RESTRICTED  
  
GPA/TN1994/1/Rev.10  
 
7 September 1999  
(24-2574) Page: 1/35 
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: gpa98) was derestricted on 8 November 2023.  
CHECKLIST OF ISSUES RAISED IN INFORMAL CONSULTATIONS REGARDING 
MODALITIES FOR THE REVIEW OF THE AGREEMENT ON  
GOVERNMENT PROCUREMENT * 
NOTE BY THE SECRETARIAT  
Revision  
Table of Contents  
A. AREAS TO BE CONSIDERED  ................................ ................................ .....................  2 
1. Simplification and improvement of the Agreement  ................................ ........................  2 
(a) General  ................................ ................................ ................................ ..................  2 
(b) General principles in the Agreement  ................................ ................................ ............  2 
(c) Enforcement and monitoring mechanisms  ................................ ................................ .... 3 
(d) Information technology  ................................ ................................ .............................  4 
(e) Procurement methods  ................................ ................................ ..............................  11 
(f) Statistical reporting  ................................ ................................ ................................ . 15 
(g) Article -by-Article review of the Agreement  ................................ ................................ .. 19 
(h) Improving the structure of the Agreement  ................................ ................................ .. 30 
2. Elimination of discriminatory measures and practices which distort open procurement  ....... 30 
(a) General  ................................ ................................ ................................ .................  30 
(b) Mutually agreed coverage of services  ................................ ................................ .........  32 
3. Expansion of the coverage of the Agreement  ................................ ...............................  33 
B. INSTITUTIONAL/PROCEDURAL POINTS  ................................ ................................  34 
1. Work on government procurement in other WTO fora  ................................ ...................  34 
2. Institutional arrangements for the review  ................................ ................................ ... 35 
3. Participation of WTO Members in the review  ................................ ................................  35 
4. Next steps  ................................ ................................ ................................ ..............  35 
 
 
 GPA/TN1994/1/Rev.10  
 
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  The following attempts to set out points made by Parties to the Agreement in the informal 
consultations held since February 1997 pursuant to the decision of the Committee in its 1996  Report 
to the Ministerial Conference that it would  "undertake an early review, starting in 1997 with an 
examination of modalities, with a view to the implementation of Article XXIV:7(b) and  (c)" (GPA/8 , 
paragraph  22). 
The list may not be exhaustive and will, of course, need to be amended and updat ed as further 
discussion develops.  
A. AREAS TO BE CONSIDERED  
1.  The point has been made that the key to the review lies with the issue of simplification and 
improvement of the Agreement and that, if this aspect were to be satisfactorily resolved, then the 
other two elements of the review would also largely have been addressed.  In this connection, it has 
been suggested that an improved and simplified Agreement would be likely to result in a reduction 
in the number of exceptions to the Agreement and would theref ore lead to a more uniform 
application.  On the other hand, the point has been made that the work on all three elements of the 
review should be advanced simultaneously and in parallel.  The concept of reciprocity had been at 
the basis of the rationale for th e present coverage of the Agreement.  Therefore, it could not 
reasonably be expected that a mere improvement and simplification of the Agreement would lead 
to the expansion of its coverage.  
2.  It has been stated that the elements of the review on the eliminati on of discriminatory measures 
and practices which distort open procurement and on the expansion of the coverage of the 
Agreement were linked in many respects.  Since it might be difficult to make a distinction between 
these two aspects, future negotiations on the two issues should be held simultaneously.  
3.  It has also been stated that the discussion of the review item on discriminatory measures should 
not be made dependent on the discussion of the other two elements of the review.  
1. Simplification and improve ment of the Agreement  
(a) General  
4.  It has been emphasized that simplifying and providing greater flexibility to the procedures under 
the Agreement should not lead to a weakening of commitments and thus result in less open markets.  
Rather, simplification should aim at obtaining effective but more easily applicable disciplines and 
should improve the balance between the advantages of certain requirements and the administrative 
burden of complying with them.  Compatibility between the concepts o f simplification and effective 
disciplines should be secured.  For example, any flexibility on the requirements on deadlines should 
be accompanied by the elaboration of objective criteria for providing sufficient time for bidding by 
domestic and foreign sup pliers.  
5.  With regard to the Committee 's stated aim that the review shall seek the expansion of 
membership by making the Agreement more accessible to non -Parties ( GPA/8 ), the point has been 
made that improving and simplifying the procedural provisions of the Agreement would increase its 
appeal to non -Parties.  Simplifying the Agreement would also help in promoting the common 
objective sought by the review of the GPA, of the Working Group on Transparency in Government 
Procurement and of the Working Party on GATS  Rules which is to establish a set of rules and 
principles that could ultimately be adopted on a multilateral basis.  
6.  The point has been made that Parties should take into account the costs that may have to be 
borne by procuring entities and suppliers in ad apting to new changes in the procedures under the 
Agreement which has been in force for only three years.  Simplification of the provisions should be 
limited to what is absolutely essential for the purposes of the efficiency of procurement regimes.  
(b) Gene ral principles in the Agreement  
7.  It has been suggested that consideration might be given to whether some provisions of the 
Agreement could be expressed in terms of more general principles  that were widely accepted in 
day-to-day procurement practices such as  transparency, equality of opportunities, GPA/TN1994/1/Rev.10  
 
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  non-discrimination, proportionality, competition, liberalization and expansion of world trade.  While 
such principles were already included in the Preamble or were implicit in some of the main provisions, 
they shoul d be clearly spelled out as operational principles of general application.  
8.  The following points have been made regarding the application of such principles in the 
Agreement:  
- "proportionality " was an underlying principle in a number of provisions, for exa mple in the 
term "unnecessary obstacles " in Article  VI on Technical Specifications and the term  "within 
a reasonably short time " in Article  VIII(d) on Qualification of Suppliers.  Moreover, it was 
essential that any requirements relating to technical, finan cial or professional capacity of 
suppliers should be strictly limited to what were necessary and justified with respect to 
the objectives of the  procurement in question;  
- the principle of proportionality might be introduced as one of the objectives of the  
Agreement in the Preamble.  However, it might be difficult to set out clear criteria for 
determining the proportionality of a given procedure to the objective sought.  Any unclear 
criteria regarding such principles would constitute an element of legal uncer tainty;  
- the non -discrimination principle was an explicit requirement in Article III.  On the other 
hand, it might be difficult to incorporate obligations based on the abstract notions of 
competition, liberalization and expansion of world trade in the oper ational articles.  
(c) Enforcement and monitoring mechanisms  
9.  The point has been made that an approach of providing greater flexibility and more general 
principles may result in the need for a re -examination of the mechanisms aimed at ensuring the 
effective enforcement of the Agreement.  There was room for the improvement of the functioning of 
the Agreement by increasing the effectiveness of the existing enforcement mechanisms that 
guaranteed the rights of suppliers.  On the other hand, it has been said that a case had yet to be 
made that the greater flexibility in the rules that might be envisaged as a result of the process of 
simplification and improvement of the Agreement that was presently under way would give rise to 
the need for improved mechanisms for enf orcement and monitoring.  The outcome of the discussions 
on the simplification and improvement of the Agreement might show that there was no relationship 
between the two processes.  
10.  The suggestion has been made that Parties should consider to what extent Art icle XX on bid 
challenge procedures had been effective in achieving this objective.  In addition, or as an alternative 
to, enforcement mechanisms based on the bid challenge procedures under Article  XX and dispute 
settlement procedures between governments un der Article  XXII, independent enforcement agencies 
could be established in individual Parties to address allegations of violations of the principles of the 
Agreement by aggrieved suppliers or investigate and monitor the application of procurement rules 
and procedures on their own initiative since suppliers might often be reluctant to bring cases against 
procuring entities.  
11.  A note addressing the issue  of enforcement and monitoring mechanisms , in particular in the 
light of the EC 's own experience on the enfor cement and monitoring mechanisms of public 
procurement rules, has been circulated in Job  No. 3871.  
12.  Whether the Agreement should prescribe in detail how government authorities should organize 
their interaction with suppliers has been questioned.  It has been  said that the establishment of 
independent review bodies in individual Parties provided for under Article  XX:6 w ould reduce the 
need for any additional procedures in this respect.  
13.  With regard to the suggestion relating to the addition of  new provisions co ncerning the 
establishment of independent authorities, a  view has been expressed opposing this suggestion.  More 
time was needed for the evaluation of the operation of the arrangements under Article  XX which was 
a new feature of the 1994 Agreement.  A case h ad yet to be made that the current procedures in the 
Agreement on review, consultations and monitoring had not been adequate and that there was need 
for new requirements and additional mechanisms.  The fact that only a limited number of cases had 
been repor ted under formal challenge procedures did not necessarily mean that the aims of GPA/TN1994/1/Rev.10  
 
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  Article  XX had not been achieved.  It had not been established that suppliers had been ignorant of, 
or had been intimidated from using the procedures available to them under Art icle XX. It has also 
been said that paragraph  1 of Article  XX required Parties to encourage the complainant supplier to 
seek resolution of its complaint in consultation with the procuring entity before resorting to challenge 
procedures.  Suppliers might hav e used the route of informal consultations for resolving their disputes 
with procuring entities and promoting mutual understanding and good relationships between them.  
Further views on this matter have been included in a non -paper by Hong Kong, China circulated in 
Job No. 5269.  The point has also been made that any further procedures relating to enforcement 
might be perceived as an additional burden by those non -Parties that were considering accession to 
the Agreement.  Moreover, the use of information technology as a vehicle for monitoring and 
enforcement should not lead to additional reporting requirements.  
14.  The following have been mentioned as among the other mechanisms which could be envisaged 
to guarantee transparency of procurement proceedings and a ccountability of procurement agencies 
and to limit the scope for arbitrary dealings and discrimination in procurement practices:  publication 
of a schedule of prices offered which would show whether the contract had been awarded to the 
lowest price bidder;  and a declaration that all complaints, including anonymous complaints, would 
be investigated.  It has also been said that the Agreement included provisions relating to information 
on contract prices or the highest and lowest offer that had been taken into a ccount in the award of 
the contract (Article XVIII:1(c)).  
15.  It has been said that transparency through public scrutiny and monitoring by other suppliers 
was more effective in promoting compliance than the institution of additional bureaucratic 
procedures.  
16.  In this connection, another view has been expressed that a review of the operation of Article  XX 
should be without prejudice to whether or not Parties should consider alternative enforcement 
mechanisms.  Another view has been that a layer of obligations relat ing to enforcement and 
monitoring mechanisms additional to the challenge procedures of Article XX might deter non -Parties 
considering membership of the Agreement.  Other views expressed on the matter have questioned 
the way in which independent mechanisms c ould operate in Parties with federal governments.  On 
the other hand, the point has been made that independent enforcement mechanisms offered the 
possibility of arriving at rapid resolution of disputes and also avoiding the inconvenience of formal 
court pro ceedings.  Provisions requiring the establishment of such mechanisms would provide an 
additional incentive to non -Parties to join the Agreement.  
(d) Information technology  
(i) General  
17.  It has been suggested that, in accordance with the terms of Article XXIV: 8, the Agreement 
should be adapted to take into account advances in the area of information technology since the 
conclusion of the Agreement.  In this connection, it has been suggested that the text of the 
Agreement should be amended to provide flexibility and to clarify any ambiguities with respect to 
the use of information technology.  
18.  The need to continue the information -gathering process in response to the revised questionnaire 
on information technology was referred to.1 
19.  It has been said that new obligat ions in the Agreement regarding the use of electronic 
publications and any requests to acceding countries to undertake commitments in this respect would 
cause them to incur considerable costs.  Another view has been that, introducing electronic means 
of pub lication would be less complicated than organizing new paper -based publication systems.  It 
has also been said that, in view of the objective of expanding the membership of the Agreement, 
technical cooperation could be provided to those countries that did n ot have the means to use 
information technology in government procurement.  
 
1 Responses to the revised questionnaire ( GPA/W/24 ) wer e submitted by Norway ( GPA/W/24/Add.1 ), 
Canada ( GPA/W/24/Ad d.2), Korea ( GPA/W/24/Add.3 ), Hong Kong, China ( GPA/W/24/Add.4 ), the European 
Community ( GPA/W/24/Add.5 ), the United States ( GPA/W/24/Add.6 ) and Singapore ( GPA/W/24/Add.7 ). GPA/TN1994/1/Rev.10  
 
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  (ii) Non-discrimination  
20.  It has been stated that information technology should be accommodated in such a way as to 
enhance rather than undermine the basic objectives of transparency and non -discrimination in the 
Agreement.  The use of information technology tools should not put at a disadvantage the suppliers 
of actual or potential Parties less well -equipped in information technology or without adequate links 
to internatio nal networks and should take into account the limited capacity in developing country 
Parties in this respect.  Concern has been expressed that, unless appropriate safeguards are 
established, the use of information technology in government procurement may le ad to de facto 
discrimination against foreign suppliers.  It has also been mentioned that the use of information 
technology may create or widen the gap between entities and suppliers which can effectively operate 
in the information age, and those, in partic ular SMEs, which cannot, thus creating a competitive 
advantage in favour of the former group.  
21.  The point has been made that the non -discrimination aspect of the use of information 
technology should be considered against the background of the existing proced ures and practices 
under the Agreement.  The paper -based method of publication and other tendering procedures might 
also have some form of unequal impact on different suppliers.  The discussion of this matter should 
focus on the relative discriminatory effec ts of introducing information technology.  Attention has been 
drawn to the arguments put forward in section 1(c)(iii) below as to why electronic dissemination of 
tender information would be more effective in reaching all interested suppliers than paper -based 
methods.  
22.  With regard to the suggestion that the Agreement should include a provision to the effect that 
the means of communication in submission of bids can be specified by the procuring entity, it has 
been said that if a procuring entity only allowed co mmunication by electronic means, this might 
discriminate against suppliers that did not have the required information technology tools.  In this 
respect, it has also been said that there should be a general non -discrimination provision, which 
would ensure t hat procuring entities did not make choices, for example by asking supplier from other 
Parties to use a special information technology tool with a view to discriminating among suppliers 
from other Parties.  However, to the extent that individual suppliers h ad the possibility of using the 
required information technology, for example by taking a subscription with an Internet provider or 
by using email, purchasing entities should be allowed to require the use of electronic means of 
communication, irrespective o f the individual decisions of suppliers.  The comment has been made 
that the provisions on the use of information technology which would allow entities to favour only 
those suppliers who had access to information technology would be inconsistent with Articl es VI:4 
and VII:2 of the Agreement.  
23.  The point has also been made that fears that technical and content -related compatibility issues 
in connection with the use of information technology might lead to de facto discrimination against 
foreign suppliers were la rgely resolved through the use of the Internet.  Nevertheless, Parties ' 
willingness to accept electronic bids would proceed at different speeds because of considerations 
related to security of data transmission issues and feasibility for large and complex b ids. 
(iii) Publication requirements  
24.  The view has been held that procuring entities should be allowed to choose between the use of 
electronic publications and/or hard copy means in order to comply with their publication obligations 
under the GPA.  Publicatio n of information on tendering opportunities only through the use of 
electronic media should be sufficient to meet the relevant requirements under the Agreement.  It has 
also been said that denying easy access to information on procurement opportunities thro ugh the 
use of the most up -to-date publication and dissemination systems would go against the objectives 
of the Agreement of opening procurement markets to competition and fostering transparency.  
Another view has been that a Party that had limited access to information technology tools should 
be allowed to continue the use of paper -based publications.  Any modifications to the Agreement 
should be limited to provisions allowing the use of information technology in parallel with the paper 
system curren tly in use.  
25.  It has been said that Article  IX:1 required publication of tender notices in  "the appropriate 
publication " listed in Appendix  II. If electronic publication was considered to be an  "appropriate 
publication ", there would not be a need for any ad ditional provisions specifically stipulating the use GPA/TN1994/1/Rev.10  
 
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  of electronic publications.  The introduction of electronic means for publication of tender notices in 
individual Parties could be indicated through notification of changes to publications listed in 
Appen dices II and III.  It has also been said that provisions relating to the availability of paper 
backups to electronically transmitted information or their accessibility by telephone or telex would 
provide the necessary safeguards to potential suppliers who d id not have access to electronic 
networks.  
26.  It has also been said that the use of information technology was the best means of meeting the 
overall objectives of the Agreement, including transparency.  Paper -based publication of tender 
notices was no longer t he best means of ensuring transparency of tender information on a worldwide 
level.  It has been suggested that the reference in Article  IX:1 to publication of tender notices in the 
appropriate publication in Appendix  II should be deleted and be replaced by a general requirement 
to publish notices through means which offered the widest possible and non -discriminatory access 
to interested suppliers from all Parties.  
27.  Moreover, it has been said that, wh ile databases on procurement opportunities could be 
decentra lized, there should be a provision in the Agreement requiring Parties to guarantee access 
to the relevant information in their countries through a single point of entry and free of charge.  
Other comments have been made expressing doubts about the feasibili ty of providing access to 
information through a single point of entry in an agreement with a wide scope and questioning 
whether the Agreement should have provisions stipulating how governments should organize the 
dissemination of tender notices, for instan ce whether entities should charge fees for providing access 
to tender documentation.  It has been said that dissemination of tender documents in paper form 
reduced the costs relating to equipment, maintenance, updating and providing sufficient telephone 
lines for access and downloading of information.  Contracting out the operation of electronic tendering 
systems could also reduce such costs, which were in the range of $10 to 20 per tender, on entities.  
Another view has been that tender documents for big cont racts usually already prepared in the form 
of electronic files, could be placed on the Internet at minimal or no cost.  
28.  It has been said that, whatever the means used, publications should be accessible and 
recordable.  The question has been asked whether a w ebsite would need to have certain features of 
publications that were essential to the users for instance relating to record keeping or legal evidence, 
the core elements of transparency and due process.  The point has also been made that more 
conventional me ans, such as facsimile or CD -ROMs or responses to telephone requests could be 
considered as fail -safe alternatives for safeguarding the accessibility of procurement information to 
those without ready access to electronic networks.  
29.  Another view has been tha t the provisions on the use of electronic publications should be set 
out as an option rather than as a requirement in the Agreement.  While the Agreement should not 
exclude the possibility of publishing in hard copy version, it should allow Parties to revie w the need 
for continuing with paper -based publication, for example for advertising tenders in the area of 
advanced technological systems and information technology.  
30.  Suggestions have been made concerning the provisions of the Agreement relating to publicat ion 
requirements (Article IX on invitation to participate regarding intended procurement);  Article  XI on 
time-limits for tendering and delivery;  Article  XVII on transparency;  Article  XVIII on information and 
review as regards obligations of entities;  and A ppendices  II and III to reflect the practice of electronic 
publication of notices (Job Nos. 3481 -1999 and 5211 -1997).  (These suggestions are reproduced in 
the Note by the Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 
1 September  1999.)  
31.  It has been stated that increased transparency of procurement opportunities was one of the 
main benefits of the electronic dissemination of tender notices.  The Internet permitted viewing of 
notices anywhere in the world, regardless of where those notices m ay have originated. Appendix  II 
currently contained references to the websites that were being used in some Parties to disseminate 
tender information.  Another view has been expressed questioning the use of websites as Appendix  II 
publications.  It has been suggested that the Agreement should include provisions requiring Parties 
to provide, in the GPA Appendices, the addresses of any Internet sites that gave procurement 
opportunity information in their country.  This would help suppliers from countries Parties  to the 
Agreement to locate and easily access information on procurement opportunities that was currently 
published electronically.  Parties should also update and supplement this information as necessary.  
On the other hand, a view has been expressed that p roviding addresses of Internet sites in the GPA GPA/TN1994/1/Rev.10  
 
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  Appendices should not be a requirement in the Agreement.  In most countries, tender notices were 
authentic only in hard copy form published in a government gazette.  With the present technology it 
was not possible to verify the date of appearance of the electronic version of tender notices on the 
Internet whereas there could be no problem in proving the date of publication of the hard copy form.  
Another suggestion on this matter has been that the WTO Home P age could be used to provide the 
addresses of sites with information on procurement opportunities in individual countries.  In this 
connection, it has been said that it might not be necessary to stipulate such practices in the 
Agreement itself.  
32.  The point ha s been made that advances in information technology had the greatest potential 
for achieving efficiency gains in public procurement in the area of the publication of procurement 
opportunity information.  Electronic publication would have the following benef its: 
 - the timeliness of dissemination of tender notices and documents to all suppliers 
irrespective of their location.  Transmission of paper copies of voluminous documents by 
mail were subject to delays which varied depending on the distance.  Suppliers s aved time 
by receiving information of procurement opportunities on a real -time basis and by 
ordering tender documents instantaneously;  
 - the extension of the reach of dissemination of information to suppliers.  The experience 
of Parties showed that the num ber of suppliers using electronic publications was 
substantially higher than those who subscribed to hard copy publications;  
 - the cost -effectiveness of obtaining information.  The cost of subscription, downloading and 
printing of electronic publications w as significantly lower than the cost of publishing and 
mailing documents in the paper format; in particular, those suppliers who may be 
interested in only a few specific tendering opportunities per year would not need to 
subscribe to numerous paper publica tions;  
 - the increased rapidity of obtaining information.  Searching by word, the code number or 
the date of issue of notices for specific products or services in user -friendly versions of 
electronic publications was less time -consuming and costly than the  process of scanning 
through and obtaining hard copy publications on procurement opportunity;  and 
 - the widening of the scope of accessible data.  The establishment of links between tender 
notices and tender documents and any other information relevant to a procurement would 
widen the scope of the information available to suppliers.  For example, tender notices 
published in the electronic version of the US Commerce Business Daily had links to the 
US Federal Acquisition Virtual Library which provided policy g uidance and information on 
current trends in procurement procedures as well as data on procurement legislation.  
33.  It has been suggested that, in order to ensure continued open access by all suppliers, Parties 
choosing to only utilize electronic publishing me thods should use an electronic system that was 
accessible on the Internet.  Alternatively, Parties could use other electronic means as long as they 
provided convenient and universal access through a single point of entry, for instance by establishing 
a webs ite that would be linked to several websites.  In connection with the use of the Internet it has 
been said that, while the Internet was currently the most widely used means of electronic 
distribution,  a generic term should be used in the Agreement for elect ronic networks in order not to 
prejudge the selection of the actual mechanism used for electronic transmissions and to allow for 
future evolution of information technology, for instance in the area of interactive broadcasting.  The 
relevant provisions in th e Agreement should be in the form of basic obligations requiring Parties to 
use the means of publications which, at a given point in time, maximized the ease of access to the 
broadest range of suppliers from the GPA member countries.  
34.  It has been said that a requirement to publish tender notices on the Internet would discriminate 
against those Parties who did not have the necessary resources to maintain two parallel systems, 
especially if publications on the Internet were to be in a non -national languag e. In addition, a country 
that used a non -western alphabet would have the additional cost of maintaining electronic data 
systems in the characters of both alphabets.  
35.  It has been suggested that Parties could be invited to provide addresses of any sites on t he 
Internet that give information on procurement opportunities in their countries.  There was also a 
need to examine how information was structured in national databases.  In this respect, it has also GPA/TN1994/1/Rev.10  
 
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  been mentioned that some national electronic tendering sy stems may not cover all procurement 
covered by the Agreement.  
36.  With regard to the question of whether electronic publications  should be accessible to suppliers 
in GPA Parties at minimal or no cost,  it has been said that, in the absence of evidence that the cost 
of using electronic publications represented a true barrier to access, the Agreement should not have 
provisions regulating the charging of fees for electronic or hard -copy publications.  In this connection, 
it has been mentioned that governments had be en increasingly devolving the activities relating to 
information technology to private sector service providers which might imply that access to tender 
information and documentation would not be free of charge to suppliers.  It has been suggested that 
Parties should have the flexibility to consider, having regard to overall policies, whether to charge a 
reasonable fee.  
(iv) Electronic submission and receipt of tenders and other communications 
between the tenderer and the procuring entity  
37.  Suggestions have bee n made concerning the provisions of the Agreement relating to submission 
of tenders (Article  XIII:1 and Article  IX:6) and to communications between tenderers and the 
procuring entity (Article  X:4) to allow entities to require electronic submission of bids and to allow 
electronic means for other communications (Job Nos.  5211 (1997), Job Nos.  3842 (1998) and 
3481(1999).  (These suggestions are also reproduced in the Note by the Secretariat  "Suggested 
Drafting Changes to the 1994 Agreement " of 1 September 1999.)  
38.  It has been said that certain changes to the Agreement would be necessary to address the 
concerns related to the security of bids submitted electronically.  Procuring entities would be able to 
choose, on a case -by-case basis, the most  effective means of bid submission and notices of proposed 
procurement should indicate the means to be used.  This would allow for situations where bids had 
not been converted to paper (i.e. were assessed on the computer screen or on -line). (The 
suggestions  in this respect are contained in a non -paper by Canada circulated as Job  No. 3481 and 
also reproduced in the Note by the Secretariat " Suggested Drafting Changes to the 1994 Agreement " 
of 1 September  1999.)  
39.  Certain suggestions for modifications to the Agre ement have also been made regarding the 
methods by which Parties could accept requests for participation in selective tendering from 
suppliers.  The means of communication to be used for such requests should be specified in the notice 
of proposed procuremen t. These modifications would allow entities  to make decisions on a 
case-by-case basis regarding the most effective means for the submission of request for 
participation.  (Suggestions in this respect are contained in a non -paper by Canada (Job  No. 3481) 
and are also reproduced in the Note by the Secretariat " Suggested Drafting Changes to the 1994 
Agreement " of 1 September  1999.)  
40.  With regard to the provisions in the Agreement concerning negotiation (Article  XIV) and review 
as regards obligations of parties (A rticle XVIII), it has been said that the current provisions of the 
Agreement did not preclude electronic means, but only required that notice be given in writing, 
which could be interpreted to include electronic documents.  The inclusion in the Agreement of  a 
footnote making it clear that the word  "writing " included electronic documents would ensure 
consistency in the Agreement regarding this point and it would also reduce the need for a specific 
language in several places.  (Suggestions in this respect are c ontained in a non -paper by Canada 
(Job No. 3481) and are also reproduced in the Note by the Secretariat  "Suggested Drafting Changes 
to the 1994  Agreement " of 1 September  1999.)  
41.  The view has been expressed that it was premature to consider a requirement to provide all 
tender documents, in particular in the case of complicated works contracts, electronically on the 
Internet.  It was further said that a requirement in the Agreement regarding electronic submission 
of tenders was also premature.  
42.  It has been menti oned that technical and content -related compatibility issues for the receipt of 
electronic bids could be resolved, particularly for routine transactions, through the use of the 
Internet.  Widely available (and free) readers, such as the Adobe Acrobat Reader , would permit the 
sender and the recipient of a bid to be able to read and, if desired, print information in various word GPA/TN1994/1/Rev.10  
 
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  processing formats.  Using the Internet,  "fill-in-the-blanks " bids could be completed on -screen or 
downloaded and e -mailed by return t o the procuring organization.  
43.  It has also been said that, for suppliers other than of standardized and off -the-shelf products 
and services, electronic tendering could be more costly and time -consuming where tender 
documents were voluminous since the tradit ional methods of transmission were less costly than 
downloading and printing them.  
44.  Reference has also been made to legal and technical difficulties relating to the electronic 
submission of bids and transmission of documents between the tenderer and the pro curing entity 
through public networks.  In this connection, it has been suggested that the Agreement should 
contain provisions that address the use of electronic signatures.  The UNCITRAL Model Law on 
Electronic Commerce, particularly Articles 5 -7 relating t o the legal recognition of data messages, 
writings and signatures, could provide guidance to revising the GPA in these areas.  It has been said 
that such issues as preserving the confidentiality of the tender and security and integrity of data 
contents of e lectronically transmitted tenders and the legal effects of electronic signatures was a 
complicated issue and required careful consideration.  With the aim of providing greater protection 
to entities, a suggestion has been made which would make it clear that  entities could require a 
signed confirmation copy of the bid.  With respect to the c oncerns that have been raised regarding 
the impermanence of electronic documents posted on websites or electronic bulletin boards, it has 
been said that there could be a pr ovision requiring that electronic documents should be available for 
later review.  This would put such types of documents on an even footing with paper documents, 
which were kept by most Parties in accordance with the requirements in national legislation.  
45.  In response to these concerns, the point has been made that transmission of tender 
documentation through electronic means could avoid some problems of confidentiality of information 
associated with more traditional systems, for instance with faxed transmis sions.  
46.  It has been said that the work that was being carried out under the mandate of Article  XXIV:8 
to negotiate modifications to the Agreement in the light of developments in information technology 
was different from the work on possible changes in the t endering procedures under the Agreement 
to reflect new procurement methods.  The discussion of the two topics should be kept separate.  
(v) Commercially run websites  
47.  It has been said that commercially run websites which listed all or a selected range of supp liers 
of similar equipment and permitted a procuring entity to search for the best price were being used 
increasingly.  The review should address the question of how would the rules of the Agreement apply 
to purchases made as a result of the use of such sit es and whether their use could have the result 
of limiting opportunities of non -discriminatory access for suppliers from other Parties. In this 
connection, a comment has been made that any general provisions in the Agreement relating to the 
principles of e qual treatment and non -discriminatory access to suppliers from other Parties would 
extend to such practices.  
(vi) Ease of access to databases and use of information tools  
48.  It has been suggested that the ease of access to information sources (including estab lishing 
links between databases and ensuring interoperability) and use of information tools (including search 
devices and common nomenclatures) were some of the issues that should be addressed in this area.  
49.  With respect to ease of access to databases, it h as been stated that databases generally differed 
in terms of their contents as well as their structure.  The ease of use of information tools should be 
improved by harmonizing the presentation of information.  This would also contribute to ensuring 
interoper ability between the various systems.  The full benefit of information technology could only 
be achieved if agreement on harmonized standards for coded information could be reached.  This 
would facilitate the use of search devices to browse through the inform ation contained in different 
databases.  In this connection, it has also been stated that it would be necessary to develop tools 
that would make it possible to access databases in different languages.  It has also been suggested 
that a harmonized/single mult ilingual vocabulary system specifically developed for procurement 
purposes should be used to describe purchases, as has been done at European Community level 
with the CPV (Common Procurement Vocabulary).  CPV attributed a nine -digit code to some 6,000 GPA/TN1994/1/Rev.10  
 
- 10 - 
 
  terms  commonly used in the procurement process.  The use of standard terms in the CPV made it 
easier for potential suppliers of goods and services to understand contract notices and to identify 
the type of procurement contracts that were of particular interest t o them.  The CPV also helped to 
establish procurement statistical databases.  Furthermore, the use of multilingual CPV in the eleven 
official languages in the European Union and of the standard forms provided in it had facilitated the 
translation of, at leas t, the most important elements of procurement notices.  The delegation of the 
European Community expressed its willingness to come forward with an explanatory paper on the 
CPV. 
50.  With respect to ease of use of information tools, it has been said that access t o essential 
procurement information would become more difficult because of the increase in the number of 
databases.  A solution should be found whereby interested suppliers could search for information in 
a multitude of databases through a single search eng ine, for example one that could be developed 
jointly by the GPA Parties on the WTO website.  It has also been suggested that Parties should share 
information on their experience relating to the technical aspects of this matter.  
(vii) Maximum time -limits  
51.  Some delegations have advocated or indicated their readiness to explore reducing the minimum 
time-periods required in the various stages of the procurement process in order to improve the 
efficiency of the procurement process.  It has been said that  entities c ould be given incentives to use 
new technologies, for instance those entities that made tender documents available through 
electronic means at the time of publication of tender notices could be allowed the possibility of using 
reduced time -limits.  
52.  Another view was that interested parties could be given incentives to offer on -line access to 
electronic versions of tender documents on the Internet, for example by reducing the required 
deadlines.  
53.  The point has been made that any reduction in time -periods should  be linked to the time saved 
by using electronic means and should not lead to discrimination against distant suppliers.  
54.  It has also been stated that the rationale underlying the specific deadlines in the GPA  1994 
should be carefully considered before attem pting any revision of the relevant provisions.  Some 
objective criteria would need to be developed in this respect in order to ensure equal opportunity to 
bid to all suppliers, foreign or domestic.  It was also mentioned that the current deadlines had been 
set up to ensure that bidders were informed of the procuring opportunities well in advance of the 
time for submission of bids.  The deadlines in the present Agreement had been extended to 40  days 
from the 30  days set out in the Tokyo Round Agreement on Gover nment Procurement of 1979.  Some 
countries voluntarily extended the deadlines to 50 days.  
55.  It has been said that the objective of the criteria in Article  XI:1(a) was to ensure that 
governments established adequate minimum time -limits.  The possibility of recourse to bid challenge 
procedures under Article  XX provided an additional safeguard.  In cases where selective tendering 
was used, shorter time -frames were feasible since bid formats were usually standardized.  The time 
required to prepare bids was dependent on the nature of the proposed procurement.  Generalized 
time-limits would reduce efficiency without increasing access or reducing discrimination.  The 
modifications proposed would allow procuring entities to use longer time -limits dependin g on the 
complexity of the procurement or the means of communication used.  Suggestions have been made 
concerning the deadlines set out in the Agreement (Article  XI) to take account of electronic tender 
and electronic bid receipt (Non -paper by Canada circul ated as Job No. 3481(1999), Section 4).  
56.  On the other hand, the following points have been made to caution against any premature 
reduction in deadlines:  
 - while information technology advances certainly helped to shorten the time for 
submission, publicatio n and dissemination of tender notices and tender documents, the 
time needed to prepare tenders was likely to remain the same in most cases.  As long 
as submission by normal mail and electronic tools coexisted, it may be premature to 
allow entities using ele ctronic transmission the advantage of shorter deadlines;  GPA/TN1994/1/Rev.10  
 
- 11 - 
 
  however, the GPA Parties might consider accepting shorter deadlines for pilot projects 
or certain sectors which were especially suitable for electronic tendering;  and 
 - it may be premature to conclude that information technology could shorten tendering 
deadlines because the time gain arising from electronic transmission of documents could 
be relatively small compared to the total time needed for the preparation of responsive 
bids. 
(viii)  New is sues related to electronic commerce  
57.  It has been stated that a wider use of electronic tools could call into question the traditional 
approach of government purchasing as it opened the way to full electronic tendering or electronic 
commerce between purchase rs and suppliers.  In addition, new electronic tools provided 
opportunities for purchasing entities to cooperate via the exchange of information, ideas and 
experiences.  This option would require further consideration of data privacy and security aspects, 
interoperability of systems, and of legal questions such as the acceptance of digital signatures and 
electronic receipts.  The traditional behaviour of contracting entities inviting suppliers to tender could 
be called into question by new technological opport unities which would facilitate, for example, 
electronic qualification procedures, tendering of framework contracts and the selection of 
off-the-shelf products from electronic catalogues.  
(e) Procurement methods  
58.  It has been suggested that provisions on tend ering procedures should be reviewed to 
accommodate the increasing and frequent practices of two -stage tendering and framework 
agreements, including those involving use of electronic catalogues.  On the other hand, the question 
has been asked whether those t wo types of procurement would not appropriately fit in one of the 
tendering procedures defined in the current text of Article VII.  
(i) two-stage tendering  
59.  The point has been made that the provisions on open and selective tendering procedures did 
not cover two-stage tendering as provided in Chapter V, Article 46 of the UNCITRAL Model Law on 
Procurement of Goods, Construction and Services.  The main elements of two -stage tendering were:  
 - in the first stage, initial tender proposals were invited without a ten der price.  The 
proposal related to the technical and contractual aspects of the project, as well as the 
track records of the tenderers;  
 - in the second stage, those tenderers who had not been rejected as a result of technical 
evaluation were invited to su bmit final tenders with prices and according to a single set 
of specifications.  
60.  The UNCITRAL two -stage tender was constructed to deliberately separate technical evaluation 
from price evaluation, and there may not be any negotiations with any suppliers or a ny modifications 
of tender specifications throughout the entire tendering process.  In the first stage, a purely technical 
evaluation was done.  In the second stage, only those which satisfy the technical evaluation were 
invited to quote their price offers.  The price evaluation might be done by a totally different committee 
from the technical evaluation, e.g. the entity may decide that the technical evaluation be done by a 
group of engineering experts,  but the price evaluation be done by policy -makers. The tw o-stage 
tendering method was especially useful for complex projects where the procuring entity wished to 
separate technical evaluation from price evaluation, e.g. in complex engineering projects, for 
example the building of a nuclear plant.  Technical exper ts were called upon to evaluate and shortlist 
technically acceptable tenders, but the final decision would be made by policy makers, taking into 
account the affordability and cost -effectiveness of the proposed tender as well as its technical 
feasibility.  Many countries ' legislation contained provisions on two -stage tendering based on the 
relevant provisions of the UNCITRAL Model Law.  
61.  The point has further been made that the two -stage appeared to have some similarities to the 
procedures on negotiations descr ibed in Article  XIV of the GPA. On the other hand, the two -stage 
tendering method under the UNCITRAL Model Law was constructed to separate technical and price 
evaluations.  The procedures under this method might not involve any negotiations with suppliers o r GPA/TN1994/1/Rev.10  
 
- 12 - 
 
  any modifications of tender specifications throughout the entire tendering process.  The scope of the 
provisions on negotiations in the Tokyo Round Agreement had been expanded to include the concept 
of two -stage tendering in the 1994 Agreement.  However, A rticle XIV envisaged negotiations arising 
from the process of evaluation of tenders, where it became apparent that no one tender was 
obviously the most advantageous.  It has also been said that post -tender negotiations might benefit 
both suppliers and procu ring entities , for instance in solving non -price issues such as environmental 
or safety considerations related to a procurement.  However, the terms of Article  XIV did not specify 
whether negotiations should be held before tendering, after tendering and bef ore the award of 
contracts or after the award of contracts.  The present text of Article  XIV:4(d), which seemed to 
imply that procuring entities could initiate new negotiations with the remaining participants would 
need to be clarified.  The point has also b een made that negotiations under Article  XIV with tenderers 
should be governed by the basic principles of non -discrimination, equal treatment and transparency.  
It has also been said that two -stage tendering was in compliance with the GPA if at the first st age 
the technical evaluation was carried out in a fair and non -discriminatory manner and suppliers who 
fulfilled the technical criteria were treated equitably in the second stage.  
62.  It has also been said that any new tendering procedures to be formulated und er the Agreement 
should have the purpose of furthering compliance with the principles of transparency and 
non-discrimination.  
63.  A non -paper on the subject of two -stage tendering has been circulated by Singapore as 
Job No. 5295.  
(ii) framework agreements or s imilar types of contracts  
64.  It has been said that procuring entities in many Parties frequently made use of contractual 
arrangements referred to as multiple award contracts (in the United States), framework agreements 
(in the European Community), standing offers and supply arrangements and supply arrangements 
(in Canada), schedule contracts, catalogue contracts and other purchasing methods based on the 
state-of-the-art technology developed by private companies.  The review should address how these 
types of contractual arrangements fitted the current provisions of the Agreement and whether any 
new provisions would be necessary to accommodate their increasing use.  
65.  It has been said that the main purpose of using framework arrangements had been to accele rate 
the procurement process and to provide flexibility.  The important benefits offered to both contracting 
entities and suppliers included:  allowing supplies and services to be acquired when the exact times 
and/or exact quantities of future requirements w ere not known at the time of the contract award;  
significantly streamlining the procurement process and speeding up delivery times;  allowing the 
reduction of deadlines in day -to-day procurement, in particular for purchases of off -the-shelf 
products and cer tain standardized services;  eliminating the need for the solicitation and submission 
of repetitive bids and separate tenders when numerous similar transactions were required thus 
taking advantage of larger contract sizes;  taking advantage of advances in te chnology and changes 
in agency priorities in a cost -effective manner;  and facilitating the use of electronic commerce for 
improving the efficiency and effectiveness of the acquisition process.  
66.  It has been said that these types of arrangements practiced in various Parties appeared to have, 
among others, the following common characteristics:  
 - a framework agreement was concluded between a purchasing entity and one or a 
multiple number of selected suppliers offering a comparable good or service;  
 - multiple transactions with several suppliers could be involved.  There could also be 
subsequent recurring transactions with one single supplier;  
 - a framework agreement was concluded for a fixed period;  
 - a framework agreement established the terms that w ould govern the contracts to be 
awarded during a fixed period, for instance the price, the quantity and conditions of 
delivery of the actual supplies;  
 - initially, a principal framework contract was awarded to one or more suppliers using, as 
appropriate, the open, selective or limited tendering procedures under the Agreement.  
Subsequent placements of specific orders (or the conduct of multiple tasks) under that GPA/TN1994/1/Rev.10  
 
- 13 - 
 
  framework contract were carried out by the contracting entity, as and when its 
purchasing needs arose;  
 - a specific value was not associated with any particular supplier.  A particular supplier 
could provide goods and services within a particular range of values for each supplier 
included in the contract;  
 - if contracting entities had awarded a fram ework agreement, at an initial stage, on the 
basis of competitive tendering procedures, a call for competition was not compulsory 
when contracts were awarded on the basis of that agreement at a later stage;  
 - framework agreements could be concluded jointl y by several purchasing agencies.  For 
example, in the European Community countries, several municipalities might conclude 
a framework contract with one or several suppliers.  A new procuring entity could join 
subsequently in an existing framework agreement without the need to proceed with full 
tendering procedures.  In the Unites States, in a number of instances multiple federal 
agencies had made arrangements for the participation in an existing contract of 
additional agencies that needed the type of goods or  services that were being procured.  
The maximum values established under that contract still applied whatever the number 
of participating agencies.  
67.  With regard to the question of the extent to which the existing provisions of the Agreement 
were applicable to framework agreements and whether the increasing use of these types of 
contractual arrangements would require the inclusion of an additional definition or a new type of 
procurement procedure in the GPA, the view has been expressed that the use of framewo rk 
agreements was consistent with the rules and principles in the Agreement concerning 
non-discriminatory access and no new provisions would be necessary to accommodate their use.  
Another view has been that framework  agreements should not be used in a way that defeated the 
objective of opening procurement markets to competition from suppliers in all GPA member 
countries.  The fundamental issue in this respect was how to ensure non -discriminatory, fair and 
equitable treatment of all listed suppliers as well a s the application of conditions of competition to 
individual procurement opportunities under such contracts.  Certain general principles governing 
framework contracts would need to be considered in the discussion of whether these types of 
procedures were co vered by the current provisions in the Agreement.  
68.  It has further been said that the Agreement should be flexible enough to accommodate 
innovative procedures that were consistent with its objectives and without making its provisions 
unnecessarily complicate d. The award of framework agreements constituted an act of procurement 
within the meaning of Article I:2 of the GPA.  These types of contractual arrangements were 
concluded using the tendering procedures set forth in the Agreement and their use required no 
changes to Article VII:3.  It has also been said that subsequent orders or individual transactions 
should not be considered separate contracts or acts of procurement within the meaning of Article  I:2 
of the GPA but as orders or purchasing decisions under th e existing contract.  However, entities 
should apply the principles of competition and due process in handling individual procurement 
contracts.  
69.  The point has been made that a key question relating to the distinction between open and 
selective procedures in  this context was whether all interested suppliers had an opportunity to 
compete to participate in the framework contract, following open publication of its requirements, or 
whether the procuring entity approached individually suppliers or private operator s maintaining 
electronic catalogues.  A view expressed in this connection has been that a way of fitting framework 
agreements within the existing provisions of the Agreement would be to consider framework 
agreements as a variation of selective tendering pro cedures.  In many respects, framework 
agreements would appear to be similar to qualification procedures.  No financial transactions were 
associated with a framework agreement.  Its terms did not commit the purchasing agency or the 
listed suppliers for the act ual procurements.  Upon a request from new suppliers, a procurement 
agency would conclude a framework agreement with the suppliers that satisfied the evaluation 
criteria.  However, if framework agreements were to be considered as a form of qualification 
procedure, the procuring agency would have to apply the procedures of the Agreement regarding 
qualification including those on transparency.  Instead of creating a separate category of  "framework 
contracts ", it might be preferable to focus on the procedures for the qualification of suppliers and 
the relationship between such procedures and open and competitive procedures.  It has also been 
said that the features that distinguished a framework agreement from the procedures under the GPA/TN1994/1/Rev.10  
 
- 14 - 
 
  Agreement on qual ification and open competitive tendering or under a two -stage tendering process 
should be identified.  On the other hand, it has been said that the treatment of the initial award of a 
framework agreement to suppliers as a qualification procedure and the sub sequent transactions as 
procurements under the GPA would significantly diminish the value of these types of arrangements.  
However, it has been said that, in the United States, these type of arrangements could not be 
considered to be a qualification procedu re since participation of each supplier was associated with a 
minimum value.  
70.  It has been said that, in accordance with the principle of non -discrimination, all interested 
suppliers should be given an opportunity to participate in framework contracts.  In the first stage, a 
framework contract should state upfront the terms and the rules by which the framework agreement 
would be run.  With regard to specific purchases from suppliers in the subsequent stages under a 
framework agreement, it has been said that suc h purchases should also be made in a 
non-discriminatory manner.  It has also been said that, in United States practice, the actual contract 
contained terms requiring that purchasing agencies that used that contract made purchases in a 
non-discriminatory way  and that compliance with such requirements was subject to legal challenge.  
It has also been said that the application of the non -discrimination principle in Article III to individual 
purchases should be clarified in order to guarantee effective competitio n in the award of such 
contracts, for instance in order to avoid the placing of actual purchase orders predominantly with 
local suppliers to the detriment of overseas suppliers.  It has also been said that, given the general 
applicability of the non -discrim ination requirements of Article III, it might be not be necessary to 
include specific provisions in the Agreement to ensure non -discrimination.  In case it would be 
necessary or desirable to add non -discrimination provisions specifically relating to multipl e award 
contracts,  Article III might be amended to include a specific language requiring non -discrimination 
between suppliers parties to such contracts (c.f. the section on Article -by Article Review and the 
note by the Secretariat on  "Suggested Drafting Ch anges to the 1994 Agreement "). 
71.  With respect to the actual award of framework contracts, it has also been said that competition 
should take place upfront under open or selective tendering procedures or qualification procedures 
and that the terms and conditi ons of the contract should be established under competitive conditions.  
Moreover, the number of suppliers should not be limited for very large contracts in order to avoid 
the presence of a dominant supplier in a given sector.  Participation in an existing f ramework 
agreement should be open to additional suppliers at any time.  It has been asked whether framework 
agreements should have explicit provisions guaranteeing non -discriminatory access to new 
suppliers.  
72.  It has also been said that, the Agreement might n eed to be revised in order to provide for the 
valuation of framework contracts.  Since there was no specific values associated with a framework 
agreement, it was difficult to determine whether a framework agreement was covered by the GPA 
in terms of the thr eshold values.  Article  II:4 established formulas for the valuation of related 
contracts, each of which might be considered as a separate act of procurement within the meaning 
of the GPA.  These formulas did not appear to be applicable to the valuation of  "multiple award 
contracts " since each individual transactions under those arrangements did not constitute a separate 
procurement.  It has been suggested that, in order to clarify the valuation formulas that should be 
used in these different situations, Articl e II should be amended to include language relating to the 
valuation of framework agreements for the purposes of the applicability of the threshold values 
provided for in the Appendix I of Parties (c.f. the section on Article -by Article Review and the note  
by the Secretariat on  "Suggested Drafting Changes to the 1994 Agreement "). 
73.  A non -paper on the subject of the treatment of multiple award contracts under the GPA, 
including a description of the use of such contracts in the United States, has been circulate d in 
Job No. 2795.  National descriptions of  "framework contracts " or similar types of arrangements in 
Canada and Singapore have been circulated respectively as Job Nos.  3487 and 3655.  
(iii) use of electronic catalogues  
74.  It has been said that, based on pract ice in the private sector, there appeared to be two main 
modes of purchasing through electronic catalogues:  
 - a commercially run website service which grouped all suppliers of similar equipment 
together and allowed a procuring entity to search for the bes t price.  The site essentially GPA/TN1994/1/Rev.10  
 
- 15 - 
 
  operated like a supermarket whereby similar products and services were grouped 
together and presented to the customer.  For example, if a procuring entity wished to 
buy computer modems, the desired capabilities were searched.  Products that fitted the 
criteria could be presented in increasing order of price.  Alternatively, the entity might 
browse through the entire electronic catalogue.  The main critique of this electronic 
catalogue approach was that suppliers who were  not listed in the catalogue were 
excluded from the procuring entity 's search;  and 
 - the procuring entity or a group of entities might call for period contracts and operate an 
evaluated shortlist of suppliers.  For example, the government central procureme nt 
office could call open tenders for airline tickets, photocopiers, computer equipment and 
the like.  Several suppliers could be shortlisted.  But because the product changed from 
time to time, e.g. air travel, the several shortlisted suppliers were invited  to quote the 
price for air travel by the entities each time a procurement was made.  The evaluation 
of the shortlisted suppliers was done through open tender, but the individual quotations 
within the period of the contract were limited to the shortlisted s uppliers.  At the end of 
the period in question, a fresh open tender was called, and the individual quotations 
within the new period were again limited to the successful shortlist of suppliers.  
75.  The question has been asked whether procurement through electronic catalogues belonged to 
the category of open tender procedures, in which all interested suppliers may submit a tender;  or 
selective tendering procedures, in which shortlisted suppliers were invited to do so.  It might well 
turn out that the curren t formulation in the GPA did not sufficiently cover the ground.  In this respect, 
it has also been said that the use of electronic tendering, by itself, might not necessarily require a 
re-evaluation of the types of tendering procedures broadly described in Article  VII. Some of the 
questions with respect to the use of new technologies related also to traditional ways of procuring.  
With regard to the question of whether the use of electronic catalogues in procurement might fall 
under open or selective tenderin g methods, it has been said that electronic catalogues served as a 
means whereby supply offers as contained in a framework agreement were communicated by the 
procuring entity to the various end users.  If framework agreements covering several supplies were 
allowed under the Agreement, there should also be provisions allowing the use of electronic 
catalogues.  In this respect, it has also been said that some form of electronic catalogues might be 
similar to framework agreements.  However, the question of whethe r a particular type of 
procurement was compatible with the Agreement would depend how it was conducted.  The GPA 
should accommodate the use of electronic catalogues, provided that the procedures for participation 
in an electronic catalogue system was consis tent with the basic principles in the GPA on openness, 
competition and transparency.  
76.  A question has been asked whether electronic catalogues were used mainly for low -value 
procurement.  If this were to be the case, use made of electronic catalogues would fa ll largely outside 
the scope of the Agreement.  In this connection, it has been said that, while the value of individual 
items purchased from electronic catalogues might be relatively low, total values would be substantial 
if a series of items was purchased  on a regular and frequent basis from the suppliers listed in 
commercial catalogues.  The point has also been made that the issue of recurrent contracts would 
be relevant to the use of electronic catalogues in procurement.  Another point has been that 
commer cially run website services appeared to relate to direct purchasing under Article  XV rather 
than to open competition.  
77.  A non -paper on the subjects of the use of electronic catalogues has been circulated by Singapore 
as Job No. 5295.  
(f) Statistical reportin g 
(i) General  
78.  It has been said that statistical reporting was an area where simplification and streamlining of 
requirements should be considered.  The statistical requirements under the Agreement were unduly 
complex, time -consuming, burdensome on both Parti es and individuals and costly, notably because 
of the expansion of the coverage of the new Agreement.  They were seen to be disproportionate to 
information to be derived from the statistics and in terms of the actual benefits to individual 
purchasers and su ppliers.  On the other hand, the point has been made that statistical reporting was 
an essential tool for enhancing transparency and monitoring compliance by Parties with the GPA/TN1994/1/Rev.10  
 
- 16 - 
 
  obligations of the Agreement.  Moreover, statistical reporting provided a useful in formation basis to 
suppliers and purchasers on the functioning and development of public procurement market 
opportunities.  In any amendment of the existing requirements, Parties should try to strike a balance 
between the advantages of having less onerous r equirements and the disadvantages of de facto 
providing for less transparency.  
79.  Non-papers on this topic have been circulated in Job Nos.  5212 (in 1997), 3246, 3855, 3869 
and 5269 (in 1998).  A note by the Chair, attempting to present a draft revision of the  text of 
Article  XIX:5(a), together with the comments made on that draft at the informal consultations held 
in February, May and June 1999 was circulated in September 1999.  
(ii) Creating greater flexibility in GPA statistical reporting  
80.  It has been suggeste d that, in order to help reduce the administrative burden on Parties in 
collecting statistical data and producing reports to the Committee on Government Procurement, the 
Agreement should permit greater flexibility in terms of the manner in which statistica l data were 
reported.  Increased flexibility would allow Parties to submit reports that more closely conformed to 
each Party 's domestic procurement reporting practices for collecting and reporting public 
procurement statistics, thereby reducing the administ rative burden of preparing reports.  Areas in 
which increased reporting flexibility might be considered included:  
 - permitting Parties to submit GPA statistical reports on a fiscal rather than a calendar 
year basis;  or 
 - allowing Parties to report aggrega te annual obligations per contract rather than the total 
value of contracts awarded, considering that the duration of many contracts was longer 
than one year.  
81.  It has also been suggested that Parties should explore further flexibility in the reporting of 
statistics for Annex  2 entities based on experience during the first years of implementation of the 
GPA. Given the decentralized nature of these procurement systems for many Parties, consideration 
could be given to not requiring a specific format for these s tatistics . 
82.  The point has been made that any measures permitting variation or flexibility in statistical 
reporting, however, should ensure a sufficient minimum level of statistical reporting by all Parties.  
Parties must continue to submit statistical data that are comparable in scope and breadth.  
83.  Finally, it has been suggested that Parties wishing to vary the manner in which they report 
statistical data to the Committee under the Agreement should be required to provide written 
notification to the Committee, and, in the absence of any objection within 30  days, the variance 
would become effective.  
(iii) Statistics on the estimated value of contracts awarded (Article XIX:5, 
subparagraph  (a)) 
84.  The point has been made that the Committee had so far  not devised any method for estimation 
in accordance with the provisions of Article  XIX:5, subparagraph  (a) which required entities listed in 
Annex  1, i.e. central government, to report on the estimated value of contracts awarded both above 
and below the t hreshold value.  Until a proper method for such estimation was prescribed, both with 
respect to reliability and efficiency, reporting according to this provision would not be consistent 
between Parties.  The relevant provisions of Article  XIX:5(a) should be discarded or, alternatively, 
be amended to cover only procurement above the threshold value for Annex  1 entities.  On the other 
hand, it has been said that these types of statistics were necessary for the assessment of Parties ' 
compliance with the Agreement . It has also been said that participants might also provide statistics 
on small value procurement, for example regarding procurements using electronic catalogues or 
purchase cards.  
85.  Another suggestion has been that the Agreement should include an exception  for procurements 
of very small value (a de minimis  exception) to the Article XIX:5(a) requirements that statistical 
data for Annex  1 entities must be provided for tenders below GPA thresholds.  Such a de minimis  
exception would eliminate Annex  1 reporting requirements for procurements below an agreed -upon 
amount.  This would be likely to ease the administrative burden on Parties, as many Parties may not GPA/TN1994/1/Rev.10  
 
- 17 - 
 
  ordinarily collect detailed statistical information on small -value procurements.  Moreover, data on 
these s maller procurements tended to be less relevant to the underlying purposes of reporting 
statistical information under the Agreement, including the aim to achieve greater transparency and 
also to further GPA compliance monitoring efforts.  
(iv) Uniform classi fication systems (Article XIX:5, subparagraph (b))  
86.  It has been suggested that the classification for statistical reporting should be done by standard 
customs classification, CPV classification or similar widely used standards.  As most contracts covered 
several different products, a uniform and efficient method for dividing contract value according to 
different product categories would provide enhanced consistency of reported procurement.  
87.  On the other hand, it has also been said that Parties should be allowe d to report statistics in 
other types of nomenclatures than that established under the GPA, for instance in the nomenclatures 
of the reporting countries, if the reporting was done only at the two -digit level (major category 
groups) accompanied by a descrip tion of those groups.  
88.  With regard to uniform classification systems, the point has also been made that, for the time 
being, it was very difficult to provide statistical reports based on the classification systems adopted 
for goods and services (the 26 product categories and the UNCPC) because no table of 
correspondence with the Common Procurement Vocabulary (CPV) existed.  But this situation should 
soon disappear with the publication of a new CPV in 1998 and the possible establishment of a table 
of corre spondence between the CPV and the other two uniform classification systems.  
(v) Contracts awarded under limited tendering procedures (Article  XIX:5, 
subparagraph  (c)) 
89.  With regard to statistics relating to categories of entities in Annexes 1, 2 and 3 fallin g under 
each of the cases of limited tendering permitted under Article  XV, the point has been made that the 
obligation to report on procurement by each procedure seemed to be too burdensome.  Under ordinary 
circumstances, the share of total procurement acco unted for by limited tendering procedures would 
be rather low.  In any event, the information provided under this provision was inadequate in that it 
did not provide elucidation of the legality of the application of the limited tendering procedure employed 
in each case.  It has been suggested that this provision should be simplified limiting the requirement 
to the provision of statistics:  
 - on the number and the total value of contracts awarded in all cases where limited 
tendering was used, rather than havin g a breakdown under each case in which limited 
tendering was permitted under Article XV.  This would also enable the protection of the 
confidentiality of commercially sensitive information;  and 
 - to two categories in Article  XV relating, respectively, to c ontracts awarded for reasons 
of extreme urgency in terms of paragraph  (c) and to additional deliveries in terms of  
paragraph  (d). A third category of statistics would report on contracts awarded under 
all other conditions specified in Article  XV. 
90.  Another s uggestion has been to replace this provision by a provision allowing Parties to request 
additional information with respect to specific contract awards under limited tendering procedures 
in any other Party.  In connection with this suggestion, it has been s aid that Article  XIX:3 already 
allowed Parties to request such information.  
(vi) Statistical reporting of derogations (Article XIX:5, subparagraph (d))  
91.  It has been suggested that there should be no requirement to report procurement under the 
derogations to  the Agreement referred to in Article  XIX:5(d).  The following have been mentioned as 
reasons for the deletion of subparagraph (d):  the provision was difficult to understand for those who 
were unaware of the context of derogations and was also difficult to comply with and monitor;  the 
requirements to provide statistics on derogations were not cost effective; and the advantages of 
publication of such information were limited.  GPA/TN1994/1/Rev.10  
 
- 18 - 
 
  92.  In this connection, it has also been said that, if such reporting requi rements were to be 
continued, Parties should reach a common understanding on what was meant by the term  
"derogations " for the purposes of statistical reporting.  It has also been stated that the provision of 
these types of statistics was essential for trans parency purposes.  
(vii) Provision of statistics on the country of origin of products and services  
93.  It has been said that information on the country of origin of supplies has been considered to be 
important, for instance in the context of national procuremen t policy considerations.  Nevertheless, 
the requirements in Article XIX:5 should be eliminated because the accuracy of such information, 
mainly based on entities ' declarations, was doubtful.  Moreover, such information could be 
misleading, particularly in re spect of technologically advanced industries, where components and 
equipment were usually produced and assembled in several different countries.  
(viii)  Reporting in national currency  
94.  The point has been made that it had been the practice under the GATT Agre ement on 
Government Procurement to report statistics based on Special Drawing Rights (SDRs).  Permitting 
GPA Parties to submit statistical reports in national currencies rather than SDRs would help ease the 
administrative burden on Parties of converting dat a into SDRs.  In fact, Parties might find statistical 
data prepared in national currencies to be more useful than information provided in SDRs.  Parties 
should list a conversion rate into SDRs in their statistical reports.  In this connection, the comment 
has been made that statistical reports should be comparable for each Party over time and between 
Parties.  Computer programs were now available for the conversion of values expressed in national 
currencies into SDRs.  
(ix) Additional areas where statistical rep orting may be useful  
95.  The point has been made that Parties were not currently required to report to the Committee 
on the total amount of government procurement (both GPA and non -GPA) taking place under each 
of the Annexes.  This was an area where statistical  reporting would be useful, but would only slightly 
increase administrative demands on Parties.  
(x) Encouraging timely reporting of statistical data  
96.  The point has been made that the Agreement currently only required that each Party submit 
procurement stati stics on an annual basis and did not set a deadline for the submission of statistical 
information.  Under the GATT Agreement on Government Procurement, which also did not contain a 
deadline for the submission of statistical reports, it often took as long as  two years following the end 
of a reporting period for Parties to submit statistical reports.  It has been suggested that, with the 
objective of ensuring that statistical data were disseminated in a fashion that preserved their 
usefulness, GPA Parties shoul d be encouraged to submit reports on a timely basis.  It has been said 
that 12  months following the end of a Party 's reporting cycle would generally be a reasonable period 
of time for submission of statistical data.  
(xi) The use of information and communica tion technology  
97.  The point has been made that more complete statistical data on public procurement could be 
obtained by utilizing the advantages offered by Information and Communication Technology (ICT).  
It has been suggested that Parties should be able to obtain, under specified conditions, a general 
waiver from all the statistical reporting requirements, or a more specific waiver which only covered, 
for example, Annex  1 entities.  This waiver should only be granted if certain conditions were met by 
the alte rnative system being used:  
 - Parties should be required to operate a system which enabled interested Parties to 
access data on awarded contracts through one single entry point.  The archives of 
contract award notices published in each Party could be made a vailable on a permanent 
basis on a website through the Internet.  This would reduce the need for Parties to 
produce detailed statistics under Article XIX:5;  GPA/TN1994/1/Rev.10  
 
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   - the data provided should include information on at least the following:  price information 
(provid ed confidentiality of commercially sensitive information was ensured);  type of 
contract authorities;  contractor 's country (or subcontractor);  number of offers received;  
type of contract or categories of products or services;  award procedure chosen (open 
or limited);  date of award of contract;  and date of publication of tender notice;  and 
 - the waiver might be extended only to those levels of government entities that provided 
their statistical data through ICT systems.  
98.  It has been said that providing statistical data through the existing ICT systems, without having 
to go through formal procedures, would greatly improve statistical reporting.  It has also been said 
that information on contract award notices posted on individual websites, that c ould be extracted 
and collated through the use of ICT systems, could be made accessible through one single entry 
point.  Under ICT systems statistical data would not need to be collected in a particular format.  
Rather, any interested party would be able to interrogate different databases at any point in time 
and develop a statistical report by using the parameters that were of particular interest, for example 
relating to the number of award of contracts by procur ing entities  during a period, average value of 
contracts, prices, etc.  In this respect, it has been said that a distinction should be made between 
the data that was provided under the terms of the statistical reporting requirements and the data 
that was ma de available for research purposes.  
99.  The point has been made that the data obtained by using ICT systems should have a common 
basis with the data that must be reported under the requirements of the Agreement in order to 
enable comparisons of  the data suppli ed by different Parties.  In this connection it has been said that 
the use of a standard notice by entities for storing information in databases would facilitate 
comparison of data across countries.  It has also been said that it might not be possible to der ive all 
the elements of data required for statistical reporting on the basis of information in contract award 
notices.  It has further been said that the use of ICT systems should not lead to further reporting 
requirements.  
100.  The European Community has been i nvited to present a more specific proposal on the matter.  
(xii) Other issues relating to statistical reporting requirements  
101.  In order to ensure the effective implementation of the requirements in Article  XIX:5, the 
following suggestions have also been made:  
 - the information content of statistical reporting requirements should be uniform among 
Annexes 1 -3; 
 - a commonly accepted format for statistical reporting should be developed;  
 - statistics should be submitted in a WTO language;  
 - the possibility of u sing statistics on total public procurement from national accounts 
should be considered;  and 
 - the availability of statistics on government procurement on the Internet would be useful 
to civil society as well as to governments.  
(g) Article -by-Article revi ew of the Agreement  
(i) General  
102.  The desirability of simplifying some of the substantive rules of the Agreement and providing 
greater flexibility where possible under those rules has been widely stressed.  It was suggested that, 
in doing this, Parties should  consider to what extent the provisions of the current Agreement actually 
contributed towards achieving its objectives.  
103.  It has been said that in the review of the Articles of the Agreement, consideration should be 
given to the adaptation of the contents of  specific provisions to take account of the experience gained 
during the application of the Agreement, as well as practical changes in government purchasing.  
One element of such adaptation is the simplification and improvement of the procedural rules.  This GPA/TN1994/1/Rev.10  
 
- 20 - 
 
  comprised the clarification of rules that had shown to be ambiguous.  Furthermore where the ways 
and means of purchasing had changed Parties should examine the adaptation of the rules.  
(ii) Individual Articles  
Article I  
 paragraph 1  
104.  It has been suggested t o include a definition of government procurement which would make 
it clear that a particular government procurement activity that fell under the exceptions in GATT 
Article III:8 or GATS Article XIII:1 was covered by the scope of the GPA.  Such a wording wou ld also 
indicate that the GPA represented a single set of rules in the WTO context relating to government 
procurement dealing with both goods and services.  
105.  The point has been made that the term  "as specified " in Appendix  I" reflected the negotiated 
understanding concerning the reciprocity -based coverage of the Annexes to Appendix  I. 
 paragraph 2  
106.  It has been suggested that this paragraph should also include a reference to forms of 
procurement under new phenomena (partnerships between private and public sectors, multiplication 
of "Build Operate Transfer " (BOT) operations and joint ventures), which were difficult to classify 
under the structure of the current Agreement.  On the other hand, a view has been expressed 
cautioning against any extension of the scope of the Agreement involving these types of phenomena.  
 paragraph 3  
107.  It has also been said that the provisions regarding enterprises not included under the coverage 
of the Agreement could be addressed by developing  a definition of central government entities.  
paragraph 4  
108.  Suggestions have been made that a negative list approach should be adopted in order to cover 
all central government entities in Annex 1 and that a definition of central government entities should 
be included in Appendix I.  
109.  It has also been said that the establishment of uniform threshold values in the Agreement 
would contribute to the elimination of the existing discriminatory provisions in this respect in the 
Schedules.  
 Article II  
110.  It has been said that purchasers in the private sector had the practice of maintaining open 
running contracts with several suppliers instead of awarding a contract to a single supplier.  A master 
contract signed initially with several suppliers did not specify a value.  Purchasers subsequently 
proceeded with the procurement by ordering from electronic catalogues.  With the application of 
information technology, government entities might use this method of purchasing more commonly.  
This might present some ambiguity in the valua tion of contracts under the Agreement.  
new paragraph 5  
111.  It has been suggested that the provisions of the Agreement on valuation of contracts might 
need to be amended to take account of framework contracts and the use of new technologies in 
procurement which  allowed procuring entities to slice up contracts.  Individual transactions or 
contracts with values below the relevant threshold values resulting from such practices should also 
be subjected to the Agreement so as not to limit its coverage.  In this connect ion, it has been 
suggested that Article II should be amended to include language relating to the valuation of multiple 
award contracts for the purposes of the applicability of the threshold values provided for in the 
Appendix I of Parties.  (The suggested t ext of new paragraph 5 is reproduced in the Note by the 
Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999.)  GPA/TN1994/1/Rev.10  
 
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   Article III  
new paragraph  
112.  It has been suggested to introduce a new paragraph setting out explicitly the general pr inciples 
that governed government procurement.  The suggested new paragraph is reproduced in the Note 
by the Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September  1999.  It 
has been said that a legally binding provision might not be the best way of incorporating such 
principles in the Agreement.  It has also been said that the terms  "reasonable " and "treating any 
supplier of any Party equally " in the suggested draft text should be clarified.  
  paragraph 2, subparagraph (a)  
113.  The point ha s been made that the term  "foreign affiliation or ownership " seemed to apply both 
to Parties and non -Parties to the Agreement.  It has been suggested that the consistency of the scope 
of this provision with that of Article  III, paragraph  1, should be review ed. In this connection, the 
point has also been made that certain Parties treated an established supplier as a domestic supplier 
regardless of its affiliation or ownership.  
new paragraph 4  
114.  It has been suggested that a non -discrimination provision specifica lly relating to multiple 
award contracts might be added.  (The suggested draft text is reproduced in the Note by the 
Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999) . 
 Article IV  
 paragraph 1  
115.  The point has been made that t he need for any changes should be considered in the light of 
the results of the work programme for the harmonization of rules of origin for goods and the 
negotiations regarding trade in services.  It has been suggested that the issue of rules of origin of 
services should be taken up in the discussion concerning the extension of the Agreement to services.  
 Article V  
116.  It has been suggested that Article  V on Special and Differential Treatment for Developing 
Countries should be updated and simplified, for example  by providing further flexibility in the 
evaluation of offers from developing countries with respect to non -discriminatory treatment and in 
the application of the procedural provisions. The provisions should also be improved to take into 
account the specif ic interests of developing countries and to give developing countries additional 
incentives to join the Agreement.  It has been suggested that the provisions on technical cooperation 
should be extended to take account of the needs of developing countries to  adjust to new 
developments in application of information technology to government procurement.  
117.  The suggested text of a new Article V, granting non -reciprocal access to developing countries 
to procurement markets of Parties for a limited number of years, i s reproduced in the Note by the 
Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999.  It has also 
been suggested that certain provisions in this Article should be in the form of a separate protocol 
that could be developed in cooperation with developing countries.  It has been said that the 
appropriateness of creating an asymmetry between the obligations of developed and developing 
country Parties had to be carefully considered.  
118.  Moreover, observers have been encoura ged to contribute on this provision in particular.  
 Article VI  
119.  It has been said that the inclusion of basic principles of non -discrimination or promotion of 
competition in the main provisions of the Agreement would make this Article more clear.  GPA/TN1994/1/Rev.10  
 
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  120.  A comment has been made suggesting a rearrangement of the location of Article  VI in the text 
of the Agreement in order to reflect the close association of the provisions on technical specifications 
with those on tender documentation.  
paragraph 1  
121.  It has been suggested to add a provision in the present text that would allow procuring entities 
to lay down technical specifications in accordance with their needs, provided they complied with the 
general principles laid down in Article III and, in particular, ensure d the principle of open and 
effective competition.  It has been said that purchasing entities may need to take into account any 
innovative aspects of their project as well as the need for ensuring compatibility with the equipment 
already in use.  (The sugges ted text is reproduced in the Note by the Secretariat  "Suggested Drafting 
Changes to the 1994 Agreement " of 1 September 1999.)  
122.  It has been said that the meaning of the term  "unnecessary obstacles to international trade " 
should be clarified.  
  paragraph 2, subparagraphs (a) and (b)  
123.  It has been suggested that there should be a hierarchy between paragraphs  (a) and  (b) since 
the provisions of subparagraph  (a) should be the rule and those of subparagraph  (b) the exception.  
124.  It has been said that, while procuring entities could not exclude an offer that included a 
product, service or work that complied with the appropriate international standard, evaluation of a 
tender also involved other aspects that were not related to international standards.  (The suggested 
text is reproduced in the Note by the Secretariat  "Suggested Drafting Changes to the 
1994 Agreement " of 1 September 1999.)  
 paragraph 3  
125.  A view has been expressed that the prohibition in this paragraph against requiring or referring 
to a particular trademark or  trade name did not take into account the realities of procurement 
practice.  Another view expressed has been that the underlying principle was important and should 
be kept.  
 Article VII  
126.  A suggested new text is reproduced in the Note by the Secretariat  "Suggested Drafting 
Changes to the 1994 Agreement " of 1 September 1999.  
 paragraphs 1 and 2  
127.  It has been suggested that paragraphs  1 and  2 should be separated from paragraph  3 
describing the types of procurement procedures and be placed in an article addressing  the general 
principles of procurement.  
paragraph 2  
128.  It has been suggested that the term  "precluding competition " should read  "negatively affecting 
competition ". 
paragraph 3  
129.  It has been suggested that the Agreement needed to be clearer about which of its pr ocedural 
provisions apply to which tendering method as defined in Article  VII:3.  
130.  With respect to a proposed definition of selective tendering, it has been said that the 
information in tender notices should be posted in a medium which was in the public doma in even if 
this type of tendering was usually limited to qualified tenderers (see the Note by the Secretariat  
"Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999).  GPA/TN1994/1/Rev.10  
 
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  131.  It has also been suggested that the provisions on tendering procedures sh ould be reviewed to 
accommodate the use of two -stage tendering and electronic catalogues.  On the other hand, the 
point has been made that no modifications were required to this Article to accommodate the use of 
new procurement methods.  
Article VIII  
132.  It has been said that the rules in Article  VIII on qualification of suppliers were either of general 
application, for instance for repetitive purchasing or related to the establishment of permanent lists 
of qualified suppliers, or for a particular procurement, fo r instance related to a large one -time 
project.  A new text has been suggested separating these two types of issues (see the Note by the 
Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999).  A further 
point has been made that qualification of suppliers was independent of the tendering methods used 
but related more to the technical, financial and commercial capacity of the firm for meeting the 
minimum standards set out in the contract.  
paragraph (b)  
133.  It has been said that wa ys should be found to reduce administrative burdens on suppliers, 
particularly SMEs, regarding the procedures for the proof of their technical, financial and commercial 
capacity.  
 Article IX  
134.  It has been said that the problems with this Article included the  following:  many closely related 
but undefined terms were used to describe various types of procurement notifications;  the terms  
"intended procurement ", "proposed procurement ", and "planned procurement " were not defined;  
some items on the lists of informat ion to be included in some of these types of procurement 
notifications were redundant and, in some cases, unnecessarily burdensome;  and there were many 
confusing cross -references to other paragraphs and Articles.  (A new text suggested by the delegation 
of the United States has been circulated as GPA/W/ 85 and is included in the Note by the Secretariat  
"Suggested Drafting Changes to the 1994 Agreement " of 1 September  1999.)  
135.  It has also been said that the suggested modifications would improve the Article by:  
streamlining the requirements that must be included in a notice of intended procurement, thus 
eliminating the need for different notice requirements among Annex 1, and Annexes 2 -3 entities, 
except with respect to the requirements relating to notices of per manent lists of qualified suppliers 
in selective tendering procedures;  eliminating the terms  "notice of proposed procurement " and 
"notice of planned procurement " from the Agreement and, instead, referring to all procurement 
opportunity notices as  "notices of intended procurement "; and moving the paragraph relating to 
annual publication requirements for permanent lists of qualified suppliers from Article IX:9 to 
Article VIII. 
136.  It has also been said that any effect of the changes suggested on other Articles in the 
Agreement would need to be considered.  For example, modifications to Article IX might have an 
impact on Article XI:3(a), which provided for the reduction in  the deadlines for the receipt of tenders 
if a separate advance notice had been published.  Article  XI:3(a) referred to information contained 
in Article IX:8, the deletion of which had been proposed.  
137.  Moreover, it has been suggested that notices of invitatio n to participate should be published 
through means which offered the widest possible and non -discriminatory access and which should 
be accessible free of charge through a single point.  It has also been said that publication of tender 
documents electronical ly would reduce the need for detailed information in tender notices.  (See a 
proposal by the delegation of the European Community circulated as GPA/W/87  and included in the 
Note by the Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999.)  
paragraph 2  
138.  It has been said that 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.  GPA/TN1994/1/Rev.10  
 
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  paragraph 8(a)  
139.  It has been suggested to indicate the relevant CPV (Common Procurement Vocabulary) code 
in the published summary notice.  In this connection, the delegation of the European Community 
expressed willingness to come forward  with an explanatory paper on the CPV.  
paragraphs 3 and 9  
140.  It has been said that the use of notices regarding qualification systems as invitations to 
participate should be clarified.  Because the use of permanent lists of qualified suppliers might lead, 
in some cases, to the formation of a closed circle of suppliers, those suppliers who had not been 
inscribed on those lists should have the possibility of participation in the intended procurement.  
141.  It has also been said that the provisions on publication of ten der notices made a distinction  
between entities in Annex 1 and entities in Annexes 2 and 3 with respect to invitation to tenders.  
The use of a notice of planned procurement as an invitation to tender was  authorized only for 
Annexes  2 and  3 entities.  It has been suggested that entities at all levels of government should be 
able to use  all methods of invitation to tender.  
142.  It has also been suggested that the provisions in this Article should be restructured.  For 
instance, the provisions of Arti cle IX:8 on publication of a summary notice in a WTO language should 
follow the provisions of Article IX:1 on publication of an invitation to participate.  
143.  It has been said that further flexibility should be provided in the procedures on the use of a 
notice  of planned procurement.  The use of such notices would allow entities to make use of the 
state-of-the-art purchasing methods.  For instance, entities might maintain such notices accessible 
in the electronic databases for the entire period of validity of the  lists. 
 Article X  
paragraph 4  
144.  It has been suggested to amend the text of this paragraph to allow for electronic procurement.  
(The draft text is included in the Note by the Secretariat  "Suggested Drafting Changes to the 
1994 Agreement " of 1 September  1999. ) 
 Article XI  
 paragraph 1(a)  
145.  It has been suggested to delete the words  "by mail " in order to allow for transmission of tender 
documents through other means, i.e. electronic means.  
 paragraphs 2 and 3  
146.  It has been said that the Agreement, rather than prescr ibing fixed deadlines that applied to all 
types of procurement, should allow procuring entities to decide the time -periods for the submission 
of tenders, having regard to the nature of the tender and other considerations, including the urgency 
of the procu rement.  The time required for the submission of tenders might vary considerably 
according to the complexity of the procurement and it was in the interest of the procuring entity to 
allow reasonable time -limits for the preparation of responsive bids.  It has  therefore been suggested 
that, instead of stipulating minimum time -periods that applied to all types of procurement, Article  XI 
should have a provision stating the principle that reasonable time must be allowed for the 
preparation and submission of bids b y all potential tenderers, including geographically distant 
tenderers.  It has been suggested that each Party should make known its general policy on the 
time-limits for intended procurement in a medium which was in the public domain or readily available 
to both local and foreign suppliers.  
147.  On the other hand, a statement has been made expressing reservations regarding the 
elimination of the requirements on fixed time -limits.  The proposed substitution of the existing 
provisions on deadlines would not provide a legally predictable environment to procuring entities.  GPA/TN1994/1/Rev.10  
 
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  Procuring entities might run the risk of being challenged by suppliers based on how they applied the 
subjective notion of  "reasonableness " in time -limits.  It has also been said that paragraph  1, requ iring 
that the time -limits should be adequate to allow suppliers to prepare and submit responsive tenders, 
contained the basic principles, whereas the minimum periods referred to in paragraphs  2 and  3 were 
provided only as a safety net.  
148.  It has been suggest ed that the requirements in paragraph  3 could be made less rigid by 
including additional circumstances in which a reduction in the existing minimum time -limits may be 
warranted.  For instance, the deadlines in the Agreement might be reduced when electronic means 
of publication had been used to provide tender information.  
149.  It has also been suggested that entities should provide for rapid responses to challenges by 
suppliers alleging the inadequacy of time -limits provided for a proposed procurement.  
new paragra ph 
150.  It has been suggested that deadlines may be further reduced in those cases where the 
procuring entity offered free and direct access to calls for tenders via a single point of entry.  
151.  The suggestions have been made to amend the relevant provisions in the Agreement by the 
delegations of Singapore (circulated as Job No. 3772), the European Community ( GPA/W/87 ) and  
Canada (circulated as Job No. 3481).  (The draft texts are included in the Note by the Secretariat  
"Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999.)  
Article XII  
152.  It has been suggested that this Article should contain references to the  use of information 
technology in the communications between the procuring authority and the tenderers.  
 Article XIII  
  paragraph 1, subparagraph (a)  
153.  It has been suggested that Article  XIII:1(a) should be amended in the light of the increasing 
use of elect ronic means of communication.  (The suggested text is reproduced in the Note by the 
Secretariat  "Suggested Drafting Changes to the 1994 Agreement " of 1 September 1999.)  
154.  It has been said that, since the information content of a submission was not affected by  the 
means used for its transmission, the reference to telex, telegram or facsimile should be deleted.  It 
has also been said that the provision on the confirmation of receipt of tenders appeared to be 
redundant and should be deleted.  
155.  A view has been expres sed that electronic means of communication should not have to be 
used in parallel with paper -based systems.  While, initially, procuring entities might choose to use 
electronic tendering in parallel with paper -based systems, provisions should be made allowi ng all 
tenders for a particular type of product to be submitted electronically in the future. The need for a 
paper -based system would mostly be confined to the purchase of basic commodities and 
low-technology products.  For example, suppliers of computer ha rdware and software or of 
sophisticated medical and telecommunications equipment were already fully capable of submitting 
tenders by electronic means.  
156.  A further view expressed has been that any new provisions, while enabling entities to use 
electronic mean s of communication, should not permit them to reject a priori otherwise competitive 
tenders only because they were submitted by suppliers using a paper -based mode of delivery.  The 
use of electronic tendering should not lead to discrimination among supplier s with varying degrees 
of technological advance in the use of information technology.  
157.  It has been said that, while electronic modes of communication were tools for increasing 
efficiency and productivity in procurement processes, electronic tendering could not be made 
mandatory in the present state of technology.  The experience of the private sector had shown that 
it was impractical to transmit large documents through electronic means.  In this connection it has GPA/TN1994/1/Rev.10  
 
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  been said that a single format document could be used to submit tenders rapidly and efficiently 
through electronic means whereas any substantive information could be transmitted in a paper -
based format.  
158.  Another concern that has been raised related to the interface between electronically 
transmit ted documents and national legal systems for the settlement of disputes.  It has been asked 
whether electronically transmitted documents had the same legal value as paper -based documents 
under national judicial systems.  Safeguards should be devised to ensur e that electronically 
transmitted documents that would have evidentiary value in an eventual dispute would not be 
modified.  
paragraph 1, new subparagraph (b)  
159.  It has been suggested to add a provision regarding the opening of tenders in order to preserve 
integrity of data and confidentiality of tenders.  
paragraph 1,new subparagraph (c)  
160.  It has been suggested to add a provision emphasizing non -discrimination regarding the means 
of communication or exchange of information used.  
161.  Section 1(c)(iv) of the present no te is also relevant to the review of Article XIII:1.  
paragraph 4, subparagraph (b)  
162.  It has been said that the reference to  "specific evaluation criteria " in this subparagraph should 
be clarified in the light of the relevant terms in Article  VIII(b) which em phasized that any conditions 
for participation in tendering procedures should be limited to those which were essential to ensure 
the firm 's capability to fulfil the contract in question.  
 Article XIV  
163.  It has been said Article  XIV should be modified in the l ight of the practice of post -tender or 
even post -contract award negotiations between procuring entities and tenderers.  
164.  It has also been said that this Article could be combined with Articles  VII and X on tendering 
procedures.  
 Article XV  
 Paragraph 1(b)  
165.  It has been suggested to add the words  "or group of suppliers " after "a particular supplier " in 
order to address the circumstances where the products or services were supplied by a limited number 
of suppliers, for instance by those holding exclusive rights s uch as patents and copyrights.  
paragraphs  1(h) and 1(i)  
166.  It has been said that the question of the Agreement 's coverage of procurements through 
commercially run websites should be examined in the light of the provisions of paragraphs  (h) and  (i) 
of Article  XV relating to direct purchasing under certain conditions.  
paragraph 1(k)  
167.  It has been said that the present terms of Article XV did not adequately cover the various 
circumstances under which limited tendering might be justified.  Public sector purch asers might 
sometimes have to satisfy their end -users, on behalf of whom they procured, and who might have 
confidence only in a limited range of brands, in particular, for purchases related to life -preserving 
equipment, essential medical treatment or opera tion of emergency services.  They might also find it 
easier to use a single brand of equipment, for example regarding specialized vehicles, in order to GPA/TN1994/1/Rev.10  
 
- 27 - 
 
  simplify their needs related to spare parts, maintenance and training.  Also, it might not always be 
easy to determine the required quality through technical specifications.  The problem was 
compounded as it was not always possible to determine the reliability of alternative brands by 
objective tests prior to the award of a contract.  While end -users should not have an unlimited choice, 
their legitimate preferences based on their working experience, for example in the case of divers ' 
equipment, might need to be respected.  Under such circumstances, the use of limited tendering 
might be preferable since more compet itive tendering procedures might involve the application of  
biased technical specifications or evaluation criteria.  It has been suggested, therefore, that a 
subparagraph should be added to the list of exceptions to open and selective tendering procedures 
to state that where end -users have specified strong technical or professional preferences for using 
particular suppliers, and are able to support their preferences on sound technical or professional 
reasons and that these suppliers should demonstrate that t hey are able to meet the requisite quality 
standards and delivery schedule over the terms of the contract.  
168.  The proposed additional subparagraph would provide the purchasing department with the 
greater flexibility needed to undertake limited tendering when circumstances arose where not all of 
the conditions open tendering had not been met and which were not covered by the present terms 
of Article  XV. A non -paper explaining the concerns that the proposed amendment to ArticleXV:1(k) 
sought to address has been circulated by Hong Kong, China as Job No.  4. 
169.  In connection with the suggestion to add a subparagraph (k) to Article XV, it has been said 
that any such amendment might lead to misuse of limited tendering procedures.  A view has been 
expressed cautioning agai nst any additional exceptions to the use of open and selective tendering 
and also against the use of any subjective criteria, such as the reliability of suppliers, in this 
connection.  The purchasers ' selection of specific brands or trade names might involv e discriminatory 
practices.  The point has also been made that a new subparagraph, if motivated by the need to allow 
entities to refer to a brand name that were perceived by end -users as having a better quality, would 
be inconsistent with the provisions of Article VI:3.  The present provisions of the Agreement were 
sufficient to deal with the situations described in the proposal.  
Article XVII  
paragraph 1( c )  
170.  It has been said that a single point of access to tender notices should be promoted.  A 
suggestion for  amending the Agreement has been made by the delegation of the European 
Community ( GPA/W/87 ). (The draft text is included in the Note by the Secretariat  "Suggested 
Drafting Changes to the 1994 Agreement " of 1 September 1999.)  
Article XIX  
  subparagraph 5  
171.  The discussion of statistical reporting is reflected in section A.1.(e) of the present checklist.  A 
note by the Chair attempting to present a draft revision of the text of Article  XIX:5 on that basis  and 
the various comments made on that draft text at the meetings held in February and May 1999 was 
circulated in June 1999.  
Article XX  
 paragraph 1  
172.  A sug gestion for amending this paragraph has been made by the European Community 
(GPA/W/87 ). (The draft text is included in the Note by the Secretariat  "Suggested Drafting Changes 
to the 1994 Agreement " of 1 September 1999.)  
 new paragraph 9  
173.  The European Community suggeste d the addition of a new paragraph  9 relating to the 
establishment of independent review bodies ( GPA/W/87 ). (The draft text is included in the Note by 
the Secretariat  "Suggested  Drafting Changes to the 1994 Agreement " of 1 September 1999.)  GPA/TN1994/1/Rev.10  
 
- 28 - 
 
  Article XXIII  
174.  It has been suggested that the provisions of Article XXIII should be ali gned with those in the 
corresponding provisions of GATT 1994.  
Article XXIV  
  paragraph 6, subparagraph (b)  
175.  It has been said that Article XXIV:6(b) recognized a Party 's right to withdraw an entity from 
Appendix  I if government control or influence over it h ad been effectively eliminated.  The exercise 
of this right, however, might be frustrated by the lack of a clear guidance on what would constitute 
effective elimination of government control or influence.  Even if withdrawal of an entity was 
appropriate in t he light of the nature of the entity, the current text might give rise to some 
disagreement between trading partners regarding the extent to which the removal of government 
control or influence had actually occurred and the privatized entity was being mana ged on the basis 
of market economy principles.  The objective of privatization was to apply market economy principles 
in the daily conduct of business including in the application of procurement procedures.  The removal 
of government control or influence made it impossible to enforce the disciplines of the Agreement 
on the entity in question.  However, market forces, rather than the disciplines of the Agreement, 
would be relied on to ensure market access.  The Agreement might hinder the effectivene ss of the 
privatization process if a privatized entity was compelled to conduct its procurement in accordance 
with the procedures of the Agreement.  There was, therefore, a need for more transparent, 
operational, and privatization -friendly criteria for the withdrawal of privatized entities.  The 
privatization of government -influenced activities facilitated the market -oriented functioning of the 
entity and was in itself a positive development in furthering the purpose of the GPA.  A further 
comment has been tha t such an amendment would benefit the current GPA Parties, and would also 
facilitate accession to the GPA.  The requirement for a compensatory adjustment might be perceived 
as hindering or delaying the privatization efforts in some Parties.  Moreover, it mig ht deter developing 
countries or economies in transition from acceding to the Agreement if they expected to remove 
certain entities from government control or influence at some point as part of the process of 
rationalization of government.  Such countries m ight be cautious about offering certain entities if 
they would be expected to pay compensatory adjustment.  The provisions should be clarified in order 
to address any concerns of future as well as present Parties in this respect.  The c larification of the 
notion of  "effective elimination of government control or influence " might also help avoid possible 
difficult dispute over which entities were considered to be already free from government control and 
influence.  
176.  It has also been said that, if a privatized en tity operated in conditions similar to those of  a 
private entity, there should be no obstacles to the withdrawal of the entity from Appendix  I. The 
privatization would work better than the GPA did in opening the procurement market.  The last 
sentence of Art icle XXIV:6(b) stipulated that  "allowance shall be made for the market -opening 
effects of the removal of government control or influence ". If, however, the government control or 
influence was effectively removed and  "the market -opening effects " were antici pated, there should 
be no need for any compensation.  In order to remove any legal ambiguity regarding requests for 
compensation, the existing Article  XXIV:6(b) would need to be modified by specifying the criteria 
that would need to be satisfied for withdra wal of entities (c.f. the note on  "Suggested Drafting 
Changes to the 1994  Agreement "). 
177.  Another view in this connection has been that the present provisions were a carefully balanced 
outcome of the negotiations between Parties and reflected the uncertaintie s in market access 
opportunities which might be associated with the withdrawal of an entity from Appendix  I, 
notwithstanding a claimed removal of government control or influence.  The Agreement had been 
concluded to cover procurement by government entities which had been excluded from the rules of 
both GATT and GATS.  The public or private nature of an entity would need to be defined in order to 
determine its coverage under the Agreement.  At the time of the negotiation of the Agreement, 
Parties had aimed to a chieve a certain balance between their respective offers regarding government 
entity annexes.  The purpose of Article XXIV:6(b) was to ensure that any future changes to an agreed 
annex would not affect that negotiated balance.  If the disciplines of the GPA no longer applied to an 
entity, this would no longer be a definitional matter but rather a matter of ensuring that procurement 
by that entity took place under conditions of full and effective competition.  GPA/TN1994/1/Rev.10  
 
- 29 - 
 
  178.  It has also been said that the concern that the pro visions of Article XXIV:6(b) might create an 
opportunity for a Party to object to the full privatization of an entity in another Party, for negotiating 
purposes, was unfounded.  Privatization was recognized as beneficial by all.  The concept of effective 
elimination of the government control or influence could not be considered a subjective matter.  The 
exclusion of an entity from the coverage of the Agreement should not be based on whether it was a 
private or public company but rather on a determination that the company was subject to full and 
effective competition.  Furthermore, the provisions of Article XXIV:6(b) could not be seen as creating 
a disincentive for privatization, since an entity operating under market principles should not have 
difficulty in foll owing the process of open and competitive tendering procedures under the 
Agreement.  
179.  It has further been said that there was a presumption in this provision that there would not 
be any objection to modifications nor automatic requests for compensation if pr ivatization involved 
effective elimination of government control or influence.  There was no reason to believe that the 
relevant provisions would operate any other way than according to their original intention.  Moreover, 
a delegation has indicated that its  experience with privatization had not led to a need to provide 
compensatory adjustment.  Parties might request compensation only in exceptional cases.  
180.  With respect to the criteria suggested for inclusion in Article XXIV:6(b) in order to establish 
whether government control or influence over the privatized entity had effectively been eliminated, 
it has been said that those criteria should be cumulative and all three had to be met for the 
withdrawal of the entity.  It has also been said that the propo sed criteria may not be the only ones 
for establishing that an entity was no longer under government control or influence.  There might be 
other criteria that might be used as evidence of market opening effects.  On the specific criteria, the 
following point s have been made:  
- regarding the requirement that the government not provide the entity with any special 
or exclusive rights, a wide variety of private companies were granted such rights by the 
government.  For instance a corner store might be authorized t o sell fishing licences or 
postage stamps;  
- the requirement that the government did not appoint more than half of the members 
of the entity 's management board might not be sufficient to ensure that the government 
control or influence was effectively remov ed. In response, it was asked what would be 
an appropriate percentage in this respect ?  
- the criteria that the operation of the entity was financed by its revenue, not by 
government subsidies or equity infusion would need further clarification.  In some ca ses 
government subsidies were used for the purpose of reducing the cost of a large -scale 
project undertaken with the aim of improving public welfare;  
- the requirement that the operation of the entity was financed by its business revenue 
might not be appro priate in all cases.  For instance, a number of entities in both Annex  1 
and Annex 3 of the United States, while operating on the basis of their own business 
revenues, continued to be considered as government agencies conducting government 
procurement.  If the entity was mainly financed by its business revenue, some 
non-voting equity infusions by the government would not affect the degree of 
government control or influence.  
 paragraph 8  
181.  It has been said that the provisions of Article  XXIV:8 on information tec hnology should be 
modified in the light of the ongoing work on possible amendments to the Agreement discussed in 
Section A.1(d) of the present note.  
 Possible additional article  
182.  It has been suggested that an article containing definitions of the various te rms used in the 
Agreement should be considered.  GPA/TN1994/1/Rev.10  
 
- 30 - 
 
  (h) Improving the structure of the Agreement  
183.  It has been suggested that the structure and the presentation of the Agreement should be 
improved à droit constant  in order to render it more logical and easy to f ollow by entities and 
suppliers.  This could be achieved by rearranging the order of provisions so that they more closely 
followed the normal sequence of the steps in the process of public purchasing;  grouping the 
provisions in accordance with their purpose  in order to bring the structure of the GPA more into line 
with the practice followed in other WTO agreements;  removing provisions whose applicability had 
expired, for example those relating to the entry into force of the WTO and transitional periods in 
Article XXIV:3(a), (b), (d) and (e);  and shortening certain Articles by subdividing them into several 
Articles.  (See Attachment to the Revised Note by the Secretariat On Suggested Drafting Changes to 
the 1994  Agreement circulated in Job No. 2244, dated 19 Ap ril 1999.)  
184.  In connection with Article  XXIV:3(a), it has been suggested that it should be retained as a 
historical record in order to avoid any possible misunderstandings in respect of Korea 's transitional 
arrangements and the beginning of its implementatio n of the decision on notification of threshold 
values in national currencies.  
185.  A new structure for the GPA that has been suggested in the document circulated in 
Job No. 6437 is reproduced in Attachment  2 to the present note.  A comment has been made 
supporti ng the suggestion that the Articles of the Agreement be organized under different group 
headings.  
(i) Appendices to the Agreement  
186.  It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of present ing 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 
nation al 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.  
187.  It has been stated that it was desirable to maintain the presentation of the Annexes in th e 
form of positive lists for the overall consistency of the Annexes.  While it might be feasible to present 
Annexes  1 and 2 in the form of negative lists, entities in Annex  3 could only be listed in the form of 
a positive list.  In addition, 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.  In this connection, the point has 
also been made that Parties had the obligation to ensure that all the entities that had been specifie d 
in Appendix  I complied with the requirements under the Agreement.  A negative list approach could 
raise certain difficulties for Parties in this respect.  
2. Elimination of discriminatory measures and practices which distort open 
procurement  
(a) General  
188.  The point has been made that this element has prime importance for the review and that 
priority should be given to this review item.  Discriminatory measures and practices which distorted 
open procurement were incompatible with the objectives of the  Agreement and represented a serious 
derogation from the fundamental WTO principles of non -discrimination which were also enshrined in 
Article  III of the Agreement.  The elimination of discriminatory measures would give true effect to 
the principle of non -discrimination in the Agreement and would also be conducive to encouraging 
the accession to the Agreement of non -Parties.  This matter related to provisions that discriminated 
between Parties, it being understood that there was a close link between this issu e and that of 
coverage under which issues relating to extension of the scope of application of the national 
treatment principle would be taken up.  
189.  It has been suggested that, under this element of the review, consideration could be given to:  
 - elimination  of current reciprocity -based exceptions and derogations in the coverage of 
the Agreement;  GPA/TN1994/1/Rev.10  
 
- 31 - 
 
   - establishment of a mutually agreed coverage of services.  
 
190.  With regard to the types of discriminatory provisions in the Appendices which were identified 
in the Note by the Secretariat circulated on 31  October  1997 (document with footer 'gpa38 '), the 
following comment has been made:  
 - the purpose of the non -applic ation provisions referred to in the last sentence of the first 
indent of paragraph 13(a) of the Note was to provide clarifications regarding the 
coverage of contracts.  These provisions concerned all the obligations under the 
Agreement, including the obliga tion on national treatment and could not be classified 
as discriminatory measures.  
 
191.  With regard to the types of discriminatory provisions in the Appendices with respect to the  
"MFN" standard, the following comments have been made:  
 - these provisions could  be eliminated to the extent that other Parties, who had previously 
been unable to cover certain areas, were prepared to open access to their procurement 
markets.  Since the conclusion of the Agreement, negotiations had been held in the 
context of the Agree ment for the removal of a number of derogations.  It was essential 
to aim at the greatest level of coverage rather than to have a uniformity of coverage 
with the least common denominator;  
 - while the Agreement did not provide for the maintenance of excepti ons to Article  III, it 
was an in -built principle of the Agreement that opening up trade was subject to 
negotiations between Parties and was not granted automatically;  
 - negotiations on the elimination of discriminatory measures should be held both 
bilater ally and in the context of the Committee;  
 - reciprocity had been an effective tool in the negotiation of the schedules of 
commitments and, since then, in the elimination of the discriminatory provisions 
between a number of Parties.  The ability to maintain  discriminatory provisions had 
ensured a much larger coverage than would have been the case if those discriminatory 
measures had not been allowed.  Any efforts to move away from the reciprocity approach 
should not undermine the balance that had been achieve d in the negotiations of the 
current coverage of the Agreement;  
 - Parties might have to retain the possibility of introducing discriminatory provisions with 
respect to the MFN standard in negotiations with an acceding country as an incentive to 
enhance th e coverage of its offer;  
 - drawing up Appendix  I in the form of negative lists would also contribute towards 
elimination of discriminatory measures.  
192.  With regard to the note by the Secretariat listing the types of discriminatory provisions in 
Appendix  I of Parties relating to the  "MFN" treatment standard (circulated in Job No.  810, dated 
12 February  1999), the following comments have been made:  
 - most Parties ' Schedules contained notes specifying the conditions for removal of non -
application p rovisions.  All other Parties maintaining discriminatory measures should set 
out the circumstances under which they would be prepared to remove them;  
 - non-application provisions in Parties ' Schedules were mainly in the form of 
reciprocity -based derogation s from the general commitment of non -discriminatory 
treatment under Article  III.1(b);  
 - the note by the Secretariat demonstrated that the matter of elimination of 
discriminatory provisions was inextricably linked with that of coverage in that the need 
for a balance of overall coverage had led Parties to introduce such discriminatory 
provisions in their  Appendices.  The insufficient coverage of entities and areas of 
procurement in the Schedules of some Parties was at the basis of the reciprocity 
provisions in the Agreement. Those Parties that had made comprehensive offers in the 
coverage negotiations had included country -specific non -application provisions in their 
Schedules in order to maintain a balance of commitments with other Parties in certa in 
specific areas.  The two issues would need to be considered together;  GPA/TN1994/1/Rev.10  
 
- 32 - 
 
   - the note set out the rationale of some of the discriminatory provisions;  
 - since the conclusion of the Agreement in 1994, bilateral agreements between several 
Parties had led to th e elimination of certain discriminatory measures.  The note listing 
the remaining discriminatory provisions did not provide a clear picture of the extent  to 
which the procurement markets had been opened through such negotiations.  
193.  With regard to the timetabl e and work programme for the elimination of discriminatory 
provisions, the following points have been raised:  
 - while the review work on discriminatory provisions and that on the expansion of the 
coverage of the Agreement were closely linked, the work on the latter element might 
go beyond the target date for the completion of the negotiations set out in the suggested 
timetable;  
 - the work on the elimination of discriminatory provisions should be carried out in parallel 
with the work on the simplification and improvement of the Agreement;  
 - the drawing up of a matrix of discriminatory provisions in the Schedules of individual 
Parties would show clearly any perceived imbalances between the commitments of 
Parties and identify where a new balance might lie as  a result of the removal of 
discriminatory measures;  
 - Parties maintaining discriminatory provisions should explain the reasons for maintaining 
such restrictions and the circumstances under which they are prepared to remove them;  
 - Parties should conduct bilateral and/or plurilateral negotiations with a view to removing 
discriminatory provisions.  
(b) Mutually agreed coverage of services  
194.  The point has been made that, while establishment of a mutually agreed coverage of services 
would have the effect  of eliminating reciprocity conditions in various Parties, it was essential that 
Parties conducted negotiations in this area on the basis of the most -favoured -nation principle.  
195.  It has been stated that the current coverage of services in the Agreement was c haracterized 
by its diversity with respect to both the specific sectors covered by each Party as well as the overall 
level of services covered by each Party.  It was the outcome of a perceived need for reciprocity in 
this area because of the divergences in the levels of coverage offered by Parties in the negotiations.  
Future negotiations should aim at a uniform level of coverage among all Parties, at least in terms of 
the quality of the coverage of services.  
196.  The view has been expressed that reciprocity -based  services coverage should be eliminated 
but only on the basis of all Parties covering an approximately uniform level of services on a mutually 
agreed basis.  It has been said that it would be possible to move towards an MFN approach in the 
coverage of some of the specific services sectors, such as business, distribution, education, medical, 
banking and financial services, provided that all Parties were willing to make sufficient offers relating 
to those services in an overall package.  On this point, another view has been that the discriminatory 
provisions were the result of the pre -existing reciprocal arrangements which had not been 
plurilateralized, or of perceived imbalances in the commitments by Parties.  Rather than seeking such 
a linkage, which might not produce the expected outcome, Parties should keep an open mind in 
carrying forward the mandate of improving the coverage of services under the Agreement.  
197.  With regard to the modalities for negotiations in this area, the following points have been 
made:  
 - the element of the review concerning the elimination of discriminatory measures and 
practices was independent of that on the expansion of coverage.  On the other hand, 
the view has been expressed that the two elements would overlap and that the review 
should  address not only the elimination of discriminatory measures and practices but 
also the expansion of coverage;  
 - the review should be initiated by simplification and elimination of derogations in Annex  4 
in Appendix I of individual Parties;  GPA/TN1994/1/Rev.10  
 
- 33 - 
 
   - differing v iews have been expressed concerning the extent to which the work on this 
element should take its cue from that in the Working Party on GATS Rules.  
198.  In reviewing the services covered under Annexes 4 and 5 of Parties based on an informal note 
by the Secretari at, dated 8  December  1998 (Job  No. 6771), comments have been made 
seeking/providing clarification concerning the following aspects of the services schedules:  
 - whether rental/leasing services (sector 1.E) were already covered by Article I:2 on 
lease, rent al or hire purchase;  
 - whether leasing would be considered the purchase of a good rather than a service;  
 - some services covered under the Agreement might not be suitable for cross -border 
delivery.  For example competition for legal services (sub -sector A .1.a) was limited in 
most countries;  
 - some services in Annex 4 of Parties might not be related to government procurement 
procedures under the Agreement.  For example, it was questionable whether 
governments used tendering procedures for procuring legal se rvices;  
 - the fact that there was no procurement business in a given service sector should not 
deter Parties from covering that category in their Annex 4;  
 - the negative list approach adopted by the United States in its Annex 4, which covered 
all services except those which had been specifically excluded, had made it difficult to 
verify the information contained therein.  The problem had been aggravated by the fact 
that some of the exclusions were related to the end -use of the services, for example 
services purchased in support of military forces located overseas;  
 - whether the coverage of postal services (sector 2.A) in the United States Schedule 
meant that the government entities purchased such services from one supplier under 
the limited tenderin g method in Article XV.  
3. Expansion of the coverage of the Agreement  
199.  It has been suggested that the coverage of the Agreement could be expanded with a view to 
achieving a balance of market access commitments among Parties.  For this purpose, the following 
specific areas that might be addressed have been suggested:  
 - The review should address the establishment of national self -monitoring mechanisms 
whereby individual Parties would commit themselves to review domestically and 
periodically whether n ational programmes in the form of set -aside programmes and 
other preferential policies contributed towards meeting their vowed objectives and, if 
so, how effective they were in doing so, with a view to examining the scope for their 
elimination in the long term.  It has also been said that the General Notes of Parties 
contained provisions excluding certain procurement from the coverage of the 
Agreement for domestic legal grounds.  On the other hand, the view has been expressed 
that nothing should be done to le gitimize set asides and other discriminatory 
programmes which were presently reflected in the Schedules of Parties as exceptions 
or reservations and to which some Parties had responded in their Schedules.  Providing 
a national review mechanism in the Agreem ent itself might imply that the underlying 
policy objectives were deemed to be justified and that the programmes could be 
continued as long as they met their specific objectives.  The aim of the review of 
derogations should be to explore ways of phasing the m out as prescribed under 
Article  XXIV:7(c).  The ultimate aim should be to remove all discriminatory measures 
and to subject all procurement under the Agreement to the MFN and national treatment 
principles.  
 - Identification of potential sectors for extend ed coverage.  Reference was made to the 
inclusion of the telecommunications, transportation and steel sectors.  In response to 
this suggestion, the appropriateness of focusing work on the expansion of coverage in 
the telecommunications and transportation sec tors has been questioned since many 
countries had made significant progress towards privatization in these sectors.  It has 
been suggested that the review relating to this element should focus on the elimination 
of the derogations from coverage in some othe r sectors existing in Appendix  I of Parties.  GPA/TN1994/1/Rev.10  
 
- 34 - 
 
  On the other hand, the point has been made that the process of privatization had not 
been significant in all countries and that a large number of public entities operating in 
the telecommunications sector remain ed outside the coverage of the Agreement.  
 - Further expansion of the coverage of services in the Agreement.  The suggestion has 
been made that the review work in this area should be initiated by identifying the sectors 
of common interest to Parties based o n domestic supplier surveys.  On the other hand, 
the point has been made that, while certain sectors were not included in the scope of 
the Agreement, the provisions of the Agreement did not exclude the expansion of its 
scope to any additional sectors.  Rathe r than defining the sectors that could be included 
horizontally within the scope of the Agreement, the extension of coverage should be 
handled, for the time being, through bilateral agreements. Another view was that, while 
negotiations on specific sectors might have to be carried out bilaterally, Parties should 
identify the specific sectors to be negotiated in a plurilateral context.  Parties should seek 
a high level of commitment in terms of coverage and not the lowest common 
denominator.  
 - Lowering of the  threshold values applicable to certain Parties.  In response to this 
suggestion, the point has been made that, with the present threshold levels, Parties 
with larger procurement markets subjected a greater proportion of their overall 
procurement to the Agr eement.  The impact of thresholds on the scope of the 
commitments of individual Parties would need to be taken into account in considering 
the overall balance that had been struck under the Agreement between various Parties.  
On the other hand, the view has been expressed that such an approach would neither 
be procedurally feasible nor equitable.  The suggestion was made that the Agreement 
should include provisions setting out uniform levels of thresholds applicable 
automatically to all Parties and independent  of the size of their procurement markets 
and that Parties should no longer have the possibility of applying different threshold 
levels.  
200.  It has been stated that expansion of the coverage of the Agreement would require significant 
preparatory work.  It was a lso stated that any further expansion of the existing coverage of the 
Agreement at the sub -central levels of government would be dependent on progress in the 
simplification and improvement of the provisions of the current Agreement.  
201.  A view has been express ed stating that there was a trade -off between the objective of 
increasing the membership of the Agreement and the burden that wider commitments might incur 
for the acceding countries.  Another view has been that an improved coverage might be an incentive 
to those countries that sought increased market access to join the Agreement.  
202.  In addition, the need to obtain adequate experience with the domestic implementation of the 
Agreement before expansion of its coverage has been referred to.  
B. INSTITUTIONAL/PROCEDURAL POINTS  
1. Work on government procurement in other WTO fora  
203.  It has been suggested that, in the process of the review of the Agreement, Parties should take 
account of the work on government procurement in the Working Group on Transpa rency in 
Government Procurement and in the Working Party on GATS Rules.2 The point has also been made 
that, while the level of obligations sought under each forum may not necessarily be the same, the 
overall outcome of work in these fora should be coheren t and consistent.  However, the review of 
the Agreement should not be delayed by the pace of other discussions.  
204.  It has been said that the delegations might need to consider the relationship between 
plurilateral Agreement on Government Procurement and a futu re multilateral agreement on 
transparency in government procurement.  The plurilateral agreement might  exist under the umbrella 
of a multilateral agreement.  By way of example, it has been said that, whereas the obligations in 
GATS Part II applied to all Mem bers, the obligations in GATS Part III applied only to those Members 
that had undertaken specific commitments.  The special rules under the plurilateral agreement, 
 
2 The most recent reports of the Working Group on Transparency in Government Procurement and the 
Working Party on GATS Rules were circulated respectively in documents WT/WGTGP/M/7  and S/WPGR/M/23 . GPA/TN1994/1/Rev.10  
 
- 35 - 
 
  including those relating to market -access commitments, might continue to be binding only on t hose 
Parties that would have  subscribed to them.  
2. Institutional arrangements for the review  
205.  The discussion of the review since 1997 has been carried out mainly in informal consultations.  
3. Participation of WTO Members in the review  
206.  It was noted that an objective of the review was the expansion of the membership of the 
Agreement.  The review should serve the purpose of making the Agreement more attractive to other 
WTO Members as well as making accession of other WTO Members, including developing countries,  
easier.  For this purpose, interested WTO Members should be given the opportunity to participate 
actively in the Committee 's discussions on the review of the Agreement by becoming observers to 
the Committee in accordance with the Committee 's Decision on Pr ocedures for Participation of 
Observers ( GPA/1 ). 
207.  As agreed by the Committee at its February 1997 meeting, the Chairman sent a 
communication to the WTO Members, through the Chairman of the General Council, drawing the 
attention of WTO Members, as well as governments w hich are in the process of acceding to the WTO, 
to the review and inviting them to participate as observers in the meetings of the Committee in 
accordance with the Committee 's Decision on the Participation of Observers ( WT/L/206 ). 
4. Next steps  
208.  During the informal co nsultations held on 30 June 1999, it was agreed that the work at the 
next meeting would be carried forward in the following way:  
 (i) the primary focus of the work would be put on the Article -by-Article review of the 
Agreement;  
 (ii) further discussion of a more conceptual nature would be warranted on the subject of 
procurement methods, in particular in regard to framework and similar types of 
contracts.  For this purpose, delegations were encouraged to provide information in 
response to the illustrative lis t of questions on this subject.  The Chairman would also 
prepare a short note aimed at crystallizing the basic issues and options that had been 
identified in this area;  
 (iii) progress in bilateral and plurilateral consultations with respect to the eliminat ion of 
discriminatory measures would continue to be monitored;  
 (iv) as for documents, the Secretariat would update the Checklist and its two -column paper 
on Suggested Drafting Changes to the 1994 Agreement, to take into account the new 
proposals made;  
 (v) on statistics, the paper of the Chair would be updated to take into account the new 
suggestions and the comments made;  
 (vi) delegations were also encouraged to come forward with further papers.  While new 
proposals were not ruled out but rather welcomed,  papers of delegations should become 
increasingly directed to finding common ground and refining legal language.  In this 
connection, the EC delegation expressed willingness to come forward with an 
explanatory paper on the CPV (Common Procurement Vocabulary ). 
 
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