RESTRICTED  
  
GPA/TN1994/1/Rev.4  
 
25 May 1998 
(24-2668) Page: 1/17 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article  XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994    
 
  
CHECKLIST OF ISSUES RAISED IN INFORMAL CONSULTATIONS  
REGARDING MODALITIES FOR THE REVIEW OF THE   
AGREEMENT ON  GOVERNMENT PROCUREMENT*, ** 
Revision  
Table of Contents  
A. AREAS TO BE CONSIDERED  ................................ ................................ .......................  3 
1. Simplification and improvement of the Agreement  ................................ ...........................  3 
(i) General  ................................ ................................ ................................ ....................  3 
(ii) Information technology  ................................ ................................ ..............................  4 
(a) General  ................................ ................................ ................................ ....................  4 
(b) Non-discrimination  ................................ ................................ ................................ .... 4 
(c) Publication requirements  ................................ ................................ ............................  5 
(d) Submission of tenders and other communications between the tenderer and  
the procuring entity  ................................ ................................ ................................ ..........  6 
(e) Ease of access to databases and use of information tools  ................................ ................  6 
(f) Deadlines  ................................ ................................ ................................ ..................  7 
(g) New issues related to electronic commerce  ................................ ................................ ... 7 
(iii)  Other substantive provisions of the Agreement  ................................ .............................  7 
(iv)  Administrative provisions of the Agreement  ................................ ................................ .. 8 
(a) Statistical reporting  ................................ ................................ ................................ ... 8 
(v) Improving the structure of the Agreement  ................................ ................................ .... 9 
(vi)  Appendices to th e Agreement  ................................ ................................ .....................  9 
2. Elimination of discriminatory measures and practices which distort open procurement  .........  10 
(i) General  ................................ ................................ ................................ ...................  10 
(ii) Mutually agreed coverage of services  ................................ ................................ ..........  10 
3. Expansion of the coverage of the Agreement  ................................ ................................ . 11 
B. INSTITUTIONAL/PROCEDURAL POINTS  ................................ ................................ .. 12 
1. Work on government procurement in other WTO fora  ................................ ......................  12 
2. Institutional arrangements for the review  ................................ ................................ ...... 12 
 
* English only.  
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: gpa45) was derestricted on 8 November 2023 . GPA/TN1994/1/Rev.4  
 
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  3. Participation of WTO Members in the review  ................................ ................................ .. 12 
4. Next steps  ................................ ................................ ................................ ................  13 
ATTACHMENT 1   SUGGESTED MODIFICATIONS TO THE AGREEMENT INFORMATION 
TECHNOLOGY  ................................ ................................ ................................ .................  14 GPA/TN1994/1/Rev.4  
 
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  The following attempts to set out points made by Parties to the Agreement in the informal 
consultations held in 1997 pursuant to the decision of the Com mittee 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 a nd will, of course, need to be amended and updated 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 therefore 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 reciproci ty had been at 
the basis of the rationale for the 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 elimination 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 eleme nts of the review.  
1. Simplification and improvement of the Agreement  
(i) 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.  Compat ibility between the concepts of 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 biddi ng by 
domestic and foreign suppliers.  
5.  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 Agr eement.  The suggestion has been made that Parties should consider 
to what extend Article XX on bid challenge procedures had been effective in achieving this objective.  
In addition to the bid challenge mechanism under Article  XX and dispute settlement proce dures 
between governments under 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 who might often be reluctant to bring c ases against procuring entities.  Other 
views expressed on the matter have questioned the need for establishing independent enforcement 
agencies and the way in which they could operate in Parties with federal governments.1 It has also 
been stated that a review of the operation of Article XX should be without prejudice to whether or 
not Parties should consider alternative enforcement mechanisms.  
6.  With regard to the Committee's stated aim that the review shall seek the expansion of 
membership by making the A greement more accessible to non -Parties ( GPA/8 ), the point has been 
 
1 The delegation of the European Community has indicated that it will provide a note on how the system 
in the European Community works.  GPA/TN1994/1/Rev.4  
 
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  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 soug ht 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.  
7.  The point has b een made that Parties should take into account the costs that may have to be 
borne by procuring entities and suppliers in adapting to new changes in the procedures under the 
Agreement which has been in force for less than two years.  Simplification of the p rovisions should 
be limited to what is absolutely essential for the purposes of the efficiency of procurement regimes.  
(ii) Information technology  
 (a) General  
8.  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.  
9.  In this connection it has been suggested that the text of the Agreement should be amended to 
provide flexibility and to clarify any ambig uities with respect to the use of information technology.  
10.  With respect to the Canadian proposal on information technology (Job No. 3887), it has been 
stated that the consideration of specific changes to existing Articles would be premature before the 
Commi ttee had had a full discussion of the role of information technology.  
11.  It has also been said that any modifications should be limited to allowing the use of information 
technology in parallel with the paper system currently in use.  
12.  The need to continue the information -gathering process in response to the revised questionnaire 
on information technology was referred to.2 
 (b) Non-discrimination  
13.  It has been stated that information technology should be accommodated in such a way as to 
enhance rather than underm ine the basic objectives of transparency and non -discrimination in the 
Agreement and not to put at a disadvantage the suppliers of actual or potential Parties less 
well-equipped in information technology or without adequate links to international networks.  
Concern has been expressed that, unless appropriate safeguards are established, the use of 
information technology in government procurement may lead to de facto  discrimination against 
foreign suppliers.  It has also been mentioned that the use of informati on technology may create or 
widen the gap between entities and suppliers which can effectively operate in the information age, 
and those, in particular SMEs, which cannot, thus creating a competitive advantage in favour of the 
former group.  
14.  The point has b een made that the non -discrimination aspect of the use of information technology 
should be considered against the background of the existing procedures 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 effects of introducing information technology.  Attention has been drawn 
to the arguments put forward in section 1( ii)(c) below as to why electronic dissemination of tender 
information would be  more effective in reaching all interested suppliers than paper -based methods.  
15.  The comment has been made that the Canadian proposal on information technology 
(Job No. 3887) did not treat the issue of non -discrimination satisfactorily.  Any 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 A rticles VI:4 and VII:2 of the Agreement.  
 
2 Responses to the revised questionnaire ( GPA/W/24 ) were submitted by Norway ( GPA/W/24/Add.1 ), 
Canada ( GPA/W/24/Add.1 ), Korea ( GPA/W/24/Add.3 ) and Hong Kong, China ( GPA/W/24/Add.4 ). GPA/TN1994/1/Rev.4  
 
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  16.  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 we re largely 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 comp lex bids.  
 (c) Publication requirements  
17.  Some delegations have advocated or indicated their readiness to explore providing entities with 
a choice as to whether to use hard copy or information technology in all aspects of procurement 
practices, including ten dering procedures and actual purchasing.  
18.  Suggestions have been made concerning the provisions of the Agreement relating to publication 
requirements (Article IX on invitation to participate regarding intended procurement;  Article XI on 
time-limits for tende ring and delivery;  Article XVII on transparency;  and Article XVIII on information 
and review as regards obligations of entities) and Appendices II and III to reflect the practice of 
electronic publication of notices (Job Nos. 3887 and 5211).  These are repr oduced in Attachment 1 
to this note.  
19.  In this connection, support has been expressed that the provisions on the use of electronic 
publications should be set out as an option rather than as a requirement in the Agreement.  
20.  It has been stated that increased tr ansparency 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 may have originated.  It has been 
suggested that the Agreement should include provisions requiring Parties to make available tender 
notices via the Internet free of charge.  Electronic publication would have the following benefits:  
- the timeliness of dissemination of tender notices and documen ts 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 saved 
time by receiving information of procurement opportunities and by ordering tender 
documents instantaneously;  
 
- the extension of the reach of dissemination of information to suppliers.  The experience 
of Parties showed that the number 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 was significantly lower than the cost of publishing 
and mailing document s 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 publications;  
 
- 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 than the process of scanning through 
hard copy publications;  
 
- 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 elec tronic version of the US Commerce Business Daily had links 
to the US Federal Acquisition Virtual Library.  
 
21.  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 would be in a non -national language.  In addition, a country 
that used a non -western alphabet would have the additional cost of maintaining electronic data 
systems in th e characters of both alphabets.  GPA/TN1994/1/Rev.4  
 
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  22.  In this connection, it has been mentioned that governments had been increasingly devolving 
the activities relating to information technology to private sector organizations which might imply 
that access to tender information  and documentation would not be free of charge.  
23.  It has been suggested that Parties could be invited to provide addresses of any sites on the 
Internet that give information on procurement opportunities in their countries.  There was also need 
to examine how information was structured in national databases.  Parties using information 
technology for tender notices were invited to describe their relevant experience.  In this respect it 
has also been mentioned that some national electronic tendering systems may not  cover all 
procurement covered by the Agreement.  
(d) Submission of tenders and other communications between the tenderer and 
the procuring entity  
24.  Suggestions have been made concerning the provisions of the Agreement relating to submission 
of tenders (Artic le 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. 3887 and 5211).  These are  reproduced in 
Attachment  1 to this note.  
25.  It has been mentioned that technical and content -related compatibility issues for 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 
processing formats.  Using the Internet, "fill in the blanks" bids could be completed on -screen or 
downloaded and e -mailed by return to the procuring organization.  
26.  It has also been also said, 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 traditional methods of transmission were less costly than 
downloading and printing them.  
27.  Reference has also been made to legal and technical difficulties relating to electronic submission 
of bids and t ransmission of documents between the tenderer and the procuring entity through public 
networks.  It has been said that such issues as the confidentiality and security of data contents of 
tenders and the legal effects of electronic signatures required carefu l consideration.  
(e) Ease of access to databases and use of information tools  
28.  It has been suggested that the ease of access to information sources (including establishing 
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.  
29.  With respect to ease of access to databases, it has 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 
interoperability 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 information contained in different 
databases.  In this connection it has also  been stated that it wo uld be necessary to develop tools that 
would make it possible to access to databases in different languages.  It has also been suggested 
that a harmonized multilingual procurement vocabulary system should be used to describe 
purchases, as has been done at E uropean Community level with the CPV (Common Procurement 
Vocabulary).  CPV attributed a nine digit code to some 6,000 terms commonly used in the 
procurement process.  The use of standard terms in the CPV made it easier for potential suppliers of 
goods and se rvices to understand contract notices and to identify the type of procurement contracts 
that were of particular interest to them.  The CPV also helped to establish procurement statistical 
databases.  Furthermore, the use of multilingual CPV in the eleven off icial languages in the European 
Union and of the standard forms provided in it had facilitated the translation of, at least, the most 
important elements of procurement notices.  GPA/TN1994/1/Rev.4  
 
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  30.  With respect to ease of use of information tools, it has been said that access to 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 en gine, for example one that could be developed 
jointly by the GPA Parties on the WTO website.  
31.  It has also been suggested that Parties should share information on their experience relating to 
the technical aspects of this matter.  
 (f) Deadlines  
32.  Some delegati ons have advocated or indicated their readiness to explore reducing minimum 
time-periods required in the various stages of the procurement process in order to improve the 
efficiency of the procurement process.  
33.  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.  
34.  It has also been stated that the rationale underlying the specific deadlines in the GPA  1994 
should be carefully cons idered before attempting 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 d eadlines 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 Government Procurement of 1979.  Some 
countries voluntarily extended the deadlines to 50 days.  
35.  Suggestions have been made concerning the deadlines set out in the Agreement  (Article XI) to 
take account of electronic tender and electronic bid re ceipt (Job Nos. 3887).  These are reproduced 
in Attachment 1 to this note.  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 th e time for 
submission, publication 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 prem ature to 
allow entities using electronic transmission the advantage of shorter deadlines;  
however, the GPA Parties might consider accepting shorter deadlines for pilot projects 
or certain sectors which are especially suitable for electronic tendering;  
 
- 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 preparation of responsive bids.  
 
 (g) New issues related to electronic commerce  
36.  It has been stated that a wider use of electronic tools could put into question the traditional 
approach of government purchasing as it opened  the way to full electronic tendering or elect ronic 
commerce between purchasers 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 p rivacy 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 put into question  by new technological opportunities which would facilitate, for example, 
electronic qualification procedures, tendering of framework contracts and the selection of off -the-
shelf products from electronic catalogues.  
(iii) Other  substantive provisions of the  Agreement  
37.  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, GPA/TN1994/1/Rev.4  
 
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  in doing this, Parties should consider to what ext ent the provisions of the current Agreement actually 
contributed towards achieving its objectives.  
38.  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, w hich were already implicit in 
the Agreement.  
39.  The following areas where improvements might be considered were mentioned:  
- providing further clarity in the provisions relating to some areas of tendering 
procedures;  
 
- providing flexibility in the procedures on the use of a notice of planned procurement in 
Article IX:3;  
 
- providing flexibility in open and selective tendering procedures;  
 
- providing further flexibility in the procedures in Articles XIV and XV;  
 
- providing other methods of procurem ent which would reflect the use of more up -to-
date procurement technologies such as purchasing from electronic catalogues;  
 
- adapting the contents of specific provisions to take account of new phenomena 
(partnerships between private and public sectors, mu ltiplication of Build Operate 
Transfer (BOT) projects), 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 the se types of phenomena;  
 
- updating Article V on Special and Differential Treatment for Developing Countries, 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;  
 
- aligning the provisions of Article XXIII on Exceptions to the Agreement to the relevant 
provisions under the GATT.  
 
(iv) Administrative provisions of the Agreement  
(a) Statistical reporting  
40.  It has been s aid that statistical reporting is an area where simplification and streamlining of 
requirements should be considered.  Late submission and low degree of precision of statistical data 
reduced its usefulness. The statistical requirements under the Agreement w ere unduly complex, 
burdensome and costly, notably because of the expansion of the coverage of the new Agreement.  
On the other hand, the point has been made that statistical reporting was an essential tool for 
achieving  transparency in the compliance of Pa rties with the obligations of the Agreement.  In any 
amendment of the existing requirements Parties should try to strike a balance between the  
advantages of having less onerous requirements and the disadvantages of de facto  providing for 
less transparency.  
41.  It has also been mentioned that it might be possible to resolve problems faced by Parties in 
fulfilling the requirements of the Agreement by providing access to other Parties' statistical data 
bases through the use of information technology.  Information te chnology might also open up other 
ways of monitoring the application of the Agreement in Parties.  
42.  In order to ensure the effective implementation of the requirements in Article XIX:5, the 
following suggestions have been made:  
- the information content of s tatistical reporting requirements should be uniform among 
Annexes 1 -3; 
 GPA/TN1994/1/Rev.4  
 
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  - Parties should be allowed to report statistics in other types of nomenclatures than that 
established under GPA if the reporting was done only at the two -digit level (major 
category g roups) accompanied by a description of those groups;  
 
- there should be no requirement to report procurement under the threshold values for 
Annex 1 entities and that the relevant provision in Article XIX:5(a) should be deleted.  
On the other hand, it has been said that this type of statistics was necessary for the 
assessment of Parties' compliance with the Agreement;  
 
- there should be no requirement to report procurement under the derogations to the 
Agreement referred to in Article XIX:5(d).  On the other hand, it was stated that the 
provision of this type of statistics was essential for transparency purposes.  In this 
connection, it was also said that the discussion of uniform statistical reporting of 
procurement under derogations was linked to achieving a clear definition of what 
constituted derogations under the Agreement;  
 
- a commonly accepted format for statistical reporting should be developed;  
 
- the relevant provisions should specify deadlines for statistical reporting.  
 
43.  A non -paper on this topic has  been circulated as Job. No. 5212.3 
(v) Improving the structure of the Agreement  
44.  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 follow by en tities and 
suppliers.  This could be achieved by rearranging the provisions so that they more closely followed 
the normal process of public purchasing; grouping the provisions in accordance with their purposes 
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 shorten ing certain Articles by subdividing them into several Articles.  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 implementation of the decision on notification of threshold values in national 
currencies.  
45.  A new structure for the GPA that has been suggested in document circulated as Job No. 6437 
is reproduced in the At tachment to the present note.  
(vi) Appendices to the Agreement  
46.  It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of presenting Annexes in the form of negative lists, starting with Annex 1.  
The Committee could define the general principles that would guide the Parties in determining which 
entities should be excluded from the coverage of the Agreement, for example for national security 
reasons.  This would also have the effect of reducing the re sidual exceptions and derogations under 
the General Notes to Appendix I of individual Parties.  
47.  It has been stated that it was desirable to maintain the presentation of the Annexes in the form 
of positive lists for the overall consistency of 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 cover age 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 specified 
in Appendix I complied with the requirements under the Agreement.  A negat ive list approach could 
raise certain difficulties for Parties in this respect.  
 
3 The delegation of Norway has indicated that it will provid e a note on statistical reporting requirements.  GPA/TN1994/1/Rev.4  
 
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  2. Elimination of discriminatory measures and practices which distort open 
procurement  
(i) General  
48.  The point has been made that this element has prime importance for the review  and 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 WTO principles of non -discriminat ion which were also enshrined in Article III of 
the Agreement.  
49.  It has been suggested that, under this element of the review, consideration could be given to:  
- circumscription of derogations for small business and other set -aside programmes to 
provide an a cceptable level of security of access to suppliers from all Parties;  
 
- elimination of current reciprocity -based exceptions and derogations in the coverage of 
the Agreement;  
 
 - establishment of a mutually -agreed coverage of services.  
 
50.  With respect to set-aside programmes and other preferential policies, the suggestion has been 
made that the review should address the establishment of national self -monitoring mechanisms 
whereby individual Parties would commit themselves to review domestically and periodi cally whether 
the national programmes of this nature contributed towards meeting their vowed objectives and, if 
so, how effective they are in doing so, with a view to examining the scope for their elimination in 
the long term.  On the other hand, the view h as been expressed that nothing should be done to 
legitimize 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 Agreement 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 d erogations should 
be to explore ways of phasing them out as prescribed  under Article XXIV:7(c).  
51.  It has been stated that the balance of coverage that Parties had sought with other Parties in the 
negotiation of the Agreement had led to discriminatory provisi ons in their respective Appendices.  
The General Notes of Parties also contained provisions excluding certain procurement from the 
coverage of the Agreement for domestic legal grounds.  Whereas the list of discriminatory provisions 
in the Appendices with res pect to "national treatment" standard could be reduced, discriminatory 
provisions with respect to the MFN standard might need to continue to exist in order to maintain the 
balance of coverage with respect to those Parties whose offers were less than compre hensive.  
Moreover, Parties might have to retain the possibility of introducing discriminatory provisions with 
respect to MFN standard in negotiations with an acceding country as an incentive to enhance the 
coverage of its offer.  
52.  An informal note by the Sec retariat on the type of discriminatory provisions in the Appendices 
to the GPA was circulated on 31 October 1997 (document with footer 'gpa38').  
(ii) Mutually agreed coverage of services  
53.  The point has been made that, while establishment of a mutually agree d 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.  
54.  It has been stated that the current  coverage of services in the Agreement was the outcome of 
a perceived need for reciprocity in this area because various Parties had made diverse offers 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.  
55.  With regard to modalities of negotiations in this area the following points have been made:  GPA/TN1994/1/Rev.4  
 
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  - the element of the review concerning the elimination of discriminatory measures and 
practices was inde pendent 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;  
 
- differing views 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.  
 
3. Expansion of the coverage of the Agreement  
56.  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:  
- Identification of potential sectors for extended coverage.  Reference was made to include 
telecommunications, transportation and steel sectors.  In response to this suggestio n, 
the appropriateness of focusing work on the expansion of coverage on the 
telecommunications and transportation sectors has been questioned since  many 
countries had made significant progress towards privatization in these sectors.  It has 
been suggested t hat the review relating to this element should focus on the elimination 
of the derogations from the coverage in some other sectors existing in Appendix I of 
Parties.  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 remained outside the coverage of the 
Agreement.  
 
- In connection with privatization the point has been made that, rather than adopting a 
sector-based approach, work might focus on the relationship between entities and 
government control.  The terms of Article XXIV:6(b) relating to the withdrawal of an 
entity from Appendix I on the grounds of removal of government control or influence 
did not giv e adequate guidance in this respect.  In order to determine the scope for 
expanding the number of covered entities, Parties should examine the policies by which 
governments exerted control or influence over entities.  Another view has been that the 
present p rovisions reflected the existence of a multitude of configurations with respect 
to the relationships between different government entities and the amount of control 
that could be exerted over them.  By drawing up a more precise definition of how to 
treat pr ivatization type situations Parties might fail to take into account all types of 
government ownership or control and any relevant developments in the future.  
 
- Further expansion of the coverage of services in the Agreement.  The suggestion has 
been made th at the review work in this area should be initiated by identifying the sectors 
of common interest to Parties based on domestic supplier surveys.  On the other hand, 
the point has been made that, while certain sectors were not included in the scope the 
Agree ment, the provisions of the Agreement did not exclude the expansion of its scope 
to any additional sectors.  Rather 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 shou ld 
seek a high level of commitment in terms of coverage and not the lowest common 
denominator.  
 
- Lowering of the thresholds values applicable to certain Parties.  In response to this 
suggestion, the point has been made that, with the present threshold leve ls, Parties 
with larger procurement markets subjected a greater proportion of their overall 
procurement to the Agreement.  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.  GPA/TN1994/1/Rev.4  
 
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  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 i nclude 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 differential threshold 
levels.  
 
57.  It has been stated that expansion of the coverage of the Agreement would require significant 
preparatory work.  It was also stated that any further expansion of the existing coverage of the 
Agreement at the sub -central levels of government would be dependen t on progress in the 
simplification and improvement of the provisions of the current Agreement.  
58.  A view has been expressed stating that there was a trade -off between the objective of increasing 
the membership of the Agreement and the burden that wider commi tments 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.  
59.  In addition, the need to obtain adequate experience with the domestic implementation of the 
Agreement before expansion of its coverage and has been referred to.  
B. INSTITUTIONAL/PROCEDURAL POINTS  
1. Work on government procurement in other WTO fora  
60.  It has been suggested that, in the process of the review of the Agree ment, Parties should take 
account of the work on government procurement in the Working Group on Transparency in 
Government Procurement and in the Working Party on GATS Rules.4 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 coherent and consistent.  However, the review of 
the Agreement should not be dela yed by the pace of other discussions.  
2. Institutional arrangements for the review  
61.  The discussion of the review in 1997 has been carried out mainly in informal consultations.  One 
delegation has suggested that an informal group should be established to cond uct the work on the 
review of the Agreement and that expert groups might be set up to handle specific topics such as 
information technology, simplification of statistical reporting, etc.  
3. Participation of WTO Members in the review  
62.  It was noted that an ob jective 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 Proc edures for Participation of 
Observers ( GPA/1 ). 
63.  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 which  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 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/4  and S/WPGR/M/16 . GPA/TN1994/1/Rev.4  
 
- 13 - 
 
  4. Next steps  
64.  During the informal co nsultations held on 18 February 1998, it was agreed that the Committee 
would hold further informal meeting on 25 June 1998.  At that meeting the work would be carried 
forward in the following way:  
(i) the work would proceed with the three elements of the re view simultaneously;  
 
(ii) as regards the simplification/improvement axis of the mandate for the review, 
delegations would have focused discussions on specific items, starting with information 
technology and statistical reporting.  Delegations would be invi ted to specify, to the 
extent possible, the specific drafting changes that they would wish to see made to the 
relevant provisions of the Agreement in these areas;  
 
(iii) delegations would initiate an Article -by-Article review of the Agreement with a 
consid eration of Articles I to VI of the Agreement;  
 
(iv) delegations would be invited to identify any other areas where focused discussions could 
be taken up and to bring forward proposals, including written proposals on any other 
substantive provisions, for ex ample on procurement methods and restructuring of the 
Agreement including its Annexes;  
 
(v) as regards the other two elements of the review, namely elimination of discriminatory 
measures and practices which distort open procurement and expansion of the coverage 
of the Agreement, delegations would begin focused discussion on the expansion of the 
coverage of the Agreement in the area of services and would be invited to present 
written suggestions on any other matters;  
 
(vi) in the light of the state of dis cussion at the next meeting, the Chairperson would draw 
up, for the consideration of delegations, a suggested work programme, including a 
schedule, for the further work under the review and negotiations review and 
negotiations foreseen in Article XXIV:7(b)  and (c).  
 
_______________  
 
 GPA/TN1994/1/Rev.4  
 
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  ATTACHMENT 1  
 
SUGGESTED MODIFICATIONS TO THE AGREEMENT  
INFORMATION TECHNOLOGY  
Publishing methods  
 
Alternative 1:  
 
• No wording changes to Articles IX, XI, XVII and XVIII.  
 
• Parties agree to accept modifications to Appendices II and III to delete paper publications and 
replace with electronic publications, where the electronic publication is:  
 
 - on the Internet or in one location;  and 
 
 - accessible worldwide by telephone.  
 
Alternative 2:  
 
• Add a footnote to the Agreement defining "publication" to include either electronic or paper 
publication of notices.  The definition would include the requirements in Alternative 1 above, 
where electronic publication is:  
 
 - on the Internet or in one location; and  
 
 - is accessi ble worldwide by telephone.  
 
• Parties would agree to accept modifications to Appendices II and III to delete paper 
publications and replace with electronic publications.  
 
In commenting on these suggestions, it has been suggested that all GPA Parties shoul d include 
information in their Appendices II (and III) to the GPA on relevant electronic tender databases as 
well as information on access to these bases.  This information should be in addition to information 
on traditional publishing methods (until the ti me comes for these to be replaced).  This requirement 
could be made clear by means of footnotes to the relevant articles of the Agreement defining 
publication as including both electronic and paper -based publication of notices.  
 
Submission of tenders  
 
• Amend Article XIII:1(a):  
 
- to add "electronic means" to the list of possible methods of receiving bids (i.e. telex, 
telegram and facsimile) that are already listed;  
 
-  to delete the phrase "or by mail" in the first sentence;  and 
 
- to delete the sentence "T he tender must be confirmed promptly by letter or by the 
despatch of a signed copy of the telex, telegram or facsimile".  
 
• Add a provision to Article XIII to indicate that the means for submitting tenders can be 
specified by the procuring entity, provided  such means shall not reduce access by foreign and 
domestic suppliers.  
 
• Modify Article IX:6 to obligate the procuring entity to include in the notice the means by which 
bids may be submitted.  
 
In commenting on these suggestions, it has been suggested that the term "electronic means" should 
be added to the list of possible methods for receiving bids. Until a satisfactory solution has been 
reached regarding electronic signatures, the confirmation requirement by mail, etc. must be 
maintained, be aring in mind the general fundamental principles mentioned above.  GPA/TN1994/1/Rev.4  
 
- 15 - 
 
  Communications between tenderers and the procuring entity  
 
• Modify Article X:4 to add "electronic means, including e -mail" to the list of ways (e.g. telex, 
telegram and facsimile) that supp liers may use to request to participate in selective tendering.  
 
• Add to Article X the provision that the means of communication can be specified by the 
procuring entity.  
 
• Modify Article IX:6 to obligate the procuring entity to include in the notice of proposed 
procurement the means by which requests to participate will be accepted.  
 
In commenting on these suggestions, it has ben suggested that Article  X:4 should be modified by 
adding: "electronic means, including electronic mail" to the list of methods available to suppliers for 
requests to participate in selective tendering; and that Article IX:6 should be modified to obligate 
the procuring entity to include in the notice the means by which bids may be submitted in addition 
to paper -based tenders.  
 
Deadlines 
 
Alternative 1:  
 
• Remove all of the "deadlines" identified in Article  XI. 
 
• Modify Article XI:1(a) to delete the words "by mail" from the last sentence.  
 
Alternative 2:  
 
• Modify Article XI:3 so that when electronic tendering is used, all periods referred to in XI:2 
may be reduced to a minimum of 15 days.  
 
• Modify Article XI:3 so that when electronic tendering and electronic bid receipt are used, 
second stage periods referred to in XI:2 (b) and (c) may be reduced to a minimum of one  day. GPA/TN1994/1/Rev.4  
 
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  OUTLINE OF A POSSIBLE FUTURE STRUCTURE FOR THE GPA  
("À DROIT CONSTANT")  
The restructuring should consist of four sequential elements:  
 
(i) deletion of those provisions relating to the entry into force of the WTO and transitional  
periods which have now expi red (such as Article XXIV.3(a), (b), (d) and (e));  
 
(ii)  grouping related together to follow general WTO practice on structure of Agreements 
and the procurement procedure more closely, as well as to facilitate ease of use;  
 
(iii)  renaming article to more  closely reflect their content;  and 
 
(iv)  renumbering the articles in the new structure to make them consecutive.  
 
A possible revised structure of the main body of the GPA (not addressing the preamble or the 
appendices) based on these elements is set out below.  It is not intended to be exhaustive.  Neither 
does it take account of the fact that several articles may need to be either clarified or reformulated  
- for example, existing Articles XI and XII.  
 
 A. Scope and coverage of the Agreement  
 
  Article 1  Scope and coverage (was Article I)  
 
  Article 2  Valuation of contracts (was Article II)  
 
 B. Basic Principles  
 
  Article 3  Publication of Legislation (was Article XIX.1)  
  [This could also be moved to Part D]5 
 
Article 4  National Treatment and mfn (was Article XIX.1)  
 
  Article 5  Rules of origin (products and services) (was Article IV)  
  [This article contains an in -built review mechanism]  
 
  Article 6  Offsets (was Article XVI)  
 
  Article 7  Access of non -parties to the Agr eement (was Article XVI.1)  
 
 C. Procurement procedures  
 
  Article 8  Methods of procurement (was Article VII)  
 
  Article 9  Use of the selective tendering procedure (was Article X)  
 
  Article 10  Use of the limited tendering procedure (was Article XV)  
 
  Article 11  Qualifications requirements for suppliers (was Article VIII)  
 
  Article 12  Technical specifications (was Article VI)  
 
  Article 13  Information to bidders:  notices (was Article IX)  
 
  Article 14  Information to bidders:  tender documentation (was Article II)  
 
  Article 15  Time limits for the submission of bids... (was Article XI)  
 
 
5 In commenting on this proposal it has been suggested that Article XIX:1 on publication of basic 
legislation should be placed between sections B and C.  GPA/TN1994/1/Rev.4  
 
- 17 - 
 
    Article 16  Submission, receipt and opening of tenders (was Article XIII.1 -3 +  
    Article XXII.1)  
  [This article could be further split]  
 
  Article  17 Negotiation (was Article XIV)  
 
  Article 18  Award of contracts (was Article XIII.4 -5) 
 
  Article 19  Information on contracts awarded (was Article XVIII.1, 3, 4)  
 
 C.1 Bid Review  
 
  Article 20  Information obligations of Entities (was Article XVIII.2)  
 
  Article 21  Challenge procedures (was Article XX)  
 
 D. Institutional provisions  
 
(This chapter could be divided into different chapters, for instance exceptions to the Agreement + 
article on developing countries could be a different chapter called "Excepti ons to the agreement").  
 
  Article 22  Information obligation of Parties (was Article XIX.2 -4): 
 
  Article 23  Exceptions to the Agreement (was Article XXIII)  
 
  Article 24  Special treatment for developing countries (was Article V)  
  [NB: This article has an in-built review mechanism]  
 
  Article 25  Statistical Reporting Requirements (was Article XIX.5)  
  [NB: This article has in -built review mechanism]  
 
  Article 26  Institutions (was Article XXI)  
 
  Article 27  Consultations and dispute settlement (was Artic le XXII)  
 
  Article 28  Final provisions (was Article XXIV and was XVII.2 on observer status)  
 
 
__________