possible and as early as possible.  Japan 's 
addition would be an unne cessary burden.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 104 - 
 
  Article IX:2, 3  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the form of 
a notice of proposed procurement, as provided for in 
paragraph  6. 
 2. The invitation to participate may take the 
form of a notice of intended procurement, as 
provided for in paragraph 6.  
[Chinese Taipei – Job No. 3193]  
 
Comment  
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a notice 
containing the types of information as provided for in paragraph 6.  The present use of the word 
"may" might be interpreted to suggest otherwise . [Job No. 5074]  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a notice of 
planned procurement, as provided for in paragraph  7, or 
a notice regarding a qualification system, as provided for 
in paragraph 9, as an invitation to participate . 
 3. Procuring entities in Annex 3 may use a 
notice of planned procurement, as provided for in 
paragraph 2, as a notice of intended procurement 
provided that it contains in addition the 
statement that interested suppliers should 
express their interest in the procurement to the 
procuring entity.  
[EC – Job No. 876]  
 
3. Entities may use a notice of intended 
procurement, as provided for in paragraph 7, or 
a notice regarding a qualification system, as 
provided for in paragraph 9 as an invitation to 
participate.  
[Chinese Taipei – Job No. 3193]  
 
Comments  
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
• While the EU proposal indicates that each party shall encourage its procuring entities to publish 
procurement plans, considering the burden to procuring entities, it would be desirable to 
consider an amendment, providing, for example that only procurements above a certain value 
are encouraged for publication.  [Japan;  Job No. 5474]  
  GPA/TN1994/2/Rev.13  
 
- 105 - 
 
  Article IX  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Procuring entities in Annex 3 may use a 
notice, regarding permanent lists of qualified 
suppliers, as provided for in paragraph 1, as a 
notice of intended procurement.  
 
 When such a notice is used as a notice of 
intended procurement it shall, in addition to what 
is provided for in paragraph 1, include the 
following information:  
 
 (d) the nature of the pro ducts or 
services concerned;  
 
 (e) a statement that the notice 
constitutes a notice of intended 
procurement and that no further 
notices will be published.  
[EC – Job No. 876]  
 
Comment  
• While the US agrees with the substance of paragraph 3 of the EC proposal, the question arises 
as to whether it is better placed in the general provision on notices or in an article on conditions 
for participation.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 106 - 
 
  Article IX:4, 5  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate shall 
subsequently invite all suppliers who have expressed an 
interest to confirm their interest on the basis of 
information which shall include at least the information 
referred to in paragraph  6. 
 3. Each Party shall encourage its procuring 
entities to publish as early as possible in each 
fiscal year information regarding entities ' future 
procurement plans.  Such information should 
include the subject matter of the procurement 
and the planned date of the publication of the 
notice of intended procurement.  When the 
published information is in accordance with 
Article VI:2(a) of this Agr eement, entities may 
apply Article VI:2 for the purpose of establishing 
more flexible time periods for tendering of 
procurements covered by this Agreement.  
[US – Job No. 2867]  
 
5. Entities which use a notice regarding a 
qualification system as an invitati on to participate shall 
provide, subject to the considerations referred to in 
paragraph 4 of Article XVIII and in a timely manner, 
information which allows all those who have expressed 
an interest to have a meaningful opportunity to assess 
their interest i n participating in the procurement.  This 
information shall include the information contained in 
the notices referred to in paragraphs 6 and 8, to the 
extent such information is available.  Information 
provided to one interested supplier shall be provided in  
a non -discriminatory manner to the other interested 
suppliers.  
 4. Procuring entities in Annex 3 that use a 
notice regarding permanent lists of qualified 
suppliers as a notice of intended procurement 
shall provide, in a timely manner, information 
which al lows all those who have expressed an 
interest to have a meaningful opportunity to 
assess their interest in participating in 
procurement.  This information shall include the 
information contained in the notice of intended 
procurement referred to in Article I X 
paragraph  2, to the extent such information is 
available.  Information provided to one interested 
supplier shall be provided in a non -
discriminatory manner to the other interested 
suppliers.  
[EC – Job. No. 876]  
 
Comment  
• While Parties should encourage their procuring entities to publish their future procurement plans, 
it is unclear whether procuring entities are ready to do so as entities may not want to commit 
themselves with their procurement plans or give false expectations to suppliers.  With the 
deletion of Article  IX:3 of the GPA, entities under different Annexes are subject to the same 
procedures in making known their notice of intended procurement.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 107 - 
 
  Article IX:6  
Invitation to Participate Regarding Intended Procurement   
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Each notice of proposed procurement, referred to 
in paragraph  2, shall contain the following information:  
 2. Entities shall include the following 
information in each notice of intended 
procurement:  
[US - Job No. 1051;  EC - Job. No. 876]  
 
(a) the nature and quantity, including any 
options for further procurement and, if 
possible, an estimate of the timing when 
such options may be exercised;  in the 
case of recurring contracts the  nature and 
quantity and, if possible, an estimate of 
the timing of the subsequent tender 
notices for the products or services to be 
procured;  
 (a) A description of the intended 
procurement, including the nature 
of the goods or services to be 
procured and,  where applicable, the 
quantity of goods or services to be 
procured and any registration or 
qualification requirements or other 
conditions for participation in 
tendering for the procurement;  
[US - Job No. 1051]  
 
(b) whether the procedure is open or 
select ive or will involve negotiation;  (e) whether the procurement method is 
open or selective and whether it will 
involve negotiation, and where, 
pursuant to Article XVI(4), an entity 
intends to limit the number of 
qualified suppliers invited to tender, 
the min imum and maximum number 
of suppliers that may be invited to 
tender and the criteria that will be 
used to select them;  
[EC - Job No. 876]  
 
 (b) the name and address of the 
procuring entity and other 
information necessary to contact 
the entity and obtain all relevant 
documents relating to the 
procurement;  
[US - Job No. 2867;  EC - Job No. 876]  
 
(c) any date for starting delivery or 
completion of delivery of goods or 
services;  (c) The procurement method that will 
be used and whether it will involve 
negotiation;  
[US – Job No. 2867]  
 
Comments  
• Article IX:6 should be modified to require procuring entities to include the means by which bids 
may be submitted/the means of communication to be used (e.g. mail, electronic means, telex, 
telegram or facsimile) in tender notices.  [Canada - Job No.3481]  
In relation to the US proposal:  
• With regard to paragraph 2(a), the reference to the "quantity of goods and services to be 
procured " has been moved from the first to the second subclause of the sentence.  This takes 
into account procurement modalities in which the duration of the contract and the quantity of 
the goods or services to  be provided may not be known at the time of the procurement.  [US] 
• With regard to paragraph 2(c), clarification is sought on th e meaning of "procurement method ". 
[Japan]  
• The term "procurement methods " is intentionally left undefined in the US proposal since, for 
example, selective tendering procedures may be regarded as something different in the US as 
compared to in Japan.  Presum ably, this would mean that each entity would identify in tender 
notices, the methods that apply to the relevant domestic context or system.  The alternatives 
would be to either list every type of procurement method that any Party may use or to state GPA/TN1994/2/Rev.13  
 
- 108 - 
 
  that th e information provided in the tender notice need not refer to the procurement method to 
be used.  However, the latter may cause problems, for example, if a notice does not tell suppliers 
that pre -qualification is needed.  [US] 
• The words "where applicable " have been included in paragraph (a) of the US proposal given that 
the quantity to be procured may not always be known at the time the notice is issued, for 
example in cases involving indefinite quantity contracts or in cases involving a two -stage 
process.  [US] 
In relation to the EC proposal:  
• With respect to subparagraph (e) of the EC proposal, the maximum number of suppliers is 
sometimes difficult to determine in cases where, for example, a points system is used and this 
results in a tie.  It may be difficult choose between the tied suppliers in such cases.  Modification 
may be necessary to take account of this situation.  [Japan]  
• Subparagraph (e) may be simplified by not suggesting that there are particular types of 
tendering procedures but rather focusing on th e type of information that should be provided in 
notices.  [US] 
• The information referred to in subparagraph (e) should be included in the tender documentation.  
For example, the criteria used to select suppliers cannot be easily reduced to a few lines, which  
may be necessary given that the notices of intended procurement are usually quite short.  
[Switzerland;  Japan]  
• Any selection or elimination of suppliers must be based on criteria that are very clear and 
provided in advance.  It is preferred that such information be included in the notices although it 
is acknowledged that this might not be feasible in all circumstances.  [US] 
• Regarding selective procurement in the EC proposal IX:2(e), procuring entities shall decide the 
minimum and maximum numbers of sup pliers that may be invited to tender.  However if, for 
example, an entity uses the point system for qualification, there may arise cases where two or 
more participants have the same number of points and, as a result, more suppliers than intended 
are selecte d. Therefore, the phrase in the EC proposal should take into consideration such cases 
(for example, indicating a target with a permissive range may be appropriate).  [Japan – 
Job No. 5474] GPA/TN1994/2/Rev.13  
 
- 109 - 
 
  Article IX  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the address and final date for submitting 
an application to be invited to tender or 
for qualifying for the suppliers ' lists, or for 
receiving tenders, as well as the langua ge 
or languages in which they must be 
submitted;  
 (d) The time limits set for the 
submission of tenders and, when 
appropriate, any time limits for the 
submission of applications to qualify 
for participation in the intended 
procurement and the dates for 
starting or completing delivery of 
goods and services;  and 
[US – Job No. 1051]  
 
(e) the address of the entity awarding the 
contract and providing any information 
necessary for obtaining specifications and 
other documents;  
 (f) the address and the time-limits set 
for submission of an application to 
be invited to tender or for qualifying 
for the suppliers ' lists, or for 
submission of tenders, as well as 
the language or languages in which 
they must be submitted.  
[EC – Job No. 876]  
 
(f) any economic and technical 
requirements, financial guarantees and 
information required from suppliers;  
  
(g) the amount and terms of payment of any 
sum payable for the tender 
documentation;  and 
 (g) the amount and terms of payment of 
any sum payable for the tender 
documentation; and  
[EC – Job No. 876]  
 
(h) whether the entity is inviting offers for 
purchase, lease, rental or hire purchase, 
or more than one of these methods.  (e) an indication that the procurement 
is covered by this Agreement.  
[US – Job No. 1051]  
 
Comments  
• Article IX:6(f) of the current GPA is useful, particularly in the case of procurement of construction 
services, not only for suppliers to obtain essential and helpful information to avoid unnecessary 
preparation, b ut also to enable procuring entities to execute procurement procedures in an 
efficient manner.  The US proposal should include a similar provisions to Article IX:6(f) of the 
current GPA.  [Japan ] 
• The information contained in Article IX:6(g) of the current GP A should be published as a part of 
the administrative services sector.  For example, in the case of the procurement of construction 
services in Japan, suppliers cannot usually disregard the price for the tender documentation, 
since this price is often set h igh enough to cover the actual expenses.  These expenses mainly 
consist of the cost incurred by the procuring entity in relation to the preparation of a large 
volume of documents.  [Japan – Job No. 5474] 
• The US proposal should not eliminate Article IX:6(g) of the current Agreement since the 
information provided under that provision is provided as part of normal administrative services.  
[Japan]  
• With respect to the comments made in relation to Article IX:6(f) and (g), it may not be necessary 
to include  such information in notices notifying the original tender opportunity, although that 
information may need to be provided to suppliers who request tender documents.  The essential 
question is:  what information is necessary in a notice in order for a supplie r to evaluate whether 
they have an interest in the procurement and whether they want to request tender documents?  
It is considered that with respect to (f), it is not necessary for a supplier to have that information 
to determine whether it is interested.  That information could be provided in tender documents.  
With respect to (g), any supplier that requests tender documents would be told what the cost of 
the tender documents would be.  [US] GPA/TN1994/2/Rev.13  
 
- 110 - 
 
  Article IX  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) a description of the intended procurement 
including  [EC – Job No.  876]  
 
- the nature of and quantity of the 
goods or services to be procured 
and,  
  [EC – Job No. 876]  
 
- whether the entity is inviting offers 
for purchase, lease, rental or hire 
purchase, or more than one of these 
methods and,  
  [EC – Job No. 876]  
 
- where applicable, any options for 
further procurement and the related 
estimated timing when such options 
can be exercised as well as,  
  [EC – Job No. 876]  
 
- for recurring contracts, the nature 
and quantity of the goods or 
services and, if possible, an 
estimate of the timing of 
subsequent notices of intended 
procurement;  
  [EC – Job No 876]  
 
 - for framework a greements, the 
duration of the agreement, the 
estimated volume of purchases 
during the agreement and, if 
available, the volume and the 
expected frequency of the 
purchases;  
  [EC – Job No. 876]  
 
 (c) duration of the contract and/or any date 
for starting or completing delivery of 
goods or services;  
[EC – Job No. 876]  
 
 (d) any qualification requirements and other 
conditions for participation of suppliers, 
and any documents and information 
required from suppliers.  
[EC – Job No. 876]  
 
Comments  
• With respect to "framework agreements " reference is made to the work of the Committee on 
this subject and to the non -paper of the EC of 9 March 2000 (Job No. 1469).  [EC] 
• There may be possibilities to simplify some of the specific information requirements t hat are 
suggested in the EC proposal, particularly, in paragraph in 2(b).  [US] 
• The term "framework agreements " would have to be defined in the Agreement because, for 
example, that term is not used in the US system.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 111 - 
 
  Article IX:7, 8  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement referred to 
in paragraph 3 shall contain as much of the information 
referred to in paragraph  6 as is available.  It shall in any 
case include the information referred to in paragraph 8 
and: 
 1. Each Party shall encourage its procuring 
entities to publish as early as possible in each 
fiscal year information regarding entities ' future 
procurement plans.  Such information should 
include the subject -matter of the procurement 
and the planned date of the publication of the 
notice of intended procurement.  
[EC – Job No. 876]  
 
 (a) a statement that interested suppliers 
should express their interest in the 
procurement to the entity;  
 2. Procuring entities may apply Article XIV, 
paragraph 4, for the purpose of establishing 
shorter time -periods for procurements covered 
by this Agreement, when the notice of planned 
procurement contains as much of the information 
referred to in paragraph 2 of Article IX as is 
available and the address from which documents 
relating to the procurement may be obtained.  
[EC – Job No. 876]  
 
 (b) a contact point with the entity from 
which further information may be 
obtained.  
  
8. For each case of intended procurement, the 
entity shall publish a summary notice in one of the 
official languages of the WTO.  The notice shall contain 
at least the following information:  8. For each case of intended procurement, 
procuring entities shall publish a summary notice 
in one of the official languages of the WTO.  The 
notice shall contain at  least the following 
information:  
 
 (a) the subject matter of the contract;   (a) the subject -matter of the 
procurement;  
 
 (b) the time -limits set for the submission 
of tenders or an application to be 
invited to tender; and   (b) the time -limits set for the 
submission of tenders or, where 
applicable, of applications to be 
invited to tender or for qualifying 
for the supplies lists;  and 
 
 (c) the addresses from which documents 
relating to the contracts may be 
requested.    (c) the addresses from which 
documents relating to the 
procurement may be requested.  
[EC – Job No. 876 ]  
 
Comments  
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
• That requirement could be a significant obstacle, particularly for many non -Parties.  Further, as 
a general matter, it does not seem necessary to achieve the objectives of the Agreement.  [US] 
• The requirement of paragraph 8 is a great burden for Parties whose official language is not o ne 
of the official a languages of the WTO.  Given the fact that interested foreign suppliers usually 
acquire procurement information through its local agents or affiliates as a practice by reading 
the full notice published pursuant to paragraphs 6 and 7 of this Article, there is no need to 
publish such a summary notice.  Subparagraph 8 should be deleted.  [Chinese Taipei]  
• Japan 's experience is that Article VIII does not constitute a significant obstacle and that 
inaccurate translation is not a real problem.  [Japan]  
• In response to a question by Korea why the US proposal does not include a requirement to 
publish the summary notice in one of the WTO languages, this decision was made after taking GPA/TN1994/2/Rev.13  
 
- 112 - 
 
  into consideration, on the one hand, that if foreign suppliers are go ing to work in a foreign 
market, they need to be able to understand the local language and, on the other hand, that 
foreign suppliers may have to rely upon local representatives for information on local 
procurement opportunities.  [US] 
• The EC publishes summ ary notices in 11 languages.  It has been found that this does enhance 
transparency.  The EC has taken initiatives to make it easier for companies to rely less on local 
agents and to increasingly conduct research themselves in relation to procurement 
opportu nities.  [EC] 
• Perhaps acceding countries should be allowed to phase -in the obligation to publish the summary 
notice in a WTO language given that it might be difficult for acceding countries to comply with 
this obligation initially.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 113 - 
 
  Article IX:9  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering procedures, 
entities maintaining permanent lists of qualified 
suppliers shall publish annually in one of the publications 
listed in Appendix  III a notice of the following:  
 Article XI – Notice regarding permanent lists of 
qualified suppliers  
 
1. Procuring entities maintaining permanent 
lists of qualified suppliers shall publish annually 
in one of the publications listed in Appendix III a 
notice of the following:  
 
 (a) the enumeration of the lists 
maintained, including their headings, 
in relation to the products or services 
or categories of products or services 
to be procured through the lis ts; (a) the enumeration of the lists maintained, 
including their headings, in relation to the 
products or services or categories of 
products or services to be procured 
through the lists;  
 
 (b) the conditions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which each of 
those conditions will be verified by the 
entity concerned;  and 
 (b) the conditions to be fulfilled by suppliers 
with a view to their inscription on those 
lists and the methods acco rding to which 
each of those conditions will be verified by 
the entity concerned; and  
 (c) the period of validity of the lists, and 
the formalities for their renewal.  (c) the period of validity of the lists, and the 
formalities for their renewal.  
[EC – Job No. 876]  
 
 2. However, when the duration of the list is 
three years or less, and if the duration of the list 
is made clear in the notice and it is also made 
clear that further notices will not be published, it 
shall be sufficient to publish the notice once only, 
at the beginning of the validity of the list.  Such a 
system shall not be used in a manner which 
circumvents the provisions of this Agreement.  
 
Comments  
In relation to the EC proposal (Job No. 876):  
• It is unclear whether it is necessary to have a separate notice requirement for permanent lists. 
[US] 
• The EC 's proposed articles on notices of permanent lists and notices of planned procurement 
provide particular flexibility for Annex 3 entities.  It is unc lear whether that type of flexibility is 
necessary.  [US] GPA/TN1994/2/Rev.13  
 
- 114 - 
 
  Article IX:10  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to participate 
in accordance with paragraph 3, the notice shall, in 
addition, include the following information:  
  
 (d) the nature of the products or services 
concerned;  
  
 (e) a statement that the notice 
constitutes an invitation to 
participate.  
  
However, when the duration of the qualification system 
is three years or less, and if the duration of the system 
is made clear in the notice and it is also made clear that 
further notices will not be published, it shall be sufficient 
to pub lish the notice once only, at the beginning of the 
system.  Such a system shall not be used in a manner 
which circumvents the provisions of this Agreement.  
  
10. If, after publication of an invitation to participate 
in any case of intended procurement, but  before the 
time set for opening or receipt of tenders as specified in 
the notices or the tender documentation, it becomes 
necessary to amend or re -issue the notice, the 
amendment or the re -issued notice shall be given the 
same circulation as the original documents upon which 
the amendment is based.  Any significant information 
given to one supplier with respect to a particular 
intended procurement shall be given simultaneously to 
all other suppliers concerned in adequate time to permit 
the suppliers to cons ider such information and to 
respond to it.  
 5. If, after publication of a notice of intended 
procurement, but before the time set for opening 
or receipt of tenders as specified in the notices or 
the tender documentation, it becomes necessary 
to amend or re-issue the notice, the amendment 
or the re -issued notice shall be given the same 
circulation as the original documents upon which 
the amendment or re -issued notice is based.  Any 
significant information given to one supplier with 
respect to a particular i ntended procurement 
shall be given simultaneously to all other 
suppliers concerned in adequate time to permit 
the suppliers to consider such information and to 
respond to it.  
[EC – Job No. 876]  
 
Comment  
In relation to the EC Proposal (Job No. 876):  
• The EC  paragraph 5 is probably better placed before the proposed paragraph 4.  [US] GPA/TN1994/2/Rev.13  
 
- 115 - 
 
  Article IX:11  
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Modifications  
 
7. If, during the course of a procurement 
process, an entity modifies the criteria or 
technical requirements set out in previous 
notices and information provided to participating 
suppliers, it shall transmit all such modifications 
in writing:  
 
(a) to all the suppliers that are 
participating at the time the 
information is amended, if 
known, and in all other cases, in 
the same manner as the original 
information; and   
 
(b) in adequate time to allow such 
suppliers to modify and re -
submit their initial tenders, as 
appropriate.  
[US – Job No. 2867]  
11. Entities shall make clear, in the notices referred 
to in this Article or in the publication in which the notices 
appear, that the procurement is covered by the 
Agreement.  
  
  (h) an indication that the 
procurement is covered by the 
Agreement.  
[EC – Job No. 876]  
 
Comments  
• The US proposal suggests that procuring entities need to provide amended information to all 
participating suppliers.  In cases of procurement conducted over the Internet, the procuring 
entity will not know which suppliers have downloaded or viewed the tender documentation and, 
in many instances, procuring entities will publish the amendment in the same medium.  The onus 
should be on the supplier to look at amended information in such cases . Perhaps the proposal 
should be amended to state that it is sufficient to make the amended information publicly 
available.  [Singapore]  
• What would be the position under the US proposal when, at some point in the process when only 
a few potential suppliers remain, there is a change in the published conditions, some of which 
could be substantial and could affect those suppliers that have already been disqualified?  [EC] 
• It is important to consider what the situation would be if there is a two -stage competition  and a 
change in information occurs that affects the criteria on which the initial competition was based.  
In cases where information is changed during the second stage of the process, perhaps it would 
not be reasonable or necessary to share it or dissemina te it to all the suppliers that initially 
expressed an interest in the procurement.  [US] 
• This paragraph provides that if an entity modifies the criteria or technical requirements, such 
modifications shall be transmitted to all suppliers.  Are the two catego ries, namely, "criteria " and 
"technical requirements " comprehensive enough?  The usage of the term "significant information " 
in Article  IX:9 of the GPA is preferred.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 116 - 
 
  Article X - Selection Procedures  
Article X:1, 2, 3  
Selection Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering procedures, 
entities shall, for each intended procurement, invite 
tenders from the maximum number of domestic 
suppliers and suppliers of other Parties, consistent with 
the efficient operation of the procurement system.  They 
shall select the suppliers to participate in the procedure 
in a fair and non -discriminatory manner.  
  
2. Entities maintaining permanent lists of qualified 
suppliers may select suppliers to be invited to tender 
from among those listed.  Any selection shall allow for 
equitable opportunities for suppliers on the lists.  
  
3. Suppliers requesting to participate in  a particular 
intended procurement shall be permitted to submit a 
tender and be considered, provided, in the case of those 
not yet qualified, there is sufficient time to complete the 
qualification procedure under Articles  VIII and IX.  The 
number of additio nal suppliers permitted to participate 
shall be limited only by the efficient operation of the 
procurement system.   
 
Comments  
In relation to the absence of selective tendering procedures in the US proposal:  
• The fact that the US proposal does not include a  specific reference to selection procedures does 
not mean that such procedures cannot be used and are not appropriate.  Pursuant to paragraph  1 
of the existing Article  X, entities must decide whether the maximum level of competition has 
been ensured.  Howeve r, it is questionable whether such a provision requiring entities to decide 
this is necessary.  [US] 
• There may be some variety among countries in relation to the way in which the tendering 
procedures referred to in the Agreement are applied.  One of the ways  the Agreement can be 
made more accessible to new Parties and to reflect some of the different ways in which the 
current Parties may interpret the Agreement is to define the fundamental concepts and 
framework that all Parties can work within that still mee t the objective of providing predictable 
and stable market access for both domestic and foreign suppliers.  It is not considered necessary 
to have the same level of precision as to when qualification procedures take place in a given 
procurement as the current Agreement provides.  The current provisions are overly complex.  The 
US proposal moves in the right direction in that it establishes the necessary framework.  [Canada]  
• A distinction should be drawn between the use of particular procedures and the disciplines 
contained in the Agreement as they apply to specific procedures.  The GPA does not dictate that 
a government should use a particular procedural process for procurement.  It merely sets out 
the requirements that apply to whatever procedure a gover nment chooses to use.  Therefore, it 
is preferable to eliminate the distinction between open and selective tendering since many 
governments have the erroneous perception that the GPA dictates how governments can operate 
including what type of qualification should be used, when it can be used, when selection occurs 
etc. This may be an obstacle to Parties ' collective efforts to expand participation in the 
Agreement.  Accordingly, the US proposal suggests elimination of the reference to the various 
types of proc edures.  Providing that a certain procedure is allowed to the extent that it is explicitly 
permitted under the GPA could lead to the establishment of a much longer Agreement since 
different Parties use different procedures in different situations.  Removal o f the reference to 
selective tendering does not mean that the use of selective tendering is inappropriate in certain 
circumstances.  [US] GPA/TN1994/2/Rev.13  
 
- 117 - 
 
  • The provisions dealing with tendering procedures are at the heart of the Agreement.  Further, 
the Agreement will form th e basis for acceding countries that do not yet have legislation on 
government procurement.  It may be necessary to make obvious the possibility to use various 
tendering procedures, including selective procedures, without going into too much detail or 
mandat ing the use of particular procedures in a given set of circumstances.  The GPA should 
contain a requirement that the various tendering procedures must comply with certain 
requirements.  [Switzerland]  
• The US proposal maintains the existing content of the GPA with respect to tendering procedures.  
However, the US proposal does not attempt to apply that content to specific processes.  In 
particular, the GPA contains rules in relation to transparency, publication and content of notices 
and technical specifications etc. Those rules apply equally to any type of tendering procedure 
that is used.  There are many ways in which procurement may be conducted.  Some of the various 
procedures may be inconsistent with the requirements of the GPA.  It is not considered efficient 
or desirable to recognise the various procedures that countries may use in undertaking 
government procurement.  Further, the GPA should not be converted into a model law.  That could 
prove to be more of an obstacle than a benefit from the perspective of new c ountries wishing to 
accede.  It may be useful to more explicitly produce an explanation regarding how the various 
disciplines contained in the Agreement would relate to the various types of procedures.  Such an 
explanatory document may be useful to existing Parties as well as other Members that are 
considering acceding to the GPA.  The GPA would become too cumbersome if that was done in 
the Agreement itself.  [US] 
In relation to the clarification of the existing Article X:  
• With respect to Article X:1 of the cur rent Agreement, reference is made to selection of "suppliers 
to participate in the procedure in a fair and non -discriminatory manner ". It is understood that 
there is no need to publicise beforehand under this Article.  Therefore, this selection rule is different 
from pre -qualification.  Further clarification is sought in relation to the difference between the 
selective tendering rules and the rules relating to pre -qualification.  [Japan]  
• Paragraph 2 of the existing Article X states that permanent lists may  be used, which is not 
particularly useful.  In addition, the paragraph refers to "equitable opportunities ", the meaning 
of which is unclear.  If it means non -discriminatory, a non -discrimination obligation already exists 
in the Agreement.  Therefore, the que stion arises as to whether paragraph 2 is necessary.  [US] 
• In relation to paragraph 3 of Article X, the US proposal contains an equivalent provision in its 
proposed Article VIII:2.  The idea is that if there is a pre -qualification process using a permanent 
list or some other method, even if independent of the tendering process, there may be a need 
to provide the opportunity for new suppliers to participate, if there is time to complete the 
qualification procedure.  [US] 
• See also the Explanatory Notes by the US  in Job No. 6772, page 4.  
  GPA/TN1994/2/Rev.13  
 
- 118 - 
 
  Article X:4  
Selection Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Requests to participate in selective tendering 
procedures may be submitted by telex, telegram or 
facsimile.  4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile, electronic means, including 
email.  [Canada – Job No. 348;  1998 Proposal]  
 
Comments  
• Should the above definition of the term "writing " apply across -the-board in the Agreement or 
only to the provisions on selective tendering?  [US] 
• The US proposal does not contain an equivalent for paragraph 4 of the existing text hence it is 
unclear whether it is necessary to specify how documents may be submitted.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 119 - 
 
  Article XI – Time -limits for Tendering and Delivery  
Article XI:1  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
General  General  
1. (a) Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers to 
prepare and submit tenders before the 
closing of the tendering procedures.  In 
determining any such time -limit, entities 
shall, consistent with their own 
reasonable needs, take into account such 
factors as the complexity of the intended 
procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting tenders by 
mail from foreign as well as domestic 
points.  1. (a) Any prescribed time -limit shall be 
adequate to allow supplier s of other 
Parties as well as domestic suppliers 
to prepare and submit tenders, and 
where appropriate, applications to 
be invited to tender or applications 
for qualifying.  In determining any 
such time -limit, procuring entities 
shall, consistent with their own 
reasonable needs, take into account 
such factors as the complexity of the 
intended procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting 
tenders from foreign as well as 
domestic points.  
[EC – Job 876;  Singapore - Job No. 3772]  
 
General comment  
In relation to the EC Proposal (Job No. 876):  
• The suggestion for modification of this Article is based mainly on the need to simplify and avoid 
going into many details with different deadlines for different events and situatio ns. With respect 
to the main deadlines, an attempt has been made to consolidate them.  With respect to the 
circumstances that allow entities to reduce the normal time periods, the EC has taken an 
approach stating that time periods could be reduced and to fix just the minimum number of 
days, being 10 calendar days, and to list all the circumstances allowing this reduction without 
fixing different deadlines for each one of them.  At the end of the proposal, a suggestion has 
been made for the reduction of time -limits because of the use of electronic means.  The reduction 
for the use of electronic means in the EC proposal applies not only when the notice is published 
using electronic media but also when the complete tender documentation is made available 
electron ically.  It is considered that only if these two circumstances prevail, there is a real 
advantage in terms of time for potential bidders.  [EC] GPA/TN1994/2/Rev.13  
 
- 120 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting the 
final date for receipt of tenders or of 
applications to be invited to tender.  
  (b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting 
the final date for receipt of 
tenders or of applications to be 
invited to tender or for qualifying 
for the supplier 's list.  
[EC – Job No. 876 ;  Singapore - Job No. 3772]  
  
 (c) Where, as a result of a need to 
amend information provided to 
suppliers during the 
procurement process, a 
procuring entity must extend the 
time-period for qualification or 
tendering, such entity shall 
permit all participating suppliers 
to submit final tenders in 
accordance with a  common 
deadline.  
[EC – Job No. 876]  
 
 2. Under the following circumstances, 
entities may establish a time -period for 
tendering that is shorter than 40 days, provided 
that such time -period is sufficiently long to 
enable suppliers to prepare and submit 
responsive tenders and is in no case less than 10 
calendar days prior to the final date for the 
submission of tenders;  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.13  
 
- 121 - 
 
  Article XI:2  
Time-limits for Tendering and Delivery  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Deadlines  
 Deadlines  
2. Except in so far as provided in paragraph 3:  
 2. Except insofar as provided in paragraph 3,  
 
 (a) in open procedures, the period for the 
receipt of tenders shall not be less than 
40 days from the date of publication 
referred to in paragraph 1 of Article  IX; 
  (a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in 
paragraph  1 of Article IX;  
[Singapore – Job No. 3772]  
 
 2. 2. Except in so far as provided in 
paragraphs  [4] and [5] procuring entities shall 
provide no less than 40 calendar days between 
the date on which the notice of intended 
procurement is published and the final date for 
the submission of tenders.  
[EC – Job No. 876]  
 
 2. (a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 28 days from the date of 
publication referred to in 
paragraph  1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
Comments  
• The suppliers of products, the prices of which are subject to frequent changes, question the 
rationale for the extended time -periods in the Agreement.  [Singapore]  
• Further discussion is required in relation the reduction of time -limits when electronic 
procurement methods are used.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 122 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Time Periods for Tendering  
 
 1. Except as provided for in paragraphs 2 and 
3 of this Article, procuring entities shall provide 
no less than 40 calendar days between the date 
on which the notice of intended procurement is 
published and the final date for the submission of 
tenders.  
[US – Job No. 2867]  
 
 (b) in selective procedures not involving 
the use of a permanent list o f qualified 
suppliers, the period for submitting an 
application to be invited to tender 
shall not be less than 25 days from 
the date of publication referred to in 
paragraph  1 of Article  IX; the period 
for receipt of tenders shall in no case 
be less than 40  days from the date of 
issuance of the invitation to tender;  
  (b) in selective procedures not 
involving the use of a permanent 
list of qualified suppliers, the 
period for submitting an 
application to be invited to tender 
shall not be less than 25 days 
from the date of publication 
referred to in paragraph  1 of 
Article IX;  the period for receipt 
of tenders shall in no case be less 
than 40 days from the date of 
issuance of the invitation to 
tender;  
[Singapore – Job No. 3772]  
 
  (b) in selective pr ocedures not 
involving the use of a permanent 
list of qualified suppliers, the 
period for submitting an 
application to be invited to tender 
shall not be less than 14 days 
from the date of publication 
referred to in paragraph  1 of 
Article IX;  the period for  receipt 
of tenders shall in no case be less 
than 28 days from the date of 
issuance of the invitation to 
tender;  
[Chinese Taipei – Job No. 3193]  
 GPA/TN1994/2/Rev.13  
 
- 123 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a procuring entity requires 
suppliers to satisfy qualification 
requirements in order to participate in a 
procurement, the entity shall provide no 
less than 25 calendar days between the 
date on which the notice of intended 
procurement is published and the final day 
to submit their application to be invited to 
tender and no less than 40 calendar days 
between the day of issuance of the 
invitation to under and the final date for 
submission of tenders.  
[EC – Job No. 876]  
 
 (c) in selective procedures involving the 
use of a permanent list of qualified 
suppliers, the period for receipt of 
tenders shall not be less than 40 days 
from the date of the initial issuance of 
invitations to tender, whether or not 
the date of initial is suance of 
invitations to tender coincides with 
the date of the publication referred to 
in paragraph  1 of Article  IX.  
  (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers, the period for 
receipt of tenders shall not be  
less than 40 [30] days from the 
date of the initial issuance of 
invitations to tender, whether or 
not the date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
[referred to in paragraph 1 of 
Article IX].  
[Singapore – Job No. 3772]  
 
  (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers, the period for 
receipt of tenders shall not be 
less than 28 days from the date of 
the initial issuance of invitations 
to tender, whether or not the  date 
of initial issuance of invitations to 
tender coincides with the date of 
the publication referred to in 
paragraph 1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
Comments  
• The proposal attempts to consolidate paragraphs (b) and (c) of the existing text.  This is linked 
to the proposed modification to allow the use of permanent lists.  It is considered that both 
time-limits are needed.  The first – 25 days – relates to the qualification stage whereas the 
second, 40 days, relates to the submissi on and evaluation of bids.  [EC] 
• The reference to 25 calendar days which are required for qualification results in a long process 
because 40 days still remain for invitations to tender.  Could the deadline of 25 days be reduced 
under certain circumstances?  [Switzerland]  
• In some circumstances, reduction of the 25 and 40 day time -limits are allowed whereas in other 
cases, only the 40 -day time -limit may be reduced.  [EC] 
• According to the EC proposal, the current provision of the current GPA which deals with cases 
where a procuring entity uses a permanent list (Article XI 2(c)), has been deleted.  Under the EC 
proposal, entities now need to secure 25 days between the date on which the notice of intended 
procurement is published and the final date to submit the application for participation, even if 
the entity uses a permanent list.  Thus, Japan believes it more appropriate to maintain the rule 
that currently exists in the GPA.  Why is the EC in favor of applying the 65 -day rule (25 days plus 
40 days) to  cases where a permanent list is used?  [Japan - Job No. 5474]  GPA/TN1994/2/Rev.13  
 
- 124 - 
 
  • Sufficient time for completion of the qualification process should exist.  Twenty -five days has 
been proposed because some qualification procedures may be lengthy;  shortening this period 
may limi t access to procurement opportunities, particularly for foreign suppliers in cases where 
translation of documents is necessary.  [EC] 
• A balance needs to be struck between the need to ensure that a sufficient period of time is 
available to qualify and the as sociated costs.  It should also be borne in mind that many projects 
are middle -sized projects rather than large projects;  a longer period would not seem necessary 
for such projects.  [Japan]  
  GPA/TN1994/2/Rev.13  
 
- 125 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON G OVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) in the case of subparagraphs (a) or (c) 
above, where an entity recognizes that 
interested suppliers satisfy the 
conditions for participation prior to the 
submission of tenders, the entity shall 
provide no less than 15 days from the 
date of publication refe rred to in 
paragraph 1 of Article IX for such 
suppliers to submit their applications.  
[Japan – Job No. 6846]  
 
Comment  
• The Japanese proposal serves to make clear that the 15 -day period starts from the date of 
publication of the notice.  [Japan – Job No. 6846]  GPA/TN1994/2/Rev.13  
 
- 126 - 
 
  Article XI:3  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The periods referred to in paragraph 2 may be 
reduced in the circumstances set out below:  
 3. The periods referred to in paragraph 2 may 
be reduced in the circumstances set out below:  
 (a) if a separate notice has been published 40 
days and not more than 12 months in 
advance and the notice contains at least:    (a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and the 
notice contains at least:  
 
 (i) as much of the information 
referred to in paragraph 6 of 
Article  IX as is available;   (i) as much of the information 
referred t o in paragraph 6 of 
Article IX as is available;  
 
 (ii) the information referred to in 
paragraph 8 of Article  IX;  (ii) the information referred to in 
paragraph 8 of Article  IX; 
 
 (iii) a statement that interested 
suppliers should express their 
interest i n the procurement to the 
entity;  and  (iii) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity;  and 
 
 (iv) a contact point with the entity 
from which further information 
may be obtained,  
 
  the 40 -day limit for receipt of tenders 
may be replaced by a period sufficiently 
long to enable responsive tendering, 
which, as a general rule, shall not be less 
than 24 da ys, but in any case not less 
than 10 days;   (iv) a contact point with the entity 
from which further 
information may be obtained, 
the 40 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to 
enable responsive tendering, 
which, as  a general rule, shall 
not be less than 24  days, but in 
any case not less than 10 days;  
[Singapore – Job No. 3772]  
 GPA/TN1994/2/Rev.13  
 
- 127 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Under the following circumstances, 
procuring entities may establish a time -period 
for tendering that is shorter than the periods 
referred to in paragraphs 2 and 3, provided that 
such time -period is sufficiently long to enable 
suppliers to prepare and submit responsi ve 
tenders and is in no case less than 10 calendar 
days prior to the final date for the submission of 
tenders:  
 
 (a) where a notice of planned procurement 
under Article XII, paragraph 2 has been 
published 40 days and not more than 
12 months in advance;  
 
 (b) in the case of the second or subsequent 
publications dealing with contracts of a 
recurring nature;  
 
 (d) where a state of urgency duly 
substantiated by the procuring entity 
renders impracticable the periods 
specified in paragraphs 2 and 3.  
 
 (e) when the period for the submission of 
tenders referred to in paragraph 3, for 
procurements by procuring entities in 
Annex 3, be fixed by mutual agreement 
between the entity and the selected 
suppliers.  In the absence of agreement, 
the entity may fix periods w hich shall be 
sufficiently long to enable responsive 
tendering.  
[EC – Job No. 876]  
 
Comment  
• The need for subparagraph (e) of the EC proposal is questioned.  [US] GPA/TN1994/2/Rev.13  
 
- 128 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 5. When a procuring entity publishes a notice 
of intended procurement in accordance with 
Article IX of this Agreement in an electronic 
media listed in Appendix III, and the complete 
tender documentation is made a vailable 
electronically since the beginning of the 
publication of the notice, such entity may reduce 
the time -periods for tendering by up to 
12 calendar days.  The use of this provision, 
however, shall in no case result in the reduction 
of those time period s to less than 10 calendar 
days from the date on which the notice of 
intended procurement is published.  
[EC – Job No. 876]  
 
Comments  
• The reduction of time when electronic means are used applies not only when the notice is 
published in electronic media but also when the complete tender documentation is made 
available electronically.  It is considered that only if these two circumstances prevail, there is a 
real advantage in terms of time for potential bidders.  [EC] 
• The EC proposal only concerns time  reductions for notice publication using electronic means.  For 
this reason, the EC is not proposing that time -limits should be reduced in the GPA context where 
only the notice is published using electronic means.  [EC]  
• The proposal regarding electronic ten dering is a useful one and will facilitate the application of 
the Agreement.  [Switzerland]  
• It is interesting to note that the time -period may be reduced by up to 12 days if a procuring 
entity publishes a notice of intended procurement in an electronic medi um and if the complete 
tender documentation is made available electronically.  However, some Japanese suppliers are 
of the opinion that a 12 -day reduction is excessive, even if the tender documentation is available 
electronically.  Such reduction might be di sproportionate from a supplier 's point of view.  What is 
the reason for allowing reduction by up to 12 days?  What is the relationship between this new 
12-day reduction provision and Article XIV:4 of the EU proposal, which enables a general 
reduction of the time-period.  For example, what if both provisions are applied at the same time?  
[Japan - Job No. 5474]  
  GPA/TN1994/2/Rev.13  
 
- 129 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) where a separate notice, including a 
notice under [Article V:3] of this 
Agreement, has been published at 
least 40 calendar days and not more 
than 12 months in advance, and such 
notice contains: a description of the 
intended procurement; the time 
limits for the submission o f tenders 
or, when appropriate, applications 
for qualification; and the address 
from which documents relating to 
the procurement may be obtained;  
[US – Job No. 2867]  
 
Comments  
• Elements required under the proposed paragraph (a) of the US proposal relating to prior notice 
are not as comprehensive as those contained in Article XI:3 of the GPA.  The US proposal only 
prescribes elements which are contained in Article XI:3(a) (ii) of the GPA.  Information such as 
economic or technical requirements or comp letion date is not prescribed.  However, such 
information is essential to enable a supplier to determine whether he or she should bid for that 
tender.  [Hong Kong, China]  
• The Agreement currently recognises the possibility that there may be two public notices relating 
to a single tendering procedure.  There may be an advance notice which contains a certain 
minimum amount of information followed by a subsequent notice which would still be required 
to have all the information that is required for a notice for an intended procurement.  The 
existence of a prior notice that contains a certain amount of information may be a reason to 
reduce the time -period to less than 40 days because some information is already available to 
suppliers.  When the second notice is issued, the tendering procedure can, perhaps, proceed 
more quickly.  [US] GPA/TN1994/2/Rev.13  
 
- 130 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The periods referred to in paragraph 2 
may be reduced in the  circumstances set out 
below:  
 
  (a) if a separate notice has been 
published 28 days and not more 
than 12 months in advance and the 
notice contains at least:  
 
  (i) as much of the information 
referred to in paragraph 6 of 
Article IX as is available;  
 
  (ii) the information referred to in 
paragraph 8 of Article IX;  
 
  (iv) a contact point with the entity 
from which further 
information may be obtained;  
 
  the 28 -day limit for receipt of 
tenders may be replaced by a period 
sufficiently long to enable 
responsive tendering, which as a 
general rule, shall not be less than 
14 days, but in any case not less 
than 10 days;  
[Chinese Taipei – Job No. 3193]  
 
Comment  
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim of simplifying and improving the Agreement.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 131 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) in the case of the second or 
subsequent publications dealing with 
contracts of a recurring nature within 
the meaning of paragraph 6 of 
Article  IX, the 40 -day limit for receipt 
of tenders may be reduced to not less 
than 24 days;   
  (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph 6 of Article IX, the 40 -
day [30 -day [EC]] limit for 
receipt of tenders may be 
reduced to [not less than 
24 days][24 days [EC]];  
[Singapore – Job No. 3772;  EC – GPA/W/87 ] 
 
  (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph  6(a) of Article IX, the 
28-day limit for receipt of 
tenders may be reduced to not 
less than 14 days;  
[Chinese Taipei – Job No. 3193]  
 
 (b) in the case of the second or 
subsequent publication of 
notices dealing with contracts of 
a recurring nature;  
[US – Job No. 2867]  
 
Comment  
• The meaning of "contracts of a recurring nature " is not clear.  Clarification is sought as to whether 
this reference includes contracts which are recurrently required.  For example, there may be an 
annual contract or contract for longer periods, say three years, and renewal is necessary before 
expiration.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 132 - 
 
  Article XI  
Time-limits f or Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) in the case of procurement of 
commercially available off -the-shelf  
goods and services, except that a 
procuring entity shall not reduce 
time-periods for this reason if the entity 
requires that potential suppliers be 
qualified for participation in the 
procurement before submitting tenders, 
in accordance with Article [IX] of this 
Agreement;  and 
[US – Job No. 1051]  
 
 (e) where the subject -matter of a 
procurement is an off -the-shelf product 
or service, or agricultural or mineral 
product, the period shall not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (c) in the case where the procuring entity 
procures off-the-shelf goods (goods with 
the same technical specifications as 
those of goods that are sold or offered for 
sale to, and customarily purchased by 
non-governmental buyers for non -
governmental purposes);  the procuring 
entity shall not reduce time period s for 
this reason if the entity requires that 
potential suppliers be qualified for 
participation in the procurement before 
submitting tenders;  
[EC– Job No. 876]  
 
Comments  
 
In relation to the US proposal:  
 
• It is an open question whether it would be useful to define "commercially available off the shelf " 
goods and services (a lengthy definition is incorporated in the US Federal Acquisition  Regulation).  
It is appropriate to allow for shorter time -periods where entities procure goods and services that 
are norm ally bought and sold outside the public sector and where entities do not establish 
government -unique specifications for such goods and services.  [US] 
• Clarification is sought as to the aim, purpose of and necessity for Article VI:2(c) of the US 
proposal.  It appears that this Article governs the procurement of commercially available goods 
and services that are commonly procured by non -governmental buyers, such as pens and 
pencils.  Under Article  XV:1(h) of the existing GPA and Article IX:3(e) of th e US proposal, 
procurement of products purchased on a commodity market may involve limited tendering 
procedures.  [Hong  Kong, China]  
• Article XV:1(h) dealing with commodity markets relates to bulk commodities like wheat and 
grains and would not necessarily h ave application to as broad a range of goods as "commercial 
off-the-shelf" goods.  The latter term does not necessarily relate to a particular product category 
but rather indicates whether a particular product that the government buys is essentially the 
same as the product that is being sold in the general market.  [US] 
• The US proposal provides for greater flexibility in reducing time -periods below the standard 
40-day time -period in cases including those concerning procurement of commercial goods and 
services, referred to in ArticleVI:2(c) of the US proposal.  In some cases, governments purchase 
"off-the-shelf" products or commercial products, which are products that are not distinguishable 
from products that are purchased by non -governmental users.  Such products can be purchased GPA/TN1994/2/Rev.13  
 
- 133 - 
 
  from anywhere and the government does not have any specific technical specifications for such 
products.  Therefore, the procurement can be undertaken in an open and competitive way, more 
quickly than, for example, a major public construction project.  [US] 
• The idea of "off-the-shelf services " does not sound appealing but will be considered.  [EC] 
In relation to the EC proposal:  
• With respect to subparagraph (c) of the EC proposal, the question arises as to whether the 
Parties would h ave a common understanding of the meaning of "commercially available off -the-
shelf goods " or whether it is necessary for the text to provide further detail as to what that 
means.  [US] 
• The definition of that expression is in brackets in the EC proposal beca use the EC is considering 
whether this term should be defined in a separate place or in the same provision.  [EC] 
• The EC and equivalent US proposal regarding off -the-self goods are welcome.  One of the 
concerns regarding the implementation of the existing GP A is that the existing time -limits may 
not be realistic, especially when they are applied to simple and very straightforward 
procurements such as for paper and stationery when they exceed the GPA thresholds.  
[Singapore]  
• It would also be useful to insert so me standard services into this paragraph, such as the cleaning 
of buildings or the provision of security for buildings, since these could also be treated in the 
same way as off -the-shelf goods to make the Agreement more attractive to non -Parties.  
[Switzerl and] 
  GPA/TN1994/2/Rev.13  
 
- 134 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in question, the 
periods specified in paragraph  2 may be 
reduced but shall in no case be less than 
10 days from the date of the publication 
referred to in paragraph  1 of Article  IX; 
or 
  (c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in 
question, the periods specified in 
paragraph 2 may be reduced but 
shall in no case be less than 10 days 
from the date of the publication 
referred to in paragraph 1 of 
Article  IX; or 
[Singapore – Job No. 3772]  
  (d) when, for d uly substantiated 
reasons of extreme urgency 
brought about by events 
unforeseeable by the entity, the use 
of a 40 -day time period would result 
in serious injury to the entity or the 
relevant Party; however, concerns 
relating to the amount of funds 
availabl e to an entity within a 
particular period of time shall not be 
considered to be a reason of 
extreme urgency for these 
purposes.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.13  
 
- 135 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) the period referred to in paragraph  2(c) 
may, for procurements by entities listed 
in Annexes  2 and 3, be fixed by mutual 
agreement between the entity and the 
selected suppliers.  In the absence of 
agreement, the entity may fix periods 
which shall be sufficiently long to enable 
responsive tendering and shall in any 
case not be less than 10 days.  
  (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed in 
Annexes 2 and 3, be fixed by mutual 
agree ment between the entity and 
the selected suppliers.  In the 
absence of agreement, the entity 
may fix periods which shall be 
sufficiently long to enable 
responsive tendering and  shall in 
any case not be less than 10 days.  
[Singapore – Job No. 3772]  
 
  (d) the period referred to in 
paragraph  2(c) may be fixed by 
mutual agreement between the 
entity and the selected suppliers.  In 
the absence of agreement, the 
entity may fix periods which shall 
be sufficiently long to enable 
responsive tendering and shall in 
any case not be less than 10  days;  
[Chinese Taipei – Job No. 3193]  
 
  (f) where an electronic tender 
documentation is available from a 
website indicated in the notice of 
paragraph  6 of Article IX, the period 
may be further reduced by 5  days.  
[Chinese Taipei – Job No. 3193]  
 GPA/TN1994/2/Rev.13  
 
- 136 - 
 
  Article XI  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (e) When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article IX in an 
electronic media listed in Appendix II, 
and the complete tender documentation 
is made available electronically from the 
beginning of the publication of the 
notice, such entity may reduce the 40 -
day limit for receipt of tenders by up to 
five days.  The us e of this provision, 
however, shall in no case result in the 
reduction of the time -period for receipt 
of tenders to less than 10 days from the 
date of the publication referred to in 
paragraph 1 of Article IX.  
[Japan – Job No. 6846]  
 
 3. When a procuring e ntity publishes a notice 
of intended procurement in accordance with 
Article V of this Agreement in an electronic media 
listed in Appendix III, the entity may reduce the 
time periods provided for in this Agreement by up 
to 10 calendar days.  The use of this provision, 
however, shall in no case result in the reduction 
of those time periods to less than 10 calendar 
days from the date on which the notice of 
intended procurement is published.  
[US – Job No. 2867]  
 
 4. Where, as a result of a need to amend 
information provided to suppliers during the 
procurement process, a procuring entity must 
extend the time period for qualification or 
tendering procedures, such entity shall permit all 
participating suppliers to submit final tenders in 
accordance with a co mmon deadline.  
[US – Job No. 2867]  
 
Comments  
• It is not clear how this section is proposed to apply to a case where the intended procurement 
is published in both paper and electronic media.  The following two cases need to be considered 
and properly addressed:  
 If a procuring entity publishes a notice of intended procurement in an electronic medium, 
the entity is entitled to shorten the time for submission of tenders.  However, if a procuring 
entity chooses to publish a notice in both paper and electro nic media, those suppliers who 
can only access the paper version will suffer a reduced period for submission of tenders.  
 The publication of a notice of intended procurement in an electronic medium does not 
necessarily mean that such procuring entity will accept the submission of tenders via 
electronic transmission.  As such, a period of 10 calendar days may seem too short for a 
foreign supplier who still needs to submit his tender by post or by courier.  [Hong Kong, 
China]  
• When procurement notices are publis hed electronically rather than through traditional paper 
means, the efficiency that results may allow for a reduction in the time -period of 10 days, 10 
days representing the potential gain in efficiency by using electronic means.  Depending upon 
the circums tances, time -periods could be reduced to a minimum of 10 days.  [US] 
• It is interesting to note that the time -period may be reduced by up to 10 days when a procuring 
entity publishes a notice of intended procurement in an electronic medium.  However, some 
Japanese suppliers are of the opinion that a 10 -day reduction is excessive, even if the tender GPA/TN1994/2/Rev.13  
 
- 137 - 
 
  documentation is available electronically.  Such reduction might be disproportionate from a 
supplier 's standpoint.  At the same time, Japan would like to know the rea son for allowing a 
reduction  by up to 10 days.  The US proposal only requires, as a condition for a reduction of the 
time-period, a notice of intended procurement to be made available via electronic media, while 
a similar provision of the EC proposal requir es that the complete tender documentation be 
available through electronic media.  What is the relationship between this 10 -day reduction 
provision and Article VI:2 of the US proposal, which enables a general reduction of the 
time-period.  For example, what i f both provisions are applied at the same time?  [Japan - Job 
No. 5474]  
• Ten days is the minimum period to which the time -limits could be reduced.  [US] 
• Article VI(3) of the US proposal states that the reduction of time -limits by 10 days can only be 
based on the publication of a notice of intended procurement whereas Article XIV:5 of the EC 
proposal states that the documentation must be provided electronically.  Different reduction of 
time-limits should be available for all tender documentation, rather  than in relation to tender 
notices only.  If a procurement entity publishes a tender notice electronically, can such 
circumstances warrant a reduction of time -limits for tendering?  If this is the case, it is proposed 
that the time -limits should be reduced to five days instead of seven days.  In the case where all 
the tender documentation is made available electronically, it is considered that 10 days is 
acceptable.  [Chinese Taipei]  
Drafting suggestion  
• Adding a phrase "irrespective of whether such notice is a lso published in paper media " after 
Appendix III in the first sentence.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 138 - 
 
  Article XI:4  
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Consistent with the entity 's own reasonable 
needs, any delivery date shall take into account such 
factors as the complexity of the intended procurement, 
the extent of subcontracting anticipated and the realistic 
time required for production, de -stocking and transport 
of goods from the poi nts of supply or for supply of 
services.  
 (d) Consistent with the procuring entity 's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of the 
intended procurement, the extent of 
subcontracting anticipated and the realistic time 
required for production, de -stocking and 
transport of goods from the points of supply or 
for supply of services.  
[EC – Job No. 876]  
 
 Possible replacement paragraphs (can have more 
than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a medium 
which is [in the public domain] [readily available 
to both local and foreign suppliers] its overall 
policy on the time -limits for intended 
procurement to be followed by its entities.  
 
 Clause (b)  
 
 Consistent with t he provisions in 
Article  XX, entities shall provide for rapid and 
immediate measures to address challenges by 
suppliers on the inadequacy of time -limits given 
for intended procurement.  
[Singapore – Job No. 3772]  
 
Comments  
• With respect to subparagraph (d) of the EC proposal and the reference to delivery dates, it might 
be more appropriate for that provision to be included in an article on technical specifications.  
The delivery date is seen as one of the specifications or requirements for ev aluation of offers.  
[US] 
• While Article XI is perhaps not the most appropriate place to discuss delivery dates, it is unclear 
whether the proposed provision should be moved into the section on technical specifications.  
[EC] 
  GPA/TN1994/2/Rev.13  
 
- 139 - 
 
  Article XII - Tender Documentation  
Article XII:1  
Tender Documentation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity allows 
tenders to be submitted in several languages, one of 
those languages shall be one of the official languages of 
the WTO.  
 4. If a procuring entity allows tenders to be 
submitted in more than one language, one of 
those languages shall be one of the official 
languages of the WTO.  
[EC – Job. No. 876]  
 
General comments  
In relation to the EC Pr oposal:  
• The EC proposal attempts to simplify and streamline the Article.  Some of the current 
requirements for inclusions in the tender documentation are not necessary either because they 
are more appropriately included in the notice of intended procurement  or because it is considered 
that they involve information that is not needed at the tendering stage.  [EC] 
Other:  
• Why has the requirement regarding the use of a WTO language been omitted from the US 
proposal?  [Japan]  
• The US considers that it is not necessary to deal with that issue in the Agreement.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 140 - 
 
  Article XII:2  
Tender Documentation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to suppliers shall 
contain all information necessary to permit them to 
submit responsive tenders, including information 
required to be published in the notice of intended 
procurement, except for paragraph 6(g) of Article  IX, 
and the following:  
 1. Procuring entities shall provide to 
suppliers tender documentati on that includes all 
information necessary to permit suppliers to 
prepare and submit responsive bids. Unless 
already provided in the notice of intended 
procurement, such documentation shall include a 
complete description of:  
[US – Job No. 2867; EC – Job No . 876]]  
 
 (a) the address of the entity to which tenders 
should be sent;  
  
 (b) the address where requests for 
supplementary information should be 
sent; 
  
 (c) the language or languages in which 
tenders and tendering documents must 
be submitted;  
  
 (d) the closing date and time for receipt of 
tenders and the length of time during 
which any tender should be open for 
acceptance;  
  
 (e) the persons authorized to be present at 
the opening of tenders and the date, time 
and place of this opening;   (d) the date, time and place for the 
opening of tenders;  
[US – Job No. 2867]  
 
   persons authorized to be present; 
and 
[EC – Job No. 876]  
 
Drafting suggestion  
• Suggest replacing the word "opening " by "lodging " in the US ' proposal.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 141 - 
 
  Article XII  
Tender Documentation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) any economic and technical requirement, 
financial guarantees and information or 
documents required from suppliers;  
 (b) any conditions for participation in 
the procurement, including any 
financial guarantees, information 
and documents that suppliers are 
required to submit;  
[US – Job No. 2867; EC – Job No. 876]  
 
(g) a complete description of the products or 
services required or  of any requirements 
including technical specifications, 
conformity certification to be fulfilled, 
necessary plans, drawings and 
instructional materials;  
 (a) the intended procurement, 
including the nature and quantity of 
the goods or services to be procured 
and any requirements to be 
fulfilled, including any technical 
specifications, conformity 
certification, plans, drawings or 
instructional materials;  
[US – Job No. 2867; EC – Job No. 876]  
 
(h) the criteria for awarding the contract, 
including any f actors other than price that 
are to be considered in the evaluation of 
tenders and the cost elements to be 
included in evaluating tender prices, such 
as transport, insurance and inspection 
costs, and in the case of products or 
services of other Parties, cu stoms duties 
and other import charges, taxes and 
currency of payment;  
 (c) all criteria, including all cost 
factors, to be considered in the 
awarding of the contract, and the 
weights that will be assigned to 
such criteria in evaluating tenders;  
[US – Job No. 2867; EC – Job No. 876]  
(i) the terms of payment;  
 (e) the terms of payment and any other 
terms or conditions.  
[US – Job No. 2867]  
 
(j) any other terms or conditions;  
  
(k) in accordance with Article XVII the terms 
and conditions, if any, under which 
tenders from countries not Parties to this 
Agreement, but which apply the 
procedures of that Article, will be 
entertained.  (e) any other terms or conditions, 
including terms of payment.  
[EC – Job No. 876]  
 
Comments  
• With respect to subparagraph (c) of the EC and US proposals, it is a good idea for relative 
weightings to be published in advance.  However, there is a probability that the relative weighting 
may not be confirmed in advance or may have not yet been decided, for example, in  complicated 
cases such as procurement for BOT or concession contracts.  Further, the US proposal regarding 
limited tendering deletes the reference to design contests which means that normal procurement 
procedures should apply to design contests.  The relati ve weighting for design contests at the 
notice stage would be difficult to anticipate since these are normally determined by a jury of 
specialists after receiving the proposals.  There may be a need for an exceptional clause to deal 
with these situations.  [Japan;  Switzerland]  The US has come back on this issue to Japan in 
writing, but the EC has not.  [Japan]  We are currently reviewing this issue and will come back to 
Japan once the review is completed.  [EC] 
• It may also be possible to list criteria in order o f importance.  [Switzerland]  
• It is important to include the relative weighting of evaluation criteria in the tender notices or the 
documentation to ensure transparency of the process and to ensure that suppliers and others 
can understand the bases for decis ions that are made in the procurement process.  [US] GPA/TN1994/2/Rev.13  
 
- 142 - 
 
  • Deliberation is necessary as to whether it is practical to include in the tender documentation for 
all procurements the relative weightings assigned to criteria for the awarding of the contract in 
additio n to the criteria themselves.  It is important to analyse some concrete examples of the 
use of relative weightings which satisfy this provision, for instance, procurements of design and 
consulting services relating to construction.  [Japan - Job No. 5474]  
  GPA/TN1994/2/Rev.13  
 
- 143 - 
 
  Article XII:3  
Tender Documentation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the Entities  
  
3. (a) In open procedures, entities shall 
forward the tender documentation at 
the request of any supplier 
participating in the procedure, and 
shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
 2. Procuring entities shall forward the tender 
documentation at the requests of any suppliers 
participating in the procurement.  
[EC - Job No. 876]  
 (b) In selective procedures, entities shall 
forward the tender documentation at 
the request of any supplier requesting 
to participate, and shall reply 
promptly to any reasonable request 
for explanations relating thereto.  
  
 (c) Entities shall reply promptly to any 
reasonable request for relevant 
information submitted by a supplier 
participating in the tendering 
procedure, on condition that such 
information does not give that 
supplier an advantage over its 
competitors in the proce dure for the 
award of the contract.  
 3. Procuring entities shall reply promptly to 
any reasonable request for relevant information 
submitted by a supplier participating in the 
procurement , on condition that such information 
does not give that supplier an advantage over its 
competitors in the procurement process.  
[EC – Job No. 876]  
 Third Countries  
 
Each Party shall encourage its entities to make 
tender documentation available on the internet 
at the time of publication of the notice of 
intended procurement or as soon as possible 
thereafter, with access thereto being either free 
of charge or at a reasonable cost, having regard 
to the actual cost to the entity of making such 
information available in this way.  
[EC - Job No. 4312]  
 
Comments  
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount and terms of payment of any sum payable for the tender documentation ". Parties should 
be given the flexibility to impose a reasonable charge, even for tech nical specifications and 
tender documents which are downloaded from the Internet.  [Canada]  
• Some form of charges may be necessary to ensure that documents are not downloaded 
indiscriminately.  Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore;  Canada]  
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs associated with providing the documents by mail.  Providing 
documents free of charge will increase tr ansparency and, in particular, will benefit small and 
medium enterprises seeking opportunities in procurement markets.  [EC] 
• The fee charged should be strictly linked to actual cost incurred in the provision of information.  
[EC] 
  GPA/TN1994/2/Rev.13  
 
- 144 - 
 
  Article XIII - Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
Article XIII:1  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of tenders 
and awarding of contracts shall be consistent with the 
following:  
  
(a) tenders shall normally be submitted in 
writing directly or by mail. If tenders by 
telex, telegram or facsimile are 
permitted, the tender made thereby must 
include all the info rmation necessary for 
the evaluation of the tender, in particular 
the definitive price proposed by the 
tenderer and a statement that the 
tenderer agrees to all the terms, 
conditions and provisions of the invitation 
to tender. The tender must be confirmed 
promptly by letter or by the despatch of a 
signed copy of the telex, telegram or 
facsimile. Tenders presented by 
telephone shall not be permitted. The 
content of the telex, telegram or facsimile 
shall prevail where there is a difference or 
conflict between that content and any 
documentation received after the 
time-limit; and  (a) tenders shall normally be submitted 
in writing. If tenders by telex, 
telegram or facsimile or electronic 
means are permitted, the tender 
made thereby must include all the 
information  necessary for the 
evaluation of the tender, in particular 
the definitive price proposed by the 
tenderer and a statement that the 
tenderer agrees to all the terms, 
conditions and provisions of the 
invitation to tender. Tenders 
presented by telephone shall not be 
permitted. The content of the telex, 
telegram or facsimile shall prevail 
where there is a difference or conflict 
between that content and any 
documentation received after the 
time-limit; and  
[Canada - Job No. 3481 – Alternative 1]  
 
 (a) tenders sha ll normally be submitted 
in writing, directly or by mail. 
Tenders must include all the 
information necessary for the 
evaluation of the tender, however 
submitted. A procuring entity may 
require that the tender be confirmed 
promptly by letter or by the despa tch 
of a signed copy of the telex, 
telegram or facsimile or electronic 
document.  
[Canada - Job No. 3481 – Alternative 2]  
 GPA/TN1994/2/Rev.13  
 
- 145 - 
 
  Article XIII  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) tenders shall normally be submitted 
in writing directly or by mail. If 
tenders by telex, telegram, facsimile 
or electronic transmission are 
permitted, the tender made thereby 
must include all the information 
necessary for the evaluation of the 
tender. The tender must be 
confirmed promptly by letter or by 
the despatch of a signed copy of the 
telex, teleg ram, facsimile or 
electronic transmission, if required. 
Tenders presented by telephone 
shall not be permitted. Unless 
otherwise specified in the tender 
documentation, the content of the 
telex, telegram, facsimile or 
electronic transmission shall prevail 
where there is a difference or 
conflict between that content and 
any documentation received after 
the time -limit; and  
[Chinese Taipei – Job No. 3193]  
 
Comments  
• Parties need to agree whether electronic communications can be considered to be "in writing "? 
[Japan] 
• The expression "in writing " could include the use of electronic means to the extent that the rest 
of the rules of the Agreement are respected.  Paper bids should be kept as a warranty of 
transparency and equal treatment.  [EC] 
• There are two aspects to t he phrase "in writing ". One is the physical aspect.  The meaning of "in 
writing " has changed over time.  Now that an electronic medium has been invented, the reference 
to "writing " could mean electronic writing.  The other aspect is the legal aspect.  In most cases, 
tenders are firm undertakings to carry out a contract.  For the purposes of the GPA, the more 
important aspect is the second aspect.  [Singapore]  
• A provision should be added to indicate that the means for submitting tenders may be specified 
by the procuring entity, provided the requirement to use such means does not reduce access by 
foreign and domestic suppliers.  [Canada – Job No. 3481]  
• The proposals do not make it clear who is responsible and to what extent, for the accuracy of data 
in tender do cuments and ensuring the protection of confidentiality of tender information.  There 
should be limits on the burden imposed upon procuring entities as regards the protection of the 
confidentiality of data transmitted electronically.  [Japan]  
• What is the rati onale for the elimination of the phrase "in particular the definitive price…invitation 
to tender " in the second sentence of the proposal for Article XVIII:1(a) by Chinese Taipei?  
[Korea]  
• Since some Parties are already using electronic procurement, a consensus is needed to the effect 
that electronic procurement procedures are not inconsistent with the basic objective of the GPA, 
that is, non -discrimination and transparency of procurement.  [Japan]  
• Even though the EC has put forward propos als favouring the submission of bids by electronic 
means, this does not mean that the current wording does not allow for the use of such means.  
[EC] 
  GPA/TN1994/2/Rev.13  
 
- 146 - 
 
  Article XIII  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMEN T 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (b) integrity of data and 
confidentiality of tenders must be 
preserved. Tenders shall not be 
opened until after the deadline 
set by the contracting entity for 
receipt of tenders;  
 
  (c) whatever means of 
communication or exchange of 
information chosen they shall not 
cause a discrimination and be 
consistent with the principles laid 
down in Article 3 hereof; and  
 
 (b) the opportunities that may be given to 
tenderers to correct unintentional 
errors of form b etween the opening of 
tenders and the awarding of the 
contract shall not be permitted to give 
rise to any discriminatory practice.  
  (d) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of tenders  
and the awarding of the contract 
shall not be permitted to give rise 
to any discriminatory practice.  
[EC – GPA/W/87 ] 
 
 4. When procuring entities provide suppliers 
with opportunities to correct unintentional errors 
of form between the opening of tenders and the 
awarding of the contract, they shall provide the 
same opportunities to all participating suppliers.  
[US – Job No. 2867; EC – Job No. 876]  
 
Drafting Comment  
• Would like to seek clarification on the meaning of "unintentional errors of form " as it has 
significant implications for the implementation of the Agreement.  
  GPA/TN1994/2/Rev.13  
 
- 147 - 
 
  Article XIII:2, 3  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender is 
received in the office designated in the tender 
documentation after the time specified because of delay 
due solely to mishandling on the part of the entity. 
Tenders may also be considered in other exceptional 
circumstances if the procedures of the entity concerned 
so provide.  
 2. Procuring entities shall not penalize any 
supplier whose tender is received after the time 
specified for receiving tenders if the delay is due 
solely to  mishandling on the part of the entity.  
[US – Job No. 2867; EC – Job No. 876]  
 
Opening of Tenders  
  
3. All tenders solicited under open or selective 
procedures by entities shall be received and opened 
under procedures and conditions guaranteeing the 
regularity of the openings. The receipt and opening of 
tenders shall also be consistent with the national 
treatment and non -discrimination provisions of this 
Agreement. Information on the opening of tenders shall 
remain with the entity concerned at the disposal of the 
government authorities responsible for the entity in 
order that it may be used if required under  the 
procedures of Articles  XVIII, XIX, XX  and XXII.  
 1. Procuring entities shall receive and open 
all tenders under procedures that guarantee the 
fairness and impartiality of the procurement 
process.  
[US – Job No. 2867]  
 1. Procuring entities shall rece ive and open 
all tenders under procedures that guarantee the 
fairness and impartiality of the procurement 
process. In particular, integrity of data must be 
preserved. Tenders shall not be opened until 
after the deadline set by the procuring entity for 
receipt of tenders.  
[EC – Job No. 876]  
 
 5. Where an entity requires suppliers to 
satisfy registration or qualification requirements 
or any other conditions for participation in a 
procurement, it may, subject to the other 
provisions of this Agreement, limit t he receipt of 
tenders to those suppliers that satisfy such 
requirements and conditions.  
[US – Job No. 1051  
 
Comment  
• The US proposal responds to informal consultations in the GPA Committee regarding the 
implications of the initial US proposal for "selective tendering " procedures.  The new paragraph, 
which is permissive rather than prescriptive, would confirm that tenderin g may be limited to 
suppliers that meet any conditions for participation.  At the same time, it would clarify that the 
use of "selective tendering " must be understood in the context of the GPA 's other requirements, 
including those regarding registration, qualification and other conditions of participation, and 
that the use of selective tendering procedure does not permit departure from those 
requirements.  [US] GPA/TN1994/2/Rev.13  
 
- 148 - 
 
  Article XIII:4  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contract s 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Award of Contracts  
 Awarding of Contracts  
4. (a) To be considered for award, a tender 
must, at the time of opening, conform to 
the essential requirements of the notices 
or tender documentation and be from a 
supplier which complies with the 
conditions for participation. If an entity 
has received a tender abnormally lower 
than other tenders submitted, it may 
enquire with the tenderer to ensure that 
it can comply with the conditions o f 
participation and be capable of fulfilling 
the terms of the contract.  
 5. To be considered for award, a tender must 
be in writing and must, at the time of opening, 
conform to the essential requirements of the 
notices and tender documentation that have 
been provided in advance to all participating 
suppliers, and be from a supplier that satisfies 
any registration or qualification requirements or 
any other conditions for participation.  
[US – Job No. 1051]  
 5. To be considered for award, a tender must 
be in writing and must, at the time of opening, 
conform to the essential requirements of the 
notices and tender documentation and be from a 
supplier which complies with the conditions for 
participation, including any specified time 
periods. Procuring entities  shall base contract 
award decisions solely on the requirements and 
evaluation criteria that have been specified in the 
notices and tender documentation provided in 
advance to all participating suppliers. If a 
procuring entity receives a tender abnormally 
lower than other tenders submitted, it may 
enquire with the tenderer to ensure that it can 
comply with the conditions of participation and 
be capable of fulfilling the terms of the contract.  
[EC – Job No. 876]  
 
 (b) Unless in the public interest an entity  
decides not to issue the contract, the 
entity shall make the award to the 
tenderer who has been determined to be 
fully capable of undertaking the contract 
and whose tender, whether for domestic 
products or services, or products or 
services of other Partie s, is either the 
lowest tender or the tender which in 
terms of the specific evaluation criteria 
set forth in the notices or tender 
documentation is determined to be the 
most advantageous.  6. Entities shall award the contract to the 
tenderer who has been de termined to be fully 
capable of undertaking the contract and whose 
tender is determined to be the most 
advantageous on the basis of the requirements 
and evaluation criteria set forth in the notices or 
tender documentation.  
[US – Job No. 1051]  
 GPA/TN1994/2/Rev.13  
 
- 149 - 
 
  Article XI II 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. Unless a procuring entity determines that 
it is not in the public interest to award a contract, 
procuring entities shall award the contract to the 
tenderer who has been determined to be fully 
capable of undertaking the contract and whose 
tender is either the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the r equirements and 
evaluation criteria set forth in the notices or 
tender documentation.  
[EC – Job No. 876]  
 
 7. A procuring entity may determine that it is 
not in the public interest to award a contract.  
[US - Job No. 1051]  
 
Comments  
In relation to the existing paragraph (a):  
• For the purpose of simplifying the Agreement, the following test should apply in connection with 
the elimination of the last sentence of Article XIII:4(a).  If there is anything in the Agreement 
that calls into question the right of the entity to enquire abnormally low tenders, it may be 
necessary to state such a right.  Otherwise, the sentence should be eliminated.  [US] 
• The US proposal does not contain a reference to "abnormally low bids ". The examination of how 
abnormal the lowest bi d may be can be an important part of the award process, particularly if 
there is a high level of competition in the relevant market.  [Japan]  
• Regarding the proposed deletion of the current provision on abnormally low offers, would it still 
be possible for t he contracting entity to make the necessary checks and investigations?  It would 
be preferable to have an explicit provision unless that provision has been abused.  However, 
there is no evidence that that has been the case.  [EC] 
• There is nothing to prevent e ntities from examining abnormally low bids at any time the entity 
considers it to be appropriate, provided that such an examination is conducted in a 
non-discriminatory fashion.  [US] 
• The provision for "enquiry into abnormally lower tenders " in the second s entence of 
Article  XIII:4(a) of the current GPA is not included in the US proposal.  However, the number of 
abnormally lower tenders has recently been on the increase in the procurement of services, such 
as computer system design, in Japan, and procuring en tities have been making such enquiries 
more and more frequently.  Regarding construction work projects, this enquiry is most important 
in order to exclude an improper execution of the works and to secure public interest.  [Japan – 
Job No. 5474]  GPA/TN1994/2/Rev.13  
 
- 150 - 
 
  In relation to the existing paragraph (b):  
• The wording "a procuring entity determines that it is not in the public interest… " in paragraph 6 
of the EC proposal involves a subjective assessment by the procuring entity.  How does 
paragraph  7 interplay with parag raph 6?  If a procuring entity determines that a procurement 
exercise should be cancelled in the light of public interest, how is paragraph 7 invoked to allege 
that the procurement process is cancelled in a manner that circumvents the obligations of the 
Agreement?  [Hong Kong, China]  
• If contract award information is available electronically, it should be made available for a certain 
period of time so that suppliers are not required to regularly check the electronic site where that 
information is located.  [Canada] 
• Even though procuring entities can determine that it is not in the interest of the public to award 
a contract to a certain bidder based on Article X:6 of the US proposal, the right of enquiry should 
be provided, specifically in the Agreement, in a case where a supplier rejects such enquiry or 
does not cooperate.  Moreover, an explicit provision for such an enquiry is an important basis for 
a supplier to enable the latter to request the relevant  procuring entity to conduct such enquiry  
when confronted with abnormally lower tenders from competitors.  Japanese suppliers have 
expressed their desire that this provision should continue to exist.  [Japan - Job No. 5474]  
  GPA/TN1994/2/Rev.13  
 
- 151 - 
 
  Article XIII  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 7. Entities shall not cancel a procurement, or 
terminate or modify awarded contracts in a 
manner that circumvents the obligations of this 
Agreement.  
[US – Job No. 1051]  
 
Comments  
• Clarification is sought in relation to what is meant by "circumvention of the Agreement " in 
proposed paragraph 7 of the US proposal.  The concept appears to be overly broad.  [Korea]  
• Is proposed paragraph 7 necessary since it seems to apply across t he board to many provisions 
of the Agreement?  [Switzerland]  
• Proposed paragraph 7 responds to a concern that while tendering procedures may be fully 
compliant with the GPA, an unpopular award may be cancelled, the contract may not be awarded 
at all, or it m ay be awarded at some time in the future using a different procedure.  The US 
proposal aims to avoid such circumvention of the Agreement.  [US] 
• In response to a question on the rationale for paragraph 7 [ Canada ], in a number of major 
procurement situations, suppliers have encountered situations where entities have cancelled 
award procedures at the last moment.  There can be an impression among the suppliers that the 
entities had taken their decision relating to the technical merits of the tenders and that the 
cancellation of the procedures close to the award decision was for some other reasons which 
might be contrary to the objectives of the Agreement.  [US] 
• With respect to the US proposal regarding circumvention of tendering procedures, it allows 
cancellation o f an award after the contract has been granted but was not popular.  However, if a 
tender had already been awarded, the procuring entity would be contractually bound to perform 
the contract.  The supplier could have an action for breach of contract if the pr ocuring entity had 
terminated the contract otherwise than in accordance with the terms of the contract.  There may 
not be a need to insert this paragraph so as to complicate the matter.  A more stringent condition 
is proposed by the US on the cancellation of  a procurement process in Article X:7.  Reservations 
exist about doing away with the escape clause on "public interest " as Parties may be left with 
little leeway in genuine cases.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 152 - 
 
  Article XIII:5  
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) Awards shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a manner 
which circumvents the provisions of the Agreement.  5. Procuring entities shall not use option 
clauses in a manner that circumvents the 
provisions of this Agreement.  
[US – Job No. 2867]  
 
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agreement in the 
light of developments in the use of electronic 
tendering with a view to developing criteria for 
discontinuation of paper -based tenders, such as 
the experience of the entity in conducting 
electronic tendering and the readiness of 
potential suppliers of a particular procurement to 
use electronic tendering, if appropriate.  
[Hong Kong, China – Job No. 3436]  
 
  GPA/TN1994/2/Rev.13  
 
- 153 - 
 
  Article XIV - Negotiation  
Article XIV:1, 2, 3  
Negotiation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
 1. A Party may provide for its procuring 
entities to conduct negotiations:  
 (a) in the context of procurements in which 
they have indicated such intent, namely 
in the notice referred to in paragraph 2 of 
Article IX (the invitation to suppliers to 
participate in the procedure for the 
proposed procurement); or  
 (a) in the context of procurements in which 
they have indicated such intent in the 
notice of intended procurement referred to 
in paragraph 2 of Article IX,  
[EC – Job No. 876]  
 (b) when it appears from evaluation that no 
one tender is obviously the most 
advantageous in terms of the specific 
evaluation criteria set forth in the notices 
or tender documentation.  (b) when it appears from evaluation that no 
one tender is obviously the most 
advantageous in terms of the specific 
evaluation criteria set forth in the notices 
or tender documentation; or  
[EC – Job No. 876]  
 
 (c) when,  for a limited procurement a notice 
of intended procurement has not been 
published in accordance with Article IX, 
paragraph 4.  
[EC – Job No. 876]  
 
2. Negotiations shall primarily be used to identify 
the strengths and weaknesses in tenders.  2. Procuring entities shall treat tenders in 
confidence. In particular, they shall not provide 
information to particular suppliers that might 
prejudice fair competition between suppliers.  
[US – Job No. 2867]  
 
3. Entities shall treat tenders in confidence. In  
particular, they shall not provide information intended to 
assist particular participants to bring their tenders up to 
the level of other participants.  2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in 
tenders.  
[EC – Job No. 876]  
 
 2. Procuring entities shall treat tenders in 
confidence. In particular, they shall not provide 
information to particular suppliers that might 
prejudice application of the principles of 
transparency and non -discrimination between 
suppliers.  
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.13  
 
- 154 - 
 
  Article XIV:4  
Negotiation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not, in the course of negotiations, 
discriminate between different suppliers. In particular, 
they shall ensure that:  
 3. Procuring entities shall not, in the course 
of negotiations, discriminate between different 
suppliers. In particular, they shall ensure that:  
 (a) any elimination of participants is carried 
out in accordance with the criteria set 
forth in the notices and tender 
documentation;  
 (a) any elimination of participants is carried 
out in accordance with the criteria set 
forth in the notices and tender 
documentation;  
 (b) all modifications to the criteria and to the 
technical requirements are transmitted in 
writing to all remaining participants in the 
negotiations;  
 (b) all modifications to the criteria and to the 
technical requirements are transmitted 
in writing to all remaining participants in 
the negotiations;  
 (c) on the basis of the revised requirements 
and or when negotiations are concluded, 
all remaining participants are afforded 
an opportunity to submit new or 
amended tenders in accordance with a 
common deadline.  
[EC – Job No. 876]  
 
Comments  
In relation to the EC Proposal (Job No.  876):  
• The EC proposal adds sub -paragraph (c) to the list of circumstances that may lead to 
negotiations to clarify that this circumstance is implicit in the GPA but, perhaps, better dealt with 
in a stand -alone provision.  [EC] 
• The US proposal does not incl ude a specific Article on negotiations.  Rather the US proposal takes 
certain provisions out of the existing Article on negotiations and incorporates them into other 
elements of the proposal.  [US] 
• There is a question as to whether it is necessary or appropr iate to have a separate Article 
specifically related to negotiations.  The EC and US proposals and the GPA all say that any Party 
can use negotiations whenever they state in their notice of intended procurement that they will 
do so.  [US] 
• Paragraph 2 contain s a general statement about the objective of negotiation but it is unclear 
whether that statement has much effect operationally.  Paragraph 3 of the EC proposal is merely 
an elucidation of specific measures or steps related to ensuring that there is non -discrimination.  
Subparagraph 3(a) is similar to a provision that has been included in the US and EC proposals 
on qualifications or conditions for participation.  Further, subparagraphs (b) and (c) appear to be 
potentially applicable to a broader range of procu rement than just negotiated procurements.  
[US] 
• A provision on negotiation is seen to be exceptional.  Negotiations usually take place in an 
unstructured environment.  It is strongly believed that a provision explaining what is possible 
and what is not possib le in relation to negotiations is important and necessary.  [EC] GPA/TN1994/2/Rev.13  
 
- 155 - 
 
  Article XIV  
Negotiation  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) all remaining participants are afforded an 
opportunity to submit new or amended 
submissions on the basis of the revised 
requirements; and   
 (d) when negotiations are concluded, all 
participants remaining in the negotiations 
shall be permitted to submit final tenders in 
accordance with a common deadline.   
 
Comments  
• It may not be necessary to identify a separate framework given that negotiations can be a part 
of other procurement procedures.  It would be sufficient to apply the basic principles in the 
Agreement to negotiations.  This Article should be removed from the Agreement.  [US] 
• There should be certain parameters in this respect, given the role that negotiations often play 
in the tendering process . [EC] 
• While the US proposal allows for negotiation if that has been indicated in the tender 
documentation or when it appears that ther e is not necessarily a single most advantageous 
tender, it does not contain a requirement that the tender notice should indicate that negotiations 
will occur.  Why has this requirement been omitted from the US proposal?  [EC] 
• The possibility for an entity to  use negotiations should not be limited.  Nevertheless, there is a 
need to have some basic rules in order to provide a framework and guidelines that should be 
followed when negotiations are being conducted.  [EC] 
• Article XIV of the GPA is deleted without rep lacement.  It seems that negotiations are allowed 
under the present draft as Article V:2(c) of the United States ' proposal provides that each notice 
of intended procurement should disclose whether the procurement will involve negotiations.  
Does it mean that under the draft agreement, procuring entities are entitled to conduct whatever 
types of negotiations they wish?  On the other hand, the last sentence of Article X:5 of the US 
proposal provides that procuring entities shall base contract award decisions solely on the 
requirements and evaluation criteria that have been specified in the notices and tender 
documentation  provided in advance to all participating suppliers.  Does this mean that procuring 
entities are not allowed to conduct negotiations and to let remaining participating suppliers 
submit final tenders on the basis of the revised requirements (see Article XIV: 4 of the GPA)?  
[Hong Kong, China]  
• Article XIV:1 states that negotiations are allowed when a Party has indicated in its notice that it 
will provide for negotiations.  Article V:2(c) of the US proposal states that if negotiations are to 
be used, that informat ion must be provided in the notice.  If an entity holds negotiations but that 
has not been referred to in the notice, Article V of the US proposal will not have been complied 
with. Similarly, Article XIV:4(c) of the existing Agreement provides that when req uirements for 
a project have been revised, all remaining participants in a tendering process should have an 
opportunity to submit amended submissions on the basis of the revisions.  Article VII:7 of the 
US proposal requires that if there are changes in the requirements during the process, that 
information must be provided to all suppliers that are participating.  [US] 
• It is important that the Agreement appropriately addresses the issue of negotiations.  However, 
given that the use of negotiations needs to be a ppropriately disciplined, the question is whether 
the general commitments and obligations contained in the Agreement adequately address that 
need or whether there is a need for additional commitments that specifically relate to the use of 
negotiations.  There are many provisions contained in the GPA apart from Article XIV that are 
relevant to the use of negotiations and discipline such use in some way.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, pages 3 and 4.  GPA/TN1994/2/Rev.13  
 
- 156 - 
 
  Article XV - Limited Tendering  
Article XV:1  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Provided that it does not use this 
possibility for the purposes of avoiding 
competition among suppliers or in a manner that 
discriminates against suppliers of the other 
Parties, or that protects domestic suppliers, a 
procuring entity may choose not to publish a 
notice of intended procurement in the following 
circumstances and, subject to the following 
conditions, where applicab le. 
[EC – Job No. 876]  
 
1. The provisions of Articles  VII through XIV 
governing open and selective tendering procedures need 
not apply in the following conditions, provided that 
limited tendering is not used with a view to avoiding 
maximum possible competition or in a manner which 
would constitute a means of discrimination among 
suppliers of other Parties or protection to domestic 
producers or suppliers:  1. An entity may choose not to publish a 
notice of intended procurement prior to the 
award of a contract in the following 
circumstances and subject to the following 
conditions, where applicable:  
[US – Job No. 1051]  
 
 
General comments  
• Given the fact that the Parties and the acceding Parties may have prescribed in their domestic 
laws the requirements of the existing subparagraphs 1(a) through 1(j) of this Article, and that 
amendment to the laws is not an easy task, it is not appropriate for the Parties to make them 
more stringent than the existing requirements.  [Chinese Taipei]  Reducing th e number of cases 
where limited tendering is applicable would be difficult and not practical.  [Japan;  Canada]  
• The US was not sure what some of those conditions meant.  Perhaps the text would only need to 
be clarified to make sure we know in fact what the ex ceptions all mean.  A useful approach would 
be to take them out and then talk about why they are important, and what they actually intend 
to cover. [US in response to Chinese Taipei;  Japan;  and Canada]  
In relation to the US proposal (Job No. 1051):  
• The US p roposal clarifies that the exception to normal GPA rules allowed by this Article is limited 
to the publication of advance notices.  In the US view, the elimination of the term "limited 
tendering " from the text would not detract from the clarity of the rules . Rather, it would further 
contribute to the objective of streamlining the GPA text and emphasizing that the GPA provides 
a framework of disciplines without unnecessarily imposing detailed procedural requirements on 
current and future Parties.  [US] 
• The US proposal seeks to avoid reference to particular types of tendering procedures, including 
limited tendering.  The proposal begins by clarifying that limited tendering constitutes an 
exception to the obligation to publish a notice in advance of an intended procurement.  This 
approach is similar to what has been proposed by the EC.  [US] 
In relation to the EC proposal (Job No. 876):  
• The EC proposal introduces the list of circumstances where the use of limited tendering is 
permitted under the Article co ncerning notices of intended procurement.  For the sake of 
coherence and clarity, the provision allowing entities not to publish a notice might be better 
placed close to where the obligation to publish a notice of intended procurement is contained.  
The subs tance of the list of circumstances allowing deviation from the obligation to publish has 
not been modified since it is believed that the current circumstances are still needed.  However, 
the proposal attempts to make it easier to understand those circumstan ces. It is difficult to strike 
the right balance between detail which allows for more security and greater guarantees and the 
necessity to render this provision less cumbersome and less difficult to understand.  [EC] GPA/TN1994/2/Rev.13  
 
- 157 - 
 
  • It is a good idea to include the provisions on limited tendering as an exception to the provisions 
on publication.  [Switzerland]  
• The chapeau of paragraph 4 of the EC proposal is well -drafted, effectively incorporates the 
substance of Article XV and, in some respects, is similar to the US proposal with respect to 
limited tendering.  [US] 
• It might be useful to introduce a reference to "limited tendering " in the chapeau.  [Switzerland]  
• Is the intention of the EC and US proposals that procuring entities be required to issue tender 
documentation and to follow all other procedures that were formerly provided for in 
Article  VII-XVII in urgent situations?  [Canada]  
• When a limited procedure is used and a contract is awarded to one supplier, it would still be 
useful to state that Articles VII – XIV do n ot apply in order, for example, to avoid some other 
disgruntled firms going to court in search of remedies.  [Switzerland]  
In relation to the existing subparagraph (a):  
• Regarding the proposed deletion of the exception in relation to collusive tendering, the re may 
be cases of collusive tendering in particular markets and, therefore, procuring entities should 
have instruments to react in those situations.  [EC] 
• Normally, the absence of competition in cases of collusive tendering should not necessarily lead 
to the restriction of competition by the entity.  If collusive tendering occurs, suppliers should be 
excluded.  Further consideration of tendering procedures is needed in markets where it is difficult 
to introduce or maintain competition.  [US] GPA/TN1994/2/Rev.13  
 
- 158 - 
 
  Article XV  
Limite d Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) in the absence of tenders in response to 
an open or selective tender, or when the 
tenders submitted have been collusive, or 
not in conformity with the essential 
requirements in the tender, or from 
suppliers who do not comply with the 
conditions for participation provided for in 
accordance with this Agreement, on 
condition, however, that the requirements 
of the initial tender are not substantially 
modified in the c ontract as awarded;  
  (a) when no tender or request to 
participate or no suitable tenders or 
requests to participate have been 
submitted in response to a prior 
procurement, on condition that the 
requirements of the initial 
procurement are not substantially  
modified;  
[EC – Job No. 876]  
   (a) in the absence of tenders that 
conform to the essential 
requirements in the tender 
documentation provided in a prior 
tendering procedure, on condition 
that the requirements of the initial 
procurement are not substantia lly 
modified in the contract as awarded;  
[US – Job No. 1051]  
 
  (b) in the absence of tenders from 
suppliers which satisfy the 
registration, qualification or other 
conditions for participation 
established for a prior tendering 
procedure;  
[US – Job No. 1051]  
 
  (b) when, for technical or artistic 
reasons, or for reasons connected 
with protection of exclusive rights, 
the goods or services can be supplied 
only by a particular supplier and no 
reasonable alternative or substitute 
exists;  
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.13  
 
- 159 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) when, for works of art or for reasons 
connected with protection of exclusive 
rights, such as patents or copyrights, or in 
the absence of competition for technical 
reasons, the products or services can be 
supplied only by a particular supplier and 
no reasonable alternative or substitute 
exists;   (c) where, for works of art, or for 
reasons connected with the 
protection of exclusive rights, su ch 
as patents, copyrights or proprietary 
information or where there is an 
absence of competition for technical 
reasons, the goods or services can 
be supplied only by a particular 
supplier and no reasonable 
alternative or substitute exists;  
[US – Job No. 10 51] 
 
  (b) when, for works of art or for reasons 
connected with protection of 
exclusive rights, such as patents or 
copyrights, or in the absence of 
competition for technical reasons, 
the products or services can be 
supplied only by a particular supplier 
or group of suppliers and no 
reasonable alternative or substitute 
exists;  
[Hong Kong, China – Job No. 1333]  
 GPA/TN1994/2/Rev.13  
 
- 160 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) in so far as is strictly necessary when, for 
reasons of extreme urgency brought 
about by events unforeseeable by the 
entity, the products or services could not 
be obtained in time by means of open or 
selective tendering procedures;   
 (f) in so far as is strictly necessary 
where, for reason s of extreme 
urgency brought about by events 
unforeseeable by the entity, the 
goods or services could not be 
obtained in time under tendering 
procedures consistent with 
Articles  [V] and [VI] of this 
Agreement, and the use of such 
procedures would result in  serious 
injury to the entity, the entity's 
programme responsibilities, or the 
responsible Party;  
[US – Job No. 1051]  
 
 (d) for additional deliveries by the 
original supplier that are intended 
either as replacement parts, 
extensions, or continuing services 
for existing equipment, software, 
services or installations, where a 
change of supplier would compel 
the entity to procure goods or 
services not meeting requirements 
of interchangeability with existing 
equipment, software, services, or 
installations;  
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.13  
 
- 161 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) for additional deliveries by the original 
supplier which are intended either as 
parts replacement for existing supplies, 
or installations, or as the extension of 
existing supplies, services, or installations 
where a change of supplier would compel 
the entity to procure equipment or 
services not meeting requirements of 
interchangeability with already existi ng 
equipment or services5; (d) for additional deliveries by the 
original supplier that are intended 
either as replacement parts, 
extensions, or continuing services 
for existing equipment, software, 
services or installations, where a 
change of supplier woul d compel 
the entity to procure goods or 
services not meeting requirements 
of interchangeability with existing 
equipment, software, services, or 
installations;  
[US – Job No. 1051]  
 
 (e) when an entity procures prototypes or a 
first product or service which  are 
developed at its request in the course of, 
and for, a particular contract for research, 
experiment, study or original 
development. When such contracts have 
been fulfilled, subsequent procurements 
of products or services shall be subject to 
Articles  VII through XIV6; 
 
5It is the understanding that "existing equipment" includes 
software to the extent that the initial procurement of the 
software was covered by the Agreement.  
 
6Original development of a first product or service may include 
limited production or supply in order to incorporate the results 
of field testing and to demonstrate that the product or service 
is suitable for production or supply in quantity to acceptable 
quality standards. It does not extend to quantity production or 
supply t o establish commercial viability or to recover research 
and development costs.  (e) when an entity procures prototypes 
or a first product or service which 
are developed at its request in the 
course of, and for, a particular 
contract for research experiment, 
study or original development;  
[EC – Job No. 876]  
 
 
Comments  
In relation to the existing subparagraph (c):  
• While paragraph 3(f) of Article IX of the US proposal provides that extreme urgency is a condition 
under which limited tendering can be used, paragraph 2 states that a procuring entity cannot 
use limited tendering because of a lack of advance planning.  If a procuring entity needs to 
purchase vaccines as a result of a sudden outbreak of epidemic, can a procuring entity make 
use of limited t endering under Article IX:3(f) or will the procuring entity by accused of a "lack of 
advance planning "? On many occasions it is difficult to say whether an extreme urgency is due 
to an unforeseen emergency or due to a lack of advance planning.  How advanced  should planning 
be? [Hong Kong, China]  
• There have been a number of situations where trading partners have used limited tendering 
procedures merely because money that had been allocated for a fiscal year had to be used 
quickly and there had not been enough  time to use an open tendering procedure.  That situation 
cannot necessarily be categorized as an emergency situation, allowing an exception to be made 
to the general transparency and competitive requirements of the Agreement.  [US] 
• The US Explanatory Note ( Job No. 6772) indicates that the US was concerned about some 
Parties ' use of the exception for extreme urgency on the ground that these Parties only had a 
few days before the close of fiscal year for the tendering although they had a long time for 
planning . Clarification is sought as to whether the US ' concern are met by arguing that these 
Parties ' claim does not fall within Article XVI:1(c) of the existing GPA since such situations are 
not an extreme urgency because they are not brought about by "events un foreseeable by the 
entity ". Such Parties could have definitely foreseen when the close of fiscal year would take 
place.  [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 162 - 
 
  In relation to the existing subparagraph (d):  
• Subparagraph (d) which relates to additional deliveries is used to a reasonable extent.  If 
anything, this subparagraph should be strengthened rather than deleted since the circumstances 
referred to in subparagraph (d) could be used to circumvent competition.  [Switzerland]  
In relation to the existing subparagraph (e):  
• Purcha sing entities do use some of the provisions contained in Article XV, such as 
subparagraph  (e). In relation to the circumstances referred to in subparagraph (e), it would be 
difficult to conduct an open competition since the relevant entity will develop the  prototype with 
the selected supplier over time.  [Switzerland]  
• The issue of prototypes is connected with designs.  The prototype may be needed to validate the 
design.  Continuity may be needed in relation to the design and the subsequent development of 
a prototype.  [Canada]  
• Experience in the US suggests that when a contract is awarded for the development of a 
prototype, the compensation for that development is normally incorporated into the price of that 
contract and that there is no need for an additional in centive of a guaranteed follow -on contract 
for limited tendering in order to attract interest in the development of a prototype.  [US] 
• It is not clear why a fully open and competitive tendering process cannot be used in 
circumstances involving the use of pr ototypes or design contests or why a limited tendering 
process could not be used on the basis of another provision contained in Article XV, such as that 
relating to interchangeability.  Clarification is sought as to whether Parties opposing the deletion 
of the paragraphs relating to prototypes and design contests are concerned that the contract for 
construction of the prototype itself should not be competitive or that in the case of both 
prototypes and design contests, the subsequent contract for the constru ction of the prototype 
or the design should not involve competition for some reason  [US] 
• In relation to design contests, once a design had been chosen pursuant to the contest, there 
could be a competition to build the relevant design.  However, that would d efeat the purpose of 
the design contest. In practice, there would probably not be many applicants for the design 
contest since the contest is viewed by, at least some, a form of qualification.  Further, the 
applicants would not be willing to invest in prepa ring a design for the design contest unless they 
are guaranteed the subsequent construction contract and would be reluctant to enter the contest 
if they are subsequently forced to give up rights to their designs.  It is questionable whether 
limited tenderin g could be used on the basis of interchangeability in such circumstances.  
[Canada]  
• Clarification is sought as to whether, in the United States, limited tendering is used in cases of, 
for example, design contests and prototypes.  [Canada]  
• It is doubted as to  whether a design contest can be conducted in a way that would not involve 
limited tendering.  [Canada]  GPA/TN1994/2/Rev.13  
 
- 163 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additional construction services 
which were not included in the initial 
contract but which were within the 
objectives of the original tender 
documentation have, through 
unforeseeable circumstances, become 
necessary to complete the construction 
services described therein, and the entity 
needs to  award contracts for the 
additional construction services to the 
contractor carrying out the construction 
services concerned since the separation 
of the additional construction services 
from the initial contract would be difficult 
for technical or economic  reasons and 
cause significant inconvenience to the 
entity. However, the total value of 
contracts awarded for the additional 
construction services may not exceed 
50 per cent of the amount of the main 
contract;  (f) when additional services which 
were not in cluded in the initial 
procurement but which were within 
the objectives of the original tender 
documentation have, through 
unforeseeable circumstances, 
become necessary to complete the 
services described therein, and the 
procuring entity needs to award 
contracts for the additional services 
to the contractor carrying out the 
services concerned since the 
separation of the additional 
services from the initial 
procurement would be difficult for 
technical or economic reasons and 
cause significant inconvenience to  
the procuring entity. However, the 
total value of contracts awarded for 
the additional services may not 
exceed 50 per cent of the amount of 
the main procurement;  
[EC – Job No. 876]  
 
(g) for new construction services consisting 
of the repetition of simila r construction 
services which conform to a basic project 
for which an initial contract was awarded 
in accordance with Articles  VII through 
XIV and for which the entity has indicated 
in the notice of intended procurement 
concerning the initial construction 
service, that limited tendering 
procedures might be used in awarding 
contracts for such new construction 
services;  
 (g) for new services consisting of the 
repetition of similar services which 
conform to a basic project for which 
an initial contract was awa rded 
following an open or selective 
procurement method and for which 
the procuring entity has indicated in 
the notice of intended procurement 
concerning the initial service, that a 
limited procurement method might 
be used in awarded contracts for 
such new services;  
[EC – Job No. 876]  
 
Comments  
In relation to the existing subparagraph (f):  
• Subparagraph (f) of the existing provision may be necessary, although there may be 
opportunities for simplifying and clarifying that provision.  [US] 
• With respect to the EC proposal regarding modification of construction services, such a 
modification may entail a change in the existing contract but not a new or different contract.  
Therefore, there will be no need for a notice in respect of such a change.  [Japan]  
In rel ation to the existing subparagraph (g):  
• Regarding the proposed deletion by the US of the exception relating to additional construction 
services, clarification is necessary as to whether such cases are covered by other exceptions 
such as the additional deli very of goods or services.  [EC] GPA/TN1994/2/Rev.13  
 
- 164 - 
 
  Article  XV 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) for products purchased on a commodity 
market;  
 (h) for goods purchased on a 
commodity market and for 
purchases of goods made under 
exceptionally advantageous 
conditions which only arise in the 
very short term in the case of 
unusual disposals and note for 
routine purchases from regular 
suppliers;  
[EC – Job No. 876]  
 
(e) for goods purchased on a 
commodity market;  
[US – Job No. 1051]  
 
(i) in the case of contracts award to the 
winner of a design contest provided 
that the contest has been organized 
in a manner which is consistent 
with the principles of this 
Agreement , notably as regards the 
publication of a notice of inten ded 
procurement, and provided that the 
participants shall be judged by an 
independent jury with a view to 
design contracts being awarded to 
the winners.  
[EC – Job No. 876]  
 
(i) for purchases made under exceptionally 
advantageous conditions which only 
arise in the very short term. This 
provision is intended to cover unusual 
disposals by firms which are not normally 
suppliers, or disposal of assets of 
businesses in liquidation or receivership. 
It is not intended to cover routine 
purchases from regular suppli ers; 
  
 
Comment  
In relation to the existing subparagraphs (h) and (i):  
• The Agreement 's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of subparagraphs (h) and (i).  GPA/TN1994/2/Rev.13  
 
- 165 - 
 
  Article  XV 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(j) in the case of contracts awarded to the 
winner of a design contest provided that 
the contest has been organized in a 
manner which is consistent with the 
principles of this Ag reement, notably as 
regards the publication, in the sense of 
Article  IX, of an invitation to suitably 
qualified suppliers, to participate in such 
a contest which shall be judged by an 
independent jury with a view to design 
contracts being awarded to the wi nners.   
 
Comments  
In relation to the deletion of certain subparagraphs from the existing Article XV:  
• Caution should be exercised in dropping conditions for limited tendering contained in the current 
Article XV.  [Japan;  Canada;  Korea;  Hong Kong, China;  EC] 
• Clarification is sought as to why the US proposal omits subparagraphs (e), (f), (g), (i), (j) from 
the existing text of the Agreement.  [Japan;  Canada;  Korea]  
• Certain subparagraphs – namely, (e), (f), (g), (j) - that are to be deleted under the US proposal 
should be maintained.  Subparagraphs (f) and (j) should be maintained since they are often used 
in relation to construction works.  Further, Japan 's GPA statist ics for the period 1997 – 1999 
indicate that subparagraph (e) has been constantly used.  On the basis of advice from 
construction experts but depending upon confirmation from other agencies and local 
governments, subparagraph (g) may not be necessary.  [Japa n] 
• It is necessary to determine on a substantive basis whether the particular circumstances 
contained in the Agreement warrant the use of limited tendering whereas it is not relevant to 
consider whether the various provisions are currently made use of.  Parties should proffer specific 
reasons why they believe limited tendering is necessary in particular circumstances.  [US] 
• Some of the existing provisions in Article XV seem to be similar but have been expanded upon 
at great length and, perhaps, in unnecessary  detail.  For example, subparagraphs (f) and (g) 
relate to similar construction services.  The relevant issues are compatibility or interchangeability 
and the need to maintain consistency.  It is unclear whether it is necessary to have three or four 
separate subparagraphs that address those overall, broad issues.  The US proposal seeks to 
condense subparagraphs (d), (f) and (g) of the existing text into one subparagraph.  In addition, 
at least on the basis of the US system, a number of subparagraphs in the exist ing text are not 
considered necessary.  [US] 
• Statistical reports regarding limited tendering indicate that the paragraphs that have been 
deleted by the US have not been frequently used.  Most cases involve follow -up purchases.  
[Switzerland]  
• The wording conta ined in some parts of the US proposal differs from the wording contained in 
the existing text.  What will be the impact of the proposed wording changes and how will the 
proposed new wording accommodate situations that are proposed to be deleted?  [Canada]  
• Subparagraphs (f) and (j) are very often used in cases of procurement of construction and 
related services.  They should therefore be included in the GPA.  In addition, with regard to 
subparagraph  (f), some experts have indicated that, in a considerable number  of cases, 
procuring entities choose to amend the original contract, rather than to enter into a new one.  
Japan would like to ask each Party to look into its own existing situation.  
• With regard to additional construction works, there are a number of cases where it is 
unreasonable for such additional work to be conducted separately from the initial work, or where 
it is necessary for such additional work to be conducted by the same contractor as for the initial 
work.  The reasons for the above are as follows:  In order to secure a better quality of civil 
engineering and building work, it is desirable that the initial contractor, who has become familiar GPA/TN1994/2/Rev.13  
 
- 166 - 
 
  with the specific conditions of the construction site (including geological, climatic and 
environmental conditi ons). If a different contractor were to conduct any additional work, such 
contractor would be required to prepare new temporary equipment (such as scaffolding, concrete 
forms and machinery), which would be unreasonably costly and time -consuming.  Typical 
examples of the above are tunnel works.  As the work proceeds, contractors encounter different 
geological conditions, the emergence of obstacles, such as rocks and spring water, and so forth.  
Regarding subparagraph (e), 2 per cent to 3 per cent of the total n umber of limited tendering 
contracts are categorized under this paragraph, according to Japan 's government procurement  
statistics (1997 -1999).  Therefore it should also be included in the GPA.  There have been a few 
cases where subparagraph (g) has been used  in Japan and only a limited number of cases where 
subparagraph (i) has been used.  Japan cannot, however, deny the possibility that it may be 
used in the future . [Japan - Job No. 5475]  
  GPA/TN1994/2/Rev.13  
 
- 167 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
(k) for additional purchases of human 
life-preserving or life -saving 
products that require extensive 
user training or experience or trial 
for safety reasons.  
[Hong Kong, China – Job No. 1333)  
 
Comments  
In relation to the proposed subparagraph (k):  
• The new proposed subparagraph (k) is aimed at fairly restricted circumstances.  [Hong Kong, 
China]  
• The issues that have been raised in this context as warranting an addition to Article XV relate 
prima rily to issues of quality control and the technical appropriateness of products.  It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to selective 
tendering which could involve qualification requirements including  performance records and 
technical specifications establishing high quality standards and which would be much more 
transparent and competitive.  [US] 
• This proposal must be carefully considered since the use of limited tendering must be strictly 
limited.  [EC] 
• The proposed subparagraph (k) is quite similar to the existing Article XV:1(d) in that both 
provisions refer to "additional purchases ". [Singapore]  Article XV:1(d) could/might be modified 
to meet the concerns raised by Hong Kong, China.  [Switzerland;  United States]  
• Singling out a particular sector or set of issues in the new subparagraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of additional deliveries.  
[Switzerland]  
• The existing subparagraph 1( d) may not be wide enough to cover what is proposed to be covered 
by the proposed subparagraph (k).  Also, in relation to the former subparagraph, it is unclear 
what is meant by "interchangeability " and "compulsion ". [Hong Kong, China]  
• The concerns of Hong Kong, China could be met by formulating appropriate conditions in tender 
documents.  [US] GPA/TN1994/2/Rev.13  
 
- 168 - 
 
  Article XV  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Entities shall not invoke paragraph 1 of 
this Article:  
 
(a) for the purpose of avoiding competition 
among suppliers; or  
 
(b) because of a lack of advance planning or 
concerns relating to the amount of funds 
available to an entity within a particular 
period of time.  
[US - Job No. 1051]  
 
 
  GPA/TN1994/2/Rev.13  
 
- 169 - 
 
  Article XV:2  
Limited Tendering  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall prepare a report in writing on each 
contract awarded under the provisions of paragraph  1. 
Each report shall contain the name of the procuring 
entity, va lue and kind of goods or services procured, 
country of origin, and a statement of the conditions in 
this Article which prevailed. This report shall remain with 
the entities concerned at the disposal of the government 
authorities responsible for the entity in order that it may 
be used if required under the procedures of 
Articles  XVIII, XIX, XX and XXII.  4. Entities shall prepare a report in writing on 
each contract awarded under paragraph 1 of this 
Article. Each such report shall include the name 
of the proc uring entity, the value and kind of 
goods or services procured, and a statement 
indicating the circumstances and conditions 
described in paragraph 1 of this Article that 
justified the use of such procedures. Entities 
shall retain each such report for a min imum of 
three years.  
[US – Job No. 1051]  
 
General comments  
• The issue of limited tendering and how it should be addressed in the Agreement is very important 
since limited tendering, while necessary in some cases, has significant implications for market 
access and, therefore, has significant implications for achieving the objectives of the Agreement.  
While limited tendering is used in a limited way by most entities and in most countries, there 
are some cases and situations in which it is used 80 - 85 per cent of the time.  The Agreement 
should provide flexibility in cases where limited tendering is necessary while at the same time 
ensuring that that flexibility is not be abused.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, pages 4 an d 5. 
  GPA/TN1994/2/Rev.13  
 
- 170 - 
 
  Article XVI - Offsets  
Article XVI:1, 2  
Offsets  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in the 
evaluation of tenders and award of contracts, impose, 
seek or consider offsets.7 
 
7Offsets in government procurement are measures used to 
encourage local development or improve the balance -of-
payments accounts by means of domestic content, licensing of 
technology, investment requirements, counter -trade or similar 
requirements.  
 4. Procuring entities shall not consider, seek 
or impose offsets in the qualification and 
selection of suppliers, goods or services, in the 
evaluation of tenders, or in the award of 
contracts . 
[US – Job No. 2867]  
 Parties shall not impose offsets in respect of 
public procurement contracts. Procuring entities 
shall not seek, take account of or impose offsets 
in the qualification and selection of suppliers, 
gods or services, in the evaluation o f tenders or 
in the award of contracts.  
[EC – Job No. 4312]  
 
2. Nevertheless, having regard to general policy 
considerations, including those relating to development, 
a developing country may at the time of accession 
negotiate conditions for the use of of fsets, such as 
requirements for the incorporation of domestic content. 
Such requirements shall be used only for qualification to 
participate in the procurement process and not as 
criteria for awarding contracts. Conditions shall be 
objective, clearly defin ed and non -discriminatory. They 
shall be set forth in the country's Appendix I and may 
include precise limitations on the imposition of offsets in 
any contract subject to this Agreement. The existence of 
such conditions shall be notified to the Committee a nd 
included in the notice of intended procurement and other 
documentation.  
 Definition : 
offsets means conditions imposed or considered 
by a procuring entity prior to, or in the course of, 
its procurement process that encourages local 
development or improves a Party's balance of 
payments accounts by means of requirements of 
local content, licensing of technology, 
investment, counter -trade or similar provisions;  
[US – Job No. 2867]  
 Offsets are conditions used to encourage local 
development or to impr ove balance -of-payments 
accounts that require use of local content, the 
licensing of technology, investment, counter -
trade or similar actions.  
[EC – Job No. 4312]  
 
Comments  
• Offsets are one of the main benefits for developing countries and provision for them in the 
Agreement could encourage other developing countries to become a Party.  Developing country 
companies are, generally speaking, small to medium -sized enterprises and it is difficult for them 
to compete in international markets.  Offsets provides those companies with an opportunity to 
enter into joint -ventures with international companies and to establish business contacts that 
could lead to participation in future projects.  [Israel; Jordan]  
• Given that the flexibility to use offsets is  aimed at favouring developing countries, it might be 
more appropriate to address this issue in the context of an Article addressing developing 
countries ' needs.  Perhaps providing flexibility in the Agreement will suffice.  [Switzerland;  US; 
Jordan]  
• Offsets  is not necessarily the best way in which to incorporate flexibility into the Agreement in 
favour of developing countries.  [EC] 
• With respect to the definition of "offsets " in the US proposal, several of the elements contained 
in the proposed definition do not correspond to the main principles of the Agreement. Switzerland GPA/TN1994/2/Rev.13  
 
- 171 - 
 
  is, therefore, not in favour of offsets.  Further, offsets might not be useful for developing countries 
since they do not contribute to the long -term, sustainable success of a company that may have 
benefited from an offset in relation to a one -off contract.  [Switzerland; Jordan]   
• Offsets are an important tool for developing countries because they may result in working 
partnerships between small local companies and larger companies that may e nable the smaller 
companies to gain experience and develop a reputation in the marketplace.  They may also 
facilitate technology transfer and capacity -building.  [Israel; Jordan]  
• Are the suggested amendments to the wording of the current article by the EC intended to be 
wording improvements or are they intended to achieve a particular substantive effect, and if so, 
what is this effect?  [Canada]  
• The EC do not consider that offsets are appropriate under the GPA.  The purpose of the EC 's 
proposal in Job No. 431 2 is to ensure that offsets could not be imposed indirectly by national 
legislation, even though the current Article XVI:1 prohibits its use by procuring entities.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 172 - 
 
  Article XVII - Transparency  
Article XVII:1, 2  
Transparency  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to indicate 
the terms and conditions, including any deviations from 
competitive tendering procedures or access to challenge 
procedures, under which tenders will be  entertained 
from suppliers situated in countries not Parties to this 
Agreement but which, with a view to creating 
transparency in their own contract awards, 
nevertheless:  1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering 
procedures or access to challenge procedures, 
under which tenders will be entertained from 
suppliers situated in countries not Parties to this 
Agreement but which, with a view to creating 
transparency in their own contract awards, 
nevertheless:  
 
 (a) specify their contracts in accordance with 
Article  VI (technical specifications);   (a) specify their contracts in 
accordance with Article VI 
(technical specifications);  
 
 (b) publish the procurem ent notices referred 
to in Article  IX, including, in the version of 
the notice referred to in paragraph  8 of 
Article  IX (summary of the notice of 
intended procurement) which is published 
in an official language of the WTO, an 
indication of the terms and co nditions 
under which tenders shall be entertained 
from suppliers situated in countries 
Parties to this Agreement;   (b) publish the procurement notices 
referred to in Article IX, including, 
in the version of the notice referred 
to in paragraph 8 of Article IX 
(summary of the notice of intended 
procurement) which is published in 
an official language of the WTO, an 
indication of the terms and 
conditions under which tenders 
shall be entertained from suppliers 
situated in countries Parties to this 
Agreement;  
 
 (c) are willing to ensure that their 
procurement regulations shall not 
normally change during a procurement 
and, in the event that such change proves 
unavoidable, to ensure the availability of 
a satisfactory means of redress.   (c) are willing to ensure th at their 
procurement regulations shall not 
normally change during a 
procurement and, in the event that 
such change proves unavoidable, to 
ensure the availability of a 
satisfactory means of redress.  
 
2. Governments not Parties to the Agreement which 
comply with the conditions specified in paragraphs 1(a) 
through 1(c), shall be entitled if they so inform the 
Parties to participate in the Committee as observers.   
 
  GPA/TN1994/2/Rev.13  
 
- 173 - 
 
  Article XVIII - Information and Review as Regards Obligations of Entities  
Article XVIII :1 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the appropriate 
publication listed in Appendix II not later than 72 days 
after the award of each contract under Articles  XIII 
through XV. These notices shall contain:  
 1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each contract 
under Articles  XIII through  XV. These notices 
shall contain:  
[EC – GPA/W/87 ] 
 
 2. Not later than 90 calendar days after the 
award of a contract covered by this Agreement, 
the procuring entity shall publish a notice in the 
appropriate publication designated in 
Appendix  III of this Agreement that includes at 
least the following information about the 
contract:  
[US – Job No. 2867]  
 
 1. Having awarded a contract, entities shall:  
 (a) Publish, for at least 120 days, 
information on contract awards, 
including:  
[Canada – Job No. 3484]  
 
 (a) the nature and quantity of products or 
services in the contract award;  
  (a) the nature and quantity of products 
or services in the contract award 
[by referring to the relevant CPV 
code, if applicable [Singapore – 
Job No. 5271 ]]; 
[EC – GPA/W/87 ] 
 
  (b) a description of the goods or 
services procured;  
[US – Job No. 2867]  
 
   (iii) a description of the nature 
and quantity of the goods or 
services included in the 
contract;  
[Canada – Job No. 3484]  
 
 (b) the name and address of the entity 
awarding the contract;  
  (b) the name and address of the entity 
awarding the contract;  
[EC – GPA/W/87 ] 
 
Comments  
• It is not clear why 90 calendar days is proposed as a substitute for 72 calendar days in the US ' 
proposal.  It appears that 72 calendar days are long enough.  [Hong Kong, China]  
• The period of 90 days for publication of contract award information might be too long for certain 
suppliers, for instance for bid challenge purposes.  [Singapore]  
• Publication of information on contract award for at least 120 days is intended to deal with the 
situation of electronic -based publishing, for instance  on an Internet site.  It would be useful to 
have parameters with respect to the minimum time the information should be made accessible 
to suppliers through electronic media.  The wording could be changed so as not to give the 
impression that the information  should be published each day for 120 days . [Canada]  
• Further clarification of Canada 's rationale for its proposal is sought.  [US] GPA/TN1994/2/Rev.13  
 
- 174 - 
 
  • The underlying intention is to ensure that information remains available to suppliers for a 
reasonable and sufficient period o f time.  In the case of electronic publication, information may 
be published for a single day and then may disappear.  [Canada]  
• There is a link between the United States ' proposal and the proposal of the European Community 
for using publication of contract award information as an alternative to statistical reporting.  If 
the proposal by the European Community were to be pursued, the time -periods for publication 
of notices w ould need to be longer.  [Canada]  
• How would electronic publication for 120 days be carried out?  [EC posing a question to Canada]  
• The 120 days was rooted in the comparison between the access to the contract award 
information that suppliers have with a paper publication and the access available through an 
electronic publication.  In the case of a paper publication, if a contract award notice is published, 
it is permanently available.  When contract award notices are published on an electronic system 
it is possib le to put up a notice one day and take it away the very next day.  Suppliers would not 
be assured of the kind of access that they have now through electronic means if the information 
is not maintained for a reasonable period of time for instance 120 days.  Moreover, the supplier 
does not know when the contract is going to be awarded.  Usually, in bid documents, for example 
in Canada, there is a maximum period of time within which the bids are valid.  So there is some 
certainty that the contract will be awarded within a period of time.  Without having some sort of 
a capability to look at all the notices every day it would be easily possible for suppliers to miss 
a notice of interest to them.  It would be burdensome to governments to have to answer enquiries 
about t hat as well as not providing the kind of information that suppliers need to fulfil this 
obligation.  Therefore, it would be necessary to ensure that the notices are available for a period 
of time.  [Canada]  
• This would need to be checked with electronic publi cation systems.  Apparently, many systems 
allow you to see what they published 200 days ago.  You just click and you see what they 
published on that particular day.  It depends on figuring out how those systems will work and if 
it is necessary or not to put a  deadline on that.  We just don 't know but we would have to check 
through.  [Switzerland]  
• 90 days are sufficient for the purpose.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 175 - 
 
  Article XVIII  
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) the name of the procuring entity;  
[US – Job No. 2867]  
 
   (iv) the name and contact location 
of the procuring entity;  
[Canada – Job No. 3484]  
 
 (c) the date of award;  
  (c) the date of award;  
[EC – GPA/W/87 ] 
 
 (d) the name and address of winning 
tenderer;  
  (d) the name and address of winning 
tenderer;  
[EC – GPA/W/87 ] 
 
  (c) the name of the winning tenderer;  
[US – Job No. 2867]  
 
   (i) the name and address of the 
winning supplier;  
[Canada – Job No. 3484]  
 GPA/TN1994/2/Rev.13  
 
- 176 - 
 
  Article XVIII  
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (e) the value of the winning award or the 
highest and lowest offer taken into 
account in the award of the contract;   (e) the value of the winning award or 
the highest and lowest offer taken 
into account in the award of the 
contract;  
[EC – GPA/W/87 ] 
 
  (d) the value  of the winning award or 
the highest and lowest offer taken 
into account in the award of the 
contract; and  
[US – Job No. 2867]  
 
   (ii) the value and date of the 
contract;  
[Canada – Job No. 3484]  
 
Comments  
• A question by the European Community (No. 13) regarding the limitation of the publication of 
information to the value of the winning award only in the United States ' proposal and the 
response by the United States are contained in Job No. 5595.  
• There is currently a choice given to the procuring entity to publish either the value of the winning 
award or the highest and the lowest offers made.  The US proposal 2(d) to eliminate that choice 
and make compulsory the publication of the value of the winning award would mean that no 
information may be provided when entities consider the precise value of the contract to be 
commercially sensitive information.  Would this change not lead to a reduction in the level of 
transparency achieved?  [EC] 
• For the purposes of transparency, the value of all tend ers received should be published.  There 
are some rare instances, such as defence contracts, that are excluded from the GPA, that do 
contain sensitive information.  If open tendering procedures are used, transparency should apply 
throughout the process, unti l the tender award.  If, for whatever reason, open tendering 
procedures are not used, the bid value might be commercially sensitive and should not be 
published - for example, in cases involving confidential information, R&D, or prototypes.  
[Singapore]  
• Article XVIII is applicable to all procedures and not only to open tendering procedures.  The 
release of the value of the winning bid may not be problematic in cases of open tendering 
procedures.  However, that may not be the case where selective and limited tend ering procedures 
are used.  [EC] 
• The two options currently allowed for have their advantages and disadvantages . If an option is 
to be removed, it is necessary to justify why one option is better than the other.  [Switzerland]  
• In cases where there are oligopo listic market structures, would it be risky to have an absolute 
transparency rule regarding publication of award values?  [EC] 
• From the procuring entity 's point of view, there is no reason why the award value should not be 
disclosed, especially since taxpay ers' money is being used.  The issue is only relevant to 
suppliers.  However, suppliers ' concerns are already accommodated in paragraph 4, which states 
that publication can be withheld upon request where legitimate commercial interests could be 
prejudiced.  [Singapore]  
• Why would some entities consider the total value of a contract to be commercially sensitive 
information?  [US] GPA/TN1994/2/Rev.13  
 
- 177 - 
 
  Article XVIII  
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (f) where appropriate, means of identifying 
the notice issued under paragraph 1 of 
Article  IX or justification according to 
Article  XV for the use of such procedure; 
and 
  (f) where appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article IX or 
justification according to Article XV 
for the use of such procedure; and  
[EC – GPA/W/87 ] 
 
   (v) and, where appropriate, the 
justification according to 
Article  XV. 
[Canada – Job No. 3484]  
 
 (g) the type of procedure used.  
  (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
  (e) the type of procurement method 
used, and in cases where limited 
tendering procedures are used, a 
description of the circumstances 
justifying the use of such 
procedures.  
[US – Job No. 2867]  
 
  (b) Publish such information in officially 
designated media which are readily 
accessible to suppliers and other 
Parties within 72 days of contract 
award. Officially designated med ia, 
listed in Appendix II, may be 
electronic or paper.  
[Canada – Job No. 3484]  
 
Comment  
• With regard to paragraph (e) of the US proposal, reference is made to "procurement method " 
which is not defined in the article containing definitions.  Clarification is  sought in relation to the 
meaning of "procurement method ". [Japan]  GPA/TN1994/2/Rev.13  
 
- 178 - 
 
  Article XVIII:2, 3  
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a supplier of a 
Party, promptly provide:  
 Announcement of Post Award Information  
1. Procuring entities shall promptly inform 
suppliers that have submitted tenders of the 
contract award decisions subject to Article  [XII] 
of this Agreement, procuring entities shall, upon 
request, provide losing bidders with an 
explanation of the reasons for not being selected 
and the relative advantages of the successful 
supplier.  
[US – Job No. 2867]  
 
 (a) an explanation of its procurement 
practices and procedures;  
  
 (b) pertinent information concerning the 
reasons why the supplier's application to 
qualify was rejected, why its existing 
qualification was brought to an end and 
why it was not selected; and  
  
 (c) to an unsuccessful tenderer, pertinent 
information concerning  the reasons why 
its tender was not selected and on the 
characteristics and relative advantages of 
the tender selected as well as the name 
of the winning tenderer.  
  (c) Provide bidders, upon request, with 
information regarding the reasons 
that they were not successful.  
[Canada – Job No. 3484]  
 
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, upon 
request, in writing.   
 GPA/TN1994/2/Rev.13  
 
- 179 - 
 
  Article XVIII:4  
Information and Review as Regards Obligations of Entities  
 
AGREEMENT  ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. However, entities may decide that certain 
information on the contract award, contained in 
paragraphs  1 and 2(c), be withheld where release of 
such information would impede law enforcement or 
otherwise be contrary to the public interest or would 
prejudice the legitimate commercial interest of 
particular enterprises, public or private, or might 
prejudice fair competition between suppliers.  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall prevent 
Parties or their procuring entities from 
withholding the release of information under this 
Agreement where release might (a)  impede law 
enforcement; (b)  prejudice fair competition 
between suppliers; (c)  prejudice the  legitimate 
commercial interests of particular suppliers or 
procuring entities, including the protection of 
intellectual property; or (d)  otherwise be 
contrary to the public interest.  
[US – Job No. 2867]  
 
 3. Nothing in this Article shall be construed 
as requiring any Party and its procuring entities 
to disclose confidential information which would 
impede law enforcement or otherwise be 
contrary to the public interest or would prejudice 
the legitimate commercial interest of particular 
enterpri ses, public or private, or might prejudice 
fair competition between suppliers, without 
formal authorization from the [party] [Party or 
supplier] providing the information.  
[Canada – Job No. 3484]  
 
Drafting suggestion  
• In order to emphasize the obligation n ot to disclose other Parties ' confidential information, 
suggest adding the following wording at the end of the paragraph in the US ' proposal:  ", in 
particular such information which is obtained from or supplied by other Parties or their procuring 
entities. " [Hong Kong, China]  
Comments  
• It seems that clarification is required on whether by "confidential " information, the information 
is confidential to any one of the bidders or the procuring entity.  [Hong Kong, China]  
• The basic concepts in Articles VII:2, XIV:3, XVIII:4, XIX:2 and XIX:4 are the same and do not 
differ in their application to procuring entities or Parties.  This appears to provide scope for 
consolidation and simplification, perhaps by stating the concept once in the text and 
incorporati ng it by reference elsewhere.  [US; Canada]  
• Article XII:2 of the US proposal refers to the ability to withhold the release of information.  
Subparagraph (c) refers to that right in cases where it would prejudice legitimate commercial 
interests.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 180 - 
 
  Articl e XIX - Information and Review as Regards Obligations of Parties  
Article XIX:1  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative ruling of 
general application, and any procedure (including 
standard contract clauses) regarding government 
procurement covered by this Agreement, in the 
appropriate publications listed in Appendix IV and in 
such a manner as to enable other Parties and suppliers 
to become acquainted with them. Each Party shall be 
prepared, upon request, to explain to any other Party its 
government procurement procedures.  
 Article IV  
Publication of Procurement Measures  
 
Each Party shall promptly publish any law, 
regulation, judicial decision, administrative 
ruling of general application, and procedure 
regarding procurement covered by this 
Agreement in officially designated electronic or 
paper media which are widely disseminate d and 
readily accessible to the public. Each Party shall 
promptly publish in the same media all additions 
and changes to such measures.  
[US – Job No. 2867]  
 
Comments  
• Is further clarification of the phrase "of general application " in paragraph 1 necessary?  [US; EC] 
• Rules of general application are rules that are not specific to a particular procurement but 
perhaps apply to only some sectors.  [EC] 
• The term "general application " is contained in a number of WTO agreements in the conte xt of 
provisions that relate to notification, for example in GATT Article X and Article 63 of the TRIPS 
Agreement.  [Secretariat]  
• In response to a clarification sought as to why the US proposal omits any reference to 
Appendix  IV [Japan;  Korea], Appendix IV may not be necessary, provided that laws, regulations 
etc. are published in an appropriate way.  [US] 
• For the benefit of foreign suppliers, it might be better to publicize the name of officially 
designated media in Appendix IV.  [Japan]  
• The US proposal does not contain a reference to Appendix IV for several reasons.  Consideration 
of the administrative burden is necessary.  Suppliers interested in competing in a market are 
able to locate the necessary information given that the relevant publications are open an d 
publicly available.  Therefore, it may not be crucial from the suppliers ' point of view to have a list 
of publications in the Agreement.  Further, there may be some Parties that have a large number 
of publications listed in Appendix IV, to which frequent c hanges may need to be made.  If there 
are frequent changes that are not notified in a timely manner, lists in Appendix IV may ultimately 
be less transparent than not having the lists at all.  It is necessary to consider whether it would 
be efficient in the l ong-run to adopt this approach.  [US] 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso that electronic documents may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
• This change may not be necessary.  Further, the clause does not specify the form by which 
entities are required to produce and record informatio n. [Hong Kong, China]  
• Parties should consider setting up a single "information centre " given that some Parties have 
decentralised procurement systems.  Accordingly, it is important to establish an information 
system that provides suppliers with a single point of access.  [Korea;  EC] GPA/TN1994/2/Rev.13  
 
- 181 - 
 
  Article XIX:2, 3  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The government of an unsuccessful tenderer 
which is a Party to this Agreem ent may seek, without 
prejudice to the provisions under Article  XXII, such 
additional information on the contract award as may be 
necessary to ensure that the procurement was made 
fairly and impartially. To this end, the procuring 
government shall provide information on both the 
characteristics and relative advantages of the winning 
tender and the contract price. Normally this latter 
information may be disclosed by the government of the 
unsuccessful tenderer provided it exercises this right 
with discretion.  In cases where release of this 
information would prejudice competition in future 
tenders, this information shall not be disclosed except 
after consultation with and agreement of the Party which 
gave the information to the government of the 
unsuccessful te nderer.  
 3. Upon the request of any other Party, a 
Party shall provide such detailed information on 
the award of a contract as may be necessary to 
determine whether the procurement was 
conducted fairly, impartially, and in accordance 
with the provisions of  this Agreement. Such 
information shall include information on the 
characteristics and relative advantages of the 
winning tender and on the contract price.  
[US – Job No. 2867]  
 
2. A Party may seek additional information on 
the award of a contract as may be necessary to 
determine whether the procurement was made 
fairly and impartially. To this end, the Party of the 
procuring entity shall provide information on the 
characteristics and relative advantages of the 
winning tender and the contract price.  
[Canada  – Job No. 3484]  
 
3. Available information concerning procurement by 
covered entities and their individual contract awards 
shall be provided, upon request, to any other Party.   
 
Comments  
• Comments and questions by Hong Kong, China (No. 8) regarding the above proposal by the 
United States and the responses by the United States are contained in Job No. 5595.  
• A question by Korea (No. 9) regarding the distinction between GPA Article XIX:2 and paragraph  2 
of the United States ' proposal and the r eplies of the United States are contained in Job  No. 5595.  
• In relation to the reference in the Canadian proposal to the requirement that procuring entities 
provide information on the contract price, while this could be an option, it should not be a rule.  
[Switzerland;  EC] 
• The contract price is useful information that should be readily available to the public.  The mere 
fact that entities did not always want to release that information should not prevent its release.  
[Canada]  
• The Canadian proposal relates to the provision of information from one party to another party, 
which is not necessarily the same as the public release of that information.  Such information is 
intended to provide an opportunity for Parties to exchange information in order to ver ify the 
appropriate implementation of the Agreement.  [US] 
• In those cases where the Party providing the information considers it to be confidential, 
Article  XIX:4 would apply.  [US] 
• In some business areas, the entity but also the winner of the contract may n ot want the contract 
price to be disclosed.  [Switzerland]  
In relation to the US proposal:  
• With respect to proposed paragraph 3, the option not to disclose the contract price has been 
removed, provided the release of information would prejudice competition.  In contrast, the 
existing GPA allows flexibility in this respect.  It should be considered whether this flexibility 
should be retained.  [Switzerland]  
• The words "detailed information " in paragraph 1 above should be replaced by "available 
information ". [Japa n – No. 13, Job No. 5595]  GPA/TN1994/2/Rev.13  
 
- 182 - 
 
  Article XIX:4  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Confidential information provided to any Party 
which would impede law enforcement or otherwise be 
contrary to the public interest or would prejudice the 
legitimate commercial interest of particular enterprises, 
public or private, or might prejudice fair competition 
between suppliers shall not be revealed without formal 
autho rization from the party providing the information.  Non-Disclosure of Information  
 
1. The Parties and their procuring entities 
shall not disclose confidential or proprietary 
information.  
[US – Job No. 2867]  
 
 
Comments  
• The US proposal attempts to consolidate a number of similar provisions that currently exist in 
the GPA that relate to non -disclosure.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, page 6.  
  GPA/TN1994/2/Rev.13  
 
- 183 - 
 
  Article XIX:5  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement. Such reports 
shall contain the following information with respect to 
contracts awarded by all procurement entities covered 
under this Agreement:  
 Collection and Report of Statistics  
 
5. Each Party shall collect and report to the 
Committee statistics on contracts awarded by 
entities covered under Appendix 1 of this 
Agreement. Each report shall be submitted 
within two years of the end of the reporting 
period, and shall contain:  
 
 (a) for entities in Annex  1, statistics on the 
estimated value of contracts awarded, 
both above and below the threshold 
value, on a global basis and broken down 
by entities; for entities in Annexes  2 and 
3, statistics on the estimated value of 
contracts awarded above the threshold 
value on a global basis and broken down 
by categories of entities;  
  (a) For Annex 1  entities, statistics on 
the: 
 
(i) aggregate number and value, 
for all such entities 
collectively, of contracts 
covered by this Agreement;  
(ii) number and total value of all 
contracts covered by this 
Agreement awarded by such 
entities, broken down by 
categ ories of goods and 
services according to a 
uniform classification 
system; and  
(iii) number and total value of 
contracts covered by this 
Agreement awarded by each 
such entity under limited 
tendering procedures.  
[US – Job No. 2867]  
 
Comments  
• In developing the US proposal, an effort was made to determine precisely what statistical 
information available under the GPA is used for, how useful that information is and the 
appropriate amount of information that should be provided.  [US] 
• The EC agrees with the idea that some useful statistics are needed under the GPA and that the 
level of complexity associated with the current requirements needs to be reduced.  [EC] 
  GPA/TN1994/2/Rev.13  
 
- 184 - 
 
  Article XIX  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) for entities in Annex  1, statistics on the 
number and total value of contracts 
awarded above the threshold value, 
broken down by entities and categories of 
products and services according to 
uniform classification systems; for 
entities in Annexes  2 and 3, statistics on 
the estimated value of contracts awarded 
above the threshold value broken down 
by categories of entities and categories of 
products and services;  
  (b) For Annex 2 and 3 entities, 
separately, statistics on the:  
 
(i) aggregate number and value 
of contracts covered by this 
Agreement awarded by such 
entities;  
(ii) estimated total value of 
contracts covered by this 
Agreement awarded by such 
entities, broken down by 
categ ories of entities; and  
(iii) estimated value of contracts 
covered by this Agreement 
awarded by such entities 
under limited tendering 
procedures, broken down by 
categories of entities.  
[US – Job No. 2867]  
 
 (c) for entities in Annex  1, statistics, broken 
down by entity and by categories of 
products and services, on the number 
and total value of contracts awarded 
under each of the cases of Article  XV; for 
categories of entities in Annexes  2 and 3, 
statistics on the total value of contracts 
awarded above the threshold value under 
each of the cases of Article  XV; and   
 GPA/TN1994/2/Rev.13  
 
- 185 - 
 
  Article XIX  
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) for entities in Annex  1, statistics, broken 
down by entities, on the number and total 
value of contracts awarded under 
derogations to the Agreement contained 
in the relevant Annexes; for categories of 
entities in Annexes  2 and 3, statistics on 
the total value of contracts awarded 
under derogations t o the Agreement 
contained in the relevant Annexes.  
  
To the extent that such information is available, each 
Party shall provide statistics on the country of origin of 
products and services purchased by its entities. With a 
view to ensuring that such statistics are comparable, the 
Committee shall provide guidance on methods to be 
used. With a view to ensuring effective monitoring of 
procurement covered by this Agreement, the Committee 
may decide unanimously to modify the requirements of 
subparagraphs ( a) through (d) as regards the nature 
and the extent of statistical information to be provided 
and the breakdowns and classifications to be used.   
 
Comments  
• Comments made by delegations in 1999 and 2000 and the latest revision of a note by the Chair 
presen ting a draft revision of the text of Article XIX:5 were circulated in Job No. 5674 in 1999.  
Moreover, a note by the Secretariat reflecting the divergences of views among Parties in respect 
of the main elements of the Chairman 's draft text has been circulat ed in January 2001 
(Job No. 244).  Comments of a more general nature are set out below.  
• The basic question in relation to statistical reporting requirements is the overall balance in terms 
of the benefits and costs of providing those statistics.  [US; EC] Even if not perfect, statistics 
should be collected in order to enable an assessment of the volume of public procurement.  
Statistical reports allow implementation of the Agreement to be monitored and to confirm that 
certain expectations are being met.  [US; Switzerland]  The statistics may also be useful for future 
negotiations.  [US] Significant costs are involved both for the system and the entities.  It is difficult 
to generate some of the information required and there is a trade -off between the quality of t he 
statistical information to be provided and the possibility of achieving it in a reasonable period of 
time. To what extent is it realistic and useful to ask for detailed information in view of the cost 
and complications involved?  [EC] 
• In the OECD context , efforts have been made to collect statistics on total procurement by OECD 
Members and non -Members based on national account statistics.  [EC; US] 
• In considering the addition of new elements or statistical reporting obligations, it is necessary 
to bear in mind that a number of Member countries failed to comply with their statistical reporting 
requirements.  [Japan]  
• The use to be made of statistics should guide decisions regarding the extent of details that 
statistical reporting requirements should contain.  For example, the statistics in relation to limited 
tendering has been useful in showing the number of procurement contracts that have been 
awarded to one company without open tendering.  [Switzerland]  
• It is necessary to consider what statistics are  currently available and whether those numbers 
could influence policy -making in ensuring that behaviour becomes more competitive.  
[Switzerland]  
• Once the entities would put IT systems in place, annual statistics could be provided in a more 
timely manner.  [Switzerland]  
• In future, statistics could be provided on a real -time basis by all Parties, which would make them 
more useful.  [US] GPA/TN1994/2/Rev.13  
 
- 186 - 
 
  Article XX - Challenge Procedures  
Article XX:1  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFI CATIONS  
Consultations  Consultations  
 
1. In the event of a complaint by a supplier that 
there has been a breach of this Agreement in the context 
of a procurement, each Party shall encourage the 
supplier to seek resolution of its complaint in 
consultation with the procuring entity. In such instances 
the procuring entity shall accord impartial and timely 
consideration to any such complaint, in a manner that is 
not prejudicial to obtaining corrective measures under 
the challenge system.  
 1. In th e event of a complaint by a supplier 
that there has been a breach of this Agreement, 
each Party shall encourage its relevant procuring 
entity and such supplier to seek resolution of the 
complaint through consultations. Procuring 
entities shall accord impar tial and timely 
consideration to any such complaint in a manner 
that is not prejudicial to suppliers' participation 
in ongoing or future procurement activities or to 
suppliers' rights to seek corrective measures 
under the challenge system.  
[US – Job No. 28 67] 
 
 1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement 
in the context of a procurement, each Party shall 
encourage the supplier to seek solution of its 
complaint in consultation with the procuring 
entity. In such  instances the procuring entity 
shall accord impartial and timely consideration to 
any such complaint, in a manner that is not 
prejudicial to obtaining corrective measures 
under the challenge system. Such 
encouragement may take place in particular 
through the designation of one or more bodies 
which can offer their good advice in trying to 
solve the situation.  
[EC – GPA/W/87 ] 
 
Comments  
With respect to the US proposal:  
• With respect to paragraph 1, is the reference to prejudicial behaviour appropriate given the 
sensitivity of this issue?  [Switzerland]  
Drafting suggestion  
• Suggest amending the first sentence of the US proposal as follows:  "In the event of a complaint 
by a supplier who has an interest in a procurement that there has been a breach of this 
Agreement, arising in the context of a procurement in which the supplier has, or has had, an 
interest, each Party shall encourage … . " [Hong Kong, China]  
With respect to the EC proposal:  
• The last sentence in this paragraph should be clarified.  The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC 's proposed amendment and the 
challenge bodies referred to in paragraph 6 of the existing agreement should be clarified.  [Japan;  
Hong Kong, China]  
• It is not intended that the propos ed amendment would have the result of imposing a new 
authority on procuring entities.  Rather, the intent was to have a central point to address any 
problems in an unbureaucratic fashion, informally and rapidly.  It would be left to Parties to 
decide how to organize these bodies.  [EC] 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
• Rather than create a completely new body, the relevant aspects of the approach proposed by 
the EC could be incorporated into the existing procedures.  [Singapore]  GPA/TN1994/2/Rev.13  
 
- 187 - 
 
  • The proposal is not intended to make it compulsory for Members to create new bodies.  Rather, 
the intention is to designate bodies that may already be in place.  This proposal was made in 
recognition of the fact that resort to a court is not an ideal  solution for government procurement 
disputes.  [EC] Settling of government procurement disputes outside legal judicial systems will 
afford increased flexibility in dispute settlement procedures.  
• With respect to the concept that access to consultations shou ld not be prejudicial to rights under 
the bid challenge system, it is unclear whether it is necessary to establish another consultative 
procedure akin to mediation if the bid challenge system worked the way it should.  [US] 
• It is unclear whether there is a need for an independent body as provided for in the EC proposal.  
Parties should have flexibility to establish the most appropriate review bodies for their particular 
procurement system as is currently the case under the GPA.  [Canada]  
  GPA/TN1994/2/Rev.13  
 
- 188 - 
 
  Article XX:2  
Challen ge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  Challenge  
 
2. Each Party shall provide non -discriminatory, 
timely, transparent and effective procedures enabling 
suppliers to challenge alleged breaches of the 
Agreement arising in the context of procurements in 
which they have, or have had, an interest.  
 3. Each Party shall provide timely, effective, 
transparent, predictable and non -discriminatory 
means for suppliers to challenge alleged 
breaches of this Agreeme nt, without a prejudice 
to suppliers' participation in ongoing or future 
procurement activities. All challenge procedures 
shall be in writing and made generally available.  
[US – Job No. 2867]  
 
Comments  
• Article XX:2 of the GPA provides that a challenge procedure should be made available to 
suppliers to challenge alleged breaches of the GPA arising in the context of procurements in 
which they have or have had an interest.  One main difference between the US text and the GPA 
is that any supplier, instead of a supplier having an interest in a procurement, can bring a case 
to bid challenge.  It is suggested that "breaches of this Agreement " should be inserted in this 
proposal. Similar wording should be inserted in draft Article XIII:1:  "arising in the  context of 
procurements in which the suppliers have, or have had, an interest. " [Hong Kong, China]  
• With respect to paragraph 3 of the US proposal, what is the meaning, rationale and intent of the 
word "predictable ". Does it refer to the outcome or process?  [Canada;  Switzerland]  
• The word "predictable " refers to procedures and not results.  The word is cho sen to address 
situations where there are bid challenge procedures that may be considered to be transparent, 
timely and effective, but may not be implemented in a predictable way because of changes in 
certain elements.  Parties should be able to anticipate how to proceed.  [US] GPA/TN1994/2/Rev.13  
 
- 189 - 
 
  Article XX:3, 4, 5  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Each Party shall provide its challenge procedures 
in writing and make them generally available.  
  
4. Each Party shall ensure that documentation 
relating to all aspects of the process concerning 
procurements covered by this Agreement shall be 
retained for three years.  
  
 2. Parties shall ensure that their procuring 
entities maintain records of tendering 
procedures relating to contract awards covered 
by this Agreement. Procuring entities shall 
maintain such records for a period of at least 
three years.  
[US – Job No. 2867]  
 
5. The interested supplier may be required to 
initiate a challenge procedure and notify the procuring 
entity within specified time -limits from the time when 
the basis of the complaint is known or reasonably should 
have been known, but in no case within a period of less 
than 10 days.  
 6. 
 (a) suppliers shall be allowed a 
sufficient period of time to prepare 
and submit challenges, which in no 
case shall be less than 10 days from 
the time when the basis of the 
complaint became known or 
reasonably should have become 
known to the supplier;  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.13  
 
- 190 - 
 
  Article XX  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
 (b) the proceedings shall be conducted 
in a transparent manner, consistent 
with predictable, written 
procedures that are readily 
available to all participants in 
advance;  
[US – Job No. 2867]  
 
Comment  
• Paragraph 6(b) does not prescribe how the bid challenge should proceed if the review body is 
not a court subject to judicial review.  For example, some important elements such as open 
hearing and legal representation are not prescribed.  The original GPA text is preferred.  
[Hong  Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authorities  
 
 2. Each Party shall establish or designate at 
least one impartial authority, which is 
independent from its procuring entities, to 
receive and review supplier challenges relating 
to the provisions of this Agreement and make 
appropriate findings and recommendations. Such 
authorities shall be authorized, pendi ng the 
resolution of a challenge, to take prompt interim 
measures to preserve the opportunity to correct 
potential breaches of this Agreement, including 
the suspension of the award of a contract or the 
performance of a contract already awarded.  
[US – Job N o. 2867]  
 
Drafting suggestion  
• The word "authorized " in the last sentence seems to suggest that the "impartial authority " shall 
be given the power to order prompt rapid interim measure.  It is suggested that the last sentence 
be amended as follows:  "Such authorities shall recommend the procuring entity, pending the 
resolution of a challenge, to impose prompt interim measures to preserve the opportunity to 
correct potential breaches of this Agreement, including the suspension of the award of a contract  
or the performance of a contract already awarded.  However, the authorities shall take into 
account the overriding adverse consequences for the interests concerned, including the public 
interest, in deciding whether such measures should be applied. " Withou t prejudice to the above, 
the same sentence of the US draft text, it is better to use "impose prompt interim measures " 
than "take prompt interim measures ". [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 191 - 
 
  Article XX:6  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Challenges shall be heard by a court or by an 
impartial and independent review body with no interest 
in the outcome of the procurement and the members of 
which are secure from external influence during the term  
of appointment. A review body which is not a court shall 
either be subject to judicial review or shall have 
procedures which provide that:  
 4. In the event that a challenge is initially 
reviewed by a body other than an authority 
established or designated under paragraph (2) of 
this Article, each Party shall ensure that 
suppliers may appeal the initial decision to an 
impartial administrative or judicial authority 
which is separate and independent from the 
procuring entity that is the subject of the 
challeng e. 
[US – Job No. 2867]  
 
 (a) participants can be heard before an 
opinion is given or a decision is reached;  
  
 (b) participants can be represented and 
accompanied;  
  
 (c) participants shall have access to all 
proceedings;   
 
Comments  
In relation to paragraph 4 of the US proposal:  
• Is the "impartial administrative or judicial authority " the same authority that is referred to in 
paragraph 2 of the US proposal?  [Japan]  
• Paragraph 4 of the US proposal refers to the possibility that a challenge may be initially reviewed 
by a "body". What kind of body is anticipated by this provision?  The current text in Article  XXVI 
refers to three different types of review bodies.  [Japan]  
• Paragraph 4 of the US proposal provides that a supplier may appeal the initial decision to an 
impartial administrative or judicial authority.  Is it possible for a supplier to appeal the initial 
decision to the authority designated under Article XIII:2?  [Hong Kong, China]  
• The body referred to in paragraph 4 may be, for example, a body within the procuring entity to 
whom a complaint be made.  That body may not necessarily constitute an impartial and 
independent review body.  Paragraph 2 refers to "at least one " impartial authority, indicating that 
each government/Party must have at least one such body to whom suppliers will have access.  
[US] 
• In the case of the impartial authority in paragraph 2, there is a provision for prompt interim 
measures.  However, it appears that interim measures are not available for the other type of 
review mechanism provided for under paragraph 4.  The existing GPA allows for interim measures 
for any kind of review mechanism.  [EC] 
• The ability to order prompt interim measures should b e available for any review procedure that 
is relied upon.  [US] 
• In response to a question on the deletion of the second sentence of the existing paragraph 6, 
the existing paragraph 6 currently refers to authorities that are not judicial authorities.  The US 
proposal lists procedures that would apply to any authority, administrative or judicial.  [US in 
response to Canada]  
 GPA/TN1994/2/Rev.13  
 
- 192 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
 (d) a supplier that initiates a complaint 
shall be provided an opportunity to 
respond to the procuring entities' 
report prior to a decision being 
taken on the complaint;  
[US – Job No. 2867]  
 
 
 5. Each Party shall ensure that any 
confidential or proprietary i nformation that is 
submitted in the course of a challenge 
proceeding is protected in accordance with 
paragraph 1 of Article XII of this Agreement.  
[US – Job No. 2867]  
 
Comment  
• With respect to paragraph 6(d) of the US proposal, it may be appropriate to add "of the review 
body" after "decisions " in order to make the scope of the obligation clear.  [Canada]  GPA/TN1994/2/Rev.13  
 
- 193 - 
 
  Article XX  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Review Procedures  
 
 6. Each Party shall ensure that review 
procedures are conducted in accordance with the 
following:  
 
  (c) procuring entities shall respond in 
writing to the complaint and 
disclose all relevant documents to 
the review body;  
[US – Job No. 2867]  
 
Comments  
• What is the relationship between this subparagraph (c) and Article XII:2?  Does the latter prevail 
so that a procuring entity is entitled to withhold the release of sensitive information to the review 
body in a bid challenge?  [Hong Kong, China]  
• In paragraph 6 of the US proposal, the existing provisions that apply only to non -judicial bodies 
have been simplified so that that they can apply to all review bodies, both administrati ve and 
judicial.  The US proposal provides additional flexibility to apply to all types of review procedures, 
eliminating the need for the some of the distinctions that currently exist in Article  XX. [US] GPA/TN1994/2/Rev.13  
 
- 194 - 
 
  Article XX:7  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) proceedings can take place in public;  
  
 (e) opinions or decisions are given in writing 
with a statement describing the basis for 
the opinions or decisions;  
  
 6. 
 (e) decisions relating to supplier 
challenges shall be provided in a 
timely fashion, in writing, with an 
explanation of the basis for each 
decision;  
[US – Job No. 2867]  
 
 (f) witnesses can be presented;  
  
 (g) documents are disclosed to the review 
body.  
  
7. Challenge procedures shall provide for:  
  
 (a) rapid interim measures to correct 
breaches of the Agreement and to 
preserve commercial opportunities. Such 
action may result in suspension of the 
procurement process. However, 
procedures may provide that o verriding 
adverse consequences for the interests 
concerned, including the public interest, 
may be taken into account in deciding 
whether such measures should be 
applied. In such circumstances, just 
cause for not acting shall be provided in 
writing;  
  
 (b) an assessment and a possibility for a 
decision on the justification of the 
challenge;  
  
 (c) correction of the breach of the 
Agreement or compensation for the loss 
or damages suffered, which may be 
limited to costs for tender preparation or 
protest.   
 
Comments  
• Paragraph 2 of the US proposal adopts the discipline contained in Article XX:7(a) and expands 
on it.  It introduces a provision allowing for rapid or prompt interim measures to suspend a 
procurement process that is underway prior to the award of a contract but also to suspend work 
on a contract that has been awarded, which is an addition to the existing provision.  The addition 
is necessary to take account of problems that come to light late in the procurement process so 
that a supplier may have th e opportunity to raise or express a complaint to the procuring entity 
before the entity awards the contract.  In such cases, there should be an opportunity for a review 
body to temporarily suspend work or further action under the contract until the case is heard.  
[US] 
• Why has the clause on public interest in the existing Article XX:7(a) been deleted from the US 
proposal?  There are circumstances where it would be important and in the public interest for the 
government to proceed with an acquisition.  [Canada]  GPA/TN1994/2/Rev.13  
 
- 195 - 
 
  • Circumstances in which there may be overriding circumstances would be unusual and rare.  The 
use of general exceptions under Article XXIII might be sufficient to protect the public interests 
in this respect.  [US] GPA/TN1994/2/Rev.13  
 
- 196 - 
 
  Article XX:8  
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the challenge 
procedure shall normally be completed in a timely 
fashion.  
  
 9. The Parties undertake to d esignate or 
establish an independent body with a view to 
solve informally problems encountered in gaining 
access to contracts.  
[EC - GPA/W/87 ] 
 
Comments  
• Clarification is required in relation to what is meant by the new paragraph 9 . [Japan;  Hong Kong, 
China]  
• An illustrative example of an independent body dealing with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
  GPA/TN1994/2/Rev.13  
 
- 197 - 
 
  Article XXI - Institutions  
Article XXI:1, 2  
Institutions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (199 4) PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the Parties 
shall be established. This Committee shall elect its own 
Chairman and Vice -Chairman and shall meet as 
necessary but not less than once a year for the purpose 
of affording Parties the opportunity to consult on any 
matters relating to the operation of this Agreement or 
the furtherance of its objectives, and to carry out such 
other responsibilities as may be assigned to it by the 
Partie s. 
 Committee on Government Procurement  
 
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established. This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary, but not less than once a 
year, for the purpose of affording Parties the 
opportunity to consult on any matters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to carry out 
such other responsibilities as may b e assigned to 
it by the Parties.  
 
2. The Committee may establish working parties or 
other subsidiary bodies which shall carry out such 
functions as may be given to them by the Committee.  
 2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
 
 Observers  
 
3. WTO Members and other governments 
who are not Parties to this Agreement shall be 
entitled to participate in the Committee as 
observers upon submitting a written notice 
to the Secretariat.  
[US – Job No. 2867]  
 
Comment  
• Under the present system, does a government need the prior endorsement of the Committee 
before it can become an observe r? Under the present draft, no prior approval is required and a 
written notice from a government will suffice.  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 198 - 
 
  Article XXII - Consultations  and Dispute  Settlement  
Article XXII:1, 2  
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes under 
the WTO Agreement (hereinafter referred to as  the 
"Dispute Settlement Understanding") shall be applicable 
except as otherwise specifically provided below.  
 1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter referred  to as the "Dispute 
Settlement Understanding") shall be applicable, 
except as otherwise provided below.  
 
2. If any Party considers that any benefit accruing 
to it, directly or indirectly, under this Agreement is being 
nullified or impaired, or that the attainment of any 
objective of this Agreement is being impeded as the 
result of the failure of another Party or Parties to carry 
out its obligations under this Agreement, or the 
application by another Party or Parties of any measure, 
whether or not it conflicts with the provisions of this 
Agreement, it may with a view to reaching a mutually 
satisfactory resolution of the matter, make written 
representations or proposals to the other Party or Parties 
which it considers to be concerned. Such action shall be 
promptly notified to the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred to as "DSB"), as 
specified below. Any Party thus approached shall give 
sympathetic consideration to the representations or 
proposals made to it.  
 2. Where any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any objective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of this Agreement, it may with a view 
to reaching a mutually  satisfactory resolution of 
the matter, make written representations or 
proposals to the other Party or Parties which it 
considers to be concerned. Such action shall be 
promptly notified to the Dispute Settlement Body 
established under the Dispute Settleme nt 
Understanding (hereinafter referred to as 
"DSB"), as specified below. Any Party thus 
approached shall give sympathetic consideration 
to the representations or proposals made to it.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.13  
 
- 199 - 
 
  Article XXII:3, 4, 5  
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB shall have the authority to establish 
panels, adopt panel and Appellate Body reports, make 
recommendations or give rulings on the matter, 
maintain surveillance of implementation of rulings and 
recommendations, and authorize suspension of 
concessions and other obligations under this Agreement 
or consultations regarding remedies when withdrawal of 
measures found to be in contravention of the Agreement 
is not possible, provided that only Members of the WTO 
Party to this Agreement shall participate in decisions or 
actions taken by the DSB with respect to disputes under 
this Agreement.  
 3. Only Members of the WTO party to this 
Agreement sh all participate in decisions or 
actions taken by the DSB with respect to disputes 
under this Agreement.  
 
4. Panels shall have the following terms of reference 
unless the parties to the dispute agree otherwise within 
20 days of the establishment of the panel:  
 4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of 
the panel:  
 
 "To examine, in the light of the relevant 
provisions of this Agreement  and of (name of 
any other covered Agreement cited by the 
parties to the dispute), the matter referred to 
the DSB by (name of party) in document ... and 
to make such findings as will assist the DSB in 
making the recommendations or in giving the 
rulings pro vided for in this Agreement."  "To examine, in the light of the relevant 
provisions of this Agreement and of 
(name of any other covered Agreement 
cited by the parties to the dispute), the 
matter referred to the DSB by (name of 
party) in document ... and to make such 
findings as will assist the DSB in making 
the recommendations or in giving the 
rulings provided for in this Agreement."  
 
In the case of a dispute in which provisions both of this 
Agreement and of one or more other Agreements listed 
in Appendix  1 of the Dispute Settlement Understanding 
are invoked by one of the parties to the dispute, 
paragraph 3 shall apply only to those parts of the panel 
report concerning the interpretation and application of 
this Agreement.  
 In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix 1 of the Dispute 
Settlement Understanding are invoked by one of 
the parties to the dispute, paragraph 3 of this 
Article shall apply only to those parts of the  panel 
report concerning the interpretation and 
application of this Agreement.  
 
5. Panels established by the DSB to examine 
disputes under this Agreement shall include persons 
qualified in the area of government procurement.  
 5. Panels established by the DSB to examine 
disputes under this Agreement shall include 
persons qualified in the area of government 
procurement.  
[US – Job No. 2867]  
 
Comments  
• The phrase "consultations regarding remedies when withdrawal of measures found to be in 
contravention of the Agreement is not possible ", which appears in Article XXII:3 of the GPA is 
not present in the DSU or the US draft text.  This may possibly be an additional power given to 
the DSB.  It is therefore worth reinstating this power in the US dr aft text.  [Hong Kong, China]  
• Clarification is sought as to why paragraph 3 of the US omits some of the wording contained in 
the equivalent paragraph of the existing text.  [EC] 
• The language that has been excluded is contained in the WTO Dispute Settlement 
Understanding. The relevant provisions of the DSU have already been incorporated by reference 
into the dispute settlement procedures for the GPA.  Therefore, it is unnecessary to restate them 
in the GPA.  [US] GPA/TN1994/2/Rev.13  
 
- 200 - 
 
  Article XXII:6, 7  
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate the 
proceedings to the greatest extent possible. 
Notwithstanding the provisions of paragraphs 8 and 9 of 
Article 12 of the Dispute Settlement Understanding, the 
panel shall attempt to provide its final report to the 
parties to the dispute not later than four months, and in 
case of delay not later than seven months, after the date 
on which the composition and te rms of reference of the 
panel are agreed. Consequently, every effort shall be 
made to reduce also the periods foreseen in paragraph  1 
of Article 20 and paragraph 4 of Article  21 of the Dispute 
Settlement Understanding by two months. Moreover, 
notwithstandi ng the provisions of paragraph  5 of 
Article  21 of the Dispute Settlement Understanding, the 
panel shall attempt to issue its decision, in case of a 
disagreement as to the existence or consistency with a 
covered Agreement of measures taken to comply with 
the recommendations and rulings, within 60 days.  
 6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible. 
Therefore, notwithstanding the provisions of 
paragraphs 8 and 9 of Article 12 of the Dispute 
Settlement Understandi ng, the panel shall 
attempt to provide its final report to the parties 
to the dispute not later than four months, and in 
case of delay not later than seven months, after 
the date on which the composition and terms of 
reference of the panel are agreed. Cons equently, 
every effort shall be made to reduce also the 
periods foreseen in Article 20 and paragraph 4 of 
Article  21 of the Dispute Settlement 
Understanding by two months. Moreover, 
notwithstanding the provisions of paragraph 5 of 
Article 21 of the Dispute  Settlement 
Understanding, the panel shall attempt to issue 
its decision, in case of a disagreement as to the 
existence or consistency with a covered 
Agreement of measures taken to comply with the 
recommendations and rulings, within 60 days.  
 
7. Notwithstanding paragraph  2 of Article 22 of the 
Dispute Settlement Understanding, any dispute arising 
under any Agreement listed in Appendix  1 to the Dispute 
Settlement Understanding other than this Agreement 
shall not result in the suspension of concessi ons or other 
obligations under this Agreement, and any dispute 
arising under this Agreement shall not result in the 
suspension of concessions or other obligations under 
any other Agreement listed in the said Appendix  1. 
 7. Notwithstanding paragraph 2 of A rticle 22 
of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in 
Appendix 1 to the Dispute Settlement 
Understanding other than this Agreement shall 
not result in the suspension of concessions or 
other obligations under t his Agreement, and any 
dispute arising under this Agreement shall not 
result in the suspension of concessions or other 
obligations under any other Agreement listed in 
the said Appendix 1.  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.13  
 
- 201 - 
 
  Article  XXIII - Exceptions to the Agreement  
Article  XXIII:1, 2  
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be construed to 
prevent any Party from taking any action or not 
disclosing any information which it considers necessary 
for the protection of its essential security interests 
relating to the procurement of arms, ammunition or war 
materials, or to procurement indispensable for national 
security or for national defence purposes.   
 
Comment  
• The US is reviewing its position on this Article.  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such measures 
are not applied in a manner which would constitute a 
means of arbitrary or unjustifiable discrimination 
between countries where the same conditions prevail or 
a disguised restriction on international trade, nothing in 
this Agreement shall be construed to prevent any Party 
from imposing or enforcing measures: necessary to 
protect public morals, order or safety, human, animal or 
plant life or health or intellectual property; or relating to 
the products or services of handicapped persons, of 
philanthropic institutions or of prison labour.   
 
  GPA/TN1994/2/Rev.13  
 
- 202 - 
 
  Article XXIV - Final Provisions  
Article XXIV:1  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  Entry into Force of Amended Agreement  
 
 This Agreement shall enter into force on 1 
January 1996 for those governments8 whose agreed 
coverage is contained in Annexes 1 through 5 of 
Appendix I of this Agreement and which have, by 
signature, accepted the Agreement on 15 April 1994 or 
have, by that date, signed the Agreement subject to 
ratification and subse quently ratified the Agreement 
before 1 January 1996.  
 1. This Agreement supersedes the 
Government Procurement Agreement, which 
entered into force on 1  January  1996, and enters 
into force on [date].  
 
8For the purpose of this Agreement, the term "governmen t" is 
deemed to include the competent authorities of the European 
Communities.  
  (a) This Agreement shall enter force on 
[…] for those states or customs 
territories possessing full autonomy 
in the matters provided for in this 
Agreement which have, by 
signature, accepted this Agreement 
on, […] or have, by or on that date, 
signed the Agreement subject to 
ratification and have subsequently 
ratified the Agreement before […].  
 
  (b) This Agreement supersedes the 
Government Procurement 
Agreement dated 15  April 1994.  
[EC - Job No. 4312]  
 
Comments  
• It is objectionable to simply provide that the present GPA is to be superseded by the new 
agreement.  It is because according to GPA Article XXIV:9, amendments shall not enter into force 
for any Party until it has been accepted by such Party.  Therefore, it is possible that amendments 
will be accepted by Party A but not by Party B.  As such, if the original GPA is superseded by the 
new agreement in respect of Party A, there will not be a GPA to apply between Party A a nd 
Party B. What can be provided is that as between two Parties which are Parties to both the 
original GPA and the new GPA, either the new agreement will prevail or the old one will be 
superseded.  [Hong Kong, China]  
• It may be premature to consider this que stion.  [US] 
  GPA/TN1994/2/Rev.13  
 
- 203 - 
 
  Article XXIV:2  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Accession  Accession  
 
 Any government which is a Member of the WTO, 
or prior to the date of entry into force of the WTO 
Agreement which is a contracting party to GATT  1947, 
and which is not a Party to this Agreement may accede 
to this Agreement on terms to be agreed between that 
government and the Parties. Accession shall take place 
by deposit with the Director -General of the WTO of an 
instrument of accession which states the terms so 
agreed. The Agreement shall enter into force for an 
acceding government on the 30th day following the date 
of its accession to the Agreement.  
 2. Any government which is a Member of the 
WTO and which is not a Party to this Agreement 
may accede to this Agreement on terms to be 
agreed between that government and the 
Parties. Accession shall take place by deposit 
with the Director -General of the WTO of an 
instrument of accession which states the terms 
so agr eed. The Agreement shall enter into force 
for an acceding government on the 30th day 
following the date of its accession to the 
Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.13  
 
- 204 - 
 
  Article  XXIV:3  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
 (a) Hong Kong and Korea may delay 
application of the provisions of this 
Agreement, except Articles  XXI 
and XXII, to a date not later than 
1 January  1997. The commencement 
date of their application of the 
provisions, if prior to 1  January  1997, 
shall be notified to the Director -General 
of the WTO 30 days in advance.  
  
 (b) During the period between the date of 
entry into force of this Agreement and 
the date of its application by Hong  Kong, 
the rights and o bligations between Hong 
Kong and all other Parties to this 
Agreement which were on 15  April 1994 
Parties to the Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed by th e 
substantive9 provisions of the 1988 
Agreement, including its Annexes as 
modified or rectified, which provisions 
are incorporated herein by reference for 
that purpose and shall remain in force 
until 31  December  1996.  
 
9All provisions of the 1988 Agreement except the Preamble, 
Article  VII and Article  IX other than paragraphs 5(a) and (b) 
and paragraph 10.  
  
 (c) Between Parties to this Agreement which 
are also Parties to the 1988 Agreement, 
the rights and obligations of this 
Agreement shall supersede those under 
the 1988 Agreement.   
 GPA/TN1994/2/Rev.13  
 
- 205 - 
 
  Article  XXIV:4, 5  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) Article  XXII shall not enter into force 
until the date of entry into force of the 
WTO Agreement. Until such time, the 
provisions of Article  VII of the 1988 
Agreement shall apply to consultations 
and dispute settlement under this 
Agreement, which provisions are hereby 
incorporated in the Agreement by 
reference for that purpose. These 
provisi ons shall be applied under the 
auspices of the Committee under this 
Agreement.  
  
 (e) Prior to the date of entry into force of the 
WTO Agreement, references to WTO 
bodies shall be construed as referring to 
the corresponding GATT body and 
references to the Director -General of the 
WTO and to the WTO Secretariat shall be 
construed as references to, respectively, 
the Director -General to the 
CONTRACTING PARTIES to GATT 1947 
and to the GATT Secretariat.  
  
4. Reservations  
 Reservations  
 Reservations may not be entered in respect of 
any of the provisions of this Agreement.  4. Parties may not take reservations in 
respect of any of the provisions of this 
Agreement.  
 
5. National  Legislation  National Legislation  
 
 (a) Each government accepting or acceding 
to this Agreement shall ensure, not later 
than the date of entry into force of this 
Agreement for it, the conformity of its 
laws, regulations and administrative 
procedures, and the rules, procedures 
and practices applied by  the entities 
contained in its lists annexed hereto, 
with the provisions of this Agreement.  5. Each government accepting or acceding to 
this Agreement shall ensure, not later than the 
date of entry into force of this Agreement for it, 
the conformity of its  laws, regulations and 
administrative procedures, and the rules, 
procedures and practices applied by the entities 
contained in its lists annexed hereto, with the 
provisions of this Agreement.  
[US – Job No. 2867]  
 
Drafting suggestion  
• Please consider using "make reservations " or "enter into reservations " instead of "take 
reservations ". [Hong Kong, China]  GPA/TN1994/2/Rev.13  
 
- 206 - 
 
  Article  XXIV:6  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Each Party shall inform the Committee of 
any changes in its laws and regulations 
relevant to this Agreement and in the 
administration of such laws and 
regulations.  
 6. Each Party shall inform the Committee of 
any changes in its laws and regulations relevant 
to this Agreeme nt and in the administration of 
such laws and regulations.  
[US – Job No. 2867]  
6. Rectifications or Modifications  
 Rectifications or Modifications  
 (a) Rectifications, transfers of an entity from 
one Annex to another or, in exceptional 
cases, other modifications relating 
to Appendices  I through IV shall be 
notified to the Committee, along with 
information as to the likely 
consequences of the change for the 
mutually agreed coverage provided in 
this Agreement. If the rectifications, 
transfers or other modifications are of a 
purely formal or minor nature, they shall 
become effective provided there is no 
objection within 30 days. In other cases, 
the Chairman of the Committee shall 
promptly convene a meeting of the 
Committee. The Committee shall 
consider t he proposal and any claim for 
compensatory adjustments, with a view 
to maintaining a balance of rights and 
obligations and a comparable level of 
mutually agreed coverage provided in 
this Agreement prior to such notification. 
In the event of agreement not b eing 
reached, the matter may be pursued in 
accordance with the provisions 
contained in Article  XXII. 7. Rectifications, transfers of an entity from 
one Annex to another or, in exceptional cases, 
other modifications relating to Appendices I 
through IV shall  be notified to the Committee, 
along with information as to the likely 
consequences of the change for the mutually 
agreed coverage provided in this Agreement. If 
the rectifications, transfers or other 
modifications are of a purely formal or minor 
nature, t hey shall become effective provided 
there is no objection within 30 days. In other 
cases, the Chairman of the Committee shall 
promptly convene a meeting of the Committee. 
The Committee shall consider the proposal and 
any claim for compensatory adjustments,  with a 
view to maintaining a balance of rights and 
obligations and a comparable level of mutually 
agreed coverage provided in this Agreement 
prior to such notification. In the event of 
agreement not being reached, the matter may be 
pursued in accordance w ith the provisions 
contained in Article XV of this Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.13  
 
- 207 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Rectifications, transfers of an entity from one 
Annex to another or, in exceptional cases, other 
modifications relating to Appendices I through IV 
shall be notified to the Committee, along with 
information as to the likely consequences of the 
change for the mutually agreed coverage 
provided in this Agreement. If the rectifi cations, 
transfers or other modifications are of a purely 
formal or minor nature, they shall become 
effective provided there is no objection within 30 
days. In other cases, the Chairman of the 
Committee shall promptly convene a meeting of 
the Committee. Th e Committee shall consider the 
proposal and any claim for compensatory 
adjustments notified by any objecting Party the 
benefits of which under this Agreement may be 
affected by the proposed modification, with a 
view to maintaining a balance of rights and 
obligations and a comparable level of mutually 
agreed coverage provided in this Agreement 
prior to such notification. In the event of an 
agreement not being reached, any objecting 
Party may either refer the matter to arbitration 
or invoke the procedures con tained in 
Article  XXII. If no objecting Party has requested 
arbitration or the procedures contained in 
Article  XXII, the proposed modification shall 
become effective.  
[Japan – Job No. 7823]  
 
Comments  
• See the Explanatory Notes of Japan in Job No. 7823.  
• Why would Members agree to limit their rights to address important issues of principle related 
to modification or privatization.  The current provisions have operated effectively.  It is not clear 
that a more complex procedure is needed.  [US] GPA/TN1994/2/Rev.13  
 
- 208 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence over 
it has been effectively eliminated, 
that Party shall notify the Committee. 
Such modification shall become 
effective the day after the end of the 
following meeting of the Committee, 
provided that the meeting is no 
sooner than 30 days from the date of 
notification and no objection has been 
made. In the event of an objection, 
the matter may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article  XXII. In 
considering the proposed modification 
to Appendix I and any cons equential 
compensatory adjustment, allowance 
shall be made for the market -opening 
effects of the removal of government 
control or influence.   
(i) Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix I on the grounds that 
governm ent control or influence over it 
has been effectively eliminated, that 
Party (referred to in this Article as the 
"modifying Party") shall notify the 
Committee of such modification no later 
than three months before the intended 
date of implementation of the  
withdrawal and no later than 30 days 
before the following meeting of the 
Committee.  
[Japan – Job No. 7823]  
 
 
Comment  
• The present provisions are a carefully balanced outcome of the negotiations between Parties and 
reflect the uncertainties in market acces s opportunities which might be associated with the 
withdrawal of an entity from Appendix I, notwithstanding a claimed removal of government 
control or influence.  Its purpose is to ensure that any future changes to an agreed annex does 
not affect the negoti ated balance.  [Job No. 5189]  GPA/TN1994/2/Rev.13  
 
- 209 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The notification shall contain evidence that the 
requirement under the preceding subparagraph 
is met, including information on the following 
criteria:  
 
- the government does not control a 
majority of the entity's capital nor voting 
rights;  
 
- the government does not appoint more 
than half of the members of the entity's 
managing board which has the power to 
decide on  operations;  
 
- the operation of the entity is financed by 
its business revenue, not by government 
subsidies;  
 
- the government does not have control or 
influence over the entity's procurement 
decisions;  
 
- the government does not provide the 
entity with any special or exclusive rights 
to operate;  
 
- there are more than one entity that 
engage in the provision of goods or 
services on the market.  
[Japan – Job No. 6846]  
 
General comments  
• There are advantages associated with the US approach.  It might be useful to consider more 
generally what should be included in the Agreement and what should be developed in the form 
of a decision.  However, it is first necessary to first have a common understanding of what is 
being discussed.  [EC] 
In relation to the propo sal by Japan:  
• It is difficult to establish simple criteria or parameters to define government control or influence 
is or what constitutes effective elimination of government control or influence.  The criteria that 
have been proposed are not sufficient to p rove the elimination of government control or 
influence, especially for Parties whose entities may still have to closely follow the direction of 
the government.  [EC] 
• The proposal attempts to define the conditions under which Parties would relinquish their right 
to seek consultation with other Parties about a proposed modification for the removal of an entity 
from the Agreement 's coverage.  Parties should not be denied that right.  [US] 
• The application of the criteria listed in Japan 's proposa l would facilitate consultations between 
Parties.  [Japan]  
• There is a need to establish clear criteria for cases where privatization occurs and a Party wishes 
to withdraw the privatized entity from Appendix I.  [Korea]  
• The GPA does not prevent privatization and it is unclear whether there is a need for further 
clarification of the criteria.  [Canada]  
• Since some Parties consider that criteria contained in the GPA are not objective or clear enough, 
further clarification may be needed as to what the existing lang uage means in specific 
circumstances.  [US] GPA/TN1994/2/Rev.13  
 
- 210 - 
 
  • Regarding the requirement in subparagraph (a) that the government not provide the entity with 
any special or exclusive rights, a wide variety of private companies are granted such rights by 
the government.  For ins tance a corner store might be authorized to sell fishing licences or 
postage stamps.  [Job No. 5189]  
• It is unclear whether a company that is granted a special right to operate, for instance a bus 
company that is no more within the government sphere given a franchise to operate by the 
government on certain routes in competition with other forms of transport, would fall within the 
scope of proposed subparagraph (a).  [Hong  Kong, China]  
• An effect of proposed paragraph on appointment of the managing board would b e that it would 
not allow consideration of compensatory adjustment if, for example, an entity that was 
unilaterally withdrawn from Appendix  I still had 48 per cent government membership on its 
board.  What would be an appropriate percentage in this respect?  [US] 
• With regard to the criteria in subparagraph on the financing of the operation of an entity, in 
some circumstances, government subsidies to privatized entities may still be necessary if the 
subsidies are linked to lowering the cost of provision of bas ic services and where the beneficiaries 
are the members of the general public.  [Korea]  
• The criterion in subparagraph on the financing of the operation of an entity might not be 
appropriate in all cases.  For instance, a number of entities in both Annexes 1 and 3 of the 
United  States, while operating on the basis of their own business revenues, continue to be 
considered as government agencies conducting government procurement.  If the entity was 
mainly financed by its business revenue, some non -voting equity i nfusions by the government 
would not affect the degree of government control or influence.  [Job No. 5189]  
• The Japanese proposal establishes a hierarchy amongst the various criteria and suggests 
something more structured in terms of meeting criteria on a cu mulative or on an alternative 
basis.  [EC] 
• The Japanese proposal contains two separate lists of criteria and states that "either of these sets 
of criteria would suffice to define effective elimination of government control or influence ". 
However, it seems clear that fulfilment of one of set of criteria would not necessarily be sufficient.  
[US] 
• The proposal proposes that regard should be had to the market structure in which an entity 
operates should not be incorporated since it implies that those entit ies operating in a competitive 
environment should be covered by the GPA.  [Hong Kong, China]  
• Given the different market and governmental structure among Parties, there is no one -size-fits-
all set of criteria.  Instead of developing generalised criteria, the approach in the existing 
Agreement is preferable since it allows for a flexible approach.  [Hong Kong, China]  
In relation to the US proposal in Job No. 3152:  
• It is necessary to maintain a procedure that allows for consultations among the Parties relating 
to the withdrawal of entities from coverage.  As is the case under the existing Agreement, the 
procedure should not allow for unilateral withdrawal of entities from coverage without 
consultation.  Further, elimination of government control or influe nce should be "effective " and 
not merely a formal change in legal status.  Since it is difficult to generalise what may constitute 
effective elimination of government control or influence in all circumstances, it might be useful 
to develop a Committee Decis ion that provides illustrative guidance but would not necessarily 
be binding.  The US proposal includes an illustrative list of factors which might cast light on 
whether government control or influence has been eliminated.  It is unclear whether the list is 
complete, whether all the listed factors will be relevant in all cases, and how they would be 
weighted in a particular case.  [US] 
• The illustrative list of criteria contained in the US proposal does not fit within the logic of the 
existing provision.  [EC] 
• Privatization efforts should not be delayed or obstructed since, in general, when an entity has 
been privatized and government control or influence has been effectively eliminated, there is 
greater market access than is possible under the GPA.  Nevertheless,  in cases where the level or 
government investment or interest in an entity is significant, it is not self -evident that 
government control or influence has been effectively eliminated simply because, for example, 
the government holding of shares is less th an 50 per cent or because the entity is selling a good 
or service to a non -governmental user.  [US] GPA/TN1994/2/Rev.13  
 
- 211 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Where a Party wishes, in exercise of its 
rights, to withdraw an entity from Appendix I on 
the grounds that government control or influence 
over it has been effectively eliminated, that Party 
shall notify the Committee. Such modification 
shall become effective the day after the end of 
the followin g meeting of the Committee, 
provided that the meeting is no sooner than 30 
days from the date of notification and no 
objection has been made. […] In the event of 
objection, the notifying Party may consult with 
the objecting Party for the 60  days following the 
end of the Committee meeting where the 
notification was first discussed. If no agreement 
is reached from such consultation, the notified 
modification enters into effect on the 61st day, 
and the matter may be pursued in accordance 
with the procedures on consultations and dispute 
settlement contained in Article XXII of this 
Agreement.  
[Korea - Job No. 5669]  
 
Comments with respect to Korea 's proposed amendment  
• Applying the GPA to privatized entities is neither legally consistent nor practically desirable.  
Therefore, Korea 's proposed amendment seeks to exclude privatized entities from the scope of 
the GPA.  The proposal involves the insertion of a new note – Note 1 - to Article I in addition to 
an amendment of Article XXIV:6(b).  [Korea]  
• Does the proposal mean that the modification would come into effect, regardless of whether or 
not the other Parties agree to the proposed modification?  [Canada]  
• The modification process would proceed a s follows.  The proposed modification would first be 
notified.  If there is an objection to the proposed modification, a GPA Committee meeting will be 
convened.  If agreement is not reached at that Committee meeting, the notification will enter 
into effect 61  days following the date of that meeting.  The dispute settlement mechanism could 
be replied upon subsequently if any Parties objected to the modification.  [Korea]  
• There is no disagreement that privatized entities should not be covered by the Agreement.  The 
question is when is an entity considered as privatized.  [US] 
• Many actions taken by the government may be labelled privatization whereas they might 
continue to be under the influence or control of government.  It is only with the complete 
privatization that  Parties may expect to remove an entity from the Agreement.  Korea 's proposal 
would appear to remove the right of any Party to scrutinize the withdrawal.  What would the 
effect be on the balance of concessions if withdrawal is an automatic consequence of not ification?  
[Canada]  GPA/TN1994/2/Rev.13  
 
- 212 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (iii) Such modification shall become effective 
on the intended date of implementation of the 
withdrawal, provided that no objection has been 
made within 30 days from the date of the 
notification. In the event of an objection by any 
Party the benefits of which under this Agreement 
may be affected (referred to in this Article as the 
"affected Party") by the proposed modificatio n, 
the modifying Party shall enter into consultations 
with the affected Party no later than 10 days 
following the end of the meeting of the 
Committee referred to in subparagraph (i).  
 
 (iv) If agreement is not reached between the 
modifying Party and any a ffected Party within 
the consultation period of 60 days following the 
end of the meeting of the Committee referred to 
in subparagraph (i), such affected Party may 
either refer the matter to arbitration or invoke 
the procedures on consultations and dispute 
settlement contained in Article XXII, by written 
request, along with a statement indicating why 
the proposed modification does not meet the 
requirement under subparagraph (i). The period 
of consultations under this subparagraph may be 
extended by mutual ag reement.  
 
 (v) If no affected Party has requested 
arbitration or the procedures on consultations 
and dispute settlement contained in Article XXII 
within 30 days following the end of the 
time-period of consultations under the preceding 
subparagraph, the proposed modification shall 
become effective on the 31st day from the end of 
such time period or the intended date of 
implementation of the withdrawal, whichever is 
later.  
[Japan – Job No. 7823]  
 
Comment  
• The setting up of time-limits would help to avoid delays  in the process.  [Korea]  GPA/TN1994/2/Rev.13  
 
- 213 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (vi) The arbitrator shall examine whether the 
proposed withdrawal of an entity is consistent 
with the requirement under subparagraph (i). If 
the arbitrator finds that the proposed 
modification is inconsistent with the 
requirement, the arbitrator shall examine 
compensatory adjustments at the request of a 
Party to the arbitration, with a view to 
maintaining a balance of rights and obligations 
and a comparable level of mutually agreed 
coverage provided in this Agreement prior to 
such notification. In considering the proposed 
modification to Appendix I and any consequential 
compensatory adju stment, allowance shall be 
made for the market -opening effects of the 
removal of government control or influence. The 
modifying Party may withdraw its entity from its 
Annex in conformity with the findings of the 
arbitration. If the modifying Party implemen ts its 
proposed withdrawal and does not comply with 
the findings of the arbitration, any affected Party 
that participated in the arbitration may modify or 
withdraw substantially equivalent benefits under 
its Appendix I. Notwithstanding Article III, such 
modification or withdrawal may be implemented 
solely with respect to the modifying Party.  
 
 (vii) In the event of a referral of the matter to 
the procedures contained in Article XXII, any 
affected Party shall be regarded as having 
withdrawn its objection un der subparagraph (iii) 
in the cases stipulated below:  
 
  - An affected Party having 
requested consultations under 
Article XXII does not request the 
establishment of a panel within 
30 days from the end of the time -
period of consultations under 
Article XXII.  
 
  - The panel established under 
Article XXII has been suspended 
at the request of an affected 
Party for more than 90 days. In 
such a case, the authority for 
establishment shall lapse.  
[Japan – Job No. 7823]  
 
Comments  
• DSU might not be the most appropriate body.  [US] 
• There is no need for the establishment of an arbitration mechanism.  [Hong Kong, China]  
• In response to a request for clarification of arbitration procedures [Korea] , further details will be 
provided once the discussion advanc es. [Japan]  GPA/TN1994/2/Rev.13  
 
- 214 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) The Committee on Government 
Procurement shall establish procedures 
for rectifications or modifications to 
Appendices.  
[Japan – Job No. 7823]  
 
Comment  
• The procedures for modifications under Article XXIV:6 should be improved.  [EC] GPA/TN1994/2/Rev.13  
 
- 215 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Where a Party wishes, in exercise of its rights, to 
withdraw an entity from Appendix I on the 
grounds that government control or influence 
over it has been effectively eliminated, that Party 
shall notify the Committee. The elimination of 
such control or influence may be indicated by the 
transfer to the priv ate sector of the actual control 
over the entity or by the fact that the entity is 
exclusively engaged in the provision of goods or 
services on markets that are subject to genuine 
competition. Such modification shall become 
effective the day after the end of the following 
meeting of the Committee, provided that the 
meeting is no sooner than 30 days from the date 
of notification and no objection has been made. 
In the event of an objection, the matter may be 
pursued in accordance with the procedures on 
consul tations and dispute settlement contained 
in article XXII. In considering the proposed 
modification to Appendix I and any consequential 
compensatory adjustment, allowance shall be 
made for the market -opening effects of the 
removal of government control or i nfluence.  
[EC – Job No. 443]  
 
Comments with respect to the EC proposal  
• There should be an opportunity for objective proceedings, during which Parties have an 
opportunity to request clarification and information regarding a privatization.  However, such a 
procedure should be based on objective criteria.  A Party can always withdraw an entity from the 
GPA without giving any particular reason if the other Parties agree.  Under the proposed Article, 
there is a right to withdraw entities but only when certain  objective circumstances are met.  If 
those circumstances are not met, a Party can offer compensation or negotiate for withdrawal.  
Some elements contained in the EC proposal are contained in the existing provision.  However, 
experience illustrates that Parties d o not necessarily have a clear understanding of what is 
intended by that provision.  [EC] 
• The terms "genuine competition " and "actual transfer of control to the private sector " are not 
concrete, objective criteria in determining whether or not government control or influence of the 
entity has been effectively eliminated since uncertainty and the possibility of conflict among 
Parties still remains.  [Korea]  
• The existing provision provides the possibility of removing coverage without consensus.  
However, compensation must be paid in such circumstances.  Perhaps it should be considered 
whether there are any circumstances where a consensus might not be necessary to withdraw 
coverage wit hout compensation.  [Canada;  US] 
• If there is a consensus among the Parties to agree with a change to the Agreement, a problem 
does not arise.  However, clarification is needed in cases of conflict.  [EC] 
• A mechanism is needed to deal with cases where an entit y is no longer controlled by the 
government and there is no longer public ownership or when there is a structural change in a 
market so that it becomes more competitive.  It is necessary to have a common understanding 
of what Parties ' rights and obligations  are in those circumstances.  [EC] 
• Although some Parties consider that it would be useful to have more precise criteria, there are 
limits to the extent to which a precise formula could be included.  [EC] 
• It is important to stress that what is referred to in the EC proposal is effective elimination of 
influence or control, not just formal changes in the status of an entity.  The question then 
becomes what constitutes "effective elimination of control or influence "? In answering that 
question, there is a relatio nship between that issue and the issue of the definition of government GPA/TN1994/2/Rev.13  
 
- 216 - 
 
  procurement in general.  After all, if an entity is not conducting government procurement, Parties 
do not have an interest in subjecting it to the GPA.  [US] 
• Clarification is needed of th e term "genuine competition "? [US; Canada;  Hong Kong, China]  
• The concept of "genuine or effective competition " comes from competition law.  [EC] 
• The key issue of who controls the company is who is deciding the policy of the company.  [EC] 
• It is necessary to consider the economic aspects as well as the legal aspects of the situation.  It 
is necessary to see whether the entity, apart from no longer having a legal monopoly, is indeed 
facing competition in the marketplace.  [EC] 
• What is meant by, for e xample, "actual transfer of control to the private sector " or "effective 
genuine competition "? Factors relevant to privatization might be whether and how the 
government controls the decision -making of the entity concerned or whether the government 
subsidis es entities.  The judgement as to whether "genuine competition " exists or not would differ 
from country to country.  Therefore, such elements (for example, price inflation or market share 
increases) that would be taken into account when the Committee conside rs a privatization case, 
would be quite useful.  [Japan]  
• Market structure in which an entity operates should not be a factor for consideration in 
determining whether the GPA disciplines should apply.  The first sentence of the proposal in 
relation to the "elimination or transfer of actual control to the private sector ", is a bit too evident 
as justification for withdrawal of entities from coverage and, therefore, does not add any clarity 
to the Article as a whole.  This Article is very important because it rel ates to the definition of 
government procurement and hence the coverage of the Agreement.  [Hong Kong, China]  
• In one way or another, market structure is of relevance in this context since the last phrase of 
the current text refers to "market -opening effects ". [EC] 
• The issue of whether there is "effective genuine competition " could be addressed by the 
competition a uthority responsible for assessing the extent to which, in various sectors of the 
economy, there is or is not competition or insufficient competition.  Further discussion is needed 
as to how to assess "genuine competition ". [Switzerland]  
• It is necessary to further consider whether it is possible for an entity to procure for governmental 
purposes even if it is selling in a competitive market.  If so, it would be possible for there to still 
be government control or influence over entities, even if they are sell ing in a competitive market.  
[US] 
• It is necessary to find the right balance between using general concepts and being more precise.  
[EC] GPA/TN1994/2/Rev.13  
 
- 217 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 8. Where a Party wishes, in exercise of its 
rights, to withdraw an entity from Appendix I on 
the grounds that government control or influence 
over it has been effectively eliminated, that Party 
shall notify the Committee. Such modification 
shall become effect ive the day after the end of 
the following meeting of the Committee, 
provided that the meeting is no sooner than 30 
days from the date of notification and no 
objection has been made. In the event of an 
objection, the matter may be pursued in 
accordance wit h the procedures on consultations 
and dispute settlement contained in Article XV of 
this Agreement. In considering the proposed 
modification to Appendix I and any consequential 
compensatory adjustment, allowance shall be 
made for the market -opening effects  of the 
removal of government control or influence.  
[US – Job No. 2867]  
 
 New subparagraph (c)  
 
6. (c) Where a covered entity is a 
government -owned enterprise, the government 
control or influence over it can be deemed as has 
been effectively eliminated when the 
government owns less than fifty per cent of the 
shares or capital of the enterprise.  
[Chinese Taipei – Job No. 7872]  
 
Comments  
• There is a need to establish more efficient procedures under the Agreement in order to enable 
Parties to take decisions on proposed modifications more rapidly than has been the case for 
some modifications.  There might not be one definition of procurement.  It might not be possible 
to have provisions applying to all cases of privatization . [Switzerland]  
With re gard to the proposal by Chinese Taipei:  
• Less than 30 per cent ownership might represent control.  The reason for a special privatization 
clause in the Agreement is to make it clear that there be permanent absence of the ability to 
exercise government contro l. It is not clear that that would be the same if the control is not 
related to procurement.  [Canada]  
• Looking at ownership alone is not sufficient criterion.  [US] 
• Controlling an entity less than 50 per cent government ownership through shareholding is not 
sufficient.  [EC] GPA/TN1994/2/Rev.13  
 
- 218 - 
 
  Article  XXIV:7  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations  and Future Work  
 Reports and Future Work  
 
 (a) The Committee shall review annually the 
implementation and operation of this 
Agreement taking into account the 
objectives thereof. The Committee shall 
annually inform the General Council of the 
WTO of developments during the periods 
covered by such reviews.  9. The Committee shall annually inform  the 
General Council of the WTO of developments 
relating to the implementation and operation of 
this Agreement.  
 (b) Not later than the end of the third year 
from the date of entry into force of this 
Agreement and periodically thereafter, 
the Parties ther eto shall undertake further 
negotiations, with a view to improving 
this Agreement and achieving the 
greatest possible extension of its 
coverage among all Parties on the basis 
of mutual reciprocity, having regard to 
the provisions of Article  V relating to 
developing countries.   
 
Comments  
• Does the deletion of Article XXIV:7(b) in the US proposal mean that the US considers that a 
further review is no longer necessary?  [EC] 
• The US did not intend to prejudge the possibility of further reviews.  Its assumption is that the 
US proposal relates to the current review.  If modifications to the current text are made during 
the current review process, it is necessary to determine whether, at the end of the current review 
process, there is a need for another r eview.  It may be too early to know how the Parties feel 
about that at the present point in time.  [US] 
• Paragraph 7(b) of the existing text appears to be contained in paragraph 10 of the US proposal.  
However, unlike the existing text, the US proposal does ap pear to impose an obligation on 
Members to conduct negotiations to improve the Agreement and to extend its coverage.  What 
is the rationale behind this omission?  [Hong Kong, China]  
  GPA/TN1994/2/Rev.13  
 
- 219 - 
 
  Article  XXIV 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) Parties shall seek to avoid introducing or 
prolonging discriminatory measures and 
practices which distort open procurement 
and shall, in the context of negotiations 
under subparagraph (b), seek to 
eliminate those which remain on the date 
of entry into force of this Agreement.  10. Parties shall seek to avoid introducing or 
continuing discriminatory measures and 
practices that distort open procurement and 
shall, in the context of negotiations, seek to  
eliminate those which remain on the date of 
entry into force of this Agreement.  
[US – Job No. 2867]  
 
Comment  
• This paragraph builds upon Article XXIV:7(b) of the GPA which provides that Parties shall in the 
context of negotiations seek to eliminate those discriminatory measures and practices.  However, 
unlike Article XXIV:7(c) of the GPA, the present draft does not impose an obligation on Parties 
to conduct negotiations to improve the Agreement and to extend its coverage.  [Hong  Kong, 
China]  GPA/TN1994/2/Rev.13  
 
- 220 - 
 
  Article  XXIV:8,  9, 10 
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
 With a view to ensuring that the Agreement does 
not constitute an unnecessary obstacle to technical 
progress, Parties shall consult regularly in the 
Committee regarding developments in the use of 
information technology in government procurement and 
shall, if necessary, negotiate modifications to the 
Agreement. These consultations shall in particular aim 
to ensure that the use o f information technology 
promotes the aims of open, non -discriminatory and 
efficient government procurement through transparent 
procedures, that contracts covered under the 
Agreement are clearly identified and that all available 
information relating to a p articular contract can be 
identified. When a Party intends to innovate, it shall 
endeavour to take into account the views expressed by 
other Parties regarding any potential problems.  
  
9. Amendments  
 Amendments  
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation. Such an amendment, once the Parties 
have concurred in accordance with the procedures 
established by the Committee, shall not enter into force 
for an y Party until it has been accepted by such Party.  11. Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation. Such an amendment, once the 
Parties have concurred in accordance with the 
procedures establish ed by the Committee, shall 
not enter into force for any Party until it has been 
accepted by such Party.  
 
10. Withdrawal  Withdrawal  
 
 (a) Any Party may withdraw from this 
Agreement. The withdrawal shall take 
effect upon the expiration of 60 days 
from the date on which written notice 
of withdrawal is received by the 
Director -General of the WTO. Any 
Party may upon such notification 
request an immediate meeting of the 
Committee.  12. Any Party may withdraw from this 
Agreement. The withdrawal shall take effect  
upon the expiration of 60 days from the date on 
which written notice of withdrawal is received by 
the Director -General of the WTO. Any Party may 
upon such notification request an immediate 
meeting of the Committee.  
[US – Job No. 2867]  
 
Comment  
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to the 
Agreement in relation to the use of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.13  
 
- 221 - 
 
  Article  XXIV:11, 12, 13, 14  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT  (1994)  PROPOSED MODIFICATIONS  
 (b) If a Party to this Agreement does not 
become a Member of the WTO within one 
year of the date of entry into force of the 
WTO Agreement or ceases to be a 
Member of the WTO, it shall cease to be a 
Party to this Agreement with effect from 
the same date.  
 13. If a Party to this Agreement ceases to be a 
Member of the WTO, it shall cease to be a Party 
to this Agreement with effect from the same 
date.  
11. Non-application of this Agreement between 
Particular Parties  
 Non-application of this Agreement between 
Particular Parties  
 This Agreement shall not apply as between any 
two Parties if either of the Parties, at the time either 
accepts or accedes to this Agreement, does not consent 
to such application.  
 14. This Agreement shall not apply as between 
any two Parties if either of the Parties, at the 
time either accepts or accedes to this Agreement, 
does not consent to such application.  
12. Notes,  Appendices and Annexes  
 Notes, Appendices and Annexes  
 The Notes, Appendices and Annexes to this 
Agreement constitute an integral part thereof.  
 15. The Notes, Appendices and Annexes to this 
Agreement constitute an integral part thereof.  
13. Secretariat  
 Secretariat  
 This Agreement shall be serviced by the WTO 
Secretariat.  
 16. This Agreement shall be serviced by the 
WTO Secretariat.  
14. Deposit  
 Deposit  
 This Agreement shall be deposited with the 
Director -General of the WTO, who shall promptly furnish 
to each Party a certified true copy of this Agreement, of 
each rectification or modification thereto pursuant to 
paragraph  6 and of each amendment thereto pursuant 
to paragraph  9, and a notification of each acceptance 
thereof or accession thereto pursuant to paragraphs  1 
and 2 and of each withdrawal  therefrom pursuant to 
paragraph  10 of this Article.  17. This Agreement shall be deposited with the 
Director -General of the WTO, who shall promptly 
furnish to each Party a certified true copy of this 
Agreement, of each rectification or modification 
thereto  pursuant to paragraphs 7 and 8 of this 
Article and of each amendment thereto pursuant 
to paragraph 11 of this Article, and a notification 
of each accession thereto pursuant to 
paragraph  2 of this Article and of each 
withdrawal therefrom pursuant to paragr aph 12 
and 13 of this Article.  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.13  
 
- 222 - 
 
  Article  XXIV:15  
Final Provisions  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
 Registration  
 This Agreement shall be registered in accordance 
with the provisions of Article 102 of the Charter of the 
United Nations.  18. This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
[US – Job No. 2867]  
 
 Done at Marrakesh this fifteenth day of Apr il one 
thousand nine hundred and ninety -four in a single copy, 
in the English, French and Spanish languages, each text 
being authentic, except as otherwise specified with 
respect to the Appendices hereto.   
 
NOTES  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The terms "country" or "countries" as used in 
this Agreement, including the Appendices, are to be 
understood to include any separate customs territory 
Party to this Agreement.  
 
 In the case of a separate customs territory Party 
to this Agreement, where an expression in this 
Agreement is qualified by the term "national", such 
expression shall be read as pertaining to that customs 
territory, unless otherwise specified.  
 
Article 1, paragraph 1  
 
 Having regard to gene ral policy considerations 
relating to tied aid, including the objective of 
developing countries with respect to the untying of 
such aid, this Agreement does not apply to 
procurement made in furtherance of tied aid to 
developing countries so long as it is p ractised by 
Parties.   
[cf. US proposals on definitions]  
 
Comments  
• Switzerland proposes to re -organize and streamline the content of Article V and add elements 
relevant to accession by developing and least -developed countries to the Agreement on 
Government Procurement.  [Switzerland – Job No. 1274]  
• In addition, Switzerland proposes to move these five new articles (presently Article V of the 
Agreement on Government Procurement) near the end of the Agreement as it is already the 
case in several other  WTO Agreements for provisions referring to developing and least -developed 
countries.  [Switzerland – Job No. 1274]  
  GPA/TN1994/2/Rev.13  
 
- 223 - 
 
  ATTACHMENT  - ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS  
REGARDING THE SIMPLIFICATION AND IMPROVEMENT OF  
THE APPENDICES TO THE AGREEMENT  
 A summary of the discussion relating to the simplification of Appendices at the informal 
consultations held in 1997 to 1999 is contained under Item A.1(i) of the Checklist of  Issues Raised 
and Points Made, a note by the Secretariat, dated 7 September 1999 (Job No. 5189).  Below is an 
update of that section of the Checklist in the light of further discussions held on the issue at the 
informal consultations of 30 January 2001.  
 
______________  
 
 
A. Choice between positive and negative lists  
1.  It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of presenting the Annexes in the form of negative lists, starting with 
Annex  1. The Committee could define the general principles that would guide the Parties in 
determining which entities should be excluded from the coverage of the Agreement, for example for 
national security reasons.  This would also have the effect of reducing the  residual exceptions and 
derogations under the General Notes to Appendix I of individual Parties.  [Job No. 5189]  
2.  The view has been expressed that there was an obvious connection between the need for a 
general definition of government procurement and the di scussion in relation to the Annexes.  It was 
not possible to have a standard solution for every case and scenario.  The main question was whether 
the universe of procurement covered under the Agreement was clearly determined or not.  If a 
positive list was be ing used, there was a need for a very comprehensive list.  [EC] 
3.  The view has also been expressed that it was desirable to maintain the presentation of the 
Annexes in the form of positive lists for the overall consistency of the Annexes.  [Job No. 5189]  The 
presentation of the Annexes to Appendix I of individual Parties in the form of detailed positive lists 
was complex but what was important was that they were clear as compared to simply having a 
generic definition referring to entities covered by certain typ es of laws.  [Switzerland;  Japan]  
4.  In this connection, the point has also been made that Parties had the obligation to ensure that 
all the entities that had been specified in Appendix  I complied with the requirements under the 
Agreement effectively.  A negati ve list approach could raise certain difficulties for Parties in this 
respect.  [Job No. 5189]  To have entities positively listed increased their awareness of the 
Agreement.  A comprehensive positive list also gave an indication to other Parties of what enti ties 
were covered in different countries and how procurement was being organized.  [Switzerland]  
5.  It has also been said that the choice between positive and negative lists of entities  was often a 
matter of practicality and the practicality may differ from sy stem to system.  Therefore, the matter 
needed to be considered on a case -by-case basis . For instance in the US, there was no convenient 
way of defining coverage in a generic sense since if a negative list of entities was created of all the 
townships or counties that might not be subject to the Agreement, it could turn out to be a fairly 
difficult task.  [US] 
6.  It has also been stated that, while the Appendices in the form of positive lists were lengthy when 
compiled into a single document for a ll Members, the widespread use of electronic posting in readily 
accessible form on the WTO website had provided improved transparency and access to information 
for users.  According to this view, the loose -leaf process for the Annexes had also worked well.  
[Canada]  
B. Annex 4 on services  
7.  In relation to the coverage of services in Annex 4, one view has been that a negative list approach 
might be preferable in seeking as comprehensive coverage of services as possible, subject to limited 
negotiated exceptions whereas a positive list tended to give the impression that the starting -point 
was to assume that everything was excluded until a decision was made to cover a type of service.  
The real issue was the extent of coverage.  If coverage was limited and  the classification system was GPA/TN1994/2/Rev.13  
 
- 224 - 
 
  very complicated and a detailed analysis was necessary in any particular sector, it may not make 
any difference whether a positive or negative list was used.  On the other hand, if the ambition was 
to have extensive coverage o f services, then a negative list approach would be more appropriate 
and, in fact, easier to implement, because it would only be necessary to refer to a short negative 
list and if the service in question was not on that negative list, it would be clear that  that service 
was covered.  A detailed analysis would not be required as was the case under a long positive list.  
[US] 
8.  The point has also been made that there were many questions as to what type of services were 
covered.  If a negative list was used for Anne x 4, it would be necessary to define services.  There was 
a question as to whether there was a definition of services that was sufficiently comprehensive that 
there would be no doubt that a negative list could be sufficiently clear.  [Switzerland]  It has als o 
been said in this connection that, if reference was made to a concrete classification of services, the 
use of a positive or negative list was only a matter of presentation because there was a clear view 
of what was covered and what was not covered.  [EC] 
9.  The point has also been made that Annex  4 could be presented as a negative list only after the 
uniform extension of the coverage of the Agreement in the area of services.  [Job No. 5189]  
C. Linkages between  the annexes  
10.  The view has been held that, while it might be feasible to present Annexes  1 and 2 in the form 
of negative lists, positive lists were particularly relevant to Annex 3 entities because the scope of 
public corporations or enterprises covered changed from country to country.  [Job No. 5189;  Japan]  
11.  It has been suggested that attention should be focused on the linkages between some of the 
Annexes, in particular Annexes 2 and 3 since it was not always easy to determine what was covered 
by which Annex.  [Switzerland]  
D. Presentation of annexes  
12.  It has be en stated that Annexes were not presented consistently among the Parties.  For 
example, in the case of some Parties, notes relating to Annexes 2, 3 and 4 often appeared in the 
General Notes.  For other Parties, there were similar notes that had actually been  incorporated into 
the Annexes themselves.  Consideration could be given to ways in which the approaches could be 
harmonized in relation to those types of issues which could assist non -Parties and Parties to 
anticipate where relevant notes could be found in  relation to coverage in various Annexes.  [US] 
__________