RESTRICTED  
  
GPA/TN1994/2/Rev.9  
2 August  2001 
(24-2724) Page: 1/191 
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   
 
  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT *,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of 2 -3 May 2001, it was agreed that the note by the Secretariat on the 
article -by-article examination of the Agreement at the informal meetings held from February  1999 
to January  2001 (Job No. 2057) would be updated to reflect the discussions and proposals made at 
that meeting . It was also agreed that the new proposal by the United Stat es (Job No. 2867) would 
replace the proposals by this delegation in the previous version of the document and the comments 
made on the replaced United States' proposals would be removed . The proposal by Switzerland on 
Article V and the new proposal by the U nited States would be reproduced as attachments .1 The 
comments on the specific articles in these two proposal would be incorporated either in the 
side-by-side text or in the relevant attachment, depending on whether the comments related to 
substantive or structural elements of the proposals . The present version of the note has been 
prepared accordingly . Moreover, it was noted that some of the proposals in the side -by-side text 
might require further clarification and fine -tuning . Delegations who had tabled such proposals were 
invited to inform the group whether their proposals should be maintained in the draft text or whether 
they had the intention of amending them . Any new or amended proposals were to be submitted by 
30 June.2 
 
 
 
* English only . 
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs 48) was derestricted on 8 November 2023.  
1 A further attachment summarizes the views expressed so far regarding the simplication and 
improvement of the Appendices.  
2 No submission has been received in this respect as of 30 July 2001.  GPA/TN1994/2/Rev.9  
- 2 - 
  Table of Contents  
PREAMBLE  ................................ ................................ ................................ .......................  3 
DEFINITIONS  ................................ ................................ ................................ ...................  6 
ARTICLE I: SCOPE AND COVERAGE  ................................ ................................ .....................  9 
ARTICLE II: VALUATION OF CONTRACTS  ................................ ................................ .............  17 
ARTICLE III: NATIONAL TREATMENT AND NON -DISCRIMINATION  ................................ ...........  21 
ARTICLE IV – RULES OF ORIGIN  ................................ ................................ ........................  26 
ARTICLE V: SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  ................  27 
ARTICLE VI: TECHNICAL SPECIFICATIONS  ................................ ................................ ..........  41 
ARTICLE VII: TENDERING PROCEDURES  ................................ ................................ .............  54 
ARTICLE VIII: QUALIFICATION OF SUPPLIERS  ................................ ................................ ..... 58 
ARTICLE IX: INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  ...................  69 
ARTICLE X: SELECTION PROCEDURES  ................................ ................................ ................  83 
ARTICLE XI: TIME -LIMITS FOR TENDERING AND DELIVERY  ................................ ...................  85 
ARTICLE XII: TENDER DOCUMENTATION  ................................ ................................ ...........  100 
ARTICLE XIII: SUBMISSION, RECEIPT AND OPENING OF TENDERS AND AWARDING OF 
CONTRACTS  ................................ ................................ ................................ ..................  103 
ARTICLE XIV: NEGOTIATION  ................................ ................................ ...........................  112 
ARTICLE XV: LIMITED TENDERING  ................................ ................................ ...................  113 
ARTICLE XVI: OFFSETS  ................................ ................................ ................................ .. 121 
ARTICLE XVII: TRANSPARENCY  ................................ ................................ ........................  122 
ARTICLE XVIII: INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  ...........  125 
ARTICLE XIX: INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  ...............  133 
ARTICLE XX: C HALLENGE PROCEDURES  ................................ ................................ ............  141 
ARTICLE XXI: INSTITUTIONS  ................................ ................................ ..........................  150 
ARTICLE XXII: CONSULTATIONS AND DISPUTE SETTLEMENT  ................................ ...............  151 
ARTICLE  XXIII: EXCEPTIONS TO THE AGREEMENT  ................................ ..............................  155 
ARTICLE XXIV: FINAL PROVISIONS  ................................ ................................ ..................  156 
ATTACHMENT  1  CONSOLIDATED US  PROPOSALS FOR STREAMLINING THE TEXT OF THE WTO 
AGREEMENT ON GOVERNMENT PROCUREMENT APRIL  2001 (JOB NO.  2867)  ..........................  171 
ATTACHMENT 2  PROPOSAL BY SWITZERLAND ON THE REVISION OF ARTICLE V  
(JOB NO.  1274)  ................................ ................................ ................................ .............  187 
ATTACHMENT 3   ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS  
REGARDING  THE SIMPLIFICATION AND IMPROVEMENT OF  
THE APPENDICES TO THE AGREEMENT  ................................ ................................ .............  190 GPA/TN1994/2/Rev.9  
- 3 - 
  PREAMBLE  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Parties to this Agreement  (hereinafter 
referred to as "Parties"),  
 Parties to this Agreement (hereinafter 
referred to as "Parties "), 
 
 Recognizing  the need for an effective 
multilateral framework of rights and obligations 
with respect to laws, regulations, procedures and 
practices regarding government procurement 
with a view to achieving greater liberalization 
and expansion of world trade and improv ing the 
international framework for the conduct of world 
trade;  
  Recognizing  the need for an effective 
multilateral framework of rights and 
obligations with respect to measures 
regarding government procurement, with a 
view to achieving greater liberalization and 
expansion of world trade and improving the 
international framework fo r the conduct of 
world trade;  
 
 Recognizing  that it is desirable to provide 
transparency of laws, regulations, procedures 
and practices regarding government 
procurement;  
 Recognizing  that the transparency, 
integrity and predictability of government 
procurement systems are integral to the 
efficient and effective management of 
public resources, the overall quality of 
governance, the economic performance of 
the Parties ' societies, and th e functioning of 
the multilateral trading system;  
 
 Recognizing  that the procedural 
commitments under this Agreement should 
be sufficiently flexible to accommodate the 
specific circumstances of each Party and 
limited to what is necessary to achieve the 
Parties' objectives of this Agreement;  
[US – Job No. 2867]  
 
 Recognizing  that laws, regulations, 
procedures and practices regarding government 
procurement should not be prepared, adopted or 
applied to foreign or domestic products and 
services and to foreign or domestic suppliers so 
as to afford protection to domestic products or 
services or domestic suppliers and should not 
discriminate among foreign products or services 
or among foreign suppliers;  
  
 Recognizing  the need to establish 
international procedures on notification, 
consultation, surveillance and dispute settlement 
with a view to ensuring a fair, prompt and 
effective enforcement of the international 
provisions on government procurement and to 
maintain the balance of rights and obligations at 
the highest possible level;  
  
 Recognizing  the need to take into account 
the development, financial and trade needs of 
developing countries, in particular the 
least-developed countries;  
  GPA/TN1994/2/Rev.9  
- 4 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Desiring , in accordance with 
paragraph  6(b) of Article IX of the Agreement on 
Government Procurement done on  
12 April 1979, as amended on 2  February  1987, 
to broaden and improve the Agreement on the 
basis of mutual reciprocity and to expand the 
coverage of the Agreement to include service 
contracts;  
  
 Desiring  to encourage acceptance of and 
accession to this Agreement by governments not 
party to it;  
 Desiring  to encourage acceptance of 
and accession to this Agreement by 
governments not party to it;  
 
 Having  undertaken  further negotiations in 
pursuance of these objectives;  
 Having undertaken  further 
negotiations in pursuance of these 
objectives;  
 
 Hereby agree  as follows:  
 Hereby agree  as follows:  
[US – Job No. 2867]  
 
 
Comments  
 
• Clarification is needed in relation to the rationale regarding the US proposal to drop the 
5th paragraph of the current preamble, which refers to special and differential treatment and 
the 6th paragraph, which refers to the need to broaden and improve the Agreement on the 
basis of m utual reciprocity.  [Canada ; EC; Israel]  
• Since one of the aims of the review is to encourage and to create a situation where developing 
countries will be more motivated to become a Party to the Agreement, the importance of 
development and the needs of devel oping countries is an issue that deserves recognition in 
the preambular language.  [Israel]  
• Developing countries would prefer to see concrete provisions in the text of the Agreement 
rather than a general statement of interest or intent where it is unclear w hat is meant by such 
statements . It is more important to consider what the Agreement does as compared to what 
it says it does in the Preamble . It is necessary to make sure that the preambular paragraphs 
makes sense and there is not necessarily a need to ca rry a paragraph over to the new 
agreement just because it is contained in the existing Agreement . However, it is true that the 
fact that a paragraph in the existing agreement is dropped could send a signal and that fact 
should be taken into account.  [US] 
• It is doubted whether the review of the Agreement should entail a revamping of the Preamble . 
As compared to the Preamble contained i n the US proposal, the original Preamble covers a 
much wider perspective and adheres more closely to the funda mental principles of the WTO . 
In particular, the language on non -discrimination is the cornerstone of the Agreement and 
should not be removed or undermined.  [Hong Kong, China ; EC] 
• All the issues that have been removed from the existing preamble are address ed in the text 
of the Agreement itself . To what extent is it necessary to make a general statement in the 
Preamble for every element contained in the text of the Agreement ? [US] 
  GPA/TN1994/2/Rev.9  
- 5 - 
  • The US proposal refers to "measures" rather than "laws, regulations, procedu res and 
practices" . However, the word "measures" is too general and has not been defined in Article  1 
of the US proposal . Therefore, that term might be subject to different interpretations . The 
implications of the use of this term instead of the current te rminology needs to be considered.  
[Hong Kong, China]  
• With regard to the 3rd paragraph of the US proposal, how will "procedural commitments" 
incorporate the notion of flexibility in order to accommodate the specific circumstances of each 
Party? [Hong Kong, China]  
 GPA/TN1994/2/Rev.9  
- 6 - 
  DEFINITIONS  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article I  
Definitions  
 
 For purposes of this Agreement:  
 
 build, operate and transfer contract means 
any contractual arrangement under which a 
supplier may own or operate infrastructure, 
facilities or other assets provided for under 
a contract for a specified period of time 
before transferring ownership or operation 
of such assets to one of the Parties or its 
entities;  
[US – Job No. 2867]  
 
 consensus standard means a standard 
adopted by an independent domestic or 
international standards body, where the 
decision to adopt that standard is 
characterized by the absence of sustained 
opposition to substantial issues by any 
important part of the concerned int erests 
and by a process that involves seeking to 
take into account the views of all parties 
concerned and to reconcile any conflicting 
arguments . A consensus standard shall not 
be applicable to a particular party if the 
process by which that standard was 
adopted did not involve seeking to take into 
account the views of that Party and 
interested stakeholders of that Party;  
[US – Job No. 2867]  
 
 construction services contract means a 
contract that has as its objective the 
realization by whatever means of civ il or 
building works, in the sense of Division 51 
of the Central Product Classification (CPC);  
[US – Job No. 2867]  
 
 country or countries  include any separate 
customs territory Party to this Agreement . 
In the case of a separate customs territory 
Party to this Agreement, where an 
expression in this Agreement is qualified by 
the term "national", such expression shall 
be read as pertaining to that customs 
territory, unless otherwise specified;  
[US – Job No. 2867]  
 
 government  is deemed to include th e 
competent authorities of the 
European  Communities;  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 7 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 in writing or written means any expression 
of information in words, numbers or other 
symbols, including electronic expressions, 
that can be read, reproduced, and stored;  
[US – Job No. 2867]  
 
 limited tendering procedures means 
procedures in which a procuring entity 
invites tenders only from a supplier or 
suppliers that the entity selects in a 
non-competitive manner;  
[US – Job No. 2867]  
 
 procuring entity means an entity covered 
under Annexes 1, 2 and 3 of Appendix I of 
each Party;  
[US – Job No. 2867]  
 
 services includes construction services 
contracts, unless otherwise specified;  
[US – Job No. 2867]  
 
 supplier means a natural person or 
enterprise that has provided or could 
provide goods or services in response to a 
procuring entity's call for tenders ; and 
[US – Job No. 2867]  
 
 technical specification means a tendering 
requirement that lays down the 
characteristic of goods to be procured or 
their related processes and production 
methods or the characteristics of services 
to be procured or their related operating 
methods, including any applicable 
administrative provisions . It may also 
include or deal exclusively with 
terminology, symbols, packaging,  marking 
or labeling requirements as they apply to a 
good, process, or production or operating 
method.  
[US – Job No. 2867]  
 
 
Comments  
 
• An article containing definitions may be useful to ensure that all Parties understand the terms 
that are being used in making commitments vis-à-vis other Parties.  [US] 
• The definition of "in writing" or "written" is contained in a proposed revision to the U S Federal 
Acquisition Regulation (FAR), which was published in the US Federal Register on 
1 November  2000. As of 3 0 March  2001, the Civilian Agency Acquisition Council and the 
Defense Acquisition Regulations Council continue to review this regulatory propo sal. The 
United States reserves its right to modify the language of this submission, based on ongoing 
internal consultations.  [US] 
• The current Agreement refers to a "standard" . However, the US proposal introduces the notion 
of "consensus standard" . There i s no reference to consensus standards in the TBT  Agreement . 
Clarification is sought as to why the US has introduced this new term into the GPA.  [Japan]  GPA/TN1994/2/Rev.9  
- 8 - 
  • While there are differences between the use of technical specifications in general and in the 
context of  procurement, the concern that the introduction of the notion of consensus standards 
risks creating a regime under the GPA as compared with under the TBT  Agreement needs to 
be borne in mind.  [EC; Japan]  
• The US proposal may need to be changed in the light of the relevant developments in the TBT.  
[US] 
• In relation to the definition of "services", clarification is sought as to why it has been defined 
to include construction service contracts "unless otherwise specified ." Where should reference 
be made to  determine whether something has been "specified" as per this definition ? [Japan]  
• Most of the Annexes already contain the definition of "services" that has been included in the 
definitions article of the US proposal . In the interests of consolidating the A greement and 
making it easier to understand, the definition has been included in the article on definitions 
that can be referred to in interpreting the Agreement itself and the Annexes.  [US] 
• The terms to be defined should be kept to a minimum defining tech nical terms or terms having 
a meaning other than a literal meaning . In this regard, it is unclear whether there is a need 
to define "construction services contract", "procuring entity" and "supplier".  [Hong  Kong, 
China]  
• The proposal suggests that managemen t contracts and the sale of government shares in public 
companies are covered under the Agreement . However, neither is mentioned in the definition 
of "build -operate -transfer".  [Jordan]  
• Should a definition on "limited tendering" be included to identify proc edures that do not 
conform to the norms of the Agreement ? Such a definition might be circular since the question 
may then be raised as to what a non -competitive manner is.  [Canada]  
 GPA/TN1994/2/Rev.9  
- 9 - 
  ARTICLE I: SCOPE AND COVERAGE  
Article I:1  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I.  
 
Footnote 1 : 
 
1. For each Party, Appendix I is divided into 
five Annexes:  
 
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central government 
entities.  
- Annex 3 contains all other entities that 
procure in accordance with the provisions 
of this Agreement.  
- Annex 4 specifies services, whether listed 
positively or negatively, covered by this 
Agreement.  
- Annex 5 specifies covered construction 
services.  
Relevant thresholds are specified in each Party's 
Annexes.  1. This Agreement applies to any law,  
regulation, procedure or practice regarding 
any procurement falling within the scope of 
Article III, paragraph  8 of the GATT and 
Article  XIII, paragraph  1 of GATS by 
entities covered by this Agreement, as 
specified in Appendix  I. 
[EC – GPA/W/87 ] 
 
 1. This Agre ement applies to any law, 
regulation, procedure or practice regarding 
any procurement by entities covered by this 
Agreement, as specified in Appendix I, 
except procurements with a view to 
commercial resale or with a view to use in 
the production of goods o r supply of 
services for commercial sale.  
[Chinese Taipei – Job No. 3193]  
 
 1. This Agreement applies to:  
 
(a) any measure specifically governing 
the procurement of goods or services, 
or any combination thereof, for 
governmental purposes and not with 
a view to commercial resale or with a 
view to use in the production or 
supply of goods or services for 
commercial sale ; and 
[US – Job No. 2867]  
 
 
Comments  
 
Regarding the EC proposal:  
 
• The proposed modification is intended to avoid misunderstandings with regard to the meaning 
of public procurement without actually defining the term . This modification is not intended to 
have the effect of precluding existing derogations, for instance, reciprocity -based derogations, GPA/TN1994/2/Rev.9  
- 10 - 
  under the current A greement.  [EC in response to clarification sought from Japan and 
Hong Kong, China]  
• Would the elimination of the footnote listing the Annexes in Appendix I and its replacement 
by the words "as specified in Appendix I", imply a different structure for Append ix I? [Canada]  
• In the case of GATS, the "scope" is defined in terms of an exclusion . It might be more 
appropriate to substitute the proposed wording "procurement falling within the scope" with 
"as described in …".  [Hong Kong, China ; EC] 
• There are difficult ies associated with the approach contained in the EC proposal . The 
definitions in the GATT and GATS refer respectively to the purchase of goods and services for 
commercial sale or use in the production of goods for sale or commercial resale . Each definitio n 
refers only to goods or services . However, a situation may arise when services are used in the 
production of goods or goods are used in the production of services . It is unclear how that 
type of situation would be interpreted in the context of the GPA, w hich applies to both goods 
and services, unlike the GATT or the GATS . The approach of using the language of those 
definitions rather than referring to the individual Agreements is preferable.  [US] 
Regarding the US proposal:  
 
• Paragraph (a) of the US proposa l seems to suggest that the scope of the Agreement should 
be both measures -based and procurement -based . Perhaps a measures -based approach is 
more consistent with other trade obligations.  [Canada]  
• The US proposal does seek to introduce a definition of procu rement into the Agreement . 
Currently, the Agreement defines the scope and coverage of the Agreement by reference to 
the term "procurement" . However, it does not currently define what procurement means.  [US] 
• Perhaps it would be useful to incorporate a defin ition of "government procurement" in Article  I, 
making it clear that irrespective of the type of contract used, all contracts would be covered.  
[EC] 
• A definition of "procurement" could be useful but it is difficult to develop one.  [Switzerland]  
• What kind o f "measures" does the US have in mind with respect to paragraph (a) ? In addition 
to the measures that are covered under the existing Agreement, does the US proposal seek 
to cover any additional measures ? If so, such an approach might affect the mutually agreed 
coverage under the existing Agreement.  [Japan]  
• The proposed US text uses four terms, seemingly interchangeably – namely, "contract", 
"procurement", "procurement contract" and "intended procurement" . "Procurement" is the 
process of procureme nt which results in one or more contracts being entered into . Therefore , 
the term "procurement" should be used in relation to the procurement process . In turn, 
"contract" should be used in relation to the outcome of the process of procurement . It is 
unclea r how the term "measures" fits in relation to the other terms that have been referred 
to. [Canada]  
• Will the Agreement apply to "measures" and to "procurement" ? The Agreement should apply 
to one or the other.  [Canada]  
• Perhaps a definition of "measures" should be included in the Agreement . Such a definition 
may look very similar to the text of Article 1(1) which refers to "laws, regulations, procedures 
or practices" . There is much jurisprudence in the WTO system regarding the meaning of 
"measur es".[US] 
General:  
 
• A reference to definitions contained in the GATT and GATS is necessary to ensure that the 
inclusion of a definition of "government procurement" in the GPA does not lead to a situation 
in which government procurement is not covered by any  WTO rules.  [EC] GPA/TN1994/2/Rev.9  
- 11 - 
  • In terms of covered procurement, it is necessary to avoid the possibility of their being any 
gaps between what is covered by GATT Article III:8 and GATS Article XIII and what is covered 
under the GPA.  [EC; US] 
• What are the potential gaps b etween the GPA on the one hand and the GATT and GATS on 
the other ? [Switzerland]  
• Consideration should be given to whether the current definitions in the GATT and the GATS 
are adequate or whether a further definition of "government procurement" should be 
developed in the Agreement.  [US] 
• If a definition of "government procurement" is to be developed, such a definition should be 
included in a multilateral instrument otherwise, there is a risk that there will be two definitions 
of government procurement - one in the exceptions to the GATT and the GATS and the other 
in the GPA.  [EC] 
• There is a risk that i f a definition of "government procurement" is included in the GPA, the 
scope and coverage of the current GPA offers could be expanded or, at least, that impressi on 
could be conveyed to outsiders.  [EC] 
• Is it necessary to cover procurement excluded from the GATT and the GATS ? [Canada]  
• What is covered in the GPA Annexes is within the framework of the general exceptions to the 
GATT and GATS, otherwise there would be n o point in coverage under the GPA.  [EC] 
• Including a definition in the GPA would be useful to non -Parties who may be considering 
accession in so far as it might assist them to understand what the major commitments under 
the Agreement would be.  [US] 
• This Art icle should contain a definition of the term "government procurement" which focuses 
on the status of the end -users rather than on the purchasing agent.  [Hong Kong, China ] Some 
specific suggestions with respect to this comment should be provided . [US; Canada]  
 
  GPA/TN1994/2/Rev.9  
- 12 - 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. For each Party, Appendix I shall be 
divided into five Annexes:  
 
(a) Annex 1 specifies the central 
government entities whose 
procurement is covered by this 
Agreement;  
(b) Annex 2 specifies the sub -central 
government entities whose 
procurement is covered by this 
Agreement;  
(c) Annex 3 specifies all other entities 
whose procurement is covered by 
this Agreement;  
(d) Annex 4 specifies the services 
covered by this Agreement ; and 
(e) Annex 5 specifies the construction 
services covered by this Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 13 - 
  Article I:2  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by 
any contractual means, including through such 
methods as purchase or as lease, rental or hire 
purchase, with or without an option to buy, 
including any combination of products and 
services.  (b) procurement by procuring entities 
specified in Appendix I to this 
Agreement, by any contractual 
means , including direct purchase ; 
lease ; rental or hire purchase, with 
or without an option to buy ; and 
build, operate and transfer 
contracts.  
[US – Job No. 2867]  
 
 
Comments  
 
• A reference to forms of procurement under new phenomena (partnerships between private 
and public sectors, multiplication of "Build Operate Transfer" (BOT) operations, joint ventures) 
should be included in this paragraph with an exact definitions of these terms given in the text 
of the Agreement or in footnotes.  [Korea]  
• To what extent should public procurement contracts that are based upon public/private 
partnerships be covered by the GPA ? [Japan]  
• The note by the Secretariat on "Concessions and BOT Contracts" ( JOB(00)/5657 ) point s out 
that there may be a relationship between BOT -type contracts and the definition of government 
procurement in the GATT and the GATS.  [US] 
• It is necessary to look at the significance of the term "commercial sale" in the definition in 
GATT Article III:8 . The term "commercial" is intended to narrow the exception to the definition 
of government procurement.  
• With respect to paragraph (b) of the US proposal, should "as" precede "specified" so that it is 
consistent with the footnote from which the proposed par agraph has been drawn ? [Canada]  
• It is unclear whether built -operate transfer contracts can be regarded as government 
procurement . The extension of the Agreement to such contracts may ultimately lead to 
coverage of other concessions, such as franchises and licences.  [Hong Kong, China ; EC] 
• It is unclear whether the reference to build -operate -transfer contracts in this Article is merely 
a clarification of the existing article . The proposal could be considered to be an extension of 
coverage.  [EC] 
• The existing Agreement refers to procurement by "any contractual means" . Therefore, the 
question arises as to whether a build -operate -transfer contract constitutes a "contractual 
means" . The US considers that it does . Therefore, the next question is whether su ch contracts 
constitute procurement . The US tends to the view that it does . There are many different types 
of contractual relationships that governments have with the private sector beyond 
build-operate -transfer contracts and including other types of procu rement contracts . For 
example, there are a series of contracts including BOT, BOOT and BOO contracts, that are 
contractual means, some of which do not involve ownership of any property by the 
government and some of which may be very similar to licensing or  other types of operations . 
The reference to build -operate -transfer contracts does not necessarily mean that those types 
of contractual means are considered to be procurement . The reference to BOT contracts is a 
fairly narrow range of contractual means and  there is a much broader range of government 
activities that would not be covered by that term.  GPA/TN1994/2/Rev.9  
- 14 - 
  • The current provision contains an illustrative list of contractual means and is not a 
comprehensive list . Presumably, that approach has been adopted to provide clarification . 
Therefore, the question arises as to whether it is useful to further clarify the situation by 
including a reference to build -operate -transfer contracts in the existing illustrative list.  [US] 
• There is a grey area between what constitutes a c larification of the existing text and what 
amounts to an addition to the existing text.  [EC] 
• Although Parties may not have the same understanding of what is meant by 
build-operate -transfer contracts, a simple text defining such contracts is not necessarily  an 
appropriate solution . A dilemma exists in choosing between having a simple, streamlined text 
and seeking to clarify the situation in a particular area.  [EC] 
• It is unclear whether proposed sub -paragraph 1(b) is needed since it extends the definition 
contained in the GATT, which is essentially captured in proposed sub -paragraph (a).  [EC] GPA/TN1994/2/Rev.9  
- 15 - 
  Article I:3, 4  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in the context of 
procurement covered under this Agreement, 
require enterprises not included in Appendix I to 
award contracts in accordance with particular 
requirements, Article  III shall apply 
mutatis  mutandis  to such requirements.  
 3. Where procuring entities, in the 
context of procurement covered by this 
Agreement, require enterprises not 
included in Appendix I to award contracts 
in accordance with particular requirements, 
Article III of this Agreement shall apply 
mutatis mutandis  to such  requirements.  
[US – Job No. 2867]  
 
4. This Agreement applies to any procurement 
contract of a value of not less than the relevant 
threshold specified in Appendix I.  
 4. This Agreement applies to any 
procurement contract for which the value of 
the contract is estimated, at the time of 
publication of the notice of intended 
procurement, in accordance with Article V 
of this Agreement, to equal or exceed the 
relevant threshold specified in Appendix  I. 
The value of a contract shall be estimated 
in accord ance with the provisions of 
paragraph 5 of this Article.  
[US – Job No. 2867]  
 
 4. Without prejudice to Article  XXIII, 
this Agreement applies to any procurement 
contract:  
 
(a) of central  government entities of a 
value of not less than  
- 130,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(b) of sub -central  government entities 
of a value of not less than  
- 200,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(c) of entities  according to Appendix  I, 
Annex 3 of a value of not less than  
- 400,000 SDR for contracts for 
supply of product s and services  
- 5,000,000 SDR for contracts for 
public works  
[EC – GPA/W/87 ] 
 
 GPA/TN1994/2/Rev.9  
- 16 - 
  Comments  
 
With regard to the harmonized thresholds:  
 
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmonization of thresholds should not be stipulated in the Agreement . It would be 
inappropriate to include harmonized thresholds in t he main body of the Agreement in view of 
the balance of commitments in Appendix I between Parties in relation to the coverage of 
entities, goods and services as well as thresholds.  [Japan ; Korea] Nevertheless, the 
introduction of common thresholds in the text of the Agreement may be acceptable at a later 
stage in the light of the outcome of the work regarding the elimination of discriminatory 
measures.  [Korea]  
• While harmonization of thresholds furthers the Committee's aim to streamline th e Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices and cannot be dealt with simply through amendments to the text.  
[US] 
• The adoption of common thresholds should not inhibit Member s' ability to tailor their offers to 
maintain a balance of interests.  [Canada]  
• Common thresholds would make the Agreement more readable and understandable by third 
parties.  [EC] 
• Although there may be a link between thresholds and coverage, there is not nec essarily a 
clear effect on the balance of offers that have been negotiated because offers relate more to 
the entities that are covered and not necessarily to the thresholds.  [EC] 
• The adoption of common thresholds is consistent with attempts to expand cover age of the 
Agreement in the future and to make the Agreement more user -friendly.  [EC] 
• "Public works" is merely another way of naming "construction services" . There is no 
substantive difference between the terms used in the proposal.  [EC in response to clar ification 
sought by Japan and Canada]  
 GPA/TN1994/2/Rev.9  
- 17 - 
  ARTICLE II:  VALUATION OF CONTRACTS  
Article II:1, 2, 3  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes 
of implementing this Agreement.  
 5. In determining whether a contract is 
covered under this Agreement, procuring 
entities shall apply the following 
provisions:  
[US – Job No. 2867]  
 
Footnote 2:  
 
2 This Agreement shall apply to any procurement 
contract for which the contract value is estimated to 
equal or exceed the threshold at the time of publication 
of the notice in accordance with Article IX.  2 This Agreement shall apply to any procurement 
contract for which the contract valu e is estimated 
to equal or exceed the threshold at the time of 
the publication of the notice in accordance with 
Article  IX or at the time of first contact with the 
supplier in the case of limited tendering.  [Japan]  
 
 
Comments  
 
• The language of footnote 2 to Article II, paragraph 1 should be aligned with that of Article  I:4 
on threshold values.  [US – Job No. 2867]  
• What is meant by the term "first contact" and what is the rationale for the approach proposed 
by Japan in the case of limited tendering ? [Canada]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Valuation shall take into account all forms 
of remuneration, including any premiums, fees, 
commissions and interest receivable.  
 2. Valuation shall take into account all 
forms of remuneration, including any 
premiums, fees, commissions and interest 
to be paid.  
[Chinese Taipei – Job No. 3193]  
 
 (b) In calculating the value of a contract, 
an entity shall take into account all 
forms of remuneration, including 
premiums, fees, commissions, 
interest, other revenue streams 
provided for under the contract and 
the value of the maximum permissible 
options provided for by the contract.  
[US – Job No. 2867]  
 
3. The selection of the valuation method by 
the enti ty shall not be used, nor shall any 
procurement requirement be divided, with the 
intention of avoiding the application of this 
Agreement.  
 (a) Procuring entities shall not divide an 
intended procurement into separate 
contracts or otherwise use a 
particular  method for estimating the 
value of a contract for the purpose of 
avoiding the application of this 
Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 18 - 
  Article II:4  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. If an individual requirement for a 
procurement results in the award of more than 
one contract, or in contracts being awarded in 
separate parts, the basis for valuation shall be 
either:  
 (c) Except as provided for in 
sub-paragraph (d) of this Paragraph, 
contracts that are awarded in multiple 
parts, are awarded to more than one 
supplier, are for an indefinite 
quantity, or result in the awarding of 
more than one contract or recurring 
contracts, shall be valued at the total 
estimated value of the contract and 
any resulting contracts over the 
duration of such contracts.  
[US – Job No. 2867]  
 
(a) the actual value of similar recurring 
contracts concluded over the 
previous fiscal year or 12 months 
adjusted, where possible, for 
anticipated changes in quantity and 
value over the subsequent 
12 months ; or 
  
(b) the estimated value of recurring 
contracts in the fiscal year or 
12 months subsequent to the initial 
contract.   
 
Comments  
 
• What is meant by the reference to a 12 months period ? If the final value of a contract which 
runs for more than one year, for example, a road maintenance contract, is unknown until the 
works have been completed, should the basis of coverage be the estimated value for one year 
or the value for the full period of the contract ? Should the contract be broken down into 
one-year periods because of the reference to 12 months in subparagraphs (a) and (b) ? 
[Hong Kong, China]  
• How would the proposed provision apply to low -value contracts,  for example those entered 
into by small local authorities ? Under such contracts, even over a period of several years, the 
threshold values stipulated in the Agreement may not be exceeded.  [Norway, Canada]  
• It might be possible to make a determination that the total estimated value of small -value 
contracts would not exceed the GPA thresholds.  [US] 
• The total estimated value of a contract is not necessarily published.  [Canada]  
• In order to ensure consistency with the current wording of the Agreement and in ligh t of the 
fact that a contract will not actually exist at the time when the valuation takes place, except 
in the case of limited tendering, the term "procurements" rather than "contracts" should be 
used.  [Canada]  
In relation to the US proposal:  
 
• In response  to a suggestion for further simplification of paragraph (c) [Canada],  there may 
be some situations where more detail is necessary, for example in the case of multiple award 
or framework contracts.  [US; EC] GPA/TN1994/2/Rev.9  
- 19 - 
  • The use of the word "procurement" would appear to  be more appropriate than the term 
"contract" since valuation takes place before the procurement process commences . It is 
impractical to revisit the results of the valuation exercise once the procurement process has 
been completed and contracts have been i ssued.  [Canada]  
• There are a number of indeterminate concepts in the US proposal, including the term 
"estimated value. " [EC] 
• With regard to the need for a reference to "estimated value", in some cases, a contract value 
might not be available at the time the  tender notice is first published . For this reason, the 
current Agreement refers to "estimated value" in footnote 2 and such a reference appears to 
be unavoidable.  [US] 
• Clarification is sought in relation to the meaning of paragraph (c) of the US proposal . What 
does that paragraph mean and how would it be applied ? [Canada]  
• The US proposal seeks to improve the valuation provisions by making them simpler and more 
flexible . It also seeks to include methods of valuation that will be relevant to the typ es of 
contracts that will be covered, such as multiple award contracts.  [US] 
• Further reflection is needed to determine whether the proposal is sufficient, bearing in mind 
that there is a tension between the need to have a provision that is not overly compl icated 
and the need to have an effective provision.  [EC] 
 GPA/TN1994/2/Rev.9  
- 20 - 
  Article II:5, 6  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental 
or hire purchase of products or services, or in the 
case of contracts which do not specify a total 
price, the basis for valuation shall be:  
  
(a) in the case of fixed -term contracts, 
where their term is 12  months or 
less, the total contract value for 
their duration, or, where their term 
exceeds 12 months, their total value 
including the estimated residual 
value;  
 (a) in the case of fixed -term contracts, 
where their term is 12 months or less, 
the total or estimated total contract 
value for their duration, or, where 
their term exceeds 12  months, their 
total or estimated total value;  
[Chinese Taipei – Job No. 3193]  
 
(b) in the case of contracts for an 
indefinite period, the mo nthly 
instalment multiplied by 48.  (b) in the case of contracts for an 
indefinite period, the monthly 
instalment or estimated value of 
monthly procurement multiplied by 
48. 
[Chinese Taipei – Job No. 3193]  
 
If there is any doubt, the second basis for 
valuation, namely (b), is to be used.  
  
 (d) Contracts for which the duration is not 
known shall be valued at the actual 
value of similar previous contracts 
awarded over the most recent 
two-year period, adjusting for any 
anticipated changes in the quantity 
and prices of the goods or services to 
be supplied.  
[US – Job No. 2867]  
 
6. In cases where an intended procurement 
specifies the need for option clauses, the basis 
for valuation shall be the total value of the 
maximum permissible procurement, inc lusive of 
optional purchases.  
  
 
 
Comments  
 
In relation to the US proposal:  
 
• There are only a limited number of circumstances when the valuation process will be 
complicated.  [Canada]  
• Paragraph (d) of the US proposal is unclear, appears to narrow the application of 
sub-paragraphs (a) – (c). Is such a provision necessary ? [Canada]  
 GPA/TN1994/2/Rev.9  
- 21 - 
  ARTICLE III : NATIONAL TREATMENT AND NON -DISCRIMINATION  
Article III  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  
 Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the 
procurement of its covered entities takes 
place in a transparent, reasonable and 
non-discriminatory manner, treating any 
supplier of any Party equally, and ensuring 
the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The thrust of the proposed obligations appear to be inconsistent with the contents of 
Appendix  I. Would the proposed provision still allow for the reciprocity provisions in Annex  1? 
The existing provisions of Article III should be fully implemented before introducing new 
obligations.  [Hong Kong, China]  
• It is important to include a reference to the principle of "open and effective competition" in 
the Agreement even though this principle is not reflected in all the Annexes to the Agreement . 
The principle of " open and effective competition" is not a new concept but, rather, is implicit 
in the GPA . The fact that there are many such exceptions contained in the Annexes makes it 
necessary to spell out the basic objectives of the Agreement . The proposal makes it cle ar that, 
unless there is an explicit exception, the general principles of transparency and open 
competition should be applied.  [EC] 
• The principle of "open and effective competition" needs to be applied broadly rather than in a 
selective way to avoid underm ining principles underlying the agreement such as the principle 
of non -discrimination and to avoid a contrario  interpretations.  [EC] 
• Selectively citing the principle of non -discrimination in other provisions of the Agreement 
might create interpretation dif ficulties.  [US] 
• The principle of "open and effective competition" should be applied in a general manner.  [US] 
• The reciprocity provisions would not be affected as implied by the wording "treating any 
supplier of any Party equally".  [EC] 
• The rationale behind  the reference to the general principles of "open and effective competition" 
is that market forces are working and that suppliers can openly compete.  [EC in response to 
clarification sought by Japan ; the US ; Canada ; and Hong Kong, China]  
• The consistency of  term "open and effective competition" with the use of selective and limited 
tendering procedures should also be clarified . Would any adjustments need to be made in 
other specific provisions of the Agreement ? [US] 
• Article XV is an exception to the general principle of open and effective competition . There 
may be other exceptions to the operation of the principle.  [EC] GPA/TN1994/2/Rev.9  
- 22 - 
  • Perhaps the words "Except otherwise provided for in the Agreement," should be added to the 
beginning of the EC proposal to take account of th e exceptions to the general principle of open 
and effective competition.  [Chinese Taipei]  
• The terms "reasonable", "non -discriminatory" and "open competition" are not intended to be 
precise rules . Rather, they are general principles that should influence the application of the 
provisions of the GPA . The meaning of these terms will vary depending upon the procedures 
to which they are applied.  [EC in response to a question from Canada requesting clarification 
of the term "reasonable"]  
• It may be use ful to clearly state the principles that underlie the Agreement . This would, for 
instance, help address issues such as non -discrimination in the context of framework 
contracts . The proposal merely increases the visibility of the core principles of the Agre ement.  
[EC in response to a question from Canada]  
 GPA/TN1994/2/Rev.9  
- 23 - 
  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article III  
Non-discrimination  
 
 Basic Principles  
 
1. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall provide immediately and 
unconditionally to the products, services and 
suppliers of other Parties offering products or 
services of the Parties, treatment no less 
favourable than:  
 1. With respect to any measure 
specifically governing procurement covered 
by this Agreement, each Party shall accord 
to the goods and services of another Party 
and to the suppliers of another Party 
offering the goods or services of another 
Party, treatment no  less favorable than the 
most favorable treatment the Party accords 
to: 
 
(a) that accorded to domestic products, 
services and suppliers ; and 
 (a) its own goods, services and suppliers ; 
and 
 
(b) that accorded to products, services 
and suppliers of any other Party.  
 (b) goods, services and suppliers of 
another Party.  
 
[US – Job No. 2867]  
 
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
 2. With respect to any measure 
governing procurement  covered by this 
Agreement, no Party may:  
 
(a) that its entities shall not treat a 
locally -established supplier less 
favourably than another 
locally -established supplier on the 
basis of degree of foreign affiliation 
or ownership ; and 
 (a) treat a locally established supplier 
less favorably than another locally 
established supplier on the basis of 
degree of foreign affiliation or 
ownership ; or 
 
(b) that its entities shall not discriminate 
against locally -established suppliers 
on the basis of the country of 
production of the good or service 
being supplied, provided that the 
country of production is a Party to 
the Agreement in accordance with 
the provisions of Article  IV. 
 (b) discriminate against a locally 
established supplier on the basis that 
the goods or services offered by that 
supplier for a particular procurement 
are goods or services of another 
Party.  
[US – Job No. 2867]  
 
Comments  
 
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership" in paragraph 2(a).  [Hong Kong, China ; US] This term seems to apply both to 
Parties and non -Parties to the Agreement . The consistency of the scope of this provision with 
that of paragrap h 1 should be reviewed.  [Hong Kong, China]  
• There may be scope for inclusion of a provision on denial of benefits to non -Parties similar to 
that contained in Article 11 of the NAFTA Agreement . It could be useful to clarify Members' 
obligations under the Agr eement in relation to benefits to be accorded to non -Parties.  [US] GPA/TN1994/2/Rev.9  
- 24 - 
  More detail is required in this respect.  [EC] Article 11 of the NAFTA Agreement merely clarifies 
parties' rights.  [US] 
• GATS Article XXVII deals with the denial of benefits in relation to se rvices.  [Secretariat]  
• Given that the GPA is a plurilateral agreement, it is implicit that a non -signatory cannot avail 
itself of its benefits under the GPA.  [Singapore]  
• It is necessary to consider whether, because of the plurilateral nature of the GPA, it is 
necessary to adopt a different approach from, for example, the GATS.  [US] 
In relation to the US proposal:  
 
• The title "National Treatment" should be retained since it is an important aspect of WTO  rules.  
[Switzerland]  
• The reference to "measure" should be  replaced with the reference to "laws, regulations etc.", 
which is contained in the existing text, since the latter formulation is more comprehensive.  
[Switzerland]  
• It is not obvious that the word "measure" is narrower than the existing text, which lists s pecific 
measures in an exhaustive fashion . In fact, "measures" might be a broader term.  [US] 
• Clarification is sought as to whether there were measures that have not been referred to in 
the existing text, which might be a vehicle for discrimination.  [US] 
• Clarification is sought as to the reason for and significance of the replacement of the word 
"products," which appears in the current text, with the word "goods," which is contained in 
proposed paragraph 1(a) ? [Switzerland]  
• In the US, the word "products" is ambiguous and often means services as well as goods.  [US] 
• What is meant by "own goods, services and suppliers" and how does that differ from the 
reference in the existing text to "domestic products, services and suppliers" ? [Switzerland]  
• While the content in proposed paragraph 2 is essentially the same as the current text, the 
style is somewhat different . What is the underlying objective for changing the drafting style ? 
[Switzerland]  
• In many cases, the changes in drafting and style in the US proposal represent efforts to 
increase clarity and to use plain English.  [US] 
 
 GPA/TN1994/2/Rev.9  
- 25 - 
  Article III:3  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall 
not apply to customs duties and charges of any 
kind imposed on or in connection with 
importation, the method of levying such duties 
and charges, other import regulations and 
formalities, and measures affecting trade in 
services other than laws, regul ations, procedures 
and practices regarding government procurement 
covered by this Agreement.  3. This Article shall not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charg es, 
other import regulations and formalities, 
and measures affecting trade in services 
other than laws, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 Measures Not Specific to Procurement  
 
 6. The provisions of paragraphs 1 and 2 
of this Article do not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations or formalities, and 
measures affecting trade in services other 
than measures specifically governing 
procurement covered by this Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 26 - 
  ARTICLE IV – RULES OF ORIGIN  
Article IV:1, 2  
 
Rules of Origin  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to 
products or services imported or supplied for 
purposes of government procurement covered by 
this Agreement from other Parties, which are 
different from the rules of origin applied in the 
normal course of trade and at the time of the 
transaction in question to imports or supplies of 
the same products or services from the same 
Parties.  
 3. For purposes of procurement covered 
by this Agreement, no Party may apply 
rules o f origin to goods imported from 
another Party that are different from or 
inconsistent with the rules of origin the 
Party applies in the normal course of trade.  
[US – Job No. 2867]  
 
2. Following the conclusion of the work 
programme for the harmonization of rules of 
origin for goods to be undertaken under the 
Agreement on Rules of Origin in Annex 1A of the 
Agreement Establishing the World Trade 
Organization (hereinafter referred to as "WTO 
Agreement") and negotiations regarding trade in 
services, Parties shall take the results of that work 
programme and those negotiations into account 
in amending paragraph  1 as appropriate.  
  
 
Comments  
 
• Since the negotiations on harmonization of rules of origin will take more time, the relevance 
of paragraph 2 is questionable.  [US] 
 GPA/TN1994/2/Rev.9  
- 27 - 
  ARTICLE V : SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  
Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 new paragraph  
 
Upon accession to the Agreement, a 
developing country shall enjoy all the 
benefits of the Agreement.  
It shall be obliged to comply with the 
obligations under this Agreement:  
- at central government level X 
years after accession  
- at sub -central government 
level  Y years after accession  
- as far as entities under 
Appendix  I, Annex 3 are 
concerned Z years after 
accession.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
Regarding the EC proposal:  
 
• The EC proposal represents a new approach , which attempts to facilitate the entry of 
developing countries into the GPA by simplifying and making less technical what is currently 
a complica ted set of provisions.  [EC] 
• A possible effect of the proposed amendment in particular, the reference to transitional 
periods, could be that developing countries are deterred from joining the Agreement.  [Korea ; 
Hong Kong, China]  
• The provisions of the existi ng Article are complicated and the Article has not served its 
intended purpose . The current text of Article V is more likely to deter developing countries 
from joining the Agreement.  [EC] 
• The reference to compliance with "the obligations under this Agreement" might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in time.  
[US] It should mean that only the negotiated coverage would come into effect at that point in 
time. [US; EC] 
• Transitional periods are a simply way of accommodating developing country concerns as far 
as possible without putting the logic of the Agreement at risk . The provisions on developing 
countries should not lead to the creation of two or three types of Member s in the long term . 
At the end of the day, all Parties to the GPA should be full Parties and should have similar 
levels of obligations, taking into account their circumstances.  [EC] 
• Would the same transitional period apply to all developing countries regar dless of their specific 
circumstances ? Providing a generic transitional period for central or sub -central government 
coverage for every developing country Party might not be appropriate.  [US] GPA/TN1994/2/Rev.9  
- 28 - 
  • How long should the transitional periods be ? [US] 
• Would the Anne x 2 and Annex 3 commitments be negotiated and finalized prior to accession 
of a developing country or would the implementation of those commitments would simply be 
delayed ? [US] 
• Obligations in relation to central government entities of developing countries  that join the GPA 
would start from the date of accession . However, in the case of sub -central entities as well as 
entities under Annex 3, there is a link to the provisions on "financial, trade and development" 
objectives of those countries, which are curr ently presented in paragraphs  (a), (b), (c) and 
(d) of Article V:1.  [Switzerland]  
 GPA/TN1994/2/Rev.9  
- 29 - 
  Article V:1  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
 Article ZZI  
 
Treatment for non -parties developing and  
least -developed countries  
 
1. Parties shall, in the implementation and 
administration of this Agreement, through the 
provisions set out in this Article, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least-developed countries, in their need to:  
 ZZI:1.  Parties shall, in the 
implementation and administration of this 
Agreement, duly take into account the 
development, financial and trade needs of 
developing coun tries, in particular 
least -developed countries.  
[Switzerland – Job No. 1274]  
 
(a) safeguard their 
balance -of-payments position and 
ensure a level of reserves adequate 
for the implementation of 
programmes of economic 
development;  
  
(b) promote the establishment or 
development of domestic industries 
including the development of 
small-scale and cottage industries in 
rural or backward areas ; and 
economic development of other 
sectors of the economy;  
  
(c) support industrial units so long as 
they are wholly or substantially 
dependent on government 
procurement ; and 
  
(d) encourage their economic 
development through regional or 
global arrangements among 
developing countries presented to 
the Ministerial Conference of the 
World Trade Organization 
(hereina fter referred to as the 
"WTO") and not disapproved by it.  
  
 
Comments  
 
In relation to the Swiss proposal:  
 
• Paragraph ZZI  of the Swiss proposal attempts to consolidate existing GPA provisions dealing 
with non -Parties, developing and least -developed countries that were previously spread 
throughout the Agreement.  [Switzerland]  
• The existing Article V is lengthy and contains a n umber provisions that probably do not have 
as much practical relevance as hoped for . For example, in relation to the reference to 
balance -of-payments, it might not be easy to identify cases where Swiss procurement has an 
impact on the balance -of-payments of some developing or least -developed countries . It might GPA/TN1994/2/Rev.9  
- 30 - 
  be more appropriate to replace the existing provisions with fewer words that refer to the 
development, financial and trade needs of developing countries.  [Switzerland]  
• Changes that are made  should be consistent with the objectives of the Agreement . They 
should also be realistic and operational.  [US] 
• The existing Article V does not make clear how or whether it addresses non -Parties whereas 
the Swiss proposal applies specifically to non -Partie s. [US] 
• Article ZZI is applied to non -Parties in response to the fact that the existing text of Article V 
contains a few sentences that refer to non -Parties but it is difficult to clearly establish the 
position in relation to such non -Parties.  [Switzerland ] 
• With regard to accessions, it is important to provide flexibility to developing countries as 
appropriate in order to encourage and facilitate their participation in the Agreement as 
extensively as possible . Flexibility should come in the form of market -access commitments 
and transitional periods rather than procedural flexibility . In order to enjoy the benefits of the 
Agreement, it is necessary to have transparent procedures, due process and competition etc. 
Therefore, any exceptions to those basic proced ural commitments need to be considered 
carefully.  [US] 
• The idea underlying this proposed provision is to enable potential suppliers from developing 
or least -developed countries to, for instance, have a much better access to tender notices and 
contracts tha t are going to be awarded . This will help to increase imports from such countries . 
However, the language needs to be further sharpened to ensure that there is no ambiguity 
regarding treatment that ought to be given to non -Parties, developing and least -developed 
countries.  [Switzerland]  
 GPA/TN1994/2/Rev.9  
- 31 - 
  Article V:2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and 
procedures affecting government procurement, 
facilitate increased imports from developing 
countries,  
 ZZI:2.  Consistently with the provisions 
of this Agreement, each Party shall, in the 
preparation a nd application of laws, 
regulations and procedures affecting public 
procurement facilitate access to 
information on tendering opportunities for 
developing and least -developed countries.  
[Switzerland – Job No. 1274]  
 
bearing in mind the special problems of 
least-developed countries and of those countries 
at low stages of economic development.  
 ZZI:3.  Bearing in mind the economic 
development needs of developing and 
least -developed countries, the Parties shall 
facilitate increased imports for produ cts 
representing particular export interests to 
these countries.  
[Switzerland – Job No. 1274]  
 
 
Comments  
 
In relation to the Swiss proposal:  
 
• Sub-paragraph 3 of Article ZZI may violate the principle of non -discrimination, which underlies 
the Agreement.  [EC] 
 GPA/TN1994/2/Rev.9  
- 32 - 
  Article  V:3 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing 
countries are able to adhere to this Agreement on 
terms consistent with their development, financial 
and trade needs, the objectives listed in 
paragraph  1 shall be duly taken into account in 
the course of negotiations with respect to the 
procurement of developing countries to be 
covered by th e provisions of this Agreement.  
 
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procuring products and services of export interest 
to developing countries.  
 ZZII:3.  In the course of accession 
negotiations, due account shall be taken of 
the development, financial and trade 
situation of acceding countries.  
[Switzerland – Job No. 1274]  
 
Comments  
 
• With regard to the issue of granting developing countr ies non -reciprocal access to 
procurement markets of Parties, should there be flexibility in offers of coverage by prospective 
Parties or should there be special provisions associated with the evaluation of offers under 
individual procurements by Parties ? [Canada]  GPA/TN1994/2/Rev.9  
- 33 - 
  Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article ZZII  
 
Accession by developing and 
least -developed countries  
 
 1. Parties shall encourage countries 
acceding to the WTO as well as non -Parties 
developing and least -developed countries 
to accede to the Agreement on Government 
Procurement (GPA) and establish 
competitive public procurement regimes 
based on transparency, non -discrimination 
and nati onal treatment.  
 
 2. Upon accession to the Agreement, an 
acceding country shall enjoy all the benefits 
of the Agreement on the basis of 
reciprocity.  
 
 3. In the course of accession 
negotiations, due account shall be taken of 
the development, financial and trade 
situation of acceding countries.  
 
 4. An acceding country shall adapt its 
national legislation on public procurement 
to make it compatible with this Agreement 
with, if necessary, transitional periods and 
review provisions linked with economic 
development.  
 
 5. An acceding country shall submit to 
the Agreement its central level government 
entities upon accession for goods and 
services under Appendix I, Annex 1.  
 
 6. An acceding country shall submit to 
the Agreement its sub -central level 
government entities for goods and services 
under Appendix I, Annex 2, and its entities 
covered under Appendix I, Annex 3 for 
goods and services with, if necessary, 
transitional periods and review provisions 
linked with economic development.  
 
 7. Mutually acceptable temporary 
exclusions from the rules on national 
treatment with respect to certain entities, 
products or services that are included in the 
coverage lists of an acceding country can be 
negotiated in particular circumstances 
linked wi th economic development.  
[Switzerland – Job No. 1274]  
 
 GPA/TN1994/2/Rev.9  
- 34 - 
  Comments  
 
• The objective of the Article ZZII  is to articulate concisely some key elements associated with 
accession and to invite developing and least developed countries to seek membership.  
[Switzerland]  
• Proposed sub -paragraph 4 suggests that transitional periods apply in relation to substantive 
provisions of the Agreement, rather than just coverage . The flexibility should be more in terms 
of coverage.  [EC] 
• Sub-paragraph 4 of the proposal is intended to be linked to coverage . If a country needs to 
retain domestic preferences for a cert ain period of time because of the existence of 
development programmes, it is possible to achieve that by not listing entities involved in such 
development programmes.  [Switzerland]  
• A number of the proposed provisions send some interesting signals but may h ave limited legal 
impact.  [EC] 
• It is hoped that there are some non -Parties who may consider acceding to the Agreement who 
are not necessarily developing or least -developed countries . It is unclear whether having a 
separate provision on accessions is intend ed in any way to address such countries since the 
title refers to accession by developing and least -developed countries . Article ZZIII refers to 
developing or least -developed countries which seems to confirm the impression that 
Article  ZZII applies only to  those types of countries.  [Canada]  
• It is proposed that the provision on accessions will be contained in the part of the Agreement 
that deals with developing and least developed countries . This part clearly will not apply to 
developed countries that wish t o accede to the Agreement.  [Switzerland]  
• There are a wide range of circumstances in which developing countries find themselves and 
they have a wide range of needs and capabilities . It is necessary to consider whether it is 
possible or appropriate to develo p specific provisions that apply equally to that very broad and 
diverse group of countries.  [US; Canada]  
• While it is appropriate to acknowledge that there are circumstances where special and 
differential treatment is warranted, the specifics for special an d differential treatment for 
acceding countries should be a matter of negotiation and the Agreement should not become 
too prescriptive in this respect . Given the scope of paragraph 7, it is questioned whether the 
level of detail in paragraphs  4, 5 and 6 ar e necessary.  [Canada]  
• It is unclear what paragraph 2 is intended to mean and how this paragraph will work in 
conjunction with negotiated provisions.  [Canada]  GPA/TN1994/2/Rev.9  
- 35 - 
  Article V:4  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with 
other participants in negotiations under this 
Agreement mutually acceptable exclusions from 
the rules on national treatment with respect to 
certain entities, products or services that are 
included in its coverage lists, having regard to the 
particular circumstances of each case . In such 
negotiations, the considerations mentioned in 
subparagraphs  1(a) through 1(c) shall be duly 
taken  into account.  
 
A developing country participating in regional or 
global arrangements among developing countries 
referred to in subparagraph  1(d) may also 
negotiate exclusions to its lists, having regard to 
the particular circumstances of each case, taking  
into account, inter alia, the provisions on 
government procurement provided for in the 
regional or global arrangements concerned and, 
in particular, products or services which may be 
subject to common industrial development 
programmes.  
 ZZII:7.  Mutually a cceptable temporary 
exclusions from the rules on national 
treatment with respect to certain entities, 
products or services that are included in the 
coverage lists of an acceding country can be 
negotiated in particular circumstances 
linked with economic dev elopment.  
[Switzerland – Job No. 1274]  
 
 GPA/TN1994/2/Rev.9  
- 36 - 
  Article V:5, 6, 7, 8  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
5. After entry into force of this Agreement, a 
developing country Party may modify its coverage 
lists in accordance with the provisions for 
modification of such lists contained in paragraph  6 
of Article  XXIV, having regard to its development, 
financial and trade needs, or may request the 
Committee on Government Procurement 
(hereinafter referred to as "the Committee") to 
grant exclusions from the rules on national 
treatment for certa in entities, products or services 
that are included in its coverage lists, having 
regard to the particular circumstances of each 
case and taking duly into account the provisions 
of subparagraphs  1(a) through 1(c) . After entry 
into force of this Agreement, a developing country 
Party may also request the Committee to grant 
exclusions for certain entities, products or 
services that are included in its coverage lists in 
the light of its participation in regional or global 
arrangements among developing countries , 
having regard to the particular circumstances of 
each case and taking duly into account the 
provisions of subparagraph  1(d). Each request to 
the Committee by a developing country Party 
relating to modification of a list shall be 
accompanied by documentat ion relevant to the 
request or by such information as may be 
necessary for consideration of the matter.  
  
Article ZZIII  
 
Temporary exemptions to coverage for 
developing and least -developed countries 
Parties and further negotiations  
 
ZZIII:1.  In accordance with paragraph 6 
of article XXIV, a developing or 
least -developed country Party may modify 
its coverage lists or may request the 
Committee on Government Procurement to 
grant temporary exemptions from the rules 
on national treatment for certain entities, 
products or services that are included in its 
coverage lists, having regard to the 
particular circumstances of each case and 
taking duly into account its development, 
financial and trade situation.  
[Switzerland – Job No. 1274]  
6 Paragraphs 4 and 5 shall apply mutatis 
mutandis  to developing countries acceding to this 
Agreement after its entry into force.  
  
7. Such agreed exclusions as mentioned in 
paragraphs 4, 5 and 6 shall be subject to review 
in accordance with the provisions of paragraph  14 
below.  
 ZZIII:2.  Temporary exemptions shall be 
temporary, reviewed every two years, 
subject to compensations negotiations with 
other Parties and eliminated with the 
re-establishment of the previous situation.  
[Switzerland – Job No. 1274]  
 
Technical Assistance for Developing Country 
Parties  
 Article ZZIV  
 
Technical assistance and information 
centres  
 
8. Each developed country Party shall, upon 
request, provide all technical assistance which it 
may deem appropriate to developing country 
Parties in resolving their problems in the field of 
government procurement.  
 ZZIV:1.  Each Member shall, upon 
request, provide all technical assistance 
which it may deem appropriate to acceding 
Parties and upon request to P arties which 
demonstrate need for capacity building.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.9  
- 37 - 
  Comments  
 
• Proposed paragraph ZZIII  refers to temporary exemptions to coverage, such as those that 
can be sought during the implementation of the Agreement . It consolidates and simplifies 
elements contained in Article V:7, 14 and 15 of the existing text.  [Switzerland]  
• Paragraph ZZIV contain s elements from Article V:8, 9, and 11 of the existing Agreement . The 
proposed paragraphs contains a number of additions in relation to tender procedures and 
documentation.  [Switzerland]  
• The provision of technical assistance is an important element for can didates or potential 
candidates.  [EC] 
 
Article V:9 , 10, 11  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on 
the basis of non -discrimination among developing 
country Parties, shall relate, inter alia, to: 
 ZZIV:2.  Technical assistance shall 
relate, inter alia , to: 
 
- the solution of particular technical 
problems relating to publications of 
tender and award notices, tender 
procedu res, tender documentation, 
award procedures, remedy systems;  
 
- training of local purchasing entities.  
 
[Switzerland – Job No. 1274]  - the solution of particular technical 
problems relating to the award of a 
specific contract ; and 
 
- any other problem which the Party 
making the request and another 
Party agree to deal with in the 
context of this assistance.  
 
10. Technical assistance referred to in 
paragraphs  8 and 9 would include translation of 
qualification documentation and tenders made by 
suppliers of developing country Parties into an 
official language of the WTO designated by the 
entity, unless developed country Parties deem 
translation to be burdensome, and in that case 
explanation shall be given to developing country 
Parties upon their request addressed either to the 
developed country Parties or to their entities.   
 
Comments  
 
• The provisions on technical cooperation should be extended to take account of the needs of 
developing countries to adjust to new developments in the application of information 
technology to government procurement.  
  GPA/TN1994/2/Rev.9  
- 38 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to 
respond to reasonable requests from developing 
country Parties for information relating to, 
inter alia, laws, regulations, procedures and 
practices regarding governm ent procurement, 
notices about intended procurements which have 
been published, addresses of the entities covered 
by this Agreement, and the nature and volume of 
products or services procured or to be procured, 
including available information about future 
tenders . The Committee may also set up an 
information centre.  
 ZZIV:3.  Developed country Parties shall 
establish, individually or jointly, 
information centres to respond to 
reasonable requests from all Parties for 
information relating to, inter alia , laws,  
regulations, procedures and practices 
regarding government procurement, 
notices about intended procurements which 
have been published, addresses of the 
entities covered by this Agreement, and the 
nature and volume of products or services 
procured or to be  procured, including 
available information about future tenders . 
The Committee may also set up an 
information centre.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.9  
- 39 - 
  Article V:12, 13  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed Countries  
  
12. Having regard to paragraph  6 of the 
Decision of the CONTRACTING PARTIES to 
GATT 1947 of 28  November  1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), special treatment shall be 
granted to least -developed country Parties and to 
the suppliers in those Parties with respect to 
products or services originat ing in those Parties, 
in the context of any general or specific measures 
in favour of developing country Parties.  
 ZZII:7.  Mutually acceptable temporary 
exclusions from the rules on national 
treatment with respect to certain entities, 
products or services that are included in the 
coverage lists of an acceding country can be 
negotiated in particular circumstances 
linked with economic development.  
[Switzerland – Job No. 1274]  
A Party may also grant the benefits of this 
Agreement to suppliers in least -develop ed 
countries which are not Parties, with respect to 
products or services originating in those 
countries.  
 ZZI:4.  Having regard to paragraph 6 of 
the Decision of the CONTRACTING PARTIES 
to G ATT 1947  of 2 8 November  1979 on 
Differential and More Favourable 
Treatment, Reciprocity and Fuller 
Participation of Developing Countries 
(BISD  26S/203 -205), a Party may grant the 
benefits of this Agreement to suppliers in 
least -developed countries, with respect to 
products or services originating in those 
countries.  
[Switzerland – Job No. 1274]  
 
13. Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in 
least-developed countries in submitting their 
tenders and selecting the products or serv ices 
which are likely to be of interest to its entities as 
well as to suppliers in least -developed countries, 
and likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended  
procurement.  
 ZZI:5.  Each developed country Party 
shall, upon request, provide assistance 
which it may deem appropriate to potential 
tenderers in least -developed countries in 
submitting their tenders and selecting the 
products or services which are likely  to be 
of interest to its entities as well as to 
suppliers in least -developed countries, and 
likewise assist them to comply with 
technical regulations and standards 
relating to products or services which are 
the subject of the intended procurement.  
[Switze rland – Job No. 1274]  
 GPA/TN1994/2/Rev.9  
- 40 - 
  Article V :14, 15  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Review  
 Article ZZV  
 
Review  
 
14. The Committee shall review annually the 
operation and effectiveness of this Article and, 
after each three years of its operation on the basis 
of reports to be submitted by Parties, shall carry 
out a major review in order to evaluate its effects . 
As part of the three -yearly reviews and with a 
view to achieving the maximum implementation 
of the provisions of this Agreement, including in 
particular Article  III, and having regard to the 
development, financial and trade situation of the 
developing countries concerned, the Committee 
shall examine wheth er exclusions provided for in 
accordance with the provisions of paragraphs  4 
through 6 of this Article shall be modified or 
extended.  
 ZZV:1.  The Committee shall review on a 
two-year basis the operation and 
effectiveness of Articles ZZI to ZZIV and, 
after each four years of its operation on the 
basis of reports to be submitted by Parties, 
shall carry out a major review in order to 
evaluate its effects . As part of the four -year 
reviews and with a view to achieving the 
maximum implementation f the provisions 
of this Agreement, including in particular 
Article III, and having regard to the 
development, financial and trade situation 
of the developing countries concerned, the 
Committee shall examine whether 
exclusions provided for in accordance with 
the provisions  of Articles ZZII and ZZIII 
shall be modified or extended.  
[Switzerland – Job No. 1274]  
 
15. In the course of further rounds of 
negotiations in accordance with the provisions of 
paragraph  7 of Article  XXIV, each developing 
country Party shall give consideration to the 
possibility of enlarging its coverage lists, having 
regard to its economic, financial and trade 
situation.  
 ZZIII:3.  In the course of further 
negotiations in accordance with 
paragraph  7 of Article XXIV, each 
developing and least -developed country 
Party shall give consideration to the 
possibility of enlarging its coverage lists, 
having regard to its development, financial 
and trade situation.  
[Switzerland – Job No. 1274]  
 
 
Comments  
 
• The proposed paragraph ZZV deals with reviews of  the provisions on special and differential 
treatment . Provisions dealing with review of the whole Agreement could be placed elsewhere 
in the Agreement.  [Switzerland]  GPA/TN1994/2/Rev.9  
- 41 - 
  ARTICLE VI:  TECHNICAL SPECIFICATIONS  
Article VI:1  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symbols, termi nology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformity assessment 
procedures prescribed by procuring entities, shall 
not be prepared, adopted or applied with a view 
to, or with th e effect of, creating unnecessary 
obstacles to international trade.  
 1. Technical specifications laying down 
the characteristics of the products or 
services to be procured, such as quality, 
performance, safety and dimensions, 
symbols, terminology, packagin g, marking 
and labelling, or the processes and methods 
for their production and requirements 
relating to conformity assessment 
procedures prescribed by procuring 
entities, shall ensure the principle of open 
and effective competition and shall not be 
prepar ed, adopted or applied with a view to, 
or with the effect of, creating unnecessary 
obstacles to international trade.  
[EC – Job No. 5716]  
 
 
Comments  
 
Paragraph 1 of the EC proposal:  
 
• The EC proposal is based upon the principles that are already in Article VI of the Agreement 
and does not introduce new concepts.  [EC; Singapore]  
• Would the implementation of the principle of "open and effective competition" lead to disputes 
in terms of deciding whether a particular specification ensures open and effecti ve competition 
compared to another specification ? [US] 
• The reference to the principle of "open and effective competition" does not mean that entities 
always have to opt for the specification that allow for the most pro -competitive solution in all 
cases wit hout taking into account the entity's requirements . If there are different alternatives 
that equally meet those requirements, it is useful to send a signal that the solution that is 
more pro -competitive should be selected . An entity does not have to take t he most open and 
pro-competitive solution if that solution does not meet the entity's needs.  [EC in response to 
Hong Kong, China and the US]  
• It is unclear what the additional test of requiring "open and effective competition" would 
accomplish, what it woul d mean in practice and whether it would facilitate solution -oriented 
procurement.  [Canada]  
• Does the notion of "open and effective competition" really add anything to Article VI:1 ? 
Creation of obstacles to trade would affect open and effective competition o f Parties who are 
affected by those obstacles.  [Switzerland]  
• The reference to the concept of "open and effective competition" makes more explicit 
something that is already implicit in the Agreement . The challenge is to how to make the 
provision effective w ithout unnecessarily restricting the freedom of the Parties.  [EC] 
• Is the word "unnecessary" needed in relation to "obstacles to international trade" . If open 
competition is sought to be achieved, any obstacle is unnecessary.  [Switzerland]  GPA/TN1994/2/Rev.9  
- 42 - 
  • The distinction b etween "essential requirements", that is, the basic objectives of a 
procurement, and items that are ancillary should be integrated into the Agreement . If 
suppliers are required to comply with every detail contained in a technical specification, this 
could be considered to be a barrier to trade in most cases.  [EC] 
 GPA/TN1994/2/Rev.9  
- 43 - 
  Article VI:2  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Each Party shall ensure that its 
entities do not prepare, adopt or apply any 
technical specification with the purpose or 
the effect of creating unnecessary 
obstacles to trade.  
[US – Job No. 2867]  
 
2. Technical specifications prescribed by 
procuring entities shall, where appropriate:  
 
(a) be in terms of performance rather 
than design or descriptive 
characteristics ; and 
 
(b) be based on international standards, 
where such exist ; otherwise, on 
national technical regulations3, 
recognized national standards4, or 
building codes.  
 
 3For the purpose of this Agreement, a 
technical regulation is a document which lays down 
characteristics of a product or a service or their 
related processes and production methods, including 
the applicable administrative provisions, with which 
compliance is mandatory . It may also include or d eal 
exclusively with terminology, symbols, packaging, 
marking or labeling requirements as they apply to a 
product, service, process or production method.  
4For the purpose of this Agreement, a standard 
is a document approved by a recognized body, that 
provides, for common and repeated use, rules, 
guidelines or characteristics for products or services 
or related processes and production methods, with 
which compliance is not mandatory . It may also 
include or deal exclusively with terminology, symbols, 
packaging, marking or labeling requirements as they 
apply to a product, service, process or production 
method.  2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in terms of performance 
rather than design or 
descriptive characteristic s; and 
 
(b) be based on international 
standards, where such exist ; 
otherwise, on technical 
regulations3, recognized 
national standards4, or building 
codes.  
 
3 For the purpose of this Agreement, a 
technical regulation is a document which lays 
down character istics of a product or a service or 
their related processes and production methods, 
including the applicable administrative 
provisions, with which compliance is mandatory . 
It may also include or deal exclusively with 
terminology, symbols, packaging, markin g or 
labeling requirements as they apply to a 
product, service, process or production method.  
4 For the purpose of this Agreement, a 
standard is a document approved by a 
recognized body, that provides, for common and 
repeated use, rules, guidelines or char acteristics 
for products or services or related processes 
and production methods, with which compliance 
is not mandatory . It may also include or deal 
exclusively with terminology, symbols, 
packaging, marking or labeling requirements as 
they apply to a prod uct, service, process or 
production method.  
[EC – Job No. 5716]  
 
 
 GPA/TN1994/2/Rev.9  
- 44 - 
  Comments  
 
• The EC proposal refers to technical specifications in terms of performance standards and 
international standards and this is a warranty for the competitive use of specifications . Any 
departure from those standards should be fully justified . However, since an overly formalistic 
approach could also be restrictive and impose an unnecessary burden on entities, technical 
specifications that are not fully compatible with all the details of international standards that 
nevertheless meet the "essential requirements" of the procuring entity should also be 
considered in the tendering process . Such an approach strikes a fair balance between the need 
to facilitate competition an d the need to allow for innovative solutions while preserving what 
has been achieved in the field of international standardisation.  [EC] 
• The proposal tries to clarify the meaning of what is meant by the term "where appropriate" in 
the current text . The pro posal allows some flexibility for procuring entities when setting up 
technical specifications while ensuring compliance with the non -discrimination principle.  
[Japan]  
• The words "where appropriate" in the chapeau paragraph are too flexible and have been 
deleted in order to clarify what is meant by the exception.  [EC] 
• Further consideration of the meaning of "appropriate" is required . Deletion of the words 
"where appropriate" may raise the question of burden of proof in terms of what is and what 
is not appropr iate. Should flexibility be restricted further by defining more clearly what 
situations are "appropriate" and which are not ? [US] 
• The current text of the Agreement promoting the use of performance -based specifications 
where possible, provides scope for pro curing organisations to seek innovation solutions . 
Performance specifications that focus on the purpose or outcomes sought by government could 
be sufficiently broad to permit suppliers to propose innovative solutions . It is unclear that any 
change to the A rticle is needed to achieve that objective.  [Canada]  
• The difficulty is how to make sure that the provision that is already in the Agreement on the 
promotion of performance -based standards is implemented.  [EC] 
• "Technical specifications" are not the same thi ng as "technical standards" . The former is the 
complete definition of the entity's requirements that are needed for the procurement . In the 
majority of procurements, especially high dollar value procurements that are covered by the 
GPA, purpose -built speci fications would be relevant rather then choosing amongst different 
standards off -the-shelf although those could be used for parts of a technical specification . 
However, it would be rare that there would be something off -the-shelf for everything 
associated with a covered procurement . On that basis, when the requirements for 
procurement are being defined, it is a question of whether those requirements are defined on 
the basis of the performance that is needed for that particular requirement rather than pullin g 
out some sort of defined requirement for a particular product.  [Canada]  
• The EC does not associate "technical specifications" with "technical standards" . In its view, 
technical specifications could be achieved in different ways and one possibility is that  an 
existing standard could be used for the whole of a technical specification . In most cases, the 
Party would define technical specification for its own purposes and this is precisely the 
objective of having a reference to performance -based standards . This Article exists because 
Parties recognize that, because of inertia or tradition, when a Party uses traditional solutions 
there is a risk that that might block innovative solutions and might also block suppliers from 
other Parties . The basis for the soluti on is already in the provision which answers a real 
problem . The challenge is how to make the provision effective without unnecessarily restricting 
the freedom of the entities.  [EC] 
• Unlike the EC proposal, the US proposal excludes references to mandatory r egulations and 
building codes as it is unclear whether it is necessary to state that a procurement has to be 
consistent with mandatory requirements.  [US] 
 GPA/TN1994/2/Rev.9  
- 45 - 
  • The meaning of the term "unnecessary obstacles to international trade" should be clarified.  
[Job No. 5074]  
• It is important that technical specifications are developed in a way that ensures, to the extent 
possible, that they focus on the end -needs of the procuring entity rather than use 
designed -based specifications which would limit competition.  [US] 
 GPA/TN1994/2/Rev.9  
- 46 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. In establishing the technical 
specifications for each good or service 
being procured, each Party shall ensure 
that its entities specify, whenever available 
and applicable to that Party, an existing 
domestic or international consensus 
standard, except where the use of a 
consensus standard would fail to meet the 
entity 's program requirements or would 
impose more burdens than the use of a 
government -unique standard.  
[US – Job No. 2867]  
 
 4. Each Party shall ensure that, 
wherever appropriate, any technical 
specification prescribed by its entities is 
specified in terms of performance 
requirements for the good or service being 
procured rather than design or descriptive 
characteristics.  
[US – Job No. 2867]  
 
 footnote  A consensus standard means a standard 
adopted by an independent domestic or 
international standards body, where the decision 
to adopt that standard is characterized by the 
absence of sustained opposition to substantial 
issues by any important part of the concerned 
interests and by a process that involves seeking 
to take into account the views of all parties 
concerned and to reconcile any conflicting 
argu ments . A consensus standard shall not be 
applicable to a particular Party if the process by 
which that standard was adopted did not involve 
seeking to take into account the views of that 
Party and interested stakeholders of that Party.  
[US – Job No. 2867]  
 
 
  GPA/TN1994/2/Rev.9  
- 47 - 
  Comments  
 
With respect to international standards:  
 
• Reference to international standards may place excessive restrictions on procuring entities' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambiguity associated with what constitutes an "international standard" and the 
procedures according to which those standards are set.  [Korea ; US] The objections that have 
been raised regarding the definition of "international standards" also apply in relation to the 
current provisions.  [EC] 
• Clarification or elaboration is needed as to what is meant by "international standards" to avoid 
different interpretations among Members.  [Japan]  
• The reference to international standards is contained in the original text . The intention is to 
get a clearer view as to what is already contained in the Agreement.  [EC] 
• The issue of international standards is currently being discussed in the context of the triennial 
review of the TBT Agreement.  [EC; Canada ] Also, the GPA Committee should not duplicate 
the work being undertaken in the TBT Committee.  [EC; US] 
• Given that the GPA currently provides for a hierarchy with international standards taking 
precedence over national standards, what is the ration ale for treating all standards as having 
equal footing, as appears to be the case under the US proposal ? [Canada]  
• If a standard is developed in an appropriate way, whether international or domestic, it should 
be considered to be a legitimate standard and, therefore, there is not a need to establish a 
hierarchy amongst standards.  [US] 
• Subparagraph (b) of the Agreement should make reference to voluntary compliance with 
market -based standards instead of international standards.  [US] 
• The proposal should be clar ified whether an implication of a requirement on procuring entities 
to accept specifications that comply with international standards would be the delegation of 
the certification process to an independent expert.  [Japan]  
With respect to consensus standards : 
 
• The concept of consensus standard was introduced as an attempt to ensure that a standard 
is not used or given a special status under the Agreement if it has not been adopted through 
a process that is transparent and that takes into account the views of all parties . The proposal 
addresses the process for development of such standards rather than specifying the type of 
body that would be involved in developing the standards.  [US in response to a request for 
further clarification from the EC]  
• Disagreements can arise as to what is an appropriate standard and whether or not a standard 
is an international standard . There are situations where the use of standards that are described 
as being international could be used to restrict competition in ina ppropriate ways . The concept 
of consensus standards ensures that standards are developed through an open and 
transparent process and enable all Parties to participate in the setting of standards.  [US] 
• How long would a consensus standard be considered a con sensus standard ? For example, if a 
consensus exists at the time of the development of a standard but a long time elapses without 
review, would the consensus be considered to continue to exist ? [Canada]  
• Standard could not be considered to be a consensus sta ndard if only domestic interests 
participate in the development of the standard . The US expects that the process of 
development of a domestic consensus standard by, for example, a domestic standard setting 
body, would be open to participation by suppliers from other Parties or other standard setting 
bodies . The term "domestic" refers to the location or the status of the body but not necessarily 
the process.  [US in response to a question by Canada]  GPA/TN1994/2/Rev.9  
- 48 - 
  • Should the body that develops the consensus standard be inde pendent of government ? Would 
a standard be a consensus standard only if it is developed in a manner that produces a result 
independent of government ? [Canada]  
• A consensus standard does not necessarily need to be a non -governmental standard . A 
governmental standard -setting body could set standards in an open and transparent process 
and those standards could be considered to be consensus standards . The US proposal related 
more to the process of setting standard.  [US] 
• The concept of consensus standards will co mplicate the debate in the GPA and TBT contexts . 
There should not be two sets of characterisations of standards in an area that is already very 
complicated . Since international standards are already being used in the WTO, reference to 
them should not be changed unless there are good reasons for doing so.  [EC] 
• The US proposal allows an entity to use an existing consensus standard regardless of whether 
or not it conflicts with another consensus standard . The relevant provision would only apply 
when an entit y has available to it one or more consensus standards and, nevertheless, chooses 
to use a government -unique standard.  [US] 
• National standards may directly conflict with those in another country . The existing 
formulation of this Article allows the procuring  entity to choose between conflicting national 
standards.  [Singapore]  
• It is important to refer to use technical specifications that have been agreed by the largest 
possible number of potential users and buyers . The use of traditional techniques for 
standar dization may not be sufficient or optimal in some cases . Accordingly, some flexibility 
has to be provided.  [EC] 
• A standard should be openly and fairly developed with input from any interested Party.  
[Canada]  
 GPA/TN1994/2/Rev.9  
- 49 - 
  Article VI  
 
Technical Specifications  
 
AGREEME NT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would 
not apply when the entity may objectively 
demonstrate that this would be ineffective 
or inappropriate for the fulfilment of the 
legitimate objectives pursued . Procuring 
entities relying on this exception shall 
maintain an official record explaining why 
these conditions apply.  
[EC – Job No. 5716]  
 
 
Comments  
 
• The proposed paragraph 3 makes it clear that when the requirements in paragraph 2 of the 
proposal are departed from, an entity should be prepared to provide an objective justification 
for such a departure.  [EC] 
• Would this requirement raise the burden of proof on procuring entities in relation to use of the 
exception and, if so, what would the implications of that be ? [US; Hong Kong, China]  
• The priority accorded to performance -based standards and international standards is already 
contained in the GPA . The EC proposal attempts to clarify what that means in practice . An 
exempti on mechanism is not being proposed where entities have to first ask for permission . 
However, it is necessary to impose a minimum requirement in the Agreement to entities who 
consider it necessary to depart from the relevant principles to provide an objecti ve 
explanation.  [EC] 
• Should records of why a particular available standard was not used in relation to every single 
procurement decision be kept or would it be possible to keep records of the decision taken as 
a general matter, that a particular standard w ould not meet an entity's needs ? Would it be 
possible to record that once and not have the administrative burden of going through that 
process every time a procurement decision is made ? [US] 
• If the explanation given in the broader decision applies to a spe cific procurement, then there 
is not a significant difference between having a record of the broad decision and having records 
of decisions that are made every time a procurement is made.  [EC] 
• Repeated references to record -keeping in other Articles of the Agreement could call into 
question its interpretation in this Article.  [Canada]  
• The requirement on record -keeping is the midway between the current situation which is 
flexible and the compulsory use of a certain specification which might be counterproducti ve in 
some cases.  [EC] 
 
 GPA/TN1994/2/Rev.9  
- 50 - 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. In all the cases procuring entities 
shall consider bids which do not comply 
with the provisions of the technical 
specifications but do demonstrably meet 
the essential requirements thereof and are 
fit for the purpose intended . The reference 
to the technical specifications in the tender 
documents must include words such as "or 
equivalent".  
[EC – Job No. 5716]  
 
 
Comments  
 
• The EC proposal attempts to introduce the notion of flexibility . Technical specifications, either 
when defined in terms of performance standards or defined in terms of international 
standards, should not be absolute requirements but rather a benchmark against which 
solutions have to be measured.  [EC; Japan]  
• Bids that fulfil the "essential requirements" of international standards should be considered 
equally with other bids . Further, bids that are based on international standards shoul d be 
considered even when technical specifications are formulated as performance requirements, 
provided that the bids fully address the essential requirements of the specifications.  [EC] 
• What would be the implications of proving that a bid meets the "essen tial requirements" ? [US] 
• The reference to "essential requirements" is a reference to core objectives underlying technical 
specifications irrespective of whether they were based on an international standard or a 
domestic standard . This principle achieves a balance between providing competitive conditions 
and allowing the procuring entity to achieve its objectives . The burden of proof involved would 
only require the supplier to show that its solution can work.  [EC] 
• If a tenderer would like to offer  an alternative solution, that is, a solution that does not meet 
the requirements of the tender documents, or is not in conformity with the tender documents, 
the supplier should request the procurement entity to revise the documents . If the 
procurement ent ity does not accept such a suggestion, then the supplier should use the 
challenge procedure mechanism to ask for a revision to the tender documents instead of 
submitting a proposal or offer that is not in conformity with the tender documents.  
[Chinese  Taipei] 
• There is a concern that the tender documents should be clear and legally certain . It would be 
unacceptable to allow a party to submit any offer, regardless of what is contained in the 
technical specification . Any solution has to fulfil the essential ne eds of the entity but there is 
also the possibility for new suppliers to submit alternative proposal that perhaps the 
contracting entity is not accustomed to or aware of . Such flexibility preserves legal certainty 
and allows for new opportunities within th e framework of the Agreement.  [EC] 
  GPA/TN1994/2/Rev.9  
- 51 - 
  • Is Article VI the appropriate location for the consideration of the issues related to the 
evaluation of bids ? Is the proposal consistent with the existing provisions in the Agreement 
relating to the evaluation of bids ? [Canada ] The proposed paragraph could be placed in 
another part of the Agreement as long as an agreement on the substance can be reached . 
However, since this Article deals with technical specifications as does the proposed paragraph, 
this is probably the a ppropriate place for its inclusion.  [EC] GPA/TN1994/2/Rev.9  
- 52 - 
  Article VI:3  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and provided that words such as "or 
equivalent" are included in the tender 
documentation.  
 5. There shall be no requirement or 
reference to a particular trademark or trade 
name, patent, design or type, specific 
origin, producer or supplier, unless there is 
no sufficiently precise or intelligible way of 
describing the procurement requirements 
and provid ed that words such as "or 
equivalent" are included in the tender 
documentation.  
[EC – Job No. 5716]  
 
 5. Each Party shall ensure that the 
technical specifications prescribed by its 
entities do not require or refer to a 
particular trademark or trade name, patent, 
design or type, specific origin or producer 
or supplier unless there is no sufficiently 
precise or intelligible way of otherwise 
describing the procurement requirements 
and provided that, in such cases, words 
such as "or equivalent" are inclu ded in the 
tender documentation.  
[US – Job No. 2867]  
 
 
Comments  
 
• The words "or equivalent" seem to suggest that a government can authorize the manufacture 
of a product of a similar design as the one specified . Would the words "or equivalent" have 
any implications under intellectual property law ? [Hong Kong, China]  
• The notion of "equivalence" is already contained in the existing paragraph 3 of Article VI and 
is aimed at ensuring that when contracting entities refer to a particular trademark in technical  
specifications because there is no other practical way of defining what is being sought, they 
should foresee the possibility of providing an opportunity to alternatives that do not infringe 
intellectual property rights but, nevertheless, provide the same kind of solution to the  needs 
of the contracting entity.  [EC] 
• The words "or equivalent" deal with a real practical problem, are necessary and should be 
retained . Whereas theoretically, there may be a perception that there is an intellectual 
property proble m, it is not a problem in practice.  [US] 
 
 GPA/TN1994/2/Rev.9  
- 53 - 
  Article VI:4  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a 
manner which would have the effect of precluding 
competition, advice which may be used in the 
preparation of specifications for a specific 
procurement from a firm that may have a 
commercial interest in the procurement.  
 6. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may 
be used in the preparation of specifications 
for a specific procurement from a person 
that may have a commercial interest in the 
procurement.  
[EC – Job No. 5716]  
 
 6. Each Party shall ensure that its 
entities do not seek or accept, in a manner 
that would have  the effect of precluding 
competition, advice that may be used in the 
preparation or adoption of any technical 
specification for a specific procurement 
from a perso n that may have a commercial 
interest in that procurement.  
[US – Job No. 2867]  
 
 
Comment  
 
• In relation to the EC proposal, which replaces the word "firm" by "person", it would be very 
difficult and sometimes not practically feasible to identify a person as the person who actually 
provides advice on technical specifications.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.9  
- 54 - 
  ARTICLE VII:  TENDERING PROCEDURES  
Article VII:1  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VII  
 
Tendering Procedures  
 Article VII  
 
Methods of Procurement  
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in a 
non-discriminatory manner and are consistent 
with the provisions contained in Articles  VII 
through XVI.  
 1. Each Party shall ensure that the 
tendering procedures of its entities are 
applied in a non -discriminatory manner and 
are consistent with the provisions 
contained in Articles VII through XVI.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Because Article VII and all other provisions of the Agreement are subject to Article III, the 
repetition of the non -discriminatory rule in Article VII:1 does not appear to be necessary . 
Selective repetition of this rule may in fact raise unintended interpretative questions.  
[US; Canada]  
• The provisions on tendering procedures should be reviewed to accommodate the use of 
two-stage tendering and electronic catalogues.  [Singapore]  GPA/TN1994/2/Rev.9  
- 55 - 
  Article VII:2  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall not provide to any supplier 
information with regard to a specific procurement 
in a manner which would have the effect of 
precluding competition.  
 2. Entities shall not provide to any 
supplier information with regard to a 
specific procurement in a manner which 
would have the effect of negatively 
affecting competition.  
[Singapore – Job No. 3772]  
 
 
Comment  
 
• The reference to "negatively affecting competition" in paragraph 2 of the Singaporean proposal 
is a useful concept.  [EC] 
• Should information with regard to a specific procurement be provided to all suppliers 
participating in a tender or only to those suppliers who have reached a certain stage in the 
procurement process ? [EC] 
 
 GPA/TN1994/2/Rev.9  
- 56 - 
  Article VII:3  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
(a) Open tendering procedures are 
those procedures under which all 
interested suppliers may submit a 
tender.  
 (a) Open tenders are those which 
are posted in a medium which is 
[in the public domain] [readily 
available to both local and 
foreign suppliers], and which all 
interested suppliers may submit 
a tender.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The phrase "in the public domain" in the proposal by Singapore is not necessary.  [Korea]  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Selective tendering procedures are 
those procedures under which, 
consistent with paragraph 3 of 
Article  X and other relevant 
provisions of this Agreement, those 
suppliers invited to do so by the 
entity may submit a tender.  
 (b) Selective tenders are those 
which, consistent wi th 
paragraph  3 of Article X and 
other relevant provisions of this 
Agreement, selected suppliers 
are invited to do so by the 
entity, and the information on 
the tender is not posted in a 
medium which is [in the public 
domain] [readily available to 
both local  and foreign 
suppliers].  
[Singapore – Job No. 3772]  
 
 
Comment  
 
• It may not be appropriate to define the procedure in terms of the medium through which 
information on selective tendering opportunities is provided . In most cases, notices of 
selective tendering are published in the same way as for open tendering procedures . For 
transparency purposes, requirements for publication of notices of invitation to tender should 
also apply to selective tendering procedures.  [US] 
 GPA/TN1994/2/Rev.9  
- 57 - 
  Article VII  
 
Tenderin g Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Limited tendering procedures are 
those procedures where the entity 
contacts suppliers individually, only 
under the conditions specified in 
Article  XV. 
 (c) Limited tenders are those where 
the entity contacts suppliers 
individually, only under the 
conditions specified in 
Article  XV. 
[Singapore – Job No. 3772]  
 
  Limited tendering procedures means 
procedures in which a procuring entity 
invites tenders only from a supplier or 
suppliers that the entity selects in a 
non-competitive manner.  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.9  
- 58 - 
  ARTICLE VIII : QUALIFICATION OF SUPPLIERS  
Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of 
Suppliers  
 In the process of qualifying suppliers, 
entities shall not discriminate among suppliers of 
other Parties or between domestic suppliers and 
suppliers of other Parties . Q ualification 
procedures shall be consistent with the following:  
 1. Entities maintaining permanent lists 
of qualified suppliers shall not discriminate 
among suppliers of other Parties or 
between domestic suppliers and suppliers 
of other Parties . Qualification procedures 
shall be consistent with the following:  
(a) any conditions for participation in 
tendering procedures shall be 
published in adequate time to 
enable interested suppliers to 
initiate and, to the extent that it is 
compatible with efficient operation 
of the procurement process, 
complete the qualification 
procedures;  
 (a) any supplier may apply for 
qualification at any time ; and all 
qualified suppliers so 
requesting are included in the 
lists w ithin a reasonably short 
time;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Support the approach in the above proposal.  [US; EC] 
• Clarification of the phrase "reasonably short time" is required.  [Hong Kong, China]  
• To what extent should warranties be introduced into the system to avoid the closing of 
qualification systems to newcomers ? This could be a critical point in adapting the GPA to new 
electronic procurement methods . How should the new means offered by electronic systems to 
increase opportunitie s and to increase transparency be taken into account ? [EC] 
• The rules regarding qualification systems should be simplified and clarified . However, first, it 
is necessary to determine whether Parties have a common understanding of qualification 
systems.  and what is meant b y "qualification procedures" . The current GPA primarily involves 
situations involving pre -qualification - that is, situations where complex procurement is 
involved and there is a need to have a preview of the abilities of suppli ers to determine 
whether they are able to fulfill the conditions of the contract . The pre -qualification or 
pre-selection of suppliers might cause problems and, therefore might deserve particular 
attention under the GPA.  [EC] 
 GPA/TN1994/2/Rev.9  
- 59 - 
  Article VIII  
 
Qualification o f Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Where a procuring entity requires 
suppliers to satisfy qualification 
requirements before participating in a 
tendering process, the entity shall publish a 
notice inviting interested suppliers to apply 
for qualification and shall provide no less 
than 15 calendar days prior to the final date 
for the submission of tenders for such 
suppliers to submit their applications . This 
notice may be the same as the notice of 
intended procurement required under 
Article V of this Agreement.  
[US – Job No. 2867]  
 
 2. If at any time within the 15 -day 
period referred to in paragraph 1 of this 
Article a supplier not yet qualified submits 
an application for qualification, the entity 
shall promptly start the qualification 
procedures and shall allow such supplier to 
participate in the tendering process, 
provided there is sufficient time to 
complete the qualification procedure within 
the time period established for the 
tendering p rocess.  
[US – Job No. 2867]  
 
(b) any conditions for participation in 
tendering procedures shall be 
limited to those which are essential 
to ensure the firm's capability to 
fulfil the contract in question.  
 (b) if registration as a permanent 
qualified supplier is a 
pre-requisite for participation in 
an intended procurement, and a 
supplier not yet qualified 
requests to participate in the 
intended procurement, the 
[entity shall promptly start 
procedures for qualification] 
[supplier shall not be denied the 
opportunity to participate 
simply on the basis that the 
supplier is not on the entity's 
permanent list of qualified 
suppliers];  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• With respect to Article VIII:(b) of the Agreement, ways should be found to reduce 
administrative burdens on suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  [Korea]  
• It is preferable to separate the rules regarding permanent lists of qualified suppliers and  those 
regarding qualification for an individual procurement . This approach is reflected in 
paragraphs  1 to 3 of the Singaporean proposal.  [Hong Kong, China]  GPA/TN1994/2/Rev.9  
- 60 - 
  In relation to the US proposal:  
 
• Article VIII currently requires that a qualification process shou ld be open, including cases when 
a permanent list of suppliers is created under Article IX . There should be an opportunity for 
suppliers at all times to request qualification and if there is sufficient time during the tendering 
process, to qualify and part icipate in the procurement process . That principle should continue 
to apply in cases of open and selective tendering as currently defined in the Agreement . 
Paragraph 2 of the US proposal provides that if closed list of pre -qualified suppliers are used, 
that principle will not apply.  [US] 
• Is it practically possible to qualify new suppliers while the tendering process is under way ? 
Suppliers who fail to abide by time -limits would have another opportunity to qualify, which 
seems unfair . If all suppliers have e qual opportunity to participate, the practicality of including 
new suppliers in an ongoing qualification would be a secondary issue . There would be a rolling 
deadline so that suppliers can qualify at any time.  [Singapore]  
• An important provision contained i n the GPA and in the US proposal, is that even in the case 
where a pre -qualification process occurs and an invitation is sent to pre -qualified suppliers to 
submit tenders, the Agreement still requires publication of the invitation notice and requires 
entities to consider the possibility of qualifying suppliers who did not pre -qualified in time.  
[US] 
• At some point in a qualification process for a particular procurement, an entity may establish 
a time -limit beyond which it will no longer accept applications . Both under the GPA and the 
US proposal, there should be an opportunity for interested supplies who are not qualified to 
apply for qualification during the procurement process . However, at some point in time, the 
entity might state that it is no longer practical to receive applications.  [US] 
• The US proposal may send a signal encouraging increased use of qualification systems . 
Qualification should remain a possibility but it is necessary to strike the right balance.  [EC] 
• The US does not want to encourage the use of a qualification procedure when it is not 
appropriate . When appropriate and necessary, qualification procedures should be available . 
However, in other cases, the unnecessary use of qualification procedures might violate the 
basic obliga tions underlying the Agreement . The Agreement should address this concern.  [US] 
• Regarding the issue of whether there is a common understanding of what is meant by 
qualification procedures, it appears that sometimes references are made to "qualification 
procedures" whereas other times references are made to "pre -qualification" procedures . Some 
governments refer to those two terms as if they are synonymous . However, the US 
understands "qualification" to include any requirement that establishes the ability of the 
supplier to fulfil a contract . These requirements may be very complex in some cases, such as 
for construction projects and major consulting projects, so that pre -qualification is necessary 
to ensure an efficient process . At the same time, there are oft en situations where qualification 
requirements may be relatively simple so that a pre -qualification is not required . Rather, as 
part of the tendering process, tenderers may be required, as part of the tendering process 
itself, to indicate that certain qual ification criteria have been fulfilled . There may be a range 
of qualification procedures . The most restrictive may involve lists of pre -qualified suppliers 
and the most liberal may involve situations where an open tendering procedure is used that 
requires demonstration of fulfilment certain "qualification" criteria in the tender documents.  
[US] 
• In relation to Article VIII(b) of the Agreement, is it possible to have "blacklists" of suppliers 
and to provide for procedures that allowed such lists to be passed between concerned entities.  
[Jordan]  
• The Agreement allows each Party to disqualify suppliers that may, for some reaso n (for 
example fraud) warrant the use of a blacklist . However, it seems that Jordan is suggesting 
something beyond what is currently availa ble under the Agreement.  [US] 
 GPA/TN1994/2/Rev.9  
- 61 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information 
necessary for establishing the 
financial, commercial and technical 
capacity of suppliers, as well as the 
verification of qualifications, shall be 
no less favourable to suppliers of 
other Parties than to domestic 
suppliers and  shall not discriminate 
among suppliers of other Parties.  
 
The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory 
of the procu ring entity, taking due 
account of the legal relationship 
between the supply organizations;  
 4. Procuring entities shall ensure that 
any conditions for participation in a 
tendering process that they use are limited 
to those that are essential to ensure a 
potential supplier 's ability to fulfil the 
requirements and technical specifications 
of the procurement in question.  
 
(a) Procuring entities shall evaluate 
the financial, commercial and 
technical capabilities of a 
supplier on the basis of that 
supplier's global business 
activities, and shall not impose 
the condition that, in order for a 
supplier to participate in a 
procurement process, the 
supplier has previously been 
awarded one or more contracts 
by an entity of that Party or that 
the supplier has  prior work 
experience in the territory of 
that Party.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 62 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) the process of, and the time 
required for, qualifying suppliers 
shall not be used in order to keep 
suppliers of other Parties off a 
suppliers' list or from being 
considered for a particular intended 
procurement.  
 5. Procuring entities shall recognize as 
qualified suppliers all suppliers who meet 
the condition s for participation in a 
particular intended procurement . Entities 
shall base their qualification decisions 
solely on the conditions for participation 
that have been specified in advance in 
notices or tender documentation.  
[US – Job No. 2867]  
 
Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet 
the conditions for participation in a 
particular intended procurement.  
 2. The process of, and the time required 
for, qualifying suppliers to per manent lists 
maintained by the entity shall not be used 
in order to keep suppliers of other Parties 
off a suppliers' list or from being considered 
for a particular intended procurement . 
Entities shall recognize as qualified 
suppliers such domestic supplier s or 
suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  [Suppliers 
requesting to participate in a particular 
intended procurement who may not yet be 
qualified shall also be considered, provided 
there is sufficient time to complete the 
qualification procedure.]  
[Singapore – Job No. 3772]  Suppliers requesting to participate 
in a particular intended 
procurement who may not yet be 
qualified shall also be considered, 
provided there is sufficient time to 
complete the qualification 
procedure;  
 
 
Comments  
 
• Do Parties have the same understanding of what is meant by a "permanent list" ? [Singapore]  
• Who is expected to take the initiative to respond to a tender ? Is the tender an open invitation 
and interested suppliers take the initiative as to whether or not to respond to a tender ? 
Alternatively, does the procuring entity make the decision to invite particular suppliers and 
not others ? [Singapore]  
• The selective tendering method covers two types of p rocedures . One type is for a specific 
procurement such as construction of highways for which interested suppliers submit 
qualification documents within the time -limit set out in the qualification documents . If the 
qualification documents cannot be submitte d within the time -limit or the document submitted 
is not in conformity with the tender documentation, the qualification application would be 
rejected . The other type is the establishment of permanent lists of qualified suppliers, which 
allows suppliers to apply for qualification at any time . Any modification to Article VIII should 
take into account the difference between these two types of methods of selective tendering.  
[Chinese  Taipei]  
 
  GPA/TN1994/2/Rev.9  
- 63 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a notice inviting applications 
for qualification in a procurement process is 
issued separately from the notice of 
intended procurement required under 
Article V of this Agreement, such notice 
shall be published in the same manner as 
the notice of intended procurement and 
shall contain at least the following 
information:  
 
 (a) A description of the intended 
procurement;  
 
 (b) The qualification requirements;  
 
 (c) The name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain all 
relevant documents relating to 
the contract;  
 
 (d) The time limits, if any, for the 
submission of applications for 
qualification ; and 
 
 (e) An indication that the 
procurement is covered by this 
Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 64 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) any supplier having requested 
to become a qualified supplier 
shall be advised by the entities 
concerned of the decision in this 
regard . Q ualified suppliers 
included on permanent lists by 
entities shall also be notified of 
the termination of any such lists 
or of their removal from them;  
[Singapore – Job No. 3772]  
 
(d) entities maintaining permanent lists 
of qualified suppliers shall ensure 
that suppliers may apply for 
qualification at any time ; and that 
all qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
 (d) each Party shall ensure th at: 
 
(i) each entity and its 
constituent parts follow a 
single qualification 
procedure, except in cases 
of duly substantiated need 
for a different procedure, 
and 
 
(ii) efforts be made to 
minimize differences in 
qualification procedures 
between entities;  
[Singapore – Job No. 3772]  
 
(e) if, after publication of the notice 
under paragraph 1 of Article  IX, a 
supplier  not yet qualified requests to 
participate in an intended 
procurement, the entity shall 
promptly start procedures for 
qualification;  
  
 Information on Qualification Decisions  
 
(f) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of 
the decision in this regard.  
 6. A procuring entity shall promptly 
advise any supplier that requests 
qualification  of its decision as to whether 
that supplier is qualified.  
[US – Job No. 2867]  
 
Qualified suppliers included on 
permanent lists by entities shall also 
be notified of the termination of any 
such lists or of their removal from 
them;  
 7. Where a procuring entity rejects a 
supplier 's application to qualify or ceases to 
recognize a supplier as qualified, the entity 
shall inform the supplier and, on request of 
the supplier, promptly provide the supplier 
with a written explanation of the reasons 
for its decision.  
[US – Job No. 2867]  
 
  GPA/TN1994/2/Rev.9  
- 65 - 
  Comments  
 
• It would be difficult to comply with subparagraph (d)(ii) of the Singapore proposal given the 
differences in scope and nature of procurement undertaken by different entities.  [Hong  Kong, 
China]  
 GPA/TN1994/2/Rev.9  
- 66 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(g) each Party shall ensure that:  
  
(i) each entity and its constituent 
parts follow a single 
qualification procedure, 
except in cases of duly 
substantiated need for a 
different procedure ; and 
  
(ii) efforts be made to minimize 
differences in qualification 
procedures between entities.  
  
(h) nothing in subparagraphs (a) 
through (g) shall preclude the 
exclusion of any supplier on grounds 
such as bankruptcy or false 
declarations, provided that such an 
action is consistent with the national 
treatment and non -discrimination 
provisions of this Agreement.  
 (b) Nothing in this Article shall 
preclude  the exclusion of a 
supplier on grounds such as 
bankruptcy or false 
declarations.  
[US – Job No. 2867]  
 (e) nothing in subparagraphs (a) 
through  (d) shall preclude the 
exclusion of any supplier on 
grounds such as bankruptcy or 
false declarations, provided that 
such an action is consistent with 
the national treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The US proposal appears to omit the existing sub -paragraph (g), which deals with single 
qualification procedures . Clarification is sought as to why this change has been made.  [Korea]  
 GPA/TN1994/2/Rev.9  
- 67 - 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOV ERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers for 
participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreement, ensure that their 
procedures are consistent with the following:  
 (a) the invitation to be considered for 
pre-qualification shall be published in 
adequate time to enable interested 
suppliers to submit proper 
documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to 
those which are essential to ensure 
the firm's capability to fulfil the 
contract in question . Any conditions 
for participation required from 
suppliers, including financial 
guarantees, technical qualifications 
and informati on necessary for 
establishing the financial, commercial 
and technical capacity of suppliers, as 
well as the verification of 
qualifications, shall be no less 
favourable to suppliers of other 
Parties than to domestic suppliers and 
shall not discriminate amon g 
[against] suppliers of other Parties . 
The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory of 
the procuring entity, taking  due 
account of the legal relationship 
between the [supply organizations] 
[business units of the supplier in 
different territories].  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The reference to "other provisions in this Agreement" in subparagraph 3 of the Singaporean 
proposal should be made more specific or it should be deleted as it appears to be unnecessary.  
[Hong Kong, China]  
• The existing wording of Article VIII(a) is preferred to the proposed wording in 
subparagraph  3(a). [Hong Kong, China]  
  GPA/TN1994/2/Rev.9  
- 68 - 
  • Subparagra ph 3(b) of the proposal is, in principle, desirable, particularly in relation to SMEs, 
since it purports to reduce administrative burdens on suppliers . However, more details of the 
proposal are required.  [Hong Kong, China]  
• The last sentence of paragraph 3( b) of the Singaporean proposal should be deleted given that 
it is difficult to assess a suppliers' global business and legal relationship between business 
units that are located in different territories.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.9  
- 69 - 
  ARTICLE IX : INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  
Article IX:1  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article  XV (limited 
tendering) . The notice shall be published in the 
appropriate publication listed in Appendix  II. 
 1. In accordance with paragraphs 2 and  
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering) . The 
notice shall be published through means 
which offer the widest possible and 
non-discrimin atory access to interested 
suppliers and service providers from all 
Parties to this Agreement ; these means 
shall be accessible [free of charge  [delete 
Singapore – Job No. 5271] ] through a 
single point of access.  
Each Party shall notify to the other Parties  
this single point of access.  [Entities shall 
not charge for access to invitations to 
participate  [Singapore – Job No. 5271 ]] 
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 
 
Comments  
 
• The proposal aims at eliminating several undefined terms that are used in the current 
Agreement to refer to tender notices issued by different types of entities and in different types 
of circumstances . In effect, the proposal combines the requirements for Annex 1, 2 and 3 
entities into one set of requirements for tender notices relating to open tendering 
opportunities.  [EC] 
• The application of the same type of obligation to entities at all three levels could  result in 
increasing the level of obligations for Annex 2 and 3 entities regarding the publication of 
invitations to tender.  [Chinese Taipei]  
With regard to the proposed requirement that procurement notices should be provided "free of 
charge":  
 
• This propo sal raises concerns.  [Hong Kong, China ] Would there be a benefit by shifting the 
costs of publication from suppliers to taxpayers ? [Canada]  
• The intent of the additional wording by Singapore is to explicitly state what is provided free of 
charge, as opposed  to a blanket free of charge formulation . The telephone line, the computer, 
the Internet Service Provider fees are not free of charge . The current subparagraph 6(g) of 
Article  IX also refers to "the amount and terms of payment of any sum payable for the te nder 
documentation" . Hence, it would be better to explicitly state what is provided free of charge.  
[Singapore – Job No. 5271]  
• The principle of "reasonableness" might be relevant in this respect to ensure that barriers are 
not created through the impositio n of excessive costs . Any charge that is imposed should be 
non-discriminatory and closely linked to the actual cost of providing the information . Fees 
charged for access to information should not be regarded as a source of revenue.  [EC; US] 
 GPA/TN1994/2/Rev.9  
- 70 - 
  With regard to  single point of access:  
 
• The establishment of "a single point of access" to electronic publications of tender notices 
under the GPA, as suggested by Korea, is technically feasible . However, it is questionable 
whether the benefits would be worth the signif icant cost and undue burden associated with 
introducing this system for Parties with decentralized systems and for developing countries.  
[US] 
• Korea has a central procurement system from which all relevant information on government 
procurement can be obtain ed. A single contact point does not mean that masses of information 
need to be accumulated . Rather, that point would merely connect interested Parties to the 
right point.  [Korea]  
• Information should be as easily accessible as possible provided that providin g such access 
does not impose unnecessary burdens on Parties . Having all the information available at a 
single point of access may not be practically possible and could defeat the aim of transparency 
since it could be very difficult to filter through all t he information provided at the point.  [US] 
• It would be ideal to have a single Internet address where all relevant information could be 
obtained . However, this could be difficult to arrange in cases where procurement systems are 
highly decentralized.  [EC] 
• The term "widest possible access" has been used to avoid referring to the Internet in 
recognition of the fact that other technological advance may emerge which also promote 
transparency.  [EC] 
• The reference to the term "widest possible access" suggests that the publication of 
procurement notices must be published through the use of information technology . The use 
of information technology should be optional.  [Japan ; Korea]  
• The intention underlying the proposed text is not to mak e the use of information technology 
mandatory . Traditional means of publication can also be used provided that they are easily 
accessible . The EC proposal is intended to encourage the use of information technology as far 
as is possible and to facilitate it s use.  [EC] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Arti cle XV (limited tendering) . The 
notice shall be published in the appropriate 
publication listed in Appendix II . Such 
appropriate publication may be electronic 
or paper.  
[Canada – Job No. 3483]  
 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV . The notice shall be 
published in the appropriate publication or 
website listed in Appendix II.  
[Chinese Taipei – Job No. 3193]  
 
  GPA/TN1994/2/Rev.9  
- 71 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article V  
 
Publication of Notice of Intended 
Procurement  
 
 1. For each contract covered by this 
Agreement, except as provided for in Article 
IX of this Agreement, procuring entities 
shall publish a notice inviting interested 
suppliers to submit tenders for that 
contract . The notice shall be published in 
the appropriate publication listed in 
Appendix  II. Such publications shall be in 
electronic or paper media which are widely 
disseminated and readily accessible to the 
general public.  
[US – Job No. 2867]  
 
 
Comment  
 
• A question by Hong Kong, China ( No. 21) regarding the term "widely disseminated" and the 
response by the United States are contained in Job No. 5595.  
• There is a tension between the aim of simplifying the Agreement and maintaining useful 
aspects of the Agreement . Perhaps a number of items tha t have been eliminated in the 
US proposal should be retained.  [EC] 
• It is important to have agreement on a predictable set of core requirements that is no more 
than necessary for suppliers to make a decision as to whether or not to submit a tender in a 
given case.  [Canada]  
• The information required in the US proposal is considered to be the core necessary for notices 
because it is considered sufficient for a supplier to make a decision as to whether they are 
interested in the procurement and, therefore, wheth er to make a request for tender 
documents . In addition, it should be possible to rely upon the principle of non -discrimination 
requirement to ensure that information provided to one supplier is provided in a 
non-discriminatory way to all interested supplie rs. It is not necessary to list everything of 
potential interest in a notice provided that suppliers who are interested in participating in a 
tender procedure receive all the information that is necessary to submit a tender and they 
receive that informatio n in a non -discriminatory way.  [US] 
• Publication in electronic media is transitory by nature . An important element of transparency 
is the ability to obtain information for the relevant period of time – that is, the entire period 
for which a tender is open a nd not merely the day that the tender notice is issued . How can it 
be ensured that that occurs if electronic media are used ? [Canada]  
  GPA/TN1994/2/Rev.9  
- 72 - 
  • The existing Article IX identifies a number of different types of notices, leaving it unclear which 
notices should be us ed by particular entities . Is it necessary to list in the Agreement every 
type of notice that might be used or is it preferable to refer to a certain basic set of 
commitments that will apply to the various types of notices that might be used to ensure an 
adequate level of transparency ? [US] GPA/TN1994/2/Rev.9  
- 73 - 
  Article IX:2, 3, 4  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the 
form of a notice of proposed procurement, as 
provided for in paragraph  6. 
 2. The invitation to participate may take 
the form of a notice of intended 
procurement, as provided for in 
paragraph  6. 
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a 
notice containing the types of information as provided for in paragraph  6. The present use of 
the word "may" might be interpreted to suggest otherwise . [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a 
notice of planned procurement, as provided for in 
paragraph  7, or a notice regarding a qualification 
system, as provided for in paragraph 9, as an 
invitation to participate.  
 3. Entities may use a notice of intended 
procurement, as provided for in 
paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9 as an invitation to participate.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
• The use of notices regarding qualification systems as invitations to participate should be 
clarified . [Job No. 5074]  
• The application of the requirements for publication of tender notices for Annex 3 entities could 
be burdensome.  [Japan]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate sha ll 
subsequently invite all suppliers who have 
expressed an interest to confirm their interest on 
the basis of information which shall include at 
least the information referred to in paragraph  6. 
  
 
  GPA/TN1994/2/Rev.9  
- 74 - 
  Article IX:5, 6  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Entities which use a notice regarding a 
qualification system as an invitation to participate 
shall provide, subject to the considerations 
referred to in paragraph 4 of Article  XVIII and in 
a timely manner, information which allows all 
those who have expressed an interest to have a 
meaningful opportunity to assess their interest in 
participating in the procurement . This information 
shall incl ude the information contained in the 
notices referred to in paragraphs 6 and 8, to the 
extent such information is available . Information 
provided to one interested supplier shall be 
provided in a non -discriminatory manner to the 
other interested suppliers.  
  
6. Each notice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 2.  Entities shall include the following 
information in each notice of intended 
procurement:  
(a) the nature and quantity, including 
any options for further procurement 
and, if possible, an estimate of the 
timing when such options may be 
exercised ; in the case of recurring 
contracts the nature and quantity 
and, if possible, an estimate of the 
timing of the subsequent tender 
notices for the products or services 
to be procured;  
 (a) A description of the intended 
procurement, including the 
nature and quantity of the goods 
or services to be procured and, 
where applicable, any 
requirements for the 
qualification of suppliers;  
 
(b) whether the procedure is open or 
selective or will involve negotiation;  
 (b) The name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain all 
relevant documents relating to 
the contract;  
 
(c) any date for starting deli very or 
completion of delivery of goods or 
services;  (c) The procurement method that 
will be used and whether it will 
involve negotiation;  
[US – Job No. 2867]  
 
 
Comments  
 
In relation to the US proposal:  
 
• With regard to paragraph 2(c), clarification is sought on the meaning of "procurement 
method. " [Japan]  
  GPA/TN1994/2/Rev.9  
- 75 - 
  • The term "procurement methods" is intentionally left undefined in the US proposal since, for 
example, selective tendering procedures may be regarded as something different in the US as 
compared to in Japan . Presumably, this would mean that each entity would identify in tender 
notices, the methods that apply to the relevant domestic context or system . The alternatives 
would be to either list every type of procurement method that any Pa rty may use or to state 
that the information provided in the tender notice need not refer to the procurement method 
to be used . However, the latter may cause problems, for example if a notice does not tell 
suppliers that pre -qualification is needed.  [US] 
 
Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the address and final date for 
submitting an application to be 
invited to tender or for qualifying for 
the suppliers' lists, or for receiving 
tenders, as well as the language or 
languages in which they must be 
submitted;  
 (d) The time limits set for the 
submission of tenders and, 
when appropriate, any time 
limits for the submission of 
applications  to qualify fo r 
participation in the intended 
procurement and the dates for 
starting or completing delivery 
of goods and services ; and 
[US – Job No. 2867]  
 
(e) the address of the entity awarding 
the contract and providing any 
information necessary for obtaining 
specifications and other documents;  
  
(f) any economic and technical 
requirements, financial guarantees 
and information required from 
suppliers;  
  
(g) the amount and terms of payment of 
any sum payable for the tender 
documentation ; and 
  
(h) whether the entity is inviting offers 
for purchase, lease, rental or hire 
purchase, or more than one of these 
methods.  
  
 
Comments  
 
• Article IX:6 should be modified to require procuring entities to include the means by which 
bids may be submitted/the means of communication to be used (e.g. mail, electronic means, 
telex, telegram or facsimile) in tender notices.  [Canada, Job No.3481]  
• A question by the European Community ( No. 9) regarding the absence of a reference to 
economic and technical  requirements, financial guarantees and information required from 
suppliers in the United States' proposal and the response by the United States are contained 
in Job No. 5595.  
  GPA/TN1994/2/Rev.9  
- 76 - 
  • A comment by Hong Kong, China ( No. 20) regarding the absence of a language req uirement 
in the United States' proposal and the response by the United States are contained in 
Job No. 5595.  
• A comment by Korea ( No. 4) regarding the absence of certain information requirements in 
GPA Article IX:6(a), (c), (f) and (h) in the United States'  proposal and the response of the 
United States are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.9  
- 77 - 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Each Party shall encourage its 
procuring entities to publish as early as 
possible in each fiscal year information 
regarding entities ' future procurement 
plans . Such information should include the 
subject matter of the procurement and the 
planned date of the publication of the notice 
of intended procurement . W hen the 
published information is in accordance with 
Article VI:2(a) of this Agreement, entities 
may apply Article VI:2 for the purpose of 
establishing more flexible time periods for 
tendering of procurements covered by this 
Agreement.  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.9  
- 78 - 
  Article IX:7, 8  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement 
referred to in paragraph 3 shall contain as much 
of the information referred to in paragraph  6 as is 
available . It shall in any case include the 
information referred to in paragraph 8 and:  
  
(a) a statement that interested 
suppliers should express their 
interest in the procurement to the 
entity;  
  
(b) a contact point with the entity from 
which further information may be 
obtained.  
  
8. For each case of intended procurement, the 
entity shall publish a summary notice in one of the 
official languages of the WTO . The notice shall 
contain at least the following information:  
 8. For each case of intended 
procurement, the entity shall publish a 
summary notice in one of the official 
languages of the WTO . The notice shall 
contain at least the following information:  
 
(a) the subject matter of the contract;  
 (a) the subject -matter of the 
contract, including the relevant 
CPV code;  
 
(b) the time -limits set for the 
submission of tenders or an 
application to be invited to tender ; 
and 
 (b) the time -limits set for the 
submission of tenders or an 
application to be invited to 
tender ; and 
 
(c) the addresses from which documents 
relating to the contracts may be 
requested.  
 (c) the addresses from which 
documents relating to the 
contracts may be requested.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
• A question by the European Community ( No. 8) regarding the absence of a provision on the 
publication of a summary notice in the United States' proposal and the response by the United 
States are contained in Job No. 5595.  
With regard to the reference to the relevant CPV code:  
 
• Reference to a nation al classification code should suffice as long as it is transparent . There 
should be no requirements in the Agreement regarding the use of CPV codes.  [US] 
• The reference to CPV code should be deleted.  [Singapore ; US] Many projects contain a mixture 
of CPV co des. In some projects, CPV code may not be available or applicable . Alignment to 
CPV codes would impose an unnecessary administrative burden and may not make much 
difference to the suppliers/tenderers.  [US; Singapore]  
 GPA/TN1994/2/Rev.9  
- 79 - 
  • Alternatively, the words "if applicab le" should be added at the end of subparagraph 8(a).  
[Singapore – Job No. 5271]  
• A variety of classification systems are used by Parties for various purposes . The practicality of 
establishing a common classification system applicable among the GPA Parties f or all purposes 
is questionable.  [Canada]  
• While the establishment of a common classification system might be necessary, further 
consideration of the impact on existing systems is required.  [Singapore]  
• The aim underlying the proposal is to come up with a sy stem that is as transparent and 
efficient as possible . This cannot be achieved unless there is a common classification system . 
A common classification system will help suppliers to understand what a procuring entity 
wishes to purchase and will also facilit ate the collection of accurate statistical data.  [EC] 
• The CPV code is more comprehensive than the Harmonized System of classification of goods . 
It covers the whole gamut of government purchases of goods and services.  [EC in reply to 
clarification sought by  Switzerland]  
With regard to the US proposal:  
 
• Clarification is sought as to why the US proposal excludes the requirement for a summary 
notice in a WTO language that is currently contained in Article IX:8.  [Korea]  
• That requirement could be a significant obstacle, particularly for many non -Parties . Further, 
as a general matter, it does not seem necessary to achieve the objectives of the Agreement.  
[US] GPA/TN1994/2/Rev.9  
- 80 - 
  Article IX:9  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERN MENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering 
procedures, entities maintaining permanent lists 
of qualified suppliers shall publish annually in one 
of the publications listed in Appendix  III a notice 
of the following:  
  
(a) the enumeration of the lists 
maintained, including their 
headings, in relation to the products 
or services or categories of products 
or services to be procured through 
the lists;  
  
(b) the conditions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which each of 
those conditions will be verified by 
the entity concerned ; and 
  
(c) the period of validity of the lists, and 
the formalities for their renewal.  
  
 
 GPA/TN1994/2/Rev.9  
- 81 - 
  Article IX:10, 11  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to 
participate in accordance with paragraph 3, the 
notice shall, in addition, include the following 
information:  
  
(d) the nature of the products or services 
concerned;  
  
(e) a statement that the notice 
constitutes an invitation to 
participate.  
  
However, when the duration of the qualification 
system is three years or less, and if the duration 
of the system is made clear in the notice and it is 
also made clear that further notices will not be 
published, it shall be sufficient to publish the 
notice once only, at the beginning of the system . 
Such a system shall not be use d in a manner 
which circumvents the provisions of this 
Agreement.  
  
10. If, after publication of an invitation to 
participate in any case of intended procurement, 
but before the time set for opening or receipt of 
tenders as specified in the notices or the  tender 
documentation, it becomes necessary to amend 
or re -issue the notice, the amendment or the 
re-issued notice shall be given the same 
circulation as the original documents upon which 
the amendment is based . Any significant 
information given to one sup plier with respect to 
a particular intended procurement shall be given 
simultaneously to all other suppliers concerned in 
adequate time to permit the suppliers to consider 
such information and to respond to it.  
 Modifications  
 
7. If, during the course of a procurement 
process, an entity modifies the criteria or 
technical requirements set out in previous 
notices and information provided to 
participating suppliers, it shall transmit all 
such modifications in writing:  
 
(a) to all the suppliers that are 
participating at the time the 
information is amended, if 
known, and in all other cases, in 
the same manner as the original 
information ; and 
 
(b) in adequate time to allow such 
suppliers to modify and 
re-submit their initial tenders, 
as appropriate.  
[US – Job No. 2867]  
 
11. Entities shall make clear, in the notices 
referred to in this Article or in the publication in 
which the notices appear, that the procurement is 
covered by the Agreement.  
  
(e) An indication  that the 
procurement is covered by this 
Agreement.  
[US – Job No. 2867]  
 
 
  GPA/TN1994/2/Rev.9  
- 82 - 
  Comments  
 
• The US proposal suggests that procuring entities need to provide amended information to all 
participating suppliers . In cases of procurement conducted over the Internet, the procuring 
entity will not know which suppliers have downloaded or viewed the tender documentation 
and, in many instances, procuring entities will publish the amendment in the same medium . 
The onus should be on the supplier to look at amended information in such cases . Perhaps the 
proposal should be amended to state that it is sufficient to make the amended information 
publicly available.  [Singapore]  
• What would be the position under the US proposal when, at some point in the process when 
only a  few potential suppliers remain, there is a change in the published conditions, some of 
which could be substantial and could affect those suppliers that have already been 
disqualified ? [EC] 
• It is important to consider what the situation would be if there is a two -stage competition and 
a change in information occurs that affects the criteria on which the initial competition was 
based . In cases where information is changed during the second stage of the process, perhaps 
it would not be reasonable or ne cessary to share it or disseminate it to all the suppliers that 
initially expressed an interest in the procurement.  [US] 
• With respect to paragraph 7 of the US proposal, is the reference to "criteria" and "technical 
requirements" comprehensive enough ? The usage of the term "significant information" in 
Article  XIX of the GPA is perhaps more appropriate.  [Hong Kong, China]  GPA/TN1994/2/Rev.9  
- 83 - 
  ARTICLE X:  SELECTION PROCEDURES  
Article X:1, 2, 3  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering 
procedures, entities shall, for each intended 
procurement, invite tenders from the maximum 
number of domestic suppliers and suppliers of 
other Parti es, consistent with the efficient 
operation of the procurement system . They shall 
select the suppliers to participate in the procedure 
in a fair and non -discriminatory manner.  
  
2. Entities maintaining permanent lists of 
qualified suppliers may select suppliers to be 
invited to tender from among those listed . Any 
selection shall allow for equitable opportunities for 
suppliers on the lists.  
  
3. Suppliers requesting to participate in a 
particular intended procurement shall be 
permitted to submit a tender and be considered, 
provided, in the case of those not yet qualified, 
there is sufficient time to complete the 
qualification procedure under Articles  VIII and IX . 
The number of additional suppliers permitted to 
participate shall be limited only by the efficient 
operation of the procurement system.  
  
 
Comments  
 
• The fact that the US proposal does not include a specific reference to selection procedures 
does not mean that they cannot be used and are not appropriate . Pursuant to paragraph 1 of 
the existing Article X, entities must decide whether the maximum level of competition has 
been ensured . However, it is questionable whether such a provision requiring entities to decide 
this is necessary.  [US] 
• Paragraph 2 of the existing Article X states that permanent lists may be used, which is not 
particularly useful . In addition, the paragraph refers to "equitable opportunities, " the meaning 
of which is unclear . If it means non -discriminatory, a non -discrimination obligation already 
exists in the Agreement . Therefore, the question arises as to whether paragraph 2 is 
necessary.  [US] 
• In relation to paragraph 3 of Article X, the US proposal contains an equivalent provision in its 
proposed Article VIII:2 . The idea is that if there is a pre -qualification process using a 
permanent list or some other method, even if independent of the tendering process, there 
may be a need to provide the opportunity for new suppliers to participate, if there is time to 
complete the qualification procedure.  [US] GPA/TN1994/2/Rev.9  
- 84 - 
  Article X:4  
 
Selecti on Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile.  
 4. Requests to participate in selective 
tendering procedures may be submitted by 
telex, telegram or facsimile, electronic 
means, including email.  [Canada – Job 
No. 3481]  
 
4. Requests to participate in selective 
tendering procedures may be submitted in 
writing including electronic means . The 
term "writing" as used in this Agreement is 
to be understood to include any worded or 
numbered expression which can be read, 
reproduced, and later communicated, and 
includes electronically transmitted and 
stored information . "Electronic means" 
means using elect ronic equipment for the 
processing (including digital compression) 
and storage of data, and entirely using 
transmission, conveyance and reception by 
wire, by radio, by optical means or by other 
electromagnetic means.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• In Article X, a provision stating that the means of communication to be used can be specified 
by the procuring entity (e.g. mail, electronic means, telex, telegram or facsimile) should also 
be added.  [Canada – Job No. 3481]  
• Should the above definition of the term "writing" apply across -the-board in the Agreement or 
only to the provisions on selective tendering ? [US] 
• The US proposal does not contain an equivalent for paragraph 4 of the existing text hence it 
is unclear whether it is necessary to specify how doc uments may be submitted.  [US] 
 GPA/TN1994/2/Rev.9  
- 85 - 
  ARTICLE XI:  TIME -LIMITS FOR TENDERING AND DELIVERY  
Article XI:1  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
General  
 General  
1.(a) Any prescribed time -limit shall be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers to 
prepare and submit tenders before the 
closing of the tendering procedures . In 
determining any such time -limit, entities 
shall, consistent with their own reasonable  
needs, take into account such factors as 
the complexity of the intended 
procurement, the extent of subcontracting 
anticipated and the normal time for 
transmitting tenders by mail from foreign 
as well as domestic points.  
 1.(a)  Any prescribed time -limit sh all be 
adequate to allow suppliers of other 
Parties as well as domestic suppliers 
to prepare and submit tenders before  
the closing of the tendering 
procedures . In determining any such 
time-limit, entities shall, consistent 
with their own reasonable needs, take 
into account such factors as the 
complexity of the [intended] 
procurement, the extent of 
subcontracting anticipated and the 
normal time for transmitting tenders 
[by mail - delete [Cana da]] [in 
writing] from foreign as well as 
domestic points.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 
Comments  
 
• As one alternative, all of the deadlines identified in this Article could be removed.  [Canada – 
Job No. 3481]  GPA/TN1994/2/Rev.9  
- 86 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting the 
final date for receipt of tenders or of 
applications to be invited to tender.  
 (b) Each Party shall ensure that its 
entities shall take due account 
of publication delays when 
setting the final date for receipt 
of tenders or of applications to 
be invited to tender.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 2. Under the following circumstances, 
entities may establish a time period for 
tendering that is shorter than 40 days, 
provided that such time period is 
sufficiently long to enable suppliers to 
prepare and submit responsive tend ers and 
is in no case less than 10  calendar days 
prior to the final date for the submission of 
tenders:  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.9  
- 87 - 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Deadlines  
 Deadlines  
2. Except in so far as provided in paragraph  3: 
 2. Except insofar as provided in 
paragraph 3,  
 
(a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in paragraph 
1 of Article  IX; 
 (a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 40 days from 
the date of publication referred 
to in paragraph 1 of Article IX;  
[Singapore – Job No. 3772]  
 
 2. Exce pt insofar as provided in 
paragraphs 3 and 4,  
 
(a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 30 days from 
the date of publication;  
[EC – GPA/W/87 ] 
 
 2.(a)  in open procedures, the period 
for the receipt of tenders shall 
not be less than 28 days from 
the date of publication referred 
to in paragraph 1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• The suppliers of products, the prices of which are subject to frequent changes, question the 
rational for the extended time -periods in the Agreement.  [Singapore]  
• Further discussion is required in relation the reduction of time -limits when  electro nic 
procurement means are used.  [EC] 
 
  GPA/TN1994/2/Rev.9  
- 88 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Time Periods for Tendering  
 
 1. Except as provided for in 
paragraphs  2 and 3 of this Article, 
procuring entities shall provide no less than 
40 calendar days between the date on 
which the notice of intended procurement 
is published and the final date for the 
submission of tenders.  
[US – Job No. 2867]  
 
(b) in selective procedures not involving 
the use of a permanent list of 
qualified suppliers, the period for 
submitting an application to be 
invited to tender shall not be less 
than 25 days from the date of 
publication referred to in 
paragraph  1 of Article  IX; the period 
for receipt of t enders shall in no case 
be less than 40  days from the date 
of issuance of the invitation to 
tender;  
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to ten der shall not be 
less than 25  days from the date 
of publication referred to in 
paragraph  1 of Article IX ; the 
period for receipt of tenders 
shall in no case be less than 40 
days from the date of issuance 
of the invitation to tender;  
[Singapore – Job No. 3772] 
 
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less than 15 days from the date 
of publication ; the period for 
receipt of tenders shall in no 
case be less than 30 days from 
the date of issuance of the 
invitation to tender;  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• Unlike the current provisions in the Agreement, the EC proposal does not provide for the 
reduction of time -periods in urgent cases.  [Japan]  
• The EC proposal appears to limit the reduction of time limits only to contracts of a recurrent 
nature.  [Hong Kong, China]  GPA/TN1994/2/Rev.9  
- 89 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Where a procuring entity requires 
suppliers to satisfy qualification 
requirements before participating in a 
tendering process, the entity shall publish a 
notice inviting interested suppliers to apply 
for qualification and shall  provide no less 
than 15 calendar days prior to the final date 
for the submission of tenders for such 
suppliers to submit their applications . This 
notice may be the same as the notice of 
intended procurement required under 
Article V of this Agreement.  
[US – Job No. 2867]  
 
 (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to be 
invited to tender shall not be 
less than 14 days from the date 
of publication referred to in  
paragraph  1 of Article IX ; the 
period for receipt of tenders 
shall in no case be less than 28 
days from the date of issuance 
of the invitation to tender;  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
In relation to the US proposal:  
 
• Clarification is sought as to why the minimum period for submitting applications for 
qualification has been changed from 25 days before the final date for submission of tenders 
to 15 days.  [Korea]  
• The US proposal seeks to achieve the appropriate balance . It is considered that 15 days may 
be sufficient to prepare applications for qualification.  [US] 
 
  GPA/TN1994/2/Rev.9  
- 90 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in selective procedures involving the 
use of a permanent list of qualified 
suppliers, the period for receipt  of 
tenders shall not be less than 40 
days from the date of the initial 
issuance of invitations to tender, 
whether or not the date of initial 
issuan ce of invitations to tender 
coincides with the date of the 
publication referred to in 
paragraph  1 of Article  IX. 
 (c) in selective procedures 
involving the use of a 
permanent list of qualified 
suppliers, the period for receipt 
of tenders shall not be less than 
40 [30] days from the date of 
the initial issuance of invitations 
to tender, whether or not the 
date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
[referred to in paragraph 1 of 
Article IX].  
[Singapore – Job No. 3772 ; 
EC – GPA/W/87 ] 
 
 (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers, the period for 
receipt of tenders shall not be 
less than 28 days from the date 
of the initial issuance of 
invitations to tender, whether or 
not the date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
referred to in paragraph 1 of 
Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
 
  GPA/TN1994/2/Rev.9  
- 91 - 
  Article XI:3  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The periods referred to in paragraph 2 may 
be reduced in the circumstances set out below:  
 3. The periods referred to in paragraph 2 
may be reduced in the circumstances set out 
below:  
 
(a) if a separate notice has been 
published 40 days and not more than 
12 months in advance and the notice  
contains at least:  
 (a) if a separate notice has been 
published  40 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
(i) as much of the information 
referred to in paragraph 6 of 
Article  IX as is available;  
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 
(ii) the information referred to in 
paragraph 8 of Article  IX; 
 (ii) the inform ation referred to 
in paragraph 8 of 
Article  IX; 
 
(iii) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity ; and 
 (iii) a statement that 
interested suppliers 
should express their 
interest in the 
procurement to the entity ; 
and 
 
(iv) a contact point with the entity 
from which further 
information may be obtained,  
 
the 40 -day limit for receipt of 
tenders may be replaced by a period 
sufficiently long to enable 
responsive tendering, which, as a 
general rule, shall not be less than 
24 days, but in any case not less 
than 10 days;  
 (iv) a contact point with the 
entity from which further 
information may be 
obtained, the 40 -day limit 
for receipt of tenders may 
be replaced by a period 
sufficiently long  to enable 
responsive tendering, 
which, as a general rule, 
shall not be less than 
24 days, but in any case 
not less than 10 days;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• When procurement notices are published electronically rather than through traditional paper 
means, the efficiency that results may allow for a reduction in the time -period of 10 days, 10 
days representing the potential gain in efficiency by using electronic means . Depending upon 
the circumstances, time -periods could be reduced t o a minimum of 10 days.  [US] 
 GPA/TN1994/2/Rev.9  
- 92 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) where a separate notice, 
including a notice under [Article 
V:3] of this Agreement , has 
been published at least 40 
calendar days and not more 
than 12 months in advance, and 
such notice contains : a  
description of the intended 
procurement ; the time limits for  
the submission of tenders or, 
when appropriate, applications 
for qualification ; a nd the 
address from which documents 
relating to the procurement may 
be obtained;  
[US – Job No. 2867]  
 
 
Comments  
 
• Elements required under the proposed paragraph (a) of the US proposal are not as 
comprehensive as those contained in Article XI:3 of the GPA . Specifically, the US proposal 
only refers to elements that are contained in Article XI:3(a) (ii) of the GPA whereas information 
such as economic or technical requirements a nd completion dates have not been included . 
Such information is essential to enable a supplier to determine whether he or she is in a 
position to submit a bid for the tender . Elaboration is sought on why these elements have not 
been included in the US prop osal. [Hong Kong, China]  
• The Agreement currently recognises the possibility that there may be two public notices 
relating to a single tendering procedure . There may be an advance notice which contains a 
certain minimum amount of information followed by a s ubsequent notice which would still be 
required to have all the information that is required for a notice for an intended procurement . 
The existence of a prior notice that contains a certain amount of information may be a reason 
to reduce the time -period be low 40 days because some information is already available to 
suppliers . When the second notice is issued, the tendering procedure can, perhaps, proceed 
more quickly.  [US] GPA/TN1994/2/Rev.9  
- 93 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The periods referred to in paragraph  2 
may be reduced in the circumstances set 
out below:  
 
 (a) if a separate notice has been  
published 28 days and not more 
than 12 months in advance and 
the notice contains at least:  
 
 (i) as much of the information 
referred to in paragraph 6 
of Article IX as is 
available;  
 (ii) the information referred to 
in paragraph 8 of Article 
IX; 
 
 (iv) a contact point with the 
entity from which further 
information may be 
obtained;  
 
 the 28 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to enable  
responsive tendering, which as 
a general rule, shall not be less 
than 14 days, but in any case not 
less than 10 days;  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim to simplify and improve the Agreement.  [Hong Kong, China]  
• Article XI:3 could be modified so that when electronic tendering is used, all periods r eferred 
to in Article  XI:2 may be reduced to a minimum of 20 days.  [Canada – Job No. 3481]  
• Article XI:3 could be modified so that when electronic tendering and electronic bid receipt are 
used, second -stage periods referred to in Article XI:2(b) and (c) may  be reduced to a minimum 
of 12 and 5  days respectively.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.9  
- 94 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) in the case of the second or 
subsequent publications dealing with 
contracts of a recurring nature within 
the meaning of paragraph 6 of 
Article  IX, the 40 -day limit for receipt 
of tenders may be reduced to not 
less than 24 days;  
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph 6 of Article IX, the 
40-day [30 -day [EC]] limit for 
receipt of tenders may be 
reduced to [not less than 
24 days][24 days [EC]];  
[Singapore – Job No. 3772 ; 
EC – GPA/W/87 ] 
 
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph  6(a) of Article IX, the 
28-day limit for receipt of 
tenders may be reduced to not 
less than 14 days;  
[Chinese Taipei – Job No. 3193]  
 
 (b) in the case of the second or 
subsequent publication of 
notices  dealing with contracts of 
a recurring nature;  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 95 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) in the case of procurement of 
commercial goods and services 
that are sold or offered for sale 
to, and customarily purchased 
and used by, non -governmental 
buyers for non -governmental 
purposes, except that a 
procuring entity shall not reduce 
time periods for this reason if 
the entity requires that 
potential suppliers be qualified 
for participation in the 
procurement before submitting 
tenders, in accordance with 
Article IX of this Agreement ; 
and 
[US – Job No. 2867]  
 
(c) where a state of urgency duly 
substantiated by the entity renders 
impracticable the periods in 
question, the periods specified in 
paragraph  2 may be reduced but 
shall in no case be less than 10  days 
from the date of the publication 
referred to in parag raph 1 of 
Article  IX; or 
 (c) where  a state of urgency duly 
substantiated by the entity 
renders impracticable the 
periods in question, the periods 
specified in paragraph 2 may be 
reduced but shall in no case be 
less than 10 days from the date 
of the public ation referred to in 
paragraph 1 of Article IX ; or 
[Singapore – Job No. 3772]  
 
 (d) when, for duly substantiated 
reasons of extreme urgency 
brought about by events 
unforeseeable  by the entity, the 
use of a 40 -day time period 
would result in serious injury to 
the entity or the relevant Party ; 
however, concerns relating to 
the amount of funds available to 
an entity within a particular 
period of time shall not be 
considered to be a reason of 
extreme urgency for these 
purposes.  
[US – Job No. 2867]  
 
 
Comments  
 
In relation to the US proposal:  
 
• There may be conceptual inconsistency between, on the one hand, paragraph (c) of the US 
proposal, which refers to "non -governmental buyers" for "non -governmental purposes" and, 
on the other hand, "governmental purpos es," which is referred to in Article II:1(a) of the US 
proposal.  [Japan ; Hong Kong, China]  
 GPA/TN1994/2/Rev.9  
- 96 - 
  • If the US proposal has already excluded procurements of goods and services for commercial 
sale or resale, Article VI:2(c) of the US proposal is not necessary.  [Hong Kong, China]  
• The US proposal provides for greater flexibility in reducing time periods below the standard 
40-day time -period in cases including those concerning procurement of commercial goods and 
services, referred to in ArticleVI:2(c) of  the US proposal . In some cases, governments 
purchase "off -the-shelf" products or commercial products, which are products that are not 
distinguishable from products that are purchased by non -governmental users . Such products 
can be purchased from anywhere and the government does not have any specific technical 
specifications for that product . Therefore, the procurement can be undertaken in an open and 
competitive way, more quickly than, for example, a major public construction project.  [US] 
• Article XI:3 cou ld be modified to provide for a minimum bid period of 10 days for procurement 
of commodities and commercial, off -the-shelf goods (and possibly other sufficiently 
well-defined categories of goods or services).  [Canada – Job No. 3481]  
 GPA/TN1994/2/Rev.9  
- 97 - 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed in 
Annexes  2 and 3, be fixed by mutual 
agreement between the entity an d 
the selected suppliers . In the 
absence of agreement, the entity 
may fix periods which shall be 
sufficiently long to enable 
responsive tendering and shall in 
any case not be less than 10 days.  
 (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed 
in Annexes 2 and 3, be fixed by 
mutual agreement between the 
entity and the selected 
suppliers . In the absence of 
agreement, the entity may fix 
periods which shall be 
sufficiently long to enable 
responsive tendering an d shall 
in any case not be less than 10 
days.  
[Singapore – Job No. 3772]  
 
 (d) the period referred to in 
paragraph  2(c) may be fixed by 
mutual agreement between the 
entity and the selected 
suppliers . In the absence of 
agreement, the entity may fix 
periods w hich shall be 
sufficiently long to enable 
responsive tendering and shall 
in any case not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (e) in the case where the procuring 
entity procures off -the-shelf 
products or services, the period 
referred to in paragraph 2(c) 
may be reduced to 15  days.  
[EC – GPA/W/87 ] 
 
 (e) where the subject -matter of a 
procurement  is an off -the-shelf 
product or service, or 
agricultural or mineral product, 
the period shall not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 (f) where an electronic tender 
documentation is available from 
a website indicated in the notice 
of paragraph  6 of Article IX, the 
period may be further reduced 
by 5 days.  
[Chinese Taipei – Job No. 3193]  
 
 
  GPA/TN1994/2/Rev.9  
- 98 - 
   
Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article V of this Agreement 
in an electronic media listed in Appendix 
III, the entity may reduce the time periods 
provided for in this Agreement by up to 
10 calendar days . The use of this provision, 
however, shall in no case result in the 
reduction of those time periods to less than 
10 calendar days from the date on which 
the notice of intended procurement is 
published.  
[US – Job No. 2867]  
 
 4. Where, as a result of a need to amend 
information provided to suppliers during 
the procurement process, a procuring 
entity must extend the time period for 
qualification or tendering procedures, such 
entity shall permit all participating 
suppliers to submit final tenders in 
accordance with a common deadline.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 99 - 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Consistent with the entity's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of 
the intended procurement, the extent of 
subcontracting ant icipated and the realistic time 
required for production, de -stocking and 
transport of goods from the points of supply or 
for supply of services.  
 4. In cases where the procuring entity 
offers simultaneously free and direct access 
via the single point of ac cess referred to in 
Article IX to the complete call for tenders 
including all annexes both the deadlines of 
30 and 15 days may be further reduced by 
5 days.  
[EC – GPA/W/87 ] 
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which is [in the public domain] 
[readily available to both local and foreign 
suppliers] its overall policy on the 
time-limits for intended procurement to be 
followed by its entities.  
 
 Clause (b)  
 
 Consistent with the provisions in 
Article  XX, entities shall provide for rapid 
and immediate measures to address 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 
 GPA/TN1994/2/Rev.9  
- 100 - 
  ARTICLE XII:  TENDER DOCUMENTATION  
Article XII:1, 2  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity 
allows tenders to be submitted in several 
languages, one of those languages shall be  one 
of the official languages of the WTO.  
  
 
Comments  
 
• Why has the requirement regarding the use of a WTO language been omitted from the US 
proposal ? [Japan]  
• The US considers that it is not necessary to deal with that issue in the Agreement.  [US] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to 
suppliers shall contain all information necessary 
to permit them to submit responsive tenders, 
including information required to be published in 
the notice of intended procurement, except for 
paragraph 6(g) of Article  IX, and the following:  
 1. Procuring entities shall provide to 
suppliers tender documentation that 
includes all information necessary to permit 
suppliers to prepare and submit responsive 
bids. Unless already provided in the notice 
of intended procurement, such 
documentation shall include a complete 
description of:  
[US – Job No. 2867]  
 
(a) the address of the entity to which 
tenders should be sent;  
  
(b) the address where requests for 
supplementary information should 
be sent;  
  
(c) the language or languages in which 
tenders and tendering documents 
must be submitted;  
  
(d) the closing date and time for receipt 
of tenders and the length of time 
during which any tender should be 
open for acceptance;  
  
(e) the persons authorized to be 
present at the opening of tenders 
and the date, time and place of this 
opening;  
 (d) the date, time and place for the 
opening of tenders ; and 
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 101 - 
  Article XII  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) any economic and technical 
requirement, financial guarantees 
and information or documents 
required from suppliers;  
 (b) any conditions for participation 
in the procurement, including 
any financial guarantees, 
information and documents that 
suppliers are required to 
submit;  
 
(g) a complete description of the 
products or services required or of 
any requirements including 
technical specifications, conformity 
certification to be fulfilled, 
necessary plans, drawings and 
instructional materials;  
 (a) the intended procurement, 
including the nature and 
quantity of the goods or services 
to be procured and any 
requirements to be fulfilled, 
including any technical 
specifications, conformity 
certification, plans, drawings or 
instructional materials;  
 
(h) the criteria for awarding the 
contract, including any factors other 
than price that are to be considered 
in the evaluation of tenders and the 
cost elements to be in cluded in 
evaluating tender prices, such as 
transport, insurance and inspection 
costs, and in the case of products or 
services of other Parties, customs 
duties and other import charges, 
taxes and currency of payment;  
 (c) all criteria, including all cost 
factors, to be considered in the 
awarding of the contract, and 
the weights that will be 
assigned to such criteria in 
evaluating tenders;  
[US – Job No. 2867]  
(i) the terms of payment;  
 (e) the terms of payment and any 
other terms or conditions.  
 
(j) any other terms or conditions;  
 [US – Job No. 2867]  
(k) in accordance with Article XVII the 
terms and conditions, if any, under 
which tenders from countries not 
Parties to this Agreement, but which 
apply the procedures of that Article, 
will be entertained.  
  
 GPA/TN1994/2/Rev.9  
- 102 - 
  Article XII:3  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the 
Entities  
  
3.(a) In open procedures, entities shall 
forward the tender documentation 
at the request of any supplier 
participating in the procedure, and 
shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
  
(b) In selective procedures, entities 
shall forward the tender 
documentation at the reques t of any 
supplier requesting to participate, 
and shall reply promptly to any 
reasonable request for explanations 
relating thereto.  
  
(c) Entities shall reply promptly to any 
reasonable request for relevant 
information submitted by a supplier 
participating in the tendering 
procedure, on condition that such 
information does not give that 
supplier an advantage over its 
competitors in the procedure for the 
award of the contract.  
  
 GPA/TN1994/2/Rev.9  
- 103 - 
  ARTICLE XIII:  SUBMISSION,  RECEIPT  AND OPENING  OF TENDERS  
AND AWARDING  OF CONTRACTS  
Article XIII:1  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of 
tenders and awarding of contracts shall be 
consistent with the following:  1. The submission, receipt and opening 
of tenders and awarding of contracts shall 
be consistent with the following:  
 
(a) tenders shall normally be submitted 
in writing directly or by mail . If 
tenders by telex, telegram or 
facsimile are permitted, the tender 
made thereby must include all the 
information necessary for the 
evaluation of the tender, in particular 
the definitive price proposed by the 
tenderer and a statement that the 
tenderer agrees  to all the terms, 
conditions and provisions of the 
invitation to tender . The tender must 
be confirmed promptly by letter or by 
the despatch of a signed copy of the 
telex, telegram or facsimile . Tenders 
presented by telephone shall not be 
permitted . The co ntent of the telex, 
telegram or facsimile shall prevail 
where there is a difference or conflict 
between that content and any 
documentation received after the 
time-limit; and (a) tenders shall be submitted in 
writing;  
[EC – GPA/W/87 ] 
 
(a) tenders shall normally b e 
submitted in writing . If tenders 
by telex, telegram or facsimile or 
electronic means are permitted, 
the tender made thereby must 
include all the information 
necessary for the evaluation of 
the tender, in particular the 
definitive price proposed by the 
tenderer and a statement that 
the tenderer agrees to all the 
terms, conditions and provisions 
of the invitation to tender . 
Tenders presented by telephone 
shall not be permitted . The 
content of the telex, telegram or 
facsimile shall prevail where 
there is a difference or conflict 
between that content and any 
documentation received after 
the time -limit; and 
[Canada - Job No. 3481 – Alternative 1]  
 
 (a) tenders shall normally be 
submitted in writing, directly or 
by mail . Tenders must include all 
the information necessary for 
the evaluation of the tender, 
however submitted . A procuring 
entity may require that the 
tender b e confirmed promptly by 
letter or by the despatch of a 
signed copy of the telex, 
telegram or facsimile or 
electronic document.  
[Canad a- Job No. 3481 – Alternative 2]  
 
Comments  
 
• There should be flexibility to submit and receive tenders either in paper or electronic form . 
The revised provisions should allow the discontinuation of the use of paper format in 
submission of tenders.  [US] 
  GPA/TN1994/2/Rev.9  
- 104 - 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) tenders shall normally be 
submitted in writing directly or 
by mail . If tenders by telex, 
telegram, facsimile or electronic 
transmission  are permitted, the 
tender made thereby must 
include all the information 
necessary for the evaluation of 
the tender . The tender must be 
confirmed promptly by letter or 
by the despatch of a s igned copy 
of the telex, telegram, facsimile 
or electronic transmission, if 
required . Tenders presented by 
telephone shall not be 
permitted . U nless otherwise 
specified in the tender 
documentation, the content of 
the telex, telegram, facsimile or 
electronic  transmission shall 
prevail where there is a 
difference or conflict between 
that content and any 
documentation received after 
the time -limit; and 
[Chinese Taipei – Job No. 3193]  
 
Comments  
 
• In order to define the term "writing" to include electronically formatted writings, the following 
definition could be incorporated into the Agreement : "The term 'writing' as used in this 
Agreement is to be understood to include any worded or numbered expression which can be 
read, reproduced, and later communicated, and include electronically transmitted and stored 
information".  [US – Job No. 3842]  
• Parties need to agree whether electronic communications can be considered to be "in writing" ? 
[Japan]  
• The expression "in writing" could include the use of electronic means to the extent that the 
rest of the rules of the Agreement are respected . Paper bids should be kept as a warranty of 
transparency and equal treatment.  [EC] 
• There are two aspects to the phrase "in writing" . One is the physical aspect . The meaning of 
"in writing" has changed over time . Now that an electronic medium has been invented, the 
reference to "writing" could mean electronic writing . The other aspect is the legal aspect . In 
most cases, tenders are firm undertakings to carry out a con tract. For the purposes of the 
GPA, the more important aspect is the second aspect.  [Singapore]  
• A provision should be added to indicate that the means for submitting tenders may be specified 
by the procuring entity, provided the requirement to use such mea ns shall not reduce access 
by foreign and domestic suppliers.  [Canada – Job No. 3481]  
• The proposals do not make it clear who is responsible and to what extent, for the accuracy of 
data in tender documents and ensuring the protection of confidentiality of t ender information . 
There should be limits on the burden imposed upon procuring entities as regards the protection 
of the confidentiality of data transmitted electronically.  [Japan]  GPA/TN1994/2/Rev.9  
- 105 - 
  • What is the rationale for the elimination of the phrase "in particular the definitive 
price…invitation to tender" in the second sentence of the proposal for Article XVIII:1(a) by 
Chinese Taipei ? [Korea]  
• Questions and comments by the European Community ( No. 11) and Hong Kong, China 
(No. 13) regarding the elimination of GPA Article  XIII:1(a) in the United States' proposal and 
the responses by the United States are contained in Job No. 5595.  
• Since some Parties are already using electronic procurement, a consensus is needed to the 
effect that electronic procurement procedures are not inconsistent with the basic objective of 
the GPA, that is, non -discrimination and transparency of procurement.  [Japan]  
• Even though the EC has put forward proposals favouring the submission of bids by electronic 
means, this does not mean that the current wo rding does not allow for the use of such means.  
[EC] 
 GPA/TN1994/2/Rev.9  
- 106 - 
  Article XIII:2  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) integrity of data and 
confidentiality of tenders must 
be preserved . Tenders shall not 
be opened until after the 
deadline set by the contracting 
entity for receipt of tenders;  
 
 (c) whatever means of 
communication or exchange of 
information chosen they shall 
not cause a discrimination and 
be consistent with the principles 
laid down in Article 3 hereof ; 
and 
 
(b) the opportunities that may be given 
to tenderers to correct unintentional 
errors of form between the opening 
of tenders and the awarding of the 
contract shall not be permitted to 
give rise to any discriminatory 
practice.  
 (d) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of tenders 
and the awarding of the contract 
shall not be permitted to give  
rise to any discriminatory 
practice.  
[EC – GPA/W/87 ] 
 
 3. When procuring entities provide 
suppliers with opportunities to correct 
unintentional errors of form between the 
opening of tenders and the awarding of the 
contract, they shall provide the same 
opportunities to all participating suppliers.  
[US – Job No. 2867]  
 
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender 
is received in the office designated in the tender 
documentation after the time specified because of 
delay due solely to mishandling on the part of the 
entity . Tenders may also be considered in other 
exceptional circumstances if the procedures of the 
entity concerned so provide.  
 2. Procuring entities shall not penalize 
any supplier whose tender is received after 
the time specified for receiving tenders if 
the delay is due solely to mishandling on 
the part of the entity.  
[US – Job No. 2867]  
 
 
 
Comments  
 
• Comments by Hong Kong, China ( Nos. 3 and 4) regarding the above paragraphs 2 and 3 in 
the United States' proposal  and the responses by the United States are contained in Job 
No. 5595.  
  GPA/TN1994/2/Rev.9  
- 107 - 
  Article XIII:3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Opening of Tenders  
  
3. All tenders solicited under open or 
selective procedures by entities shall be received 
and opened under procedures and conditions 
guaranteeing the regularity of the openings . The 
receipt and opening of tenders shall also be 
consistent with the national tre atment and 
non-discrimination provisions of this Agreement . 
Information on the opening of tenders shall 
remain with the entity concerned at the disposal 
of the government authorities responsible for the 
entity in order that it may be used if required 
under  the procedures of Articles  XVIII, XIX, 
XX and XXII.  
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 108 - 
  Article XIII:4  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Award of Contracts  
 Awarding of Contracts  
4.(a) To be considered for award, a 
tender must, at the time of opening, 
conform to the essential 
requirements of the notices or 
tender documentation and be from 
a supplier which complies with the 
conditions for participation . If an 
entity has received a tender 
abnormally lower than other tenders 
submitted, it may enqu ire with the 
tenderer to ensure that it can 
comply with the conditions of 
participation and be capable of 
fulfilling the terms of the contract.  
 5. To be considered for award, a tender 
must be in writing and must, at the time of 
opening, conform to the ess ential 
requirements of the notices and tender 
documentation and be from a supplier 
which complies with the conditions for 
participation, including any specified 
time-periods . Procuring entities shall base 
contract award decisions solely on the 
requirements  and evaluation criteria that 
have been specified in the notices and 
tender documentation provided in advance 
to all participating suppliers.  
[US – GPA/W/112 ] 
 
6. Unless a procuring entity determines 
that it is not in the public interest to award 
a contract, procuring entities shall award 
the contract to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose tender 
is either the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the requirements 
and evaluation criteria set forth in the 
notices or tender documentation.  
[US – Job No. 2867]  
 (b) Unless in the public interest an 
entity decides not to issue the 
contract, the entity shall make the 
award to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose 
tender, whether for domestic 
products or services, or products or 
services of other Parties, is either 
the lowest tender or the tender 
which in terms of the specific 
evaluation criteria set forth in the 
notices or tender documentation is 
determined to be the most 
advantageous.  
 
 
Comments  
 
• Comments and questions by the European Community ( No. 12); Hong Kong, China ( No. 5); 
and Japan ( No. 11) regarding the absence of a mechanism to deal with the issue of 
"abnormally low offers" in the United States' proposal and the responses by the United St ates 
are contained in Job  No. 5595.  
• For the purpose of simplifying the Agreement, the following test should apply in connection 
with the elimination of the last sentence of Article XIII:4(a) . If there is anything in the 
Agreement that calls into question t he right of the entity to enquire abnormally low tenders, 
it may be necessary to state such a right . Otherwise, the sentence should be eliminated.  [US] 
• The Agreement should have the essential requirements . For the rest, the entities should be 
allowed to us e their own judgement for meeting the objectives of the Agreement in the most 
efficient way.  [Switzerland]  
  GPA/TN1994/2/Rev.9  
- 109 - 
  • Regarding the proposed deletion of the current provision on abnormally low offers, would it 
still be possible for the contracting entity to make th e necessary checks and investigations ? It 
would be preferable to have an explicit provision unless that provision has been abused . 
However, there is no evidence that that has been the case.  [EC] 
• If contract award information is available electronically, it  should be made available for a 
certain period of time so that suppliers are not required to regularly check the electronic site 
where that information is located.  [Canada]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 7. Procuring entities shall not cancel a 
procurement process, or terminate or 
modify awarded contracts in a manner that 
circumvents the obligations of this 
Agreement.  
[US – Job No. 2867]  
 
 
In relation to the US proposal:  
 
• Clarification is sought in relation to what is meant by "circumvention of the Agreement" in 
proposed paragraph 7 of the US proposal . The concept appears to be overly broad.  [Korea]  
• Is proposed paragraph 7 necessary since it seems to apply across the board to many 
provisions of the Agreement ? [Switzerland]  
• Proposed paragraph 7 responds to a concern that while tendering procedures may be fully 
compliant with the GPA, an unpopular award may be cancelled, the contract may not be 
awarded at all, or it may be awa rded at some time in the future using a different procedure . 
The US proposal aims to avoid such circumvention of the Agreement.  [US] 
• In response to a question on the rationale for paragraph 7 of the United States' proposal above 
from Canada, in a number of  major procurement situations, suppliers have encountered 
situation s where entities have cancelled award procedures at the last moment . There can be 
an impression among the suppliers that the entities had taken their decision relating to the 
technical meri ts of the tenders and that the cancellation of the procedures close to the award 
decision was for some other reasons which might be contrary to the objectives of the 
Agreement.  [US] 
  GPA/TN1994/2/Rev.9  
- 110 - 
  Article XIII:5  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Awards  shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a 
manner which circumvents the provisions of the 
Agreement.  
  
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agreement in 
the light of developments in the use of 
electronic tendering with a view to 
developing criteria for discontinuation of 
paper -based tenders, such as the 
experience of the en tity in conducting 
electronic tendering and the readiness of 
potential suppliers of a particular 
procurement to use electronic tendering, if 
appropriate.  
[Hong Kong, China – Job No. 3436]  
 
 GPA/TN1994/2/Rev.9  
- 111 - 
  Article XIV:1, 2, 3, 4  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
  
(a) in the context of procurements in 
which they have indicated such 
intent, namely in the notice referred 
to in paragraph 2 of Article IX (the 
invitation to suppliers to participate 
in the procedure for the proposed 
procurement) ; or 
  
(b) when it appears from evaluation 
that no one tender is obviously the 
most advantageous in terms of the 
specific evaluation criteria set forth 
in the notices or tender 
documentation.  
  
2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in tenders.  
  
3. Entities shall treat tenders in confidence . In 
particular, they shall not provide information 
intended to assist particular participants to bring 
their tenders up to the level of other participants.  
 2. Procuring entities shall treat 
tenders in confidence . In particular, they 
shall not provide information to particular 
suppliers that might prejudic e fair 
competition between suppliers.  
[US – Job No. 2867]  
 
4. Entities shall not, in the course of 
negotiations, discriminate between different 
suppliers . In particular, they shall ensure that:  
  
(a) any elimination of participants is 
carried out in accordance with the 
criteria set forth in the notices and 
tender documentation;  
  
(b) all modifications to the criteria and 
to the technical requirements are 
transmitted in writing to all 
remaining participants in the 
negotiations;  
  GPA/TN1994/2/Rev.9  
- 112 - 
  ARTICLE XIV : NEGOTIATION  
Article XIV  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) all remaining participants are 
afforded an opportunity to submit 
new or amended submissions on the 
basis of the revised requirements ; 
and 
  
(d) when negotiations are concluded, all 
participants remaining in the 
negotiations shall be permitted to 
submit final tenders in accordance 
with a common deadline.  
  
 
Comments  
 
• It may not be necessary to identify a separate framework given that negotiations can be a 
part of other procurement procedures . It would be sufficient to apply the basic principles in 
the Agreement to negotiations . This Article should be removed from the Agreement.  [US] 
• There should be certain parameters in this respect, g iven the role that negotiations often play 
in the tendering process . [EC] 
• While the US proposal allows for negotiation if that has been indicated in the tender 
documentation or when it appears that there is not necessarily a single most advantageous 
tender , it does not contain a requirement that the tender notice should indicate that 
negotiations will occur . Why has this requirement been omitted from the US proposal ? [EC] 
• Article XIV:1 states that negotiations are allowed when a Party has indicated in its n otice that 
it will provide for negotiations . Article V:2(c) of the US proposal states that if negotiations are 
to be used, that information must be provided in the notice . If an entity holds negotiations 
but that has not been referred to in the notice, Art icle V of the US  proposal will not have been 
complied with . Similarly, Article XIV:4(c) of the existing Agreement provides that when 
requirements for a project have been revised, all remaining participants in a tendering process 
should have an opportunity to submit amended submissions on the basis of the revisions . 
Article VII:7 of the US proposal requires that if there are changes in the requirements during 
the process, that information must be provided to all suppliers that are participating.  [US] GPA/TN1994/2/Rev.9  
- 113 - 
  ARTICLE XV:  LIMITED TENDERING  
Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of Articles  VII through XIV 
governing open and selective tendering 
procedures need not apply in the following 
conditions, provided that limited tendering is not 
used with a view to avoiding maximum possible 
competition or in a manner which would 
constitute a means of discrimination among 
suppliers of other Parties or protection to 
domestic producers or s uppliers:  
 1. Where a procuring entity uses a 
limited tendering procedure, it may choose 
not to publish or distribute a notice of 
intended procurement prior to the award of 
the procurement contract.  
[US – Job No. 2867]  
 
 2. Procuring entities shall not us e 
limited tendering procedures for the 
purpose of avoiding competition among 
suppliers or in a manner that constitutes a 
means of discrimination  between suppliers 
of the other Parties or protection of 
domestic suppliers . Notwithstanding any of 
the provisio ns of paragraph 3 of this Article, 
entities shall not use limited tendering 
because of a lack of advance planning or 
concerns relating to the amount of funds 
available to an entity within a particular 
period of time.  
[US – Job No. 2867]  
 
 3. Procuring entities may use limited 
tendering procedures  in the following 
circumstances and subject to the following 
conditions, where applicable:  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.9  
- 114 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) in the absence of tenders in response  
to an open or selective tender, or 
when the tenders submitted have 
been collusive, or not in conformity 
with the essential requirements in 
the tender, or from suppliers who do 
not comply with the conditions for 
participation provided for in 
accordance wit h this Agreement, on 
condition, however, that the 
requirements of the initial tender are 
not substantially modified in the 
contract as awarded;  (a) in the absence of tenders that 
conform to the essential 
requirements in the tender 
documentation provided in  a 
prior tendering procedure, on 
condition that the requirements 
of the initial procurement are 
not substantially modified in the 
contract as awarded;  
[US – Job No. 2867]  
 
 (b) in the absence of tenders from 
suppliers which meet 
qualification requirements 
established for a prior tendering 
procedure;  
[US – Job No. 2867]  
 
(b) when, for works of art or for reasons 
connected with protection of 
exclusive rights, such as patents or 
copyrights, or in the absence of 
competition for technical reasons, 
the products or services can be 
supplied only by a particular supplier 
and no reasonable alternative or 
substitute exists;  
 (c) where, for works of art, or for 
reasons connected with the 
protection of exclusive rights, 
such as patents, copyrights or 
proprietary information or 
where there is an absence of 
competition for technical 
reasons, the goods or services 
can be supplied only by a 
particular supplier and no 
reasonable alternative or 
substitute exists;  
[US – Job No. 2867]  
 
 (b) when, for works of art or for 
reasons connected with 
protection of exclusive rights, 
such as patents or copyrights, or 
in the absence of competition 
for technical reasons, the 
products or services can be 
supplied only by a particular 
supplier or group of suppliers 
and no reasonable alternative or 
substitute exists;  
[Hong Kong, China – Job No. 1333]  
 
 GPA/TN1994/2/Rev.9  
- 115 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) in so far as is strictly necessary 
when, for reasons of extreme 
urgency brought about by events 
unforeseeable by the entity, the 
products or services could not be 
obtained in time by means of open or 
selective tendering procedures;  
 (f) insofar as is strictly necessary 
where, for reasons of extreme 
urgency brou ght about by 
events unforeseeable by the 
entity, the goods or services 
could not be obtained in time 
under tendering procedures 
consistent with Articles  V and VI 
of the Agreement, and the use of 
such procedures would result in 
serious injury to the entity,  the 
entity's programme 
responsibilities, or the 
responsible Party;  
[US – Job No. 2867]  
(d) for additional deliveries by the 
original supplier which are intended 
either as parts replacement for 
existing supplies, or installations, or 
as the extension of existing supplies, 
services, or installations where a 
change of supplier would compel the 
entity to procure equipment or 
services not meeting requirements of 
interchangeability with already 
existing equipment or services5; 
 (d) for additional deliveries by the 
original supplier that are 
intended either as replacement 
parts, extensions, or continuing 
services for existing equipment, 
software, services or 
installations, where a change of 
supplier would compel the 
entity to procure products or 
services not meeting 
requirements of 
interchangeability with existing 
equipment, software, services, 
or installations;  
[US – Job No. 2867]  
(e) when an entity procures prototypes 
or a first product or service which are 
developed at its request in the course 
of, and for, a particular contract for 
research, experiment, study or 
original development . When such 
contracts have been fulfilled, 
subsequent procurements of 
products or services shall be subject 
to Articles  VII through XIV6; 
 
5 It is the understanding that "existing equipment" 
includes software to the extent that the initial 
procurement of the software was covered by the 
Agreement.  
 
6 Original development of a first product or service may 
include limited production or supply in order to 
incorporate the results of field testing and to 
demonstrate that the product or service is suitable for 
production or supply in quantity to acceptable quality 
standards . It does not extend to quantity production or 
supply to establish commercial viability or  to recover 
research and development costs.   GPA/TN1994/2/Rev.9  
- 116 - 
  Comments  
 
In relation to the US proposal:  
 
• Caution should be exercised in dropping elements contained in the current Article XV.  [Japan ; 
Canada ; Korea]  
• Clarification is sought as to why the US proposal omits paragraphs (e), (f), (g), (i), (j) from 
the existing text of the Agreement.  [Japan ; Canada ; Korea]  
• Statistical reports regarding limited tendering indicate that the paragraphs that have been 
deleted by the US have not been frequently used . Most cases  involve follow -up purchases.  
[Switzerland]  
• Some of the existing provisions in Article XV seem to be similar but have been expanded upon 
at great length and, perhaps, in unnecessary detail . For example, sub -paragraphs (f) and (g) 
relate to similar construc tion services . The relevant issues are compatibility or 
interchangeability and the need to maintain consistency . It is unclear whether it is necessary 
to have three or four separate sub -paragraphs that address those overall, broad issues . The 
US proposal s eeks to condense sub -paragraphs (d), (f) and (g) of the existing text into one 
sub-paragraph . In addition, at least on the basis of the US system, a number of 
sub-paragraphs in the existing text are not considered necessary.  [US] 
• Regarding the proposed del etion of the exception in relation to collusive tendering, there may 
be cases of collusive tendering in particular markets and, therefore, procuring entities should 
have instruments to react in those situations.  [EC] 
• Normally, the absence of competition in  cases of collusive tendering should not necessarily 
lead to the restriction of competition by the entity . If collusive tendering occurs, suppliers 
should be excluded . Further consideration of tendering procedures is needed in markets where 
it is difficult  to introduce or maintain competition.  [US] 
• The wording contained in some parts of the US proposal differs from the wording contained in 
the existing text . What will be the impact of the proposed wording changes and how will the 
proposed new wording accommodate situations that are proposed to be deleted ? [Canada]  
• Clarification is sought as to whether, in the United States, limited tendering is used in cases 
of, for example, design contests and prototypes.  [Canada]  
• The issue of limited tendering and ho w it should be addressed in the Agreement is very 
important since limited tendering, while necessary in some cases, has significant implications 
for market access and, therefore, has significant implications for achieving the objectives of 
the Agreement . While limited tendering is used in a limited way by most entities and in most 
countries, there are some cases and situations in which it is used 80 or 85 % of the time . The 
Agreement should provide flexibility in cases where limited tendering is necessary wh ile at the 
same time ensuring that that flexibility is not be abused.  [US] 
• Paragraph 3(f) of Article IX of the US proposal allows for the use of limited tendering in cases 
of extreme urgency . However, paragraph 2 of Article IX of the US proposal states tha t 
procuring entities cannot use limited tendering in cases where there has been a lack of 
advance planning . In many cases, it is difficult to say whether an extreme urgency is due to 
an unforeseen emergency or due to a lack of advance planning . How advance d should planning 
be? [Hong Kong, China]  
• There have been a number of situations where trading partners have used limited tendering 
procedures merely because money that had been allocated for a fiscal year had to be used 
quickly and there had not been enoug h time to use an open tendering procedure . That 
situation cannot necessarily be categorized as an emergency situation, allowing an exception 
to be made to the general transparency and competitive requirements of the Agreement.  [US] 
 GPA/TN1994/2/Rev.9  
- 117 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additional construction 
services which were not included in 
the initial contract but which were 
within the objectives of the original 
tender documentation have, through 
unforeseeable circumsta nces, 
become necessary to complete the 
construction services described 
therein, and the entity needs to 
award contracts for the additional 
construction services to the 
contractor carrying out the 
construction services concerned 
since the separation of the additional 
construction services from the initial 
contract would be difficult for 
technical or economic reasons and 
cause significant inconvenience to 
the entity . However, the total value 
of contracts awarded for the 
additional construction services may 
not exceed 50 % of the amount of the 
main contract;  
  
(g) for new construction services 
consisting of the repetition of similar 
construction services which conform 
to a basic project for which an initial 
contract was awarded in accordance 
with Articles  VII through XIV and for 
which the entity has indicated in the 
notice of intended procurement 
concerning the initial construction 
service, that limited tendering 
procedures might be used in 
awarding contracts for such new 
construction services;  
  
 
Comment  
 
• Regarding the proposed deletion by the US of the exception relating to additional construction 
services, clarification is necessary as to whether such cases are covered by other exceptions 
such as the additional delivery of goods or services.  [EC] GPA/TN1994/2/Rev.9  
- 118 - 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) for products purchased on a 
commodity market;  
 (e) for goods purchased on a 
commodity market;  
[US – Job No. 2867]  
(i) for purchases made under 
exceptionally advantageous 
conditions which only arise in the 
very short term . This provision is 
intended to cover unusual disposals 
by firms which are not normally 
suppliers, or disposal of assets of 
businesses in liquidation or 
receivership . It is not in tended to 
cover routine purchases from regular 
suppliers;  
 
 
Comments  
 
• The Agreement's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of paragraphs (h) and (i).  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(j) in the case of contracts awarded to 
the winner of a design contest 
provided that the contest has been 
organized in a manner which is 
consistent with the principles of this 
Agreement, notably as reg ards the 
publication, in the sense of Article  IX, 
of an invitation to suitably qualified 
suppliers, to participate in such a 
contest which shall be judged by an 
independent jury with a view to 
design contracts being awarded to 
the winners.  
  
 GPA/TN1994/2/Rev.9  
- 119 - 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
(k) for additional purchases of 
human life -preserving or 
life-saving products that require 
extensive user training or 
experience or trial for safety 
reasons.  
[Hong Kong, China – Job No. 1333)  
 
 
 
Comments  
 
• The new proposed paragraph (k) is aimed at fairly restricted circumstances.  [Hong Kong, 
China]  
• The issues that have been raised in this context as warranting an addition to Article XV relate 
primarily to issues of quality control and the technical appropriateness of products . It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to selective 
tendering which could involve q ualification requirements including performance records and 
technical specifications establishing high quality standards and would be much more 
transparent and competitive.  [US] 
• This proposal must be carefully considered since the use of limited tendering must be strictly 
limited.  [EC] 
• The proposed paragraph (k) is quite similar to the existing Article XV:1(d) in that both 
provisions refer to "additional purchases".  [Singapore ] Article XV:1(d) could/might be 
modified to meet the concerns raised by Hong Kong , China.  [Switzerland ; United States]  
 
• Singling out a particular sector or set of issues in the new paragraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of additional deliveries.  
[Switzerland]  
• The existing sub paragraph 1(d) may not be wide enough to cover what is proposed to be 
covered by the proposed paragraph (k) . Also, in relation to the former paragraph, it is unclear 
what is meant by "interchangeability" and "compulsion".  [Hong Kong, China]  
• The concerns of  Hong Kong, China could be met by formulating appropriate conditions in 
tender documents.  [US] 
 
 
  GPA/TN1994/2/Rev.9  
- 120 - 
  Article XV:2 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall prepare a report in writing on 
each contract awarded under the provisions of 
paragraph  1. Each report shall contain the name 
of the procuring entity, value and kind of goods or 
services procured, country of origin, and a 
statement of the conditions in this Article which 
prevailed . This report shall remain with the 
entities concerned at the disposal of the 
government authorities responsible for the entity 
in order that it may be used if required under the 
procedures of Articles  XVIII, XIX, XX and XXII.  
 4. Procuring entities shall prepare  a 
report in writing on each contract awarded 
under paragraph  3 of this Article . Each such 
report shall include the name of the 
procuring entity, the value and kind of 
goods or services procured, and a 
statement indicating the circumstances and 
conditions described in paragraph 3 of this 
Article that justified the use of limited 
tendering . Entities shall retain each such 
report for a minimum of three years.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 121 - 
  ARTICLE XVI:  OFFSETS  
Article XVI:1, 2  
 
Offsets  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in 
the evaluation of tenders and award of contracts, 
impose, seek or consider offsets.7 
 
7 Offsets in government procurement are measures 
used to encourage local development or improve the 
balance -of-payments accounts by means of domestic 
content, licensing of technology, investment 
requirements, counter -trade or similar requirements.  
 4. Procur ing entities shall not consider, 
seek or impose offsets in the qualification 
and selection of suppliers, goods or 
services, in the evaluation of tenders, or in 
the award of contracts.  
[US – Job No. 2867]  
2. Nevertheless, having regard to general 
policy considerations, including those relating to 
development, a developing country may at the 
time of accession negotiate conditions for the use 
of offsets, such as requirements for the 
incorporation of domestic content . Such 
requirements shall be used o nly for qualification 
to participate in the procurement process and not 
as criteria for awarding contracts . Conditions shall 
be objective, clearly defined and 
non-discriminatory . They shall be set forth in the 
country's Appendix I and may include precise 
limitations on the imposition of offsets in any 
contract subject to this Agreement . The existence 
of such conditions shall be notified to the 
Committee and included in the notice of intended 
procurement and other documentation.  
 Definition : 
 
offset s means conditions imposed or 
considered by a procuring entity prior to, or 
in the course of, its procurement process 
that encourages local development or 
improves a Party's balance of payments 
accounts by means of requirements of local 
content, licensing of technology, 
investment, counter -trade or similar 
provisions;  
[US – Job No. 2867]  
 
Comments  
 
• Offsets are one of the main benefits for developing countries and provision for them in the 
Agreement could encourage other developing countries to become a Party. Developing country 
companies are, generally speaking, small to medium -sized enterprises and it is difficult for 
them to compete in international markets . Offsets provides those companies with an 
opportunity to enter into joint -ventures with internat ional companies and to establish business 
contacts that could lead to participation in future projects.  [Israel]  
• Given that the flexibility to use offsets is aimed at favouring developing countries, it might be 
more appropriate to address this issue in the  context of an Article addressing developing 
countries' needs . Perhaps providing flexibility in the Agreement will suffice.  [Switzerland ; US] 
• Offsets is not necessarily the best way in which to incorporate flexibility into the Agreement 
in favour of develo ping countries.  [EC] GPA/TN1994/2/Rev.9  
- 122 - 
  ARTICLE XVII: TRANSPARENCY  
Article XVII:1  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering procedures 
or access to challenge procedures, under which 
tenders will be entertained from suppliers situated 
in countries not Parties to this Agreement but 
which, with a view to creating transparency in 
their own cont ract awards, nevertheless:  
 1. Each Party shall encourage entities to 
indicate the terms and conditions, including 
any deviations from competitive tendering 
procedures or access to challenge 
procedures, under which tenders will be 
entertained from supplier s situated in 
countries not Parties to this Agreement but 
which, with a view to creating transparency 
in their own contract awards, nevertheless:  
 
(a) specify their contracts in accordance 
with Article  VI (technical 
specifications);  
 (a) specify their contracts in 
accordance with Article VI 
(technical specifications);  
 
(b) publish the procurement notices 
referred to in Article  IX, including, in 
the version of the notice referred to 
in paragraph  8 of Article  IX 
(summary of the notice of intended 
procurement) which is published in 
an official language of the WTO, an 
indication of the terms and 
conditions under which tenders shall 
be entertained from suppliers 
situated in countries Parties to this 
Agreement;  
 (b) publish the procurement notices 
refer red to in Article IX, 
including, in the version of the 
notice referred to in 
paragraph  8 of Article IX 
(summary of the notice of 
intended procurement) which is 
published in an official language 
of the WTO, an indication of the 
terms and conditions under 
which tenders shall be 
entertained from suppliers 
situated in countries Parties to 
this Agreement;  
 
(c) are willing to ensure that their 
procurement regulations shall not 
normally change during a 
procurement and, in the event that 
such change proves unavoidable, to 
ensure the availability of a 
satisfactory means of redress.  
 (c) are willing to ensure that their 
procurement regulations shall 
not normally change during a 
procurement and, in the event 
that such change proves 
unavoidable, to ensure the 
availability of a satisfactory 
means of redress.  
 
 GPA/TN1994/2/Rev.9  
- 123 - 
  Article XVII:2  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Governments not Parties to the Agreement 
which comply with the conditions specified in 
paragraphs 1(a) through 1(c), shall be entitled if 
they so inform the Parties to participate in the 
Committee as observers.  
 2. Each Party shall encourage entities to 
publish their technical specifications on the 
Internet through a single point of access 
accessible free of charge [The amount and 
terms of payment of any sum payable for 
the download of such technical 
specifications shall be reasonable, and shall 
be indicated in the notice of intended 
procurement, as provided for under 
Article  IX, paragraph 6( g) [Sing – Job 
No. 5271]] . W here such publication is 
provided, contracting entities shall be 
encouraged to mention the address of the 
single point of access in the tender notice.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• Given the aim to streamline the Agreement and encouraging broader participation, the 
proposed provision on the use of the Internet may not be appropriate.  [US] 
• A further question is whether technical specifications remain unchanged from procurement to 
procurement . There may be a risk that, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
• A single point of entrance may not be workable or necessary . It may be easier to have 
information at a single point of entry on how to access informat ion throughout a given system . 
However, it may not be practical to have too much detailed information at the single point of 
entry . The difficulties may be particularly pronounced in the case of Members with 
decentralized procurement systems.  [US] 
• Technolo gy offers possibilities that are not always fully exploited . There could be Internet 
pages with links . A stronger commitment is required to use the various possibilities of 
electronic procurement to allow businesses to easily access at least information as  to where 
further information can be obtained.  [EC] 
In relation to the charging of fees:  
 
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount and terms of payment of any sum payable for the tender documentat ion". Parties 
should be given the flexibility to impose a reasonable charge, even for technical specifications 
and tender documents which are downloaded from the Internet.  [Job No. 5074]  
• Some form of charges may be necessary to ensure that documents are no t downloaded 
indiscriminately . Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore ; Canada]  
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs asso ciated with providing the documents by mail . Providing 
documents free of charge will increase transparency and, in particular, will benefit small and 
medium enterprises seeking opportunities in procurement markets.  [EC] 
 GPA/TN1994/2/Rev.9  
- 124 - 
  • The fee charged should be strictly linked to actual cost incurred in the provision of information.  
[EC] 
• Paragraph 2 should be deleted or amended as suggested after deleting the words "accessible 
free of charge" in the first sentence.  [Singapore – Job No. 5271]  GPA/TN1994/2/Rev.9  
- 125 - 
  ARTICLE XVIII:  INFORMATION AN D REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  
Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each 
contract under Articles  XIII through XV . These 
notices shall contain:  
  
 2. Not later than 90 calendar days after 
the award of a contract covered by this 
Agreement, the procuring entity shall 
publish a notice in the appropriate 
publication designated in Appendix III of 
this Agreement that includes at least the 
following information about the contract:  
[US – Job No. 2867]  
 
 1. Having awarded a contract, entities 
shall:  
 
(a) Publish , for at least 120 days, 
information on contract awards, 
including:  
[Canada – Job No. 3484]  
 
(a) the nature and quantity of products 
or services in the contract award;  
 (a) the nature and quantity of 
products or services in the 
contract  award [by referring to 
the relevant CPV code, if 
applicable [Singapore – 
Job No. 5271 ]]; 
[EC – GPA/W/87 ] 
 
 (b) a description of the goods or 
services procured;  
[US – Job No. 2867]  
 
 (iii) a description of the nature 
and quantity of the goods 
or services included in the 
contract;  
[Canada –Job No. 3484]  
 
(b) the name and address of the entity 
awarding the contract;  
 (b) the name and address of the 
entity awarding the contract;  
[EC – GPA/W/87 ] 
 
 
 GPA/TN1994/2/Rev.9  
- 126 - 
  Comments  
 
• The period of 90 days for publication of contract award information might be too long for 
certain suppliers, for instance for bid challenge purposes.  [Singapore]  
• Publication of information on contract award for at least 120 days is intended to deal with the 
situation of electronic -based publishing, for instance on an Internet site . It would be useful t o 
have parameters with respect to the minimum time the information should be made accessible 
to suppliers through electronic media . The wording could be changed so as not to give the 
impression that the information should be published each day for 120 days . [Canada]  
• There is a link between the United States' proposal and the proposal of the 
European  Community for using publication of contract award information as an alternative to 
statistical reporting . If the proposal by the European Community were to be p ursued, the 
time-periods for publication of notices would need to be longer.  [Canada]  
 GPA/TN1994/2/Rev.9  
- 127 - 
  Article XVIII  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the name of the procuring 
entity;  
[US – Job No. 2867]  
 
 (iv) the name and contact 
location of the procuring 
entity;  
[Canada – Job No. 3484]  
 
(c) the date of award;  
 (c) the date of award;  
[EC – GPA/W/87 ] 
 
(d) the name and address of winning 
tenderer;  
 (d) the name and address of 
winning tenderer;  
[EC – GPA/W/87 ] 
 
 (c) the name of the winning 
tenderer;  
[US – Job No. 2867]  
 
 (i) the name  and address of 
the winning supplier;  
[Canada – Job No. 3484]  
 
 
Comments  
 
• A question by the European Community ( No. 13) regarding the limitation of the publication of 
information to the value of the winning award only in the United States' proposal and the 
response by the United States are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.9  
- 128 - 
  Article XVIII  
 
Information and Review as Regards Ob ligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) the value of the winning award  or the 
highest and lowest offer taken into 
account in the award of the contract;  
 (e) the value of the winning award 
or the highest and lowest offer 
taken into account in the award 
of the contract;  
[EC – GPA/W/87 ] 
 
 (d) the value of the winning award 
or the highest and lowest offer 
taken into account in the award 
of the contract ; and 
[US – Job No. 2867]  
 
 (ii) the value and date of the 
contract;  
[Canada – Job No. 3484]  
 
 
Comments  
 
• There is currently a choice given to the procuring entity to publish either the value of the 
winning award or the highest and the lowest offers made . The US proposal 2(d) to eliminate 
that choice and make compulsory the publication of the value of the winning award would 
mean that no information may be provided when entitie s consider the precise value of the 
contract to be commercially sensitive information . Would this change not lead to a reduction 
in the level of transparency achieved ? [EC] 
• For the purposes of transparency, the value of all tenders received should be published . There 
are some rare instances, such as defence contracts, that are excluded from the GPA, that do 
contain sensitive information . If open tendering procedures are used, transparency should 
apply throughout the process, until the tender award . If, for whatever reason, open tendering 
procedures are not used, the bid value might be commercially sensitive and would not 
published - for example, in cases involving confidential information, R&D, or prototypes.  
[Singapore]  
• Article XVIII is applicable to a ll procedures and not only to open tendering procedures . The 
release of the value of the winning bid may not be problematic in cases of open tendering 
procedures . However, that may not be the case where selective and limited tendering 
procedures are used.  [EC] 
• The two options currently allowed for have their advantages and disadvantages . If an option 
is to be removed, it is necessary to justify why one option is better than the other.  
[Switzerland]  
• In cases where there are oligopolistic market structures, w ould it be risky to have an absolute 
transparency rule regarding publication of award values ? [EC] 
  GPA/TN1994/2/Rev.9  
- 129 - 
  • From the procuring entity's point of view, there is no reason why the award value should not 
be disclosed, especially since taxpayers' money is being used . The issue is only relevant to 
suppliers . However, suppliers' concerns are already accommodated in paragraph 4, which 
states that publication can be withheld upon request where legitimate commercial interests 
could be prejudiced.  [Singapore]  
• Why would some  entities consider the total value of a contract to be commercially sensitive 
information ? [US] GPA/TN1994/2/Rev.9  
- 130 - 
  Article XVIII 
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) where appropriate, means of 
identifying the notice issued under 
paragraph 1 of Article  IX or 
justification according to Article  XV 
for the use of such procedure ; and 
 (f) where appropriate, means of 
identifying the notice issued 
under paragraph 1 of Article IX 
or justification according to 
Article XV for the use of such 
procedure ; and 
[EC – GPA/W/87 ] 
 
 (v) and, where appropriate, 
the justification according 
to Article  XV. 
[Canada – Job No. 3484]  
 
(g) the type of procedure used.  
  (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
 (e) the type of procurement method 
used, and in cases where limited 
tendering procedures are used, 
a description of the 
circumstances justifying the use 
of such procedures.  
[US – Job No. 2867]  
 
 (b) Publish such information in 
officially designated media 
which are readily accessible to 
suppliers and other Parties 
within 72 days of contract 
award . O fficially designated 
media, listed in Appendix II, 
may be electronic or paper.  
[Canada – Job No. 3484]  
 
 (c) Provide bidders, upon request, 
with information regarding the 
reasons that they were not 
successful.  
[Canada – Job No. 3484]  
 
 
Comments  
 
• With regard to paragraph (e) of the US proposal, reference is made to "procurement method" 
which is not defined in the article containing definitions . Clarification is sought in relation to 
the meaning of "procurement method".  [Japan]  GPA/TN1994/2/Rev.9  
- 131 - 
  Article XVIII:2, 3, 4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEME NT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a 
supplier of a Party, promptly provide:  
 Announcement of Post Award Information  
 
1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the procurement award 
decisions subject to Article  [XII] of this 
Agreement, procuring entities shall, upon 
request, provide losing bidders with an 
explanation of the reasons for not being 
selected and the relative advantages of the 
successful supplier.  
[US – Job No. 2867]  
 
(a) an explanation of its procurement 
practices and procedures;  
  
(b) pertinent information concerning 
the reasons why the supplier's 
application to qualify was rejected, 
why its existing qualification was 
brought to an end and why it was 
not selected ; and 
  
(c) to an unsuccessful tenderer, 
pertinent information concerning 
the reasons why its tender was not 
selected and on the characteristics 
and relative advantages of the 
tender selected as well as the name 
of the winning tenderer.  
  
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.  
  GPA/TN1994/2/Rev.9  
- 132 - 
  Comments  
 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso that electronic documents may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
• This change may not be necessary . Further, the clause does not specify the form by which 
entities are required to produce and record information.  [Hong Kong, China]  
• Parties should consider setting up a single "information centre" given that some Parties have  
decentralised procurement systems . Accordingly, it is important to establish an information 
system that provides suppliers with a single point of access.  [Korea ; EC] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. However, entitie s may decide that certain 
information on the contract award, contained in 
paragraphs  1 and 2(c), be withheld where 
release of such information would impede law 
enforcement or otherwise be contrary to the 
public interest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or private, or might prejudice fair 
competition between suppliers.  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall 
prevent Parties or their procuring entities 
from withholding the release of information 
under this Agreement where release might 
(a) impede law enforcement ; (b) prejudice 
fair competition between suppliers ; 
(c) prejudice the legitimate commercial 
interests of particular suppliers or 
procuring entities, i ncluding the protection 
of intellectual property ; or (d)  otherwise be 
contrary to the public interest.  
[US – Job No. 2867]  
 
 3. Nothing in this Article shall be 
construed as requiring any Party and its 
procuring entities to disclose confidential 
information which would impede law 
enforcement or otherwise be contrary to 
the public interest or would prejudice the 
legitimate commercial interest of particular 
enterprises, public or private, or might 
prejudice fair competition between 
supp liers, without formal authorization 
from the [party] [Party or supplier] 
providing the information.  
[Canada – Job No. 3484]  
 
 
Comments  
 
• The existing provisions in Articles XVIII:4 and XIX:2 and 4 are preferable.  [Hong  Kong,  China]  
• The basic concepts in Articles VII:2, XIV:3, XVIII:4, XIX:2 and XIX:4 are the same and do not 
differ in their application to procuring entities or Parties . This appears to provide scope for 
consolidation and simplification, perhaps by stating the concept once in the  text and 
incorporating it by reference elsewhere.  [US; Canada]  
 GPA/TN1994/2/Rev.9  
- 133 - 
  ARTICLE XIX:  INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  
Article XIX:1  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative 
ruling of general application, and any procedure 
(including standard contract clauses) regarding 
government procurement covered by this 
Agreement, in the appropriate publications listed 
in Appendix IV and in such a manner as to enable 
other Parties and suppliers to become acquainted 
with them . Each Party shall be prepared, upon 
request, to explain to any other Party its 
government procurement procedures.  
 Article IV  
Publication of Procurement Measures  
 
 Each Party shall promptly publish any 
law, regulation, judicial decision, 
administrative ruling of general application, 
and procedure regarding procurement 
covered by this Ag reement in officially 
designated electronic or paper media which 
are widely disseminated and readily 
accessible to the public . Each Party shall 
promptly publish in the same media all 
additions and changes to such measures.  
[US – Job No. 2867]  
 
 
Comments  
 
• Is further clarification of the phrase "of general application" in paragraph 1 necessary ? 
[US; EC] 
• Rules of general application are rules that are not specific to a particular procurement but 
perhaps apply to only some sectors.  [EC] 
• The term "gen eral application" is contained in a number of WTO agreements in the context of 
provisions that relate to notification, for example in GATT Article X and Article 63 of the TRIPS 
Agreement.  [Secretariat]  
• The words "detailed information" in paragraph 1 above should be replaced by "available 
information".  [Japan – No. 13, Job No. 5595]  
• In response to a clarification sought as to why the US proposal omits any reference to 
Appendix  IV [Japan ; Korea], Appendix IV may not be necessary, provided that laws, 
regulations etc. are published in an appropriate way.  [US] 
 GPA/TN1994/2/Rev.9  
- 134 - 
  Article XIX:2, 3  
 
Informat ion and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The government of an unsuccessful 
tenderer which is a Party to this Agreement may 
seek, without prejudice to the provisions under 
Article  XXII, such additional information on the 
contract award as may be necessary to ensure 
that the procurement was made fairly and 
impartially . To this end, the procuring 
government shall provide information on both 
the characteristics and relative adv antages of the 
winning tender and the contract price . Normally 
this latter information may be disclosed by the 
government of the unsuccessful tenderer 
provided it exercises this right with discretion . In 
cases where release of this information would 
prejud ice competition in future tenders, this 
information shall not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
 3. Upon the request of any other Party, a 
Party  shall provide such detailed 
information on the award of a contract as 
may be necessary to determine whether the 
procurement was conducted fairly, and in 
accordance with the provisions of this 
Agreement . Such information shall include 
information on the ch aracteristics and 
relative advantages of the winning tender 
and on the contract price.  
[US – Job No. 2867]  
 
2. A Party may seek additional 
information on the award of a contract as 
may be necessary to determine whether the 
procurement was made fairly and 
impartially . To this end, the Party of the 
procuring entity shall provide information 
on the characteristics and relative 
advantages of the winning tender and the 
contract price.  
[Canada – Job No. 3484]  
 
3. Available information concerning 
procurement by covered entities and their 
individual contract awards shall be provided, 
upon request, to any other Party.  
  
 
Comments  
 
• Comments and questions by Hong Kong, China ( No. 8) regarding the above proposal by the 
United States and the responses by the United States are contained in Job No. 5595.  
• A question by Korea ( No. 9) regarding the distinction between GPA Article XIX:2 and 
paragraph  2 of the United States' proposal and th e replies of the United States are contained 
in Job  No. 5595.  
 
• In relation to the reference in the Canadian proposal to the requirement that procuring entities 
provide information on the contract price, while this could be an option, it should not be a 
rule. [Switzerland ; EC] 
• The contract price is useful information that should be readily available to the public . The mere 
fact that entities did not always want to release that information should not prevent its release.  
[Canada]  
• The Canadian proposal relates  to the provision of information from one party to another party, 
which is not necessarily the same as the public release of that information . Such information 
is intended to provide an opportunity for Parties to exchange information in order to verify the  
appropriate implementation of the Agreement.  [US] 
  GPA/TN1994/2/Rev.9  
- 135 - 
  • In those cases where the Party providing the information considered it to be confidential, 
Article  XIX:4 would apply.  [US] 
• In some business areas, the entity but also the winner of the contract may not w ant the 
contract price to be disclosed.  [Switzerland]  
In relation to the US proposal:  
 
• With respect to proposed paragraph 3, the option not to disclose the contract price has been 
removed, provided the release of information would prejudice competition . In contrast, the 
existing GPA allows flexibility in this respect . It should be considered whether this flexibility 
should be retained.  [Switzerland]  
• Article XII:2 of the US proposal refers to the ability to withhold the release of information . 
Sub-paragraph (c) refers to that right in cases where it would prejudice legitimate commercial 
interests.  [US] 
 GPA/TN1994/2/Rev.9  
- 136 - 
  Article XIX:4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Confidential information provided to any 
Party which would impede law enforcement or 
otherwise be contrary to the public interest or 
would prejudice the legitimate commercial 
interest of particular enterprises, public or 
private, or might prejudice fair co mpetition 
between suppliers shall not be revealed without 
formal authorization from the party providing the 
information.  
 Non-Disclosure of Information  
 
1. The Parties and their procuring 
entities shall not disclose confidential or 
proprietary information.  
[US – Job No. 2867]  
 
 
Comments  
 
• The US proposal attempts to consolidate a number of similar provisions that currently exist in 
the GPA that relate to non -disclosure.  [US] GPA/TN1994/2/Rev.9  
- 137 - 
  Article XIX:5  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement . Such 
reports shall contain the following information 
with respect to contracts awarded by all 
procurement entities covered under this 
Agreement:  
 Collection and Report of Statistics  
 
5. Each Party shall collect and report to 
the Committee statistics on contracts 
awarded by e ntities covered under 
Appendix 1 of this Agreement . Each report 
shall be submitted within two years of the 
end of the reporting period, and shall 
contain:  
 
(a) for entities in Annex  1, statistics on 
the estimated value of contracts 
awarded, both above and below the 
threshold value, on a global basis 
and broken down by entities ; for 
entities in Annexes  2 and 3, 
statistics on the estimated value of 
contracts awarded above the 
threshold value on a global basis 
and broken down by categories of 
entitie s; 
 (a) For Annex 1 entities, statistics 
on the:  
 
(i) aggregate number and 
value, for all such entities 
collectively, of contracts 
covered by this 
Agreement;  
(ii) number and total value of 
all contracts covered by 
this Agreement awarded 
by such entities, b roken 
down by categories of 
goods and services 
according to a uniform 
classification system ; and 
(iii) number and total value of 
contracts covered by this 
Agreement awarded by 
each such entity under 
limited tendering 
procedures.  
[US – Job No. 2867]  
 
 
Comments  
 
• In developing the US proposal, an effort was made to determine precisely what statistical 
information available under the GPA is used for, how useful that information is and the 
appropriate amount of information that should be provided.  [US] 
• The EC agrees with the idea that some useful statistics are needed under the GPA and that 
the level of complexity associated with the current requirements needs to be reduced.  [EC] 
 GPA/TN1994/2/Rev.9  
- 138 - 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREE MENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) for entities in Annex  1, statistics on 
the number and total value of 
contracts awarded above the 
threshold value, broken down by 
entities and categories of products 
and services according to uniform 
classification systems ; for entities in 
Annexes  2 and 3, statistics on the 
estimated value of contracts 
awarded above the threshold value 
broken down by categories of entities 
and categories of products and 
services;  
 (b) For Annex 2 a nd 3 entities, 
separately, statistics on the:  
 
(i) aggregate number and 
value of contracts covered 
by this Agreement 
awarded by such entities;  
(ii) estimated total value of 
contracts covered by this 
Agreement awarded by 
such entities, broken 
down by catego ries of 
entities ; and 
(iii) estimated value of 
contracts covered by this 
Agreement awarded  by 
such entities under limited 
tendering procedures, 
broken down by 
categories of entities.  
[US – Job No. 2867]  
 
(c) for entities in Annex  1, statistics, 
broken down by entity and by 
categories of products and services, 
on the number and total value of 
contracts awarded under each of the 
cases of Article  XV; for categories of 
entities in Annexes  2 and 3, statistics 
on the total value of contracts 
awarded ab ove the threshold value 
under each of the cases of Article  XV; 
and 
  GPA/TN1994/2/Rev.9  
- 139 - 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) for entities in Annex  1, statistics, 
broken down by entities, on the 
number and total value of contracts 
awarded under derogations to the 
Agreement contained in the relevant 
Annexes ; for categories of entities in 
Annexes  2 and 3, statistics on the 
total value of contracts awarded 
under derogations to the Agreement 
contained in the relevant Annexes.  
  
To the extent that such information is available, 
each Party shall provide statistics on the country 
of origin of products and services purchased by 
its entities . With a view to ensuring that such 
statistics are comparable, the Committee shall 
provide guidance on methods to be used . With a 
view to ensuring effective monitoring of 
procurement covered by this Agreement, the 
Committee may decide unanimously to modify 
the requirements  of subparagraphs (a) through 
(d) as regards the nature and the extent of 
statistical information to be provided and the 
breakdowns and classifications to be used.  
  
 
Comments  
 
• The comments made by delegations in 1999 and 2000 and the latest revision of a  note by the 
Chair presenting a draft revision of the text of Article XIX:5 were circulated in Job No. 5674 
in 1999 . Moreover, a note by the Secretariat reflecting the divergences of views among Parties 
in respect of the main elements of the Chairman's dra ft text has been circulated in 
January  2001 (Job No. 244). Comments of a more general nature are set out below.  
• The basic question in relation to statistical reporting requirements is the overall balance in 
terms of the benefits and costs of providing thos e statistics.  [US; EC] Even if not perfect, 
statistics should be collected in order to enable an assessment of the volume of public 
procurement . Statistical reports allow implementation of the Agreement to be monitored and 
to confirm that certain expectati ons are being met.  [US; Switzerland ] The statistics may also 
be useful for future negotiations.  [US] Significant costs are involved both for the system and 
the entities . It is difficult to generate some of the information required and there is a trade -off 
between the quality of the statistical information to be provided and the possibility of achieving 
it in a reasonable period of time . To what extent it is realistic and useful to ask for detailed 
information in view of the cost and complications involved.  [EC] 
• In the OECD context, an attempt has been made regarding the collection of statistics on total 
procurement by OECD Members and non -Members based on national account statistics.  [EC; 
US] 
  GPA/TN1994/2/Rev.9  
- 140 - 
  • In considering the addition of new elements or statistical repor ting obligations, it is necessary 
to bear in mind that a number of Member countries failed to comply with their statistical 
reporting requirements.  [Japan]  
• The use to be made of statistics should guide decisions regarding the extent of details that 
statist ical reporting requirements should contain . For example, the statistics in relation to 
limited tendering has been useful in showing the number of procurement contracts that have 
been awarded to one company without open tendering.  [Switzerland]  
• It is necess ary to consider what statistics are currently available and whether those numbers 
could influence policy -making in ensuring that behaviour become more competitive.  
[Switzerland]  
• Once the entities would have IT systems in place, annual statistics could be p rovided in a 
timely manner.  [Switzerland]  
• In future, statistics could be provided on a real -time basis by all Parties, which would make 
them more useful.  [US] 
 GPA/TN1994/2/Rev.9  
- 141 - 
  ARTICLE XX:  CHALLENGE PROCEDURES  
Article XX:1  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Consultations  
 Consultations  
1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement 
in the context of a procurement, each Party shall 
encourage the supplier to seek resolution of its 
complaint in consultation with the procuring 
entity . In such instances the procuring entity 
shall accord impartial and timely consideration to 
any such complaint, in a manner that is not 
prejudicial to obtaining correctiv e measures 
under the challenge system.  
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement, each Party shall encourage its 
relevant procuring entity and such supplier 
to seek resolution of the complaint through 
cons ultations . Procuring entities shall 
accord impartial and timely consideration 
to any such complaint in a manner that is 
not prejudicial to suppliers' participation in 
ongoing or future procurement activities or 
to suppliers' rights to seek corrective 
measu res under the challenge system.  
[US – Job No. 2867]  
 
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement in the context of a procurement, 
each Party shall encourage the supplier to 
seek solution of its complaint in 
consultation with the procuring entity . In 
such instances the procuring entity shall 
accord impartial and timely consideration 
to any such complaint, in a manner that is 
not prejudicial to obtaining corrective 
measures under the challenge syst em. Such 
encouragement may take place in particular 
through the designation of one or more 
bodies which can offer their good advice in 
trying to solve the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With respect to the EC proposal:  
 
• The last sentence in this paragraph should be clarified . The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC's proposed amendment and the 
challenge bodies referred to in paragraph 6 of the existing agreement should be clarified.  
[Japan ; Hong Kong, China]  
• It is not intended that the proposed amendment would have the result of imposing a new 
authority on procuring entities . Rather, the intent was to have a central point to address any 
problems in an unbureaucratic fashion, informally and rapidly . It would be left to Parties to 
decide how to organize these bodies.  [EC] 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
• Rather than create a completely new body, the relevant aspects of the approach proposed by 
the EC co uld be incorporated into the existing procedures.  [Singapore]  
 GPA/TN1994/2/Rev.9  
- 142 - 
  • The proposal is not intended to make it compulsory for Members to create new bodies . Rather, 
the intention is to designate bodies that may already be in place . This proposal was made in 
recogni tion of the fact that resort to a court is not an ideal solution for government 
procurement disputes.  [EC] Settling of government procurement disputes outside legal judicial 
systems will afford increased flexibility in dispute settlement procedures.  
• With r espect to the concept that access to consultations should not be prejudicial to rights 
under the bid challenge system, it is unclear whether it is necessary to establish another 
consultative procedure akin to mediation if the bid challenge system worked th e way it should.  
[US] 
• It is unclear whether there is a need for an independent body as provided for in the 
EC proposal . Parties should have flexibility to establish the most appropriate review bodies for 
their particular procurement system as is currently the case under the GPA.  [Canada]  
With respect to the US proposal:  
 
• With respect to paragraph 1, is the reference to prejudicial behaviour appropriate given the 
sensitivity of this issue ? [Switzerland]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authorities  
 
 2. Each Party shall establish or 
designate at least one impartial authority, 
which is independent from its procuring 
entities, to receive and review supplier 
challenges relating to the provisions of this 
Agreement and make appropriate findings 
and recommendations . Such authorities 
shall be authorized, pending the resolution 
of a challenge, to take prompt interim 
measures to preserve the opportunity to 
correct potential breaches of this 
Agreement, including the suspension of the 
award of a contract or the performance of a 
contract already awarded.  
[US – Job No. 2867]  GPA/TN1994/2/Rev.9  
- 143 - 
  Article XX:2, 3, 4, 5  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  
 Challenge  
2. Each Party shall provide 
non-discriminatory, timely, transparent and 
effective procedures enabling suppliers to 
challenge alleged breaches of the Agreement 
arising in the context of procurements in which 
they have, or have had, an interest.  
 3. Each Party shall provide timely, 
effective, transparent, predictable and 
non-discriminatory means for suppliers to 
challenge alleged breaches of this 
Agreement, without a prejudice to 
suppliers' participation in ongoing or future 
procurement activities . A ll challenge 
procedures shall be in writing and made 
generally available.  
[US – Job No. 2867]  
 
3. Each Party shall provide its challenge 
procedures in writing and make them generally 
available.  
  
4. Each Party shall ensure that 
documentation relating to all aspects of the 
process concerning procurements covered by 
this Agreement shall be retained for three years.  
  
 2. Parties shall ensure that their 
procuring entities maintain records of 
tendering procedures relating to contract 
awards covered by this Agreement . 
Procuring entities shall maintain such 
records for a period of at least three years.  
[US – Job No. 2867]  
 
5. The interested supplier may be required to 
initiate a challenge procedure and notify the 
procuring entity within specified time -limits from 
the time when the basis of the complaint is 
known or reasonably should have been known, 
but in no case within a period of less than 
10 days.  
 6. 
(a) suppliers shall be al lowed a 
sufficient period of time to 
prepare and submit challenges, 
which in no case shall be less 
than 10 days from the time 
when the basis of the complaint 
became known or reasonably 
should have become known to 
the supplier;  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 144 - 
  Article XX:6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
(b) the proceedings shall be 
conducted in a transparent 
manner, consistent with 
predictable, written procedures 
that are readily available to all 
participants in advance;  
[US – Job No. 2867]  
 
6. Challenges shall be heard by a court or by 
an impartial and independent review body with 
no interest in the outcome of the procurement 
and the members of which are secure from 
external influence during the term of 
appointment . A review body which is not a court 
shall either be subject to judicial review or shall 
have procedures which provide that:  
 4. In the event that a challenge is 
initially reviewed by a body other than an 
authority e stablished or designated under 
paragraph (2) of this Article, each Party 
shall ensure that suppliers may appeal the 
initial decision to an impartial 
administrative or judicial authority which is 
separate and independent from the 
procuring entity that is th e subject of the 
challenge.  
[US – Job No. 2867]  
 
 6. 
(d) a supplier that initiates a 
complaint shall be provided an 
opportunity to respond to the 
procuring entities' report prior 
to a decision being taken on the 
complaint;  
[US – Job No. 2867]  
 
(a) participants can be heard before an 
opinion is given or a decision is 
reached;  
  
(b) participants can be represented and 
accompanied;  
  
(c) participants shall have access to all 
proceedings;  
  
 
Comments  
 
• With respect to paragraph 4 of the US proposal, is the "impartial administrative or judicial 
authority" the same authority that is referred to in paragraph 2 of the US proposal ? [Japan]  
• Paragraph 4 of the US proposal refers to the possibility that a challenge may be initially 
reviewed by a "body" . What kind of body is anticipated by this provision ? The current text in 
Article  XXVI refers to three different types of review bodies.  [Japan]  
• The body referred to in paragraph 4 may be, for example, a body within the procuring entity 
to whom a com plaint be made . That body may not necessarily constitute an impartial and 
independent review body . Paragraph 2 refers to "at least one" impartial authority, indicating 
that each government/Party must have at least one such body to whom suppliers will have 
access.  [US] GPA/TN1994/2/Rev.9  
- 145 - 
  • In the case of the impartial authority in paragraph 2, there is a provision for prompt interim 
measures . However, it appears that interim measures are not available for the other type of 
review mechanism provided for under paragraph 4 . The exi sting GPA allows for interim 
measures for any kind of review mechanism.  [EC] 
• The ability to order prompt interim measures should be available for any review procedure 
that is relied upon.  [US] 
• With respect to paragraph 3 of the US proposal, what is the mea ning, rationale and intent of 
the word "predictable " Does it refer to the outcome or process ? [Canada ; Switzerland]  
• The word "predictable" refers to procedures and not results . The word is chosen to address 
situations where there are bid challenge procedur es that may be considered to be transparent, 
timely and effective, but may not be implemented in a predictable way because of changes in 
certain elements . Parties should be able to anticipate how to proceed.  [US] 
• In response to a question on the deletion o f the second sentence of the existing paragraph  6, 
the existing paragraph 6 currently refers to authorities that are not judicial authorities . The 
US proposal lists procedures that would apply to any authority, administrative or judicial.  [US 
in response t o Canada]  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 5. Each Party shall ensure that any 
confidential or proprietary information that 
is submitted in the course of a challenge 
proceeding is protected in accordance with 
paragraph 1 of Article XII of this 
Agreement.  
[US – Job No. 2867]  
 
 
 GPA/TN1994/2/Rev.9  
- 146 - 
  Article XX  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Review Procedures  
 
 6. Each Party shall ensure that review 
procedures are conducted in accordance 
with the following:  
 
 (a) suppliers shall be allowed a 
sufficient period of time to 
prepare and submit challenges, 
which in no case shall be less 
than 10 days from the time 
when the basis of the complaint 
became known or reasonably  
should have become known to 
the supplier;  
 
 (c) procuring entities shall respond 
in writing to the complaint and 
disclose all relevant documents 
to the review body;  
[US – Job No. 2867]  
 
 
Comments  
 
• In paragraph 6 of the US proposal, the existing provisions that apply only to non -judicial 
bodies have been simplified so that that they can apply to all review bodies, both 
administrative and judicial . The US proposal provides additional flexibility to apply to all types 
of review procedures, eliminati ng the need for the some of the distinctions that currently exist 
in Article  XX. [US] 
• With respect to paragraph 6(d) of the US proposal, it may be appropriate to add "of the review 
body" after "decisions" in order to make the scope of the obligation clear.  [Canada]  GPA/TN1994/2/Rev.9  
- 147 - 
  Article XX:7  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) proceedings can take place in 
public;  
  
(e) opinions or decisions are given in 
writing with a statement describing 
the basis for the opinions or 
decisions;  
  
 6. 
(e) decisions relating to supplier 
challenges shall be provided in a 
timely fashion, in writing, with 
an explanation of the basis for 
each decision;  
[US – Job No. 2867]  
 
(f) witnesses can be presented;  
  
(g) documents are disclosed to the 
review body.  
  
7. Challenge procedures shall provide for:  
  
(a) rapid interim measures to correct  
breaches of the Agreement and to 
preserve commercial opportunities . 
Such action may result in suspension 
of the procurement process . 
However, procedures may provide 
that overriding adverse 
consequences for the interests 
concerned, including the public 
interest, may be taken into account 
in deciding whether such measures 
should be applied . In such 
circumstances, just cause for not 
acting shall be provided in writing;  
 Independent Review Authorities  
 
2. Each Party shall establish or 
designate at le ast one impartial authority, 
which is independent from its procuring 
entities, to receive and review supplier 
challenges relating to the provisions of this 
Agreement and make appropriate findings 
and recommendations . Such authorities 
shall be authorized, p ending the resolution 
of a challenge, to take prompt interim 
measures to preserve the opportunity to 
correct potential breaches of this 
Agreement, including the suspension of the 
award of a contract or the performance of a 
contract already awarded.  
[US – Job No. 2867]  
 
(b) an assessment and a possibility for 
a decision on the justification of the 
challenge;  
  
(c) correction of the breach of the 
Agreement or compensation for the 
loss or damages suffered, which 
may be limited to costs for tender 
preparation or protest.   
 
Comments  
 
• Paragraph 2 of the US proposal adopts the discipline contained in Article XX:7(a) and expands 
on it. It introduces a provision allowing for rapid or prompt interim measures to suspend a 
procurement process that is underway prior to the award of a contract but also to suspend GPA/TN1994/2/Rev.9  
- 148 - 
  work on a contract that has been awarded, which is an addition to the existing provision . The 
addition is necessary to take account of problems that come to light late in the procurement 
process  so that a supplier may have the opportunity to raise or express a complaint to the 
procuring entity before the entity awards the contract . In such cases, there should be an 
opportunity for a review body to temporarily suspend work or further action under the contract 
until the case is heard.  [US] 
• Why has the clause on public interest in the existing Article XX:7(a) been deleted from the US 
proposal ? There are circumstances where it would be important and in the public interest for 
the government to proceed  with an acquisition.  [Canada]  
• Circumstances in which there may be overriding circumstances would be unusual and rare . 
The use of general exceptions under Article XXIII might be sufficient to protect the public 
interests in this respect.  [US] GPA/TN1994/2/Rev.9  
- 149 - 
  Article XX:8  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the 
challenge procedure shall normally be completed 
in a timely fash ion.  
 9. The Parties undertake to designate or 
establish an independent body with a view 
to solve informally problems encountered 
in gaining access to contracts.  
[EC – GPA/W/87 ] 
 
Comments  
 
• Clarification is required in relation to what is meant by the new paragraph 9 . [Japan ; 
Hong Kong, China]  
• An illustrative example of an independent body dealing with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
 GPA/TN1994/2/Rev.9  
- 150 - 
  ARTICLE XXI:  INSTITUTIONS  
Article XXI:1, 2  
 
Institutions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established . This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary but not less than once a 
year for the purpose of affording Parties the 
opportunity to consult on any matters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to carry out 
such other responsibilities as may be assigned to 
it by the Parties.  
 Committee on Government Procurement  
 
1. A Committee on Government 
Procurement composed of representatives 
from each of the Parties shall be 
established . This Committee shall elect its 
own Chairman and Vice -Chairman and shall 
meet as necessary, but not less than once a 
year, for the purpose o f affording Parties 
the opportunity to consult on any matters 
relating to the operation  of this Agreement 
or the furtherance of its objectives, and to 
carry out such other responsibilities as may 
be assigned to it by the Parties.  
 
2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
 2. The Committee may establish working 
parties or other subsidiary bodies which 
shall carry out such functions as may be 
given to them by the Committee.  
 
 Observers  
 
3. WTO Members and other 
governments who are not Parties to this 
Agreement shall be entitled to participate in 
the Committee as observers upon 
submitting a written notice to  the 
Secretariat.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 151 - 
  ARTICLE XXII: CONSULTATIONS  AND DISPUTE  SETTLEMENT  
Article XXII:1,  2 
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter referred to as the "Dispute 
Settlement Understanding") shall be applicable 
except as otherwise specifically provided below.  
 1. The provisions of the Understanding 
on Rules and Procedures Governing the 
Settlement of Disputes under the WTO 
Agre ement (hereinafter referred to as the 
"Dispute Settlemen t Understanding") shall 
be applicable, except as otherwise provided 
below.  
 
2. If any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any objective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of this Agreement, it may with a view 
to reaching a mutually satisfactory resolution of 
the matter, make written representations or 
proposals to the other Party or Parties which it 
considers to b e concerned . Such action shall be 
promptly notified to the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred to as 
"DSB"), as specified below . Any Party thus 
approached shall give sympathetic consideration  
to the representations or proposals made to it.  
 2. Where any Party considers that any 
benefit accruing to it, directly or indirectly, 
under this Agreement is being nullified or 
impaired , or that the attainment of any 
objective of this Agreement is being 
impeded as the result of the failure of 
another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of 
any measure, whether or not it conflicts 
with the provisions of this Agreement, it 
may wit h a view to reaching a mutually 
satisfactory resolution of the matter, make 
written representations or proposals to the 
other Party or Parties which it considers to 
be concerned . Such action shall be promptly 
notified to the Dispute Settlement Body 
establi shed under the Dispute Settlement 
Understanding (hereinafter referred to as 
"DSB"), as specified below . Any Party thus 
approached shall give sympathetic 
consideration to the representations or 
proposals made to it.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 152 - 
  Article XXII:3, 4, 5  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB  shall have the authority to 
establish panels, adopt panel and Appellate Body 
reports, make recommendations or give rulings 
on the matter, maintain surveillance of 
implementation of rulings and 
recommendations, and authorize suspension of 
concessions and o ther obligations under this 
Agreement or consultations regarding remedies 
when withdrawal of measures found to be in 
contravention of the Agreement is not possible, 
provided that only Members of the WTO Party to 
this Agreement shall participate in decision s or 
actions taken by the DSB with respect to 
disputes under this Agreement.  
 3. Only Members of the WTO party to 
this Agreement shall participate in 
decisions or actions taken by the DSB with 
respect to disputes under this Agreement.  
 
4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of 
the panel:  
 4. Panels shall have the following terms  
of reference unless the parties to the 
dispute agree otherwise within 20 days of 
the establishment of the panel:  
 
"To examine, in the light of the 
relevant provisions of this 
Agreement and of (name of any 
other covered Agreement cited by 
the parties to the dispute), the 
matter referred to the DSB by 
(name of party) in document ... and 
to make such findings as will ass ist 
the DSB in making the 
recommendations or in giving the 
rulings provided for in this 
Agreement."  
 "To examine, in the light of the 
relevant provisions of this 
Agreement and of (name of any 
other covered Agreement cited 
by the parties to the dispute), 
the matter referred to the DSB 
by (name of party) in document 
... and to make such findings as 
will assist the DSB in making the 
recommendations or in giving 
the rulings provided for in this 
Agreement."  
 
In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix  1 of the Dispute 
Settlement Understanding are invoked by one of 
the parties to the dispute, paragraph 3 shall 
apply only to those parts of the panel report 
concerning the interpretation and application of 
this Agreement.  
 In the case of a dispute in which provisions 
both of this Agreement and of one or more 
other Agreements listed in Appendix 1 of 
the Dispute Settlement Understanding are 
invoked by one of the parties to the dispute, 
parag raph 3 of this Article shall apply only 
to those parts of the panel report 
concerning the interpretation and 
application of this Agreement.  
 
5. Panels established by the DSB  to examine 
disputes under this Agreement shall include 
persons qualified in the area of government 
procurement.  
 5. Panels established by the DSB to 
examine  disputes under this Agreement 
shall include persons qualified in the area of 
government procuremen t. 
[US – Job No. 2867]  
 
 
  GPA/TN1994/2/Rev.9  
- 153 - 
  Comments  
 
• Clarification is sought as to why paragraph 3 of the US omits some of the wording contained 
in the equivalent paragraph of the existing text.  [EC] 
• The language that has been excluded is contained in the WTO Dispute Settlement 
Understanding . The relevant provisions of the DSU have already been incorporated by 
reference into the dispute settlement procedures for the GPA . Therefore, it is unnecessary to 
restate them in the GPA.  [US] GPA/TN1994/2/Rev.9  
- 154 - 
  Article XXII:6, 7  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible . 
Notwithstanding the provisions of paragraphs 8 
and 9 of Article 12 of the Dispute Settlement 
Understanding, the panel shall attempt to 
provide its final report to the parties to the 
dispute not later than four months, and in case 
of delay not later than seven months, after the 
date on which the composition a nd terms of 
reference of the panel are agreed . Consequently, 
every effort shall be made to reduce also the 
periods foreseen in paragraph 1 of Article 20 and 
paragraph 4 of Article  21 of the Dispute 
Settlement Understanding by two months . 
Moreover, notwiths tanding the provisions of 
paragraph  5 of Article 21 of the Dispute 
Settlement Understanding, the panel shall 
attempt to issue its decision, in case of a 
disagreement as to the existence or consistency 
with a covered Agreement of measures taken to 
comply wi th the recommendations and rulings, 
within 60 days.  
 6. Every effort shall be made to 
accelerate the proceedings to the greatest 
extent possible . T herefore, 
notwithstanding the provisions of 
paragraphs 8 and 9 of Article 12 of the 
Dispute Settlement Unders tanding, the 
panel shall attempt to provide its final 
report to the parties to the dispute not later 
than four months, and in case of delay not 
later than seven months, after the date on 
which the composition and terms of 
reference of the panel are agreed . 
Consequently, every effort shall be made to 
reduce also the periods foreseen in Article 
20 and paragraph 4 of Article  21 of the 
Dispute Settlement Understanding by two 
months . Moreover, notwithstanding the 
provisions of paragraph 5 of Article 21 of 
the Di spute Settlement Understanding, the 
panel shall attempt to issue its decision, in 
case of a disagreement as to the existence 
or consistency with a covered Agreement of 
measures taken to comply with the 
recommendations and rulings, within 60 
days.  
 
7. Notwithstanding paragraph  2 of Article 22 
of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in 
Appendix  1 to the Dispute Settlement 
Understanding other than this Agreement shall 
not result in the suspension of concessions or 
other obligations under this Agreement, and any 
dispute arising under this Agreement shall not 
result in the suspension of concessions or other 
obligations under any other Agreement listed in 
the said Appendix  1. 
 7. Notwithstanding paragraph 2 of 
Artic le 22 of the Dispute Settlement 
Understanding, any dispute arising under 
any Agreement listed in Appendix 1 to the 
Dispute Settlement Understanding other 
than this Agreement shall not result in the 
suspension of concessions or other 
obligations under this Agreement, and any 
dispute arising under this Agreement shall 
not result in the suspension of concessions 
or other obligations under any other 
Agreement listed in the said Appendix 1.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 155 - 
  ARTICLE  XXIII:  EXCEPTIONS TO THE AGREEMENT  
Article  XXIII:1, 2  
 
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be 
construed to prevent any Party from taking any 
action or not disclosing any information which it 
considers necessary for the protection of its 
essential security interests relating to the 
procurement of arms, ammunition or war 
materials, or to procurement indispensable for 
national security or for national defence 
purposes.  
  
 
Comments  
 
• The provisions of Article  XXIII should be aligned with those in the corresponding provisions of 
GATT  1994. [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such 
measures are not applied in a manner which 
would constitute a means of arbitrary or 
unjustifiable discrimination between countries 
where the same conditions prevail or a disguised 
restriction on international trade, nothing in this 
Agreement shall be construed to preve nt any 
Party from imposing or enforcing measures : 
necessary to protect public morals, order or 
safety, human, animal or plant life or health or 
intellectual property ; or relating to the products 
or services of handicapped persons, of 
philanthropic institut ions or of prison labour.  
  
 GPA/TN1994/2/Rev.9  
- 156 - 
  ARTICLE XXIV: FINAL PROVISIONS  
Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
 Entry into Force of Amended Agreement  
 
 This Agreement shall enter into force on 
1 January  1996 for those governments8 whose 
agreed coverage is contained in Annexes 1 
through 5 of Appendix I of this Agreement and 
which have, by signature, accepted the 
Agreement on 1 5 April 1994 or have, by that 
date, signed the Agreement subject to 
ratification and subsequently ratified the 
Agreement before 1 January  1996. 
 1. This Agreement supersedes the 
Government Procurement Agreement, 
which entered into force on 
1 January  1996, and enters into force on 
[date ]. 
 
8 For the purpose of this Agreement, the term 
"government" is deemed to include the competent 
authorities of the European Communities.  
  
2. Accession  
 Accession  
 
 Any government which is a Member of the 
WTO, or prior to the date of entry into force of 
the WTO Agreement which is a contracting party 
to GATT  1947, and which is not a Party to this 
Agreement may accede to this Agreement on 
terms to be agreed between that government 
and the Parties . Accession shall take place by 
deposit with the Dire ctor-General of the WTO of 
an instrument of accession which states the 
terms so agreed . The Agreement shall enter into 
force for an acceding government on the 30th 
day following the date of its accession to the 
Agreement.  
 2. Any government which is a Member of 
the WTO  and which is not a Party to this 
Agreement may accede to this Agreement 
on terms to be agreed between that 
government and the Parties . Accession 
shall take place by deposit with the 
Director -General of the WTO of  an 
instrument of accession which states the 
terms so agreed . The Agreement shall enter 
into force for an acceding government on 
the 30th day following the date of its 
accession to the Agreement.  
[US – Job No. 2867]  
 
 
Comments  
 
• Article XXIV:9 states that amendments shall not enter into force for any Party until it has been 
accepted by such Party . Therefore, it is possible that amendments will be accepted by one 
Party but not by another Party . Therefore, if, as is provided by paragraph 1 of the US  proposal, 
the original GPA is superseded by the new agreement, the new agreement may apply to the 
first Party but not to the second.  [Hong Kong, China]  
• It may be premature to consider this question.  [US] 
 GPA/TN1994/2/Rev.9  
- 157 - 
  Article  XXIV:3  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
(a) Hong Kong and Korea may delay 
application of the provisions of this 
Agreement, except Articles  XXI 
and XXII, to a date not later than 
1 January  1997. T he 
commencement date of their 
application of the provisions, if prior 
to 1 January  1997, shall be notified 
to the Director -General of the 
WTO 30 days in advance.  
  
(b) During the period between the date 
of entry into force of this Agreeme nt 
and the date of its application by 
Hong Kong, the rights and 
obligations between Hong Kong and 
all other Parties to this Agreement 
which were on 15  April 1994 Parties 
to the Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed by 
the substantive9 provisions of the 
1988 Agreement, including its 
Annexes as modified or rectified, 
which provisions are incorporated 
herein by reference for that purpose 
and shall remain in for ce until 
31 December  1996.  
 
9 All provisions of the 1988 Agreement except the 
Preamble, Article  VII and Article  IX other than 
paragraphs 5(a) and (b) and paragraph 10.  
  
(c) Between Parties to this Agreement 
which are also Parties to the 1988 
Agreement, the rights and 
obligations of this Agreement shall 
supersede those under the 1988 
Agreement.  
  
 GPA/TN1994/2/Rev.9  
- 158 - 
  Article  XXIV:4, 5  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) Article  XXII shall not enter into force 
until the date of entry into force of 
the WTO Agreement . Until such 
time, the provisions of Article  VII of 
the 1988 Agreement shall apply to 
consultations and dispute 
settlement under this Agreement, 
which provisions are hereby 
incorporated in the Ag reement by 
reference for that purpose . These 
provisions shall be applied under the 
auspices of the Committee under 
this Agreement.  
  
(e) Prior to the date of entry into force 
of the WTO Agreement, references 
to WTO bodies shall be construed as 
referring t o the corresponding GATT 
body and references to the 
Director -General of the WTO and to 
the WTO Secretariat shall be 
construed as references to, 
respectively, the Director -General 
to the CONTRACTING PARTIES to 
GATT 1947 and to the GATT 
Secretariat.  
  
4. Reservations  
 Reservations  
 
 Reservations may not be entered in 
respect of any of the provisions of this 
Agreement.  
 4. Parties may not take reservations in 
respect of any of the provisions of this 
Agreement.  
 
5. National  Legislation  
 National Legislation  
 
(a) Each government accepting or 
acceding to this Agreement shall 
ensure, not later than the date of 
entry into force of this Agreement for 
it, the conformity of its laws, 
regulations and administrative 
procedures, and the rules, 
procedures a nd practices applied by 
the entities contained in its lists 
annexed hereto, with the provisions 
of this Agreement.  
 5. Each government accepting or 
acceding to this Agreement shall ensure, 
not later than the date of entry into force of 
this Agreement for it, the conformity of its 
laws, regulations and administrative 
procedures, and the rules, procedures and 
practices applied by the entities contained 
in its lists annexed hereto, with the 
provisions of this Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 159 - 
  Article  XXIV:6  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Each Party shall inform the 
Committee of any changes in its laws 
and regulations relevant to this 
Agreement and in the administration 
of such laws and regulations.  
 6. Each Party shall inform the Committee 
of any changes in its laws and regulations 
relevant to this Agreement and in the 
administration of such laws and 
regulations.  
[US – Job No. 2867]  
6. Rectifications or Modifications  
 Rectifications or Modifications  
 
(a) Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other 
modifications relating 
to Appendices  I through IV shall be 
notified to the Committee, along with 
information as to the likely 
consequences of the change for the 
mutually agreed coverage provided 
in this Agreement . If the 
rectifications, transfers or other 
modifications are of a purely formal 
or minor nature, they shall become 
effective provided there is no 
objection within 30 days . In other 
cases, the Chairman of the 
Committee shall promptly convene a 
meeting of the Committee . The 
Committee shall consider the 
proposal and any claim for 
compensatory adjustments, with a 
view to maintaining a balance of 
rights and obligations and a 
comparable level of mutually agreed 
coverage provided in this Agreement 
prior to such notification . In the 
event of agreement not being 
reached, the matter may be pursued 
in accordance with the provisions 
contained i n Article  XXII. 
 7. Rectifications, transfers of an entity 
from one Annex to another or, in 
exceptional cases, other modifications 
relating to Appendices I through IV shall be 
notified to the Committee, along with 
information as to the likely consequences of 
the change for the mutually agreed 
coverage provided in this Agreement . If the 
rectifications, transfers or other 
modifications are of a purely formal or 
minor nature, they shall become effective 
provided there is no objection within 30 
days . In other c ases, the Chairman of the 
Committee shall promptly convene a 
meeting of the Committee . The Committee 
shall consider the proposal and any claim 
for compensatory adjustments, with a view 
to maintaining a balance of rights and 
obligations and a comparable lev el of 
mutually agreed coverage provided in this 
Agreement prior to such notification . In the 
event of agreement not being reached, the 
matter may be pursued in accordance with 
the provisions contained in Article XV of 
this Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 160 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence over 
it has been effectively eliminated, 
that Party shall notify the 
Committee . Such modification shall 
become effective the day after the 
end of the following meeting of the 
Committee, provided that the 
meeting is no sooner than 30 days 
from the date of notificat ion and no 
objection has been made . In the 
event of an objection, the matter 
may be pursued in accordance with 
the procedures on consultations and 
dispute settlement contained in 
Article  XXII. In considering the 
proposed modification to Appendix I 
and any consequential compensatory 
adjustment, allowance shall be made 
for the market -opening effects of the 
removal of government control or 
influence.  
 Where a Party wishes, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that gov ernment 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee . Such modification 
shall become effective the day after the end 
of the following meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made . In the event of an 
objection, the matter may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XXII . In considering th e 
proposed modification to Appendix  I, it 
shall be deemed that government control or 
influence over the entity in question has 
been effectively eliminated if all of the 
following conditions are met:  
 
[Japan – Job No. 860]  
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, subparagraph  6(b) 
would need to be modified as suggested above.  [Japan]  
• The present provisions are a carefully balanced outcome of the negotiations between Parties 
and reflect the uncertainties in ma rket access opportunities which might be associated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of government 
control or influence . Its purpose is to ensure that any future changes to an agreed annex does 
not affect the negotiated balance.  [Job No. 5189]  
 GPA/TN1994/2/Rev.9  
- 161 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) the government does not 
provide the entity with any 
special and exclusive right to 
operate;  
[Japan – Job No. 860]  
 
 (b) the government [or government 
controlled organization – Korea 
– Job No. 3413] does not 
appoint more than half of the 
members of the entity's 
managing board which has the 
power to decide on its 
operations;  
[Japan – Job No. 860]  
 
 and the board members appointed by 
the government or 
government -controlled organization 
hold no special leadership position 
(including such positions as CEO or 
president of the entity) or privileges 
over other board members ; and 
[Korea – Job No. 3413]  
 
 (c) the operation of the entity is 
financed by its business 
revenue, not by government 
subsidies or equity infusion.  
[Japan – Job No. 860]  
 
 Neither government nor 
government -controlled organization 
is the largest shareholder to the 
entity.  
[Korea – Job No. 3413]  
 
 Unless these conditions are met, a 
compensatory adjustment may be 
sought for any remaining government 
control or influence.  
[Japan – Job No. 860]  
 
 
Comments  
 
• The proposed 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.  [Job No. 5189]  
• The proposal attempts to define the conditions under which Parties would relinquish their right 
to seek consultation with other Parties about a proposed modification for the removal of an 
entity from the Agreement's coverage . Parties should not be denied that right.  [US] 
 GPA/TN1994/2/Rev.9  
- 162 - 
  • The application of the criteria list ed in Japan's proposal would facilitate consultations between 
Parties.  [Japan]  
• Regarding the requirement in subparagraph (a) that the government not provide the entity 
with any special or exclusive rights, a wide variety of private companies are granted su ch 
rights by the government . For instance a corner store might be authorized to sell fishing 
licences or postage stamps.  [Job No. 5189]  
• It is unclear whether a company that is granted a special right to operate, for instance a bus 
company that is no more w ithin the government sphere given a franchise to operate by the 
government on certain routes in competition with other forms of transport, would fall within 
the scope of proposed subparagraph (a).  [Hong  Kong, China]  
• An effect of proposed paragraph (b) woul d be that it would not allow consideration of 
compensatory adjustment if, for example, an entity that was unilaterally withdrawn from 
Appendix  I still had 48 % government membership on its board.  [US] 
• The requirement that the government in subparagraph (b) might not be sufficient to ensure 
that the government control or influence is effectively removed . What would be an appropriate 
percentage in this respect ? [Job No. 5189]  
• With regard to the criteria in subparagraph (c), in some circumstances, government su bsidies 
to privatized entities may still be necessary if the subsidies are linked to lowering the cost of 
provision of basic services and where the beneficiaries are the members of the general public.  
[Korea]  
• The criterion in subparagraph (c) might not be appropriate in all cases . For instance, a number 
of entities in both Annexes 1 and 3 of the United States, while operating on the basis of their 
own business revenues, continue to be considered as government agencies conducting 
government procurement . If the entity was mainly financed by its business revenue, some 
non-voting equity infusions by the government would not affect the degree of government 
control or influence.  [Job No. 5189]  
• There is a need to establish clear criteria for cases where privatizati on occurs and a Party 
wishes to withdraw the privatized entity from Appendix I.  [Korea]  
• The GPA does not prevent privatization and it is unclear whether there is a need for further 
clarification of the criteria.  [Canada]  
• Since some Parties consider that cr iteria contained in the GPA are not objective or clear 
enough, further clarification may be needed as to what the existing language means in specific 
circumstances.  [US] 
• It is difficult to establish simple criteria or parameters to define government contro l or 
influence is or what constitutes effective elimination of government control or influence . The 
criteria that have been proposed are not sufficient to prove the elimination of government 
control or influence, especially for Parties whose entities may s till have to closely follow the 
direction of the government.  [EC] 
• Some of the criteria proposed by Japan are useful, the reference to effective competition or 
genuine competition.  [EC] 
• The Japanese proposal establishes a hierarchy amongst the various criteria and suggests 
something more structured in terms of meeting criteria on a cumulative or on an alternative 
basis.  [EC] 
• There are advantages associated with both the Japanese and the US approaches . It might be 
useful to consider more generall y what should be included in the Agreement and what should 
be developed in the form of a decision . However, it is first necessary to first have a common 
understanding of what is being discussed.  [EC] GPA/TN1994/2/Rev.9  
- 163 - 
  • The proposal contains two separate lists of criteria and  states that "either of these sets of 
criteria would suffice to define effective elimination of government control or influence" . 
However, it seems clear that fulfilment of one of set of criteria would not necessarily be 
sufficient.  [US] 
• The proposal propo ses that regard should be had to the market structure in which a entity 
operates should not be incorporated since it implies that those entities operating in a 
competitive environment should be covered by the GPA.  [Hong Kong, China]  
• Given the different market and governmental structure among Parties, there is no one -size-fits 
set of criteria . Instead of developing generalised criteria, the approach in the existing 
Agreement is preferable since it allows for a flexible approach.  [Hong Kong, Chin a] 
• From Japan's experience with the NTT notification, the questions posed to Japan regarding 
that privatization could be categorized into criteria or conditions, which should be taken into 
account when considering whether the proposed privatised entities d eserves to be excluded 
from coverage under the Agreement or not.  [Japan]  
With respect to the US proposal:  
 
• It is necessary to maintain a procedure that allows for consultations among the Parties relating 
to the withdrawal of entities from coverage . As is the case under the existing Agreement, the 
procedure should not allow for unilateral withdrawal of entities from coverage without 
consultation . Further, elimination of government control or influence should be "effective" and 
not merely a formal change in l egal status . Since it is difficult to generalise what may 
constitute effective elimination of government control or influence in all circumstances, it 
might be useful to develop a Committee Decision that provides illustrative guidance but would 
not necessa rily be binding . The US proposal includes an illustrative list of factors which might 
cast light on whether government control or influence has been eliminated . It is unclear 
whether the list is complete, whether all the listed factors will be relevant in all cases, and 
how they would be weighted in a particular case.  [US] 
• The illustrative list of criteria contained in the US proposal does not fit within the logic of the 
existing provision.  [EC] 
• Privatization efforts should not be delayed or obstructed sinc e, in general, when an entity has 
been privatized and government control or influence has been effectively eliminated, there is 
greater market access than is possible under the GPA . Nevertheless, in cases where the level 
or government investment or interes t in an entity is significant, it is not self -evident that 
government control or influence has been effectively eliminated simply because, for example, 
the government holding of shares is less than 50 % or because the entity is selling a good or 
service to a non -governmental user.  [US] GPA/TN1994/2/Rev.9  
- 164 - 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Where a Party wishes, in exercise of its 
rights, to withdraw an entity from Appendix 
I on the grounds that government control 
or influence over it has been effectively 
eliminated, that Party shall notify the 
Committee . The elimination of such control 
or influence may be indicated by the 
transfer to the private sector of the actual 
control over the entity or by the fact that 
the entity is exclusively engaged in the 
provision of goods or services on markets 
that are subject to genuine competition . 
Such modification shall become effective 
the day after the end of the following 
meeting of the Committee, provided tha t 
the meeting is no sooner than 30 days from 
the date of notification and no objection has 
been made . In the event of an objection, the 
matter may be pursued in accordance with 
the procedures on consultations and 
dispute settlement contained in article 
XXII . In considering the proposed 
modification to Appendix I and any 
consequential compensatory adjustment, 
allowance shall be made for the 
market -opening effects of the removal of 
government control or influence.  
[EC – Job No. 443]  
 
 
With respect to the EC proposal:  
 
• There should be an opportunity for objective proceedings, during which Parties have an 
opportunity to request clarification and information regarding a privatisation . However, such 
a procedure should be based on objective crite ria. A Party can always withdraw an entity from 
the GPA without giving any particular reason if the other Parties agree . Under the proposed 
Article, there is a right to withdraw entities but only when ceratin objective circumstances are 
met. If those circu mstances are not met, a Party can offer compensation or negotiate for 
withdrawal . Some elements contained in the EC proposal are contained in the existing 
provision . However, experience illustrates that Parties do not necessarily have a clear 
understanding  of what is intended by that provision.  [EC] 
• The terms "genuine competition" and "actual transfer of control to the private sector" are not 
concrete, objective criteria in determining whether or not government control or influence of 
the entity has been ef fectively eliminated since uncertainty and the possibility of conflict 
among Parties still remains.  [Korea]  
• The existing provision provides the possibility of removing coverage without consensus . 
However, compensation must be paid in such circumstances . Perhaps it should be considered 
whether there are any circumstances where a consensus might not be necessary to withdraw 
coverage without compensation.  [Canada ; US] 
• If there is a consensus among the Parties to agree with a change to the Agreement, a problem 
does not arise . However, clarification is needed in cases of conflict.  [EC] 
 GPA/TN1994/2/Rev.9  
- 165 - 
  • A mechanism is needed to deal with cases where an entity is no longer controlled by the 
government and there is no longer public ownership or when there is a structural change in a 
market so that it becomes more competitive . It is necessary to have a common understanding 
of what Parties' rights and obligations are in those circumstances.  [EC] 
• Although some Parties consider that it would be useful to have more precise criteria, ther e are 
limits to the extent to which a price formula could be included.  [EC] 
• It is important to stress that what is referred to in the EC proposal is effective elimination of 
influence or control, not just formal changes in the status of an entity . The ques tion then 
becomes what constitutes "effective elimination of control or influence" ? In answering that 
question, there is a relationship between that issue and the issue of the definition of 
government procurement in general . After all, if an entity is not conducting government 
procurement, Parties do not have an interest in subjecting it to the GPA.  [United States]  
• Clarification is needed of the term "genuine competition" ? [US; Canada ; Hong Kong, China]  
• The concept of "genuine or effective competition" come s from competition law.  [EC] 
• The key issue of who controls the company is who is deciding the policy of the company.  [EC] 
• It is necessary to consider the economic aspects as well as the legal aspects of the situation . 
It is necessary to see whether the ent ity, apart from no longer having a legal monopoly, is 
indeed facing competition in the marketplace.  [EC] 
• What is meant by, for example, "actual transfer of control to the private sector" or "effective 
genuine competition" ? Factors relevant to privatization might be whether and how the 
government controls the decision -making of the entity concerned or whether the government 
subsidises entities . The judgement as to whether "genuine competition" exists or not would 
differ from country to country . Therefore, such elements (for example, price inflation or 
market share increases) that would be taken into account when the Committee considers a 
privatization case, would be quite useful.  [Japan]  
• Market structure in which an entity operates should not be a factor for consideration in 
determining whether te GPA disciplines should apply . The first sentence of the proposal in 
relation to the "elimination or transfer of actual control to the private sector", is a bit too 
evident as justification for withdrawal  of entities from coverage and, therefore, does not add 
any clarity to the Article as a whole . This Article is very important because it relates to the 
definition of government procurement and hence the coverage of the Agreement.  [Hong Kong, 
China]  
• In one way or another, market structure is of relevance in this context since the last phrase 
of the current text refers to "market -opening effects".  [EC] 
• The issue of whether there is "effective genuine competition" could be addressed by the 
competition authorit y responsible for assessing the extent to which, in various sectors of the 
economy, there is or is not competition or insufficient competition . Further discussion is 
needed as to how to assess "genuine competition".  [Switzerland]  
• It is necessary to further  consider whether it is possible for an entity to procure for 
governmental purposes even if it is selling in a competitive market . If so, it would be possible 
for there to still be government control or influence over entities, even if they are selling in a 
competitive market.  [US] 
• It is necessary to find the right balance between using general concepts and being more 
precise.  [EC] 
 GPA/TN1994/2/Rev.9  
- 166 - 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 8. Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee . Such modification 
shall become effective the day after the end 
of the followin g meeting of the Committee, 
provided that the meeting is no sooner than 
30 days from the date of notification and no 
objection has been made . In the event of an 
objection, the matter may be pursued in 
accordance with the procedures on 
consultations and dis pute settlement 
contained in Article XV of this Agreement . 
In considering the proposed modification to 
Appendix I and any consequential 
compensatory adjustment, allowance shall 
be made for the market -opening effects of 
the removal of government control or 
influence.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.9  
- 167 - 
  Article  XXIV:7  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations and Future Work  
 Reports and Future Work  
 
(a) The Committee shall review 
annually the implementation and 
operation of this Agreement taking 
into account the objectives thereof . 
The Committee shall annually 
inform the General Council of the 
WTO of developments during the 
periods covered by such reviews.  
 9. The Committee shall annually infor m 
the General Council of the WTO of 
developments relating to the 
implementation and operation of this 
Agreement.  
(b) Not later than the end of the third 
year from the date of entry into 
force of this Agreement and 
periodically thereafter, the Parties 
thereto shall undertake further 
negotiations, with a view to 
improving this Agreement and 
achieving the greatest possible 
extension of its coverage among all 
Parties on the basis of mutual 
reciprocity, having regard to the 
provisions of Article  V relating to 
developing countries.  
  
(c) Parties shall seek to avoid 
introducing or prolonging 
discriminatory measures and 
practices which distort open 
procurement and shall, in the 
context of negotiations under 
subparagraph (b), seek to eliminate 
those which remain on the date of 
entry into force of this Agreement.  10. Parties shall seek to avoid introducing 
or continuing discriminatory measures and 
practices that distort open procurement 
and shall, in the context of negotiations, 
seek to eliminate those which  remain on the 
date of entry into force of this Agreement.  
[US – Job No. 2867]  
 
Comments  
 
• Does the deletion of Article XXIV:7(b) in the US proposal mean that the US considers that a 
further review is no longer necessary ? [EC] 
• The US did not intend to prejudge the possibility of further reviews . Its assumption is that the 
US proposal relates to the current review . If modifications to the current text are made during 
the current review process, it is necessary to determine whether, at the end of the curr ent 
review process, there is a need for another review . It may be too early to know how the Parties 
feel about that at the present point in time.  [US] 
• Paragraph 7(b) of the existing text appears to be contained in paragraph 10 of the US 
proposal . However, unlike the existing text, the US proposal does appear to impose an 
obligation on Members to conduct negotiations to improve the Agreement and to extend its 
coverage . What is the rationale behind this omission ? [Hong Kong, China]  GPA/TN1994/2/Rev.9  
- 168 - 
  Article  XXIV:8, 9, 10  
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
 With a view to ensuring that the 
Agreement does not constitute an unnecessary 
obstacle to technical progress, Parties shall 
consult regularly in the Committee regarding 
developments in the use of information 
technology in government procurement and 
shall, if necessary, negotiate modifications to the 
Agreement . These consultations shall in 
particular aim to ensure that the use of 
inform ation technology promotes the aims of 
open, non -discriminatory and efficient 
government procurement through transparent 
procedures, that contracts covered under the 
Agreement are clearly identified and that all 
available information relating to a particula r 
contract can be identified . When a Party intends 
to innovate, it shall endeavour to take into 
account the views expressed by other Parties 
regarding any potential problems.  
  
9. Amendments  
 Amendments  
 
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation . Such an amendment, once the 
Parties have concurred in accordance with the 
procedures established by the Committee, shall 
not enter into force for an y Party until it has been 
accepted by such Party.  
 11. Parties may amend this Agreement 
having regard, inter alia, to the experience 
gained in its implementation . Such an 
amendment, once the Parties have 
concurred in accordance with the 
procedures establis hed by the Committee, 
shall not enter into force for any Party until 
it has been accepted by such Party.  
 
10. Withdrawal  
 Withdrawal  
 
(a) Any Party may withdraw from this 
Agreement . The withdrawal shall 
take effect upon the expiration of 60 
days from the date on which written 
notice of withdrawal is received by 
the Director -General of the WTO . 
Any Party may upon such 
notification request an immediate 
meeting of the Committee.  
 12. Any Party may withdraw from this 
Agreement . The withdrawal shall take 
effect upon the expiration of 60 days from 
the date on which written notice of 
withdrawal is received by the 
Director -General of the WTO . Any Party 
may upon such notification request an 
immediate meeting of the Committee.  
[US – Job No. 2867]  
 
Comments  
 
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to 
the Agreement in relation to the use of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.9  
- 169 - 
  Article  XXIV: 11, 12, 13, 14  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) If a Party to this Agreement does not 
become a Member of the WTO within 
one year of the date of entry into 
force of the WTO Agreement or 
ceases to be a Member of the WTO, 
it shall cease to be a Party to this 
Agreement with effect from the same 
date. 
 13. If a Party to this Agreement ceases to 
be a Member of the WTO, it shall cease to 
be a Party to this Agreement with effect 
from the same date.  
11. Non-application of this Agreement between 
Particular Parties  
 Non-application of this Agreement between 
Particular Parties  
 
 This Agreement shall not apply as between 
any two Parties if either of the Parties, at the 
time either accepts or accedes to this 
Agreement, does not consent to such 
applic ation.  
 14. This Agreement shall not apply as 
between any two Parties if either of the 
Parties, at the time either accepts or 
accedes to this Agreement, does not 
consent to such application.  
12. Notes,  Appendices and Annexes  
 Notes, Appendices and Annexes  
 
 The Notes, Appendices and Annexes to this 
Agreement constitute an integral part thereof.  
 15. The Notes, Appendices and Annexes 
to this Agreement constitute an integral 
part thereof.  
13. Secretariat  
 Secretariat  
 
 This Agreement shall be serviced by the 
WTO Secretariat.  
 16. This Agreement shall be serviced by 
the WTO Secretariat.  
14. Deposit  
 Deposit  
 
 This Agreement shall be deposited with 
the Director -General of the WTO, who shall 
promptly furnish to each Party a certified true 
copy of this Agreement, of each rectification or 
modification thereto pursuant to paragraph  6 
and of each amendment thereto pursuant to 
paragraph  9, and a notification of each 
acceptance thereof or accession thereto 
pursuant to paragraphs  1 and 2 and of ea ch 
withdrawal therefrom pursuant to paragraph  10 
of this Article.  
 17. This Agreement shall be deposited 
with the Director -General of the WTO, who 
shall promptly furnish to each Party a 
certified true copy of this Agreement, of 
each rectification or modifi cation thereto 
pursuant to paragraphs 7 and 8 of this 
Article and of each amendment thereto 
pursuant to paragraph 11 of this Article, 
and a notification of each accession thereto 
pursuant to paragraph 2 of this Article and 
of each withdrawal therefrom purs uant to 
paragraph 12 and 13 of this Article.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.9  
- 170 - 
  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
 Registration  
 
 This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
 18. This Agreement shall be registered in 
accordance with the provisions of Article 
102 of the Charter of the United Nations.  
[US – Job No. 2867]  
 
 Done at Marrakesh this  fifteenth day of 
April one  thousand  nine hundred  and ninety -four 
in a single copy, in the English, French and 
Spanish languages, each text being authentic, 
except as otherwise specified with respect to the 
Appendices hereto.  
  
 
NOTES  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The terms "country" or "countries" as used 
in this Agreement, including the Appendices, are 
to be understood to include any separate 
customs territory Party to this Agreement.  
 
 In the case of a separate customs territory 
Party to this Agreement, where an expression in 
this Agreement is qualified by the term 
"national", such expression shall be read as 
pertaining to that customs territory, unless 
otherwise specified.  
 
Article 1, paragraph 1  
 
 Having regard to general policy 
considerations relating to tied aid, including the 
objective of developing countries with respect to 
the untying of such aid, this Agreement does not 
apply to procurement made in furtherance of tied 
aid to developing countries s o long as it is 
practised by Parties.  
  
[cf. US proposals on definitions]  
 GPA/TN1994/2/Rev.9  
- 171 - 
  ATTACHMENT  1 
 
CONSOLIDATED US PROPOSALS FOR STREAMLINING THE TEXT  
OF THE WTO AGREEMENT ON GOVERNMENT PROCUREMENT  
APRIL  2001 (JOB NO. 2867)  
WTO AGREEMENT ON GOVERNMENT PROCUREMENT  
Table of Contents  
 
Article I  Definitions  
Article II  Scope and Coverage  
Article III  Non-Discrimination  
Article IV  Publication of Procurement Measures  
Article V  Publication of Notice of Intended Procurement  
Article VI  Time Periods for Tendering  
Article VII  Information on Intended Procurements  
Article VIII  Qualification of Suppliers  
Article IX  Limited Tendering  
Article X  Treatment of Tenders and Contract Awards  
Article XI  Transparency of Procurement Information  
Article XII  Non-Disclosure of Inform ation 
Article XIII  Domestic Review of Supplier Challenges  
Article XIV  Institutions  
Article XV  Consultations and Dispute Settlement  
Article XVI  Exceptions to the Agreement  
Article XVII  Final Provisions  
 
 
Preamble  
 
Parties to this Agreement (hereinafter referred to as "Parties "), 
 
Recognizing  the need for an effective multilateral framework of rights and obligations with 
respect to measures regarding government procurement, with a view to achieving greater 
liberaliza tion and expansion of world trade and improving the international framework for the 
conduct of world trade;  
 
Recognizing  that the transparency, integrity and predictability of government procurement 
systems are integral to the efficient and effective management of public resources, the overall quality 
of governance, the economic performance of the Parties ' societies, and th e functioning of the 
multilateral trading system;  
 
Recognizing  that the procedural commitments under this Agreement should be sufficiently 
flexible to accommodate the specific circumstances of each Party and limited to what is necessary 
to achieve the Part ies' objectives of this Agreement;  
 
Desiring  to encourage acceptance of and accession to this Agreement by governments not 
party to it;  
 
Having undertaken  further negotiations in pursuance of these objectives;  
  GPA/TN1994/2/Rev.9  
- 172 - 
  Hereby agree  as follows:  
 
Article I  Definiti ons 
 
For purposes of this Agreement:  
 
build, operate and transfer contract  means any contractual arrangement under which a supplier 
may own or operate infrastructure, facilities or other assets provided for under a contract for a 
specified period of time b efore transferring ownership or operation of such assets to one of the 
Parties or its entities;  
 
consensus standard  means a standard adopted by an independent domestic or international 
standards body, where the decision to adopt that standard is characteri zed by the absence of 
sustained opposition to substantial issues by any important part of the concerned interests and by 
a process that involves seeking to take into account the views of all parties concerned and to 
reconcile any conflicting arguments . A consensus standard shall not be applicable to a particular 
Party if the process by which that standard was adopted did not involve seeking to take into account 
the views of that Party and interested stakeholders of that Party;  
 
construction services contrac t means a contract that has as its objective the realization by 
whatever means of civil or building works, in the sense of Division 51 of the Central Product 
Classification (CPC);  
 
country or countries  include any separate customs territory Party to this A greement . In the case 
of a separate customs territory Party to this Agreement, where an expression in this Agreement is 
qualified by the term "national", such expression shall be read as pertaining to that customs territory, 
unless otherwise specified;  
 
government  is deemed to include the competent authorities of the European Communities;  
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of Appendix I of each Party;  
 
services  includes construction services contracts, unless otherwise specified;  
 
 
COMMENTS  
 
• The number of terms included in the Article on definitions should reflect all relevant factors 
including the overall structure of the Agreement . Perhaps, the Article contain ing definitions 
could be included as an Annex, as in the case of the SPS Agreement.  [Korea]  
• Definitions at the beginning of the Agreement could be useful since the reader would see those 
first and then would have a context for understanding the commitments  referred to in the text 
of the Agreement . However, if the article containing definitions became very lengthy, it might 
be useful to include it at the end of the Agreement or in an Annex.  [US] 
• It is questioned whether Article I is the correct location for the proposed paragraph 1 . Since 
proposed paragraph 1 contains, in part, a definition of government procurement, perhaps it 
should be included in the Article containing definitions . Nevertheless, it also seems to be 
something more than a mere definition.  [EC] 
  GPA/TN1994/2/Rev.9  
- 173 - 
  supplier  means a natural person or enterprise that has provided or could provide goods or services 
in response to a procuring entity 's call for tenders ; and 
 
technical specification  means a tendering requirement that lays down the characteristic of goods 
to be procured or their related processes and production methods or the characteristics of services 
to be procured or their related operating methods, including any applicable admini strative provisions . 
It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling 
requirements as they apply to a good, process, or production or operating method.  
 
in writing  or written  means any expression of informat ion in words, numbers or other symbols, 
including electronic expressions, that can be read, reproduced, and stored3; 
 
limited tendering procedures  means procedures in which a procuring entity invites tenders only 
from a supplier or suppliers that the enti ty selects in a non -competitive manner;  
 
offsets  means conditions imposed or considered by a procuring entity prior to, or in the course of, 
its procurement process that encourages local development or improves a Party's balance of 
payments accounts by mea ns of requirements of local content, licensing of technology, investment, 
counter -trade or similar provisions;  
 
Article II  Scope and Coverage  
 
1.  This Agreement applies to:  
 
(a) any measure specifically governing the procurement of goods or services, or a ny 
combination thereof, for governmental purposes and not with a view to commercial 
resale or with a view to use in the production or supply of goods or services for 
commercial sale ; and 
 
(b) procurement by procuring entities specified in Appendix I to this Agreement, by any 
contractual means, including direct purchase ; lease; rental or hire purchase, with or 
without an option to buy ; and build, operate and transfer contracts.  
 
2. For each Party, Appendix I shall be divided into five Annexes:  
 
(a) Annex 1 specifies the central government entities whose procurement is covered by 
this Agreement;  
(b) Annex 2 specifies the sub -central government entities whose procurement is covered 
by this Agreement;  
(c) Annex 3 specifies all other entities whose procurement  is covered by this Agreement;  
(d) Annex 4 specifies the services covered by this Agreement ; and 
(e) Annex 5 specifies the construction services covered by this Agreement.  
 
3.  Where procuring entities, in the context of procurement covered by this Agreeme nt, require 
enterprises not included in Appendix I to award contracts in accordance with particular requirements, 
Article III of this Agreement shall apply mutatis mutandis  to such requirements.  
  
 
3 This definition is c ontained in a proposed revision to the U.S. Federal Acquisition Regulation (FAR), 
which was published in the U.S. Federal Register on November 1, 2000.  As of March 30, 2001, the Civilian 
Agency Acquisition Council and the Defense Acquisition Regulations C ouncil continue to review this regulatory 
proposal.  The United States reserves its right to modify the language of this submission, based on our ongoing 
internal consultations.  GPA/TN1994/2/Rev.9  
- 174 - 
  4. This Agreement applies to any procurement contract for w hich the value of the contract is 
estimated, at the time of publication of the notice of intended procurement, in accordance with 
Article V of this Agreement, to equal or exceed the relevant threshold specified in Appendix I.  The 
value of a contract shall be estimated in accordance with the provisions of paragraph 5 of this Article.  
 
Valuation Of Contracts  
 
5. In determining whether a contract is covered under this Agreement, procuring entities shall 
apply the following provisions:  
 
(a)  Procuring entities shall not divide an intended procurement into separate contracts 
or otherwise use a particular method for estimating the value of a contract for the 
purpose of avoiding the application of this Agreement.  
 
(b)  In calculating the value of a contract, an ent ity shall take into account all forms of 
remuneration, including premiums, fees, commissions, interest, other revenue 
streams provided for under the contract and the value of the maximum permissible 
options provided for by the contract.  
 
(c)  Except as pro vided for in sub -paragraph (d) of this Paragraph, contracts that are 
awarded in multiple parts, are awarded to more than one supplier, are for an 
indefinite quantity, or result in the awarding of more than one contract or recurring 
contracts, shall be valu ed at the total estimated value of the contract and any 
resulting contracts over the duration of such contracts.  
 
(d) Contracts for which the duration is not known shall be valued at the actual value of 
similar previous contracts awarded over the most rece nt two -year period, adjusting 
for any anticipated changes in the quantity and prices of the goods or services to be 
supplied.  
 
Article III  Non-Discrimination  
 
Basic Principles  
 
1. With respect to any measure specifically governing procurement covered by this Agreement, 
each Party shall accord to the goods and services of another Party and to the suppliers of another 
Party offering the goods or services of another Party, treatment no  less favorable than the most 
favorable treatment the Party accords to:  
 
(a) its own goods, services and suppliers ; and 
 
(b) goods, services and suppliers of another Party.  
 
2. With respect to any measure governing procurement covered by this Agreement, no  Party 
may: 
 
(a) treat a locally established supplier less favorably than another locally established 
supplier on the basis of degree of foreign affiliation or ownership ; or 
 
(b) discriminate against a locally established supplier on the basis that the goo ds or 
services offered by that supplier for a particular procurement are goods or services 
of another Party.  
  GPA/TN1994/2/Rev.9  
- 175 - 
  Rules of Origin  
 
3. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods imported from another Part y that are different from or inconsistent with the rules of origin 
the Party applies in the normal course of trade.  
 
Offsets  
 
4.  Procuring entities shall not consider, seek or impose offsets in the qualification and selection 
of suppliers, goods or servic es, in the evaluation of tenders, or in the award of contracts.  
 
Option Clauses  
 
5. Procuring entities shall not use option clauses in a manner that circumvents the provisions of 
this Agreement.  
 
Measures Not Specific to Procurement  
 
6. The provisions of paragraphs 1 and 2 of this Article do not apply to customs duties and charges 
of any kind imposed on or in connection with importation, the method of levying such duties and 
charges, other import regulations or formalities, and measures affec ting trade in services other than 
measures specifically governing procurement covered by this Agreement.  
 
Article IV  Publication of Procurement Measures  
 
Each Party shall promptly publish any law, regulation, judicial decision, administrative ruling of 
general application, and procedure regarding procurement covered by this Agreement in officially 
designated electronic or paper media which are widely disseminated and readily accessible to the 
public . Each Party shall promptly publish in the same media all a dditions and changes to such 
measures.  
 
Article V  Publication of Notice of Intended Procurement  
 
1.  For each contract covered by this Agreement, except as provided for in Article IX of this 
Agreement, procuring entities shall publish a notice inviting int erested suppliers to submit tenders 
for that contract . The notice shall be published in the appropriate publication listed in Appendix  III. 
Such publications shall be in electronic or paper media which are widely disseminated and readily 
accessible to the general public.  
 
2.  Entities shall include the following information in each notice of intended procurement:  
 
(a) A description of the intended procurement, including the nature and quantity of the 
goods or services to be procured and, where applicable, a ny requirements for the 
qualification of suppliers;  
 
(b) The name and address of the procuring entity and other information necessary to 
contact the entity and obtain all relevant documents relating to the contract;  
 
(c) The procurement method that will be  used and whether it will involve negotiation;  
 
(d) The time limits set for the submission of tenders and, when appropriate, any time 
limits for the submission of applications to qualify for participation in the intended 
procurement and the dates for start ing or completing delivery of goods and services ; 
and 
 
(e) An indication that the procurement is covered by this Agreement.  
  GPA/TN1994/2/Rev.9  
- 176 - 
  3.  Each Party shall encourage its procuring entities to publish as early as possible in each fiscal 
year information regarding entities ' future procurement plans . Such information should include the 
subject matter of the procurement and the planned date of the publication of the notice of intended 
procurement . When the published information is in accordance with Article VI:2(a) of this 
Agreement, entities may apply Article VI:2 for the purpose of establishing more flexible time periods 
for tendering of procurements covered by this Agreement.  
 
Article VI  Time Periods for Tendering  
 
1. Except as provided for in paragraphs 2  and 3 of this Article, procuring entities shall provide 
no less than 40 calendar days between the date on which the notice of intended procurement is 
published and the final date for the submission of tenders.  
 
2.  Under the following circumstances, entit ies may establish a time period for tendering that is 
shorter than 40 days, provided that such time period is sufficiently long to enable suppliers to 
prepare and submit responsive tenders and is in no case less than 10  calendar days prior to the final 
date for the submission of tenders:  
 
(a) where a separate notice, including a notice under Article V:3 of this Agreement, has 
been published at least 40 calendar days and not more than 12 months in advance, 
and such notice contains : a description of the inten ded procurement ; the time limits 
for the submission of tenders or, when appropriate, applications for qualification ; 
and the address from which documents relating to the procurement may be 
obtained;  
 
(b) in the case of the second or subsequent publication of notices dealing with contracts 
of a recurring nature;  
 
(c) in the case of procurement of commercial goods and services that are sold or offered 
for sale to, and customarily purchased and used by, non -governmental buyers for 
non-governmental purposes, ex cept that a procuring entity shall not reduce time 
periods for this reason if the entity requires that potential suppliers be qualified for 
participation in the procurement before submitting tenders, in accordance with 
Article IX of this Agreement ; and 
 
(d) when, for duly substantiated reasons of extreme urgency brought about by events 
unforeseeable by the entity, the use of a 40 -day time period would result in serious 
injury to the entity or the relevant Party ; however, concerns relating to the amount 
of funds available to an entity within a particular period of time shall not be 
considered to be a reason of extreme urgency for these purposes.  
 
3. When a procuring entity publishes a notice of intended procurement in accordance with Article 
V of this Agreeme nt in an electronic media listed in Appendix III, the entity may reduce the time 
periods provided for in this Agreement by up to 10 calendar days . The use of this provision, however, 
shall in no case result in the reduction of those time periods to less th an 10 calendar days from the 
date on which the notice of intended procurement is published.  
 
4. Where, as a result of a need to amend information provided to suppliers during the 
procurement process, a procuring entity must extend the time period for quali fication or tendering 
procedures, such entity shall permit all participating suppliers to submit final tenders in accordance 
with a common deadline.  
  GPA/TN1994/2/Rev.9  
- 177 - 
  Article VII  Information on Intended Procurements  
 
Tender Documentation  
 
1.  Procuring entities shall provide to suppliers tender documentation that includes all information 
necessary to permit suppliers to prepare and submit responsive bids . Unless already provided in the 
notice of intended procurement, such documentation shall include a complete descript ion of:  
 
(a) the intended procurement, including the nature and quantity of the goods or services 
to be procured and any requirements to be fulfilled, including any technical 
specifications, conformity certification, plans, drawings or instructional materi als; 
 
(b) any conditions for participation in the procurement, including any financial 
guarantees, information and documents that suppliers are required to submit;  
 
(c) all criteria, including all cost factors, to be considered in the awarding of the contr act, 
and the weights that will be assigned to such criteria in evaluating tenders;  
 
(d) the date, time and place for the opening of tenders ; and 
 
(e) the terms of payment and any other terms or conditions.  
 
Technical Specifications  
 
2. Each Party shall ens ure that its entities do not prepare, adopt or apply any technical 
specification with the purpose or the effect of creating unnecessary obstacles to trade.  
 
3. In establishing the technical specifications for each good or service being procured, each Party  
shall ensure that its entities specify, whenever available and applicable to that Party, an existing 
domestic or international consensus standard, except where the use of a consensus standard would 
fail to meet the entity 's program requirements or would i mpose more burdens than the use of a 
government -unique standard.  
 
4.  Each Party shall ensure that, wherever appropriate, any technical specification prescribed by 
its entities is specified in terms of performance requirements for the good or service being  procured 
rather than design or descriptive characteristics.  
 
5. Each Party shall ensure that the technical specifications prescribed by its entities do not require 
or refer to a particular trademark or trade name, patent, design or type, specific origin o r producer 
or supplier unless there is no sufficiently precise or intelligible way of otherwise describing the 
procurement requirements and provided that, in such cases, words such as "or equivalent" are 
included in the tender documentation.  
 
6. Each Party  shall ensure that its entities do not seek or accept, in a manner that would have 
the effect of precluding competition, advice that may be used in the preparation or adoption of any 
technical specification for a specific procurement from a person that may  have a commercial interest 
in that procurement.  
 
Modifications  
 
7. If, during the course of a procurement process, an entity modifies the criteria or technical 
requirements set out in previous notices and information provided to participating suppliers, i t shall 
transmit all such modifications in writing:  
  GPA/TN1994/2/Rev.9  
- 178 - 
  (a) to all the suppliers that are participating at the time the information is amended, if 
known, and in all other cases, in the same manner as the original information ; and 
 
(b) in adequate time to allow such suppliers to modify and re -submit their initial tenders, 
as appropriate.  
 
Article VIII  Qualification of Suppliers  
 
1. Where a procuring entity requires suppliers to satisfy qualification requirements before 
participating in a tendering process, the entity shall publish a notice inviting interested suppliers to 
apply for qualification and shall provide no less than 15 calendar days prior to the final date for the 
submission of tenders for such suppliers to submit their applications . This notice ma y be the same 
as the notice of intended procurement required under Article V of this Agreement.  
 
2. If at any time within the 15 -day period referred to in paragraph 1 of this Article a supplier not 
yet qualified submits an application for qualification, th e entity shall promptly start the qualification 
procedures and shall allow such supplier to participate in the tendering process, provided there is 
sufficient time to complete the qualification procedure within the time period established for the 
tendering  process.  
 
3. Where a notice inviting applications for qualification in a procurement process is issued 
separately from the notice of intended procurement required under Article V of this Agreement, such 
notice shall be published in the same manner as the notice of intended procurement and shall contain 
at least the following information:  
 
(a) A description of the intended procurement;  
 
(b) The qualification requirements;  
 
(c) The name and address of the procuring entity and other information necessary to 
contact the entity and obtain all relevant documents relating to the contract;  
 
(d) The time limits, if any, for the submission of applications for qualification ; and 
 
(e) An indication that the procurement is covered by this Agreement.  
 
4. Procuring entiti es shall ensure that any conditions for participation in a tendering process that 
they use are limited to those that are essential to ensure a potential supplier 's ability to fulfil the 
requirements and technical specifications of the procurement in questi on. 
 
(a) Procuring entities shall evaluate the financial, commercial and technical capabilities 
of a supplier on the basis of that supplier's global business activities, and shall not 
impose the condition that, in order for a supplier to participate in a p rocurement 
process, the supplier has previously been awarded one or more contracts by an 
entity of that Party or that the supplier has prior work experience in the territory of 
that Party.  
 
(b) Nothing in this Article shall preclude the exclusion of a supplier on grounds such as 
bankruptcy or false declarations.  
 
5. Procuring entities shall recognize as qualified suppliers all suppliers who meet the conditions 
for participation in a particular intended procurement . Entities shall base their qualificatio n decisions 
solely on the conditions for participation that have been specified in advance in notices or tender 
documentation.  
  GPA/TN1994/2/Rev.9  
- 179 - 
  Information on Qualification Decisions  
 
6. A procuring entity shall promptly advise any supplier that requests qualification of  its decision 
as to whether that supplier is qualified.  
 
7. Where a procuring entity rejects a supplier 's application to qualify or ceases to recognize a 
supplier as qualified, the entity shall inform the supplier and, on request of the supplier, promptly 
provide the supplier with a written explanation of the reasons for its decision.  
 
Article IX  Limited Tendering  
 
1.  Where a procuring entity uses a limited tendering procedure, it may choose not to publish or 
distribute a notice of intended procurement pri or to the award of the procurement contract.  
 
2. Procuring entities shall not use limited tendering procedures for the purpose of avoiding 
competition among suppliers or in a manner that constitutes a means of discrimination between 
suppliers of the other Parties or protection of domestic suppliers . Notwithstanding any of the 
provisions of paragraph 3 of this Article, entities shall not use limited tendering because of a lack of 
advance planning or concerns relating to the amount of funds available to an en tity within a particular 
period of time.  
 
3. Procuring entities may use limited tendering procedures in the following circumstances and 
subject to the following conditions, where applicable:  
 
(a) in the absence of tenders that conform to the essential requ irements in the tender 
documentation provided in a prior tendering procedure, on condition that the 
requirements of the initial procurement are not substantially modified in the contract 
as awarded;  
 
(b) in the absence of tenders from suppliers which meet qualification requirements 
established for a prior tendering procedure;  
 
(c) where, for works of art, or for reasons connected with the protection of exclusive 
rights, such as patents, copyrights or proprietary information or where there is an 
absence of c ompetition for technical reasons, the goods or services can be supplied 
only by a particular supplier and no reasonable alternative or substitute exists;  
 
(d) for additional deliveries by the original supplier that are intended either as 
replacement parts,  extensions, or continuing services for existing equipment, 
software, services or installations, where a change of supplier would compel the 
entity to procure goods or services not meeting requirements of interchangeability 
with existing equipment, softwar e, services, or installations;  
 
(e) for goods purchased on a commodity market ; and 
 
(f) in so far as is strictly necessary where, for reasons of extreme urgency brought 
about by events unforeseeable by the entity, the goods or services could not be 
obtained in time under tendering procedures consistent with Articles V and VI of this 
Agreement, and the use of such procedures would result in serious injury to the 
entity, the entity 's program responsibilities, or the responsible Party.  
 
4. Procuring ent ities shall prepare a report in writing on each contract awarded under 
paragraph  3 of this Article . Each such report shall include the name of the procuring entity, the value 
and kind of goods or services procured, and a statement indicating the circumstan ces and conditions 
described in paragraph 3 of this Article that justified the use of limited tendering . Entities shall retain 
each such report for a minimum of three years.  
  GPA/TN1994/2/Rev.9  
- 180 - 
  Article X  Treatment of Tenders and Contract Awards  
 
Receipt and Opening of Tende rs 
 
1. Procuring entities shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process.  
 
2. Procuring entities shall treat tenders in confidence . In particular, they shall not provide 
informati on to particular suppliers that might prejudice fair competition between suppliers.  
 
3. Procuring entities shall not penalize any supplier whose tender is received after the time 
specified for receiving tenders if the delay is due solely to mishandling on the part of the entity.  
 
4. When procuring entities provide suppliers with opportunities to correct unintentional errors of 
form between the opening of tenders and the awarding of the contract, the entities shall provide the 
same opportunities to all parti cipating suppliers.  
 
Awarding of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
conform to the essential requirements of the notices and tender documentation and be from a 
supplier which complies wit h the conditions for participation, including any specified time periods . 
Procuring entities shall base contract award decisions solely on the requirements and evaluation 
criteria that have been specified in the notices and tender documentation provided in  advance to all 
participating suppliers.  
 
6. Unless a procuring entity determines that it is not in the public interest to award a contract, 
procuring entities shall award the contract to the tenderer who has been determined to be fully 
capable of undertak ing the contract and whose tender is either the lowest tender or the tender which 
is determined to be the most advantageous in terms of the requirements and evaluation criteria set 
forth in the notices or tender documentation.  
 
7. Procuring entities shall not cancel a procurement process, or terminate or modify awarded 
contracts in a manner that circumvents the obligations of this Agreement.  
 
Article XI  Transparency of Procurement Information  
 
Information Provided to Suppliers  
 
1. Procuring entities shall promptly inform suppliers that have submitted tenders of the contract 
award decisions . Subject to Article XII of this Agreement, procuring entities shall, upon request, 
provide losing bidders with an explanation of the reasons for not being selected and the relative 
advantages of the successful supplier.  
 
Publication of Award Information  
 
2.  Not later than 90 calendar days after the award of a contract covered by this Agreement, the 
procuring entity shall publish a notice in the appropriate publicati on designated in Appendix  III of 
this Agreement that includes at least the following information about that contract:  
 
(a) the name of the procuring entity;  
  GPA/TN1994/2/Rev.9  
- 181 - 
  (b) a description of the goods or services procured;  
 
(c) the name of the winning tenderer;  
 
(d) the value of the winning award or the highest and lowest offer taken into account in 
the award of the contract ; and 
 
(e) the type of procurement method used, and in cases where limited tendering 
procedures are used, a description of the circumstances justi fying the use of such 
procedures.  
 
Provision of Award Information to Parties  
 
3. Upon the request of any other Party, a Party shall provide such detailed information on the 
award of a contact as may be necessary to determine whether the procurement was con ducted 
fairly, impartially and in accordance with the provisions of this Agreement . Such information shall 
include information on the characteristics and relative advantages of the winning tender and on the 
contract price.  
 
Maintenance of Records  
 
4. The Parties shall ensure that their procuring entities maintain records of tendering procedures 
relating to contracts covered by this Agreement . Procuring entities shall maintain such records for a 
period of at least three years.  
 
Collection and Report of Statistics  
 
5. Each Party shall collect and report to the Committee statistics on contracts awarded by entities 
covered under Appendix 1 of this Agreement . Each report shall be submitted within two years of the 
end of the reporting period, and shall contai n: 
 
(a) For Annex 1 entities, statistics on the:  
 
(i) aggregate number and value, for all such entities collectively, of contracts 
covered by this Agreement;  
(ii) number and total value of all contracts covered by this Agreement awarded 
by such entities, b roken down by categories of goods and services according 
to a uniform classification system ; and 
(iii) number and total value of contracts covered by this Agreement awarded by 
each such entity under limited tendering procedures.  
 
(b) For Annex 2 and 3 enti ties, separately, statistics on the:  
 
(i) aggregate number and value of contracts covered by this Agreement 
awarded by such entities;  
(ii) estimated total value of contracts covered by this Agreement awarded by 
such entities, broken down by categories of e ntities ; and 
(iii) estimated value of contracts covered by this Agreement awarded by such 
entities under limited tendering procedures, broken down by categories of 
entities.  
 
Article XII  Non-Disclosure of Information  
 
1. The Parties and their procuring ent ities shall not disclose confidential or proprietary 
information.  
 
2. Nothing in this Agreement shall prevent the Parties or their procuring entities from withholding 
the release of information under this Agreement where release might:  
 
(a) impede law enforcement;  
 
(b) prejudice fair competition between suppliers;  GPA/TN1994/2/Rev.9  
- 182 - 
  (c) prejudice the legitimate commercial interests of particular suppliers or procuring 
entities, including the protection of intellectual property ; or 
 
(d) otherwise be contrary to the public interest.  
 
Article XIII  Domestic Review of Supplier Challenges  
 
Consultations  
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement, 
each Party shall encourage its relevant procuring entity and such supplier to seek r esolution of the 
complaint through consultations . Procuring entities shall accord impartial and timely consideration 
to any such complaint, in a manner that is not prejudicial to suppliers ' participation in ongoing or 
future procurement activities or to su ppliers ' rights to seek corrective measures under the challenge 
system.  
 
Independent Review Authorities  
 
2. Each Party shall establish or designate at least one impartial authority, which is independent 
from its procuring entities, to receive and review su pplier challenges relating to the provisions of 
this Agreement and make appropriate findings and recommendations . Such authorities shall be 
authorized, pending the resolution of a challenge, to take prompt interim measures to preserve the 
opportunity to co rrect potential breaches of this Agreement, including the suspension of the award 
of a contract or the performance of a contract already awarded.  
 
Principles for Review and Appeal  
 
3. Each Party shall provide timely, effective, transparent, predictable and  non-discriminatory 
means for suppliers to challenge alleged breaches of this Agreement, without prejudice to suppliers ' 
participation in ongoing or future procurement activities . All challenge procedures shall be in writing 
and made generally available.  
 
4. In the event that a challenge is initially reviewed by a body other than an authority established 
or designated under paragraph 2 of this Article, each Party shall ensure that suppliers may appeal 
the initial decision to an impartial administrative or j udicial authority which is separate and 
independent from the procuring entity that is the subject of the challenge.  
 
5. Each Party shall ensure that any confidential or proprietary information that is submitted in 
the course of a challenge proceeding is pr otected in accordance with paragraph 1 of Article XII of 
this Agreement.  
 
Review Procedures  
 
6. Each Party shall ensure that review procedures are conducted in accordance with the 
following:  
 
(a) Suppliers shall be allowed a sufficient period of time to prepare and submit 
challenges, which in no case shall be less than 10 days from the time when the basis 
of the complaint became known or reasonably should have become known to the 
supplier;  
 
(b) The proceedings shall be conducted in a transparent manner, c onsistent with 
predictable, written procedures that are readily available to all participants in 
advance;  
 
(c) Procuring entities shall respond in writing to the complaint and disclose all relevant 
documents to the review body;  
 
(d) A supplier that initiat es a complaint shall be provided an opportunity to respond to 
the procuring entities ' report prior to a decision being taken on the complaint ; and 
 GPA/TN1994/2/Rev.9  
- 183 - 
  (e) Decisions relating to supplier challenges shall be provided in a timely fashion, in 
writing, with an exp lanation of the basis for each decision.  
 
Article XIV  Institutions  
 
Committee on Government Procurement  
 
1. A Committee on Government Procurement composed of representatives from each of the 
Parties shall be established . This Committee shall elect its own Chairman and Vice -Chairman and 
shall meet as necessary, but not less than once a year, for the purpose o f affording Parties the 
opportunity to consult on any matters relating to the operation of this Agreement or the furtherance 
of its objectives, and to carry out such other responsibilities as may be assigned to it by the Parties.  
 
2. The Committee may establish working parties or other subsidiary bodies which shall carry out 
such functions as may be given to them by the Committee.  
 
Observers  
 
3. WTO M embers and other governments who are not Parties to this Agreement shall be entitled 
to participate in the Committee as observers upon submitting a written notice to  the Secretariat.  
 
Article XV  Consultations and Dispute Settlement  
 
1. The provisions of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes under the WTO Agreement (hereinafter referred to as the "Dispute Settlemen t 
Understanding") shall be applicable, except as otherwise provided below.  
 
2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement 
is being impeded as the result of the failure of another Party or Partie s to carry out its obligations 
under this Agreement, or the application by another Party or Parties of any measure, whether or not 
it conflicts with the provisions of this Agreement, it may with a view to reaching a mutually 
satisfactory resolution of the matter, make written representations or proposals to the other Party 
or Parties which it considers to be concerned . Such action shall be promptly notified to the Dispute 
Settlement Body established under the Dispute Settlement Understanding (hereinafter re ferred to 
as "DSB"), as specified below . Any Party thus approached shall give sympathetic consideration to 
the representations or proposals made to it.  
 
3. Only Members of the WTO party to this Agreement shall participate in decisions or actions 
taken by t he DSB with respect to disputes under this Agreement.  
 
4. Panels shall have the following terms of reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of the panel:  
 
"To examine, in the light of the relevant prov isions of this Agreement and of (name of any 
other covered Agreement cited by the parties to the dispute), the matter referred to the DSB 
by (name of party) in document ... and to make such findings as will assist the DSB in 
making the recommendations or i n giving the rulings provided for in this Agreement."  
 
In the case of a dispute in which provisions both of this Agreement and of one or more other 
Agreements listed in Appendix 1 of the Dispute Settlement Understanding are invoked by one of the 
parties to  the dispute, paragraph 3 of this Article shall apply only to those parts of the panel report 
concerning the interpretation and application of this Agreement.  
 
5. Panels established by the DSB to examine disputes under this Agreement shall include persons 
qualified in the area of government procurement.  
 
6. Every effort shall be made to accelerate the proceedings to the greatest extent possible . 
Therefore, notwithstanding the provisions of paragraphs 8 and 9 of Article 12 of the Dispute 
Settlement Understan ding, the panel shall attempt to provide its final report to the parties to the 
dispute not later than four months, and in case of delay not later than seven months, after the date 
on which the composition and terms of reference of the panel are agreed . Consequently, every effort GPA/TN1994/2/Rev.9  
- 184 - 
  shall be made to reduce also the periods foreseen in Article 20 and paragraph 4 of Article  21 of the 
Dispute Settlement Understanding by two months . Moreover, notwithstanding the provisions of 
paragraph 5 of Article 21 of the Dispu te Settlement Understanding, the panel shall attempt to issue 
its decision, in case of a disagreement as to the existence or consistency with a covered Agreement 
of measures taken to comply with the recommendations and rulings, within 60 days.  
 
7. Notwiths tanding paragraph 2 of Article 22 of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in Appendix 1 to the Dispute Settlement Understanding 
other than this Agreement shall not result in the suspension of concessions or o ther obligations 
under this Agreement, and any dispute arising under this Agreement shall not result in the 
suspension of concessions or other obligations under any other Agreement listed in the said 
Appendix  1. 
 
Article XVI  Exceptions to the Agreement  
 
[The United States is reviewing its positions on this Article.]  
 
Article XVII  Final Provisions  
 
Entry into Force of Amended Agreement  
 
1. This Agreement supersedes the Government Procurement Agreement, which entered into 
force on 1 January  1996, and enters into force on [date].  
 
Accession  
 
2. Any government which is a Member of the WTO and which is not a Party to this Agreement 
may accede to this Agreement on terms to be agreed between that government and the Parties . 
Accession sha ll take place by deposit with the Director -General of the WTO of an instrument of 
accession which states the terms so agreed . The Agreement shall enter into force for an acceding 
government on the 30th day following the date of its accession to the Agreeme nt. 
 
Technical Assistance and Cooperation  
 
3. [The United States is reviewing its positions on these provisions.]  
 
Reservations  
 
4. Parties may not take reservations in respect of any of the provisions of this Agreement.  
 
National Legislation  
 
5. Each gove rnment accepting or acceding to this Agreement shall ensure, not later than the 
date of entry into force of this Agreement for it, the conformity of its laws, regulations and 
administrative procedures, and the rules, procedures and practices applied by the  entities contained 
in its lists annexed hereto, with the provisions of this Agreement.  
 
6. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of such laws and regulations.  
 
Rectifications or Modifications  
 
7. Rectifications, transfers of an entity from one Annex to another or, in exceptional cases, other 
modifications relating to Appendices I through IV shall be notified to the Committee, along with 
information as to the lik ely consequences of the change for the mutually agreed coverage provided 
in this Agreement . If the rectifications, transfers or other modifications are of a purely formal or 
minor nature, they shall become effective provided there is no objection within 30  days. In other 
cases, the Chairman of the Committee shall promptly convene a meeting of the Committee . The 
Committee shall consider the proposal and any claim for compensatory adjustments, with a view to 
maintaining a balance of rights and obligations and  a comparable level of mutually agreed coverage 
provided in this Agreement prior to such notification . In the event of agreement not being reached, GPA/TN1994/2/Rev.9  
- 185 - 
  the matter may be pursued in accordance with the provisions contained in Article XV of this 
Agreement.  
 
8. Where a Party wishes, in exercise of its rights, to withdraw an entity from Appendix I on the 
grounds that government control or influence over it has been effectively eliminated, that Party shall 
notify the Committee . Such modification shall become effect ive the day after the end of the following 
meeting of the Committee, provided that the meeting is no sooner than 30 days from the date of 
notification and no objection has been made . In the event of an objection, the matter may be 
pursued in accordance wit h the procedures on consultations and dispute settlement contained in 
Article XV of this Agreement . In considering the proposed modification to Appendix I and any 
consequential compensatory adjustment, allowance shall be made for the market -opening effects  of 
the removal of government control or influence.  
 
Reports and Future Work  
 
9. The Committee shall annually inform the General Council of the WTO of developments relating 
to the implementation and operation of this Agreement.  
 
10. Parties shall seek to avoid introducing or continuing discriminatory measures and practices 
that distort open procurement and shall, in the context of negotiations, seek to eliminate those which 
remain on the date of entry into force of this Agreement.  
 
Amendments  
 
11. Parties may amend this Agreement having regard, inter alia , to the experience gained in its 
implementation . Such an amendment, once the Parties have concurred in accordance with the 
procedures established by the Committee, shall not enter into force for any Party until it has been 
accepted by such Party.  
 
Withdrawal  
 
12. Any Party may withdraw from this Agreement . The withdrawal shall take effect upon the 
expiration of 60 days from the date on which written notice of withdrawal is received by the 
Director -General o f the WTO . Any Party may upon such notification request an immediate meeting 
of the Committee.  
 
13. If a Party to this Agreement ceases to be a Member of the WTO, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 
Non-applicati on of this Agreement between Particular Parties  
 
14. This Agreement shall not apply as between any two Parties if either of the Parties, at the time 
either accepts or accedes to this Agreement, does not consent to such application.  
 
Notes, Appendices and A nnexes  
 
15. The Notes, Appendices and Annexes to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
16. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
17. This Agreement shall be deposited with the Director -General of the WTO, who shall promptly 
furnish to each Party a certified true copy of this Agreement, of each rectification or modification 
thereto pursuant to paragraphs 7 and 8 of this Article and of each amendment thereto pursuant to 
paragraph 11 of this Article, and a notification of each accession thereto pursuant to paragraph 2 of 
this Article and of each withdrawal therefrom pursuant to paragraphs 12 and 13 of this Article.  
 GPA/TN1994/2/Rev.9  
- 186 - 
  Registration  
 
18. This Agreement shall be registered in accordance with the provisions of Article 102 of the 
Charter of the United Nations.  GPA/TN1994/2/Rev.9  
- 187 - 
  ATTACHMENT 2  
 
PROPOSAL BY SWITZERLAND ON THE REVISION OF ARTICLE V (JOB NO. 1274)  
Article ZZI : Treatment for non -parties developing and least -developed countries  
 
1. Parties shall, in the implementation  and administration of this Agreement, duly take into 
account the development , financial and trade needs of developing countries, in particular 
least-developed countries.  
 
2. Consistently with the provisions of this Agreement, each Party shall, in the prep aration and 
application of laws, regulations and procedures affecting public procurement facilitate access to 
information on tendering opportunities for developing and least -developed countries.  
 
3. Bearing in mind the economic development needs of developing and least -developed 
countries, the Parties shall facilitate increased imports for products representing particular export 
interests to these countries.  
 
4. Having regard to paragraph 6 of the Decision of the CONTRACTING PARTIES to GATT  1947 of 
28 November  1979 on Differential and More Favourable Treatment, Reciprocity and Fuller 
Participation of Developing Countries (B ISD 26S/203 -205), a Party may grant the benefits of this 
Agreement to suppliers in least -developed countries, with respect to prod ucts or services originating 
in those countries.  
 
5. Each developed country Party shall, upon request, provide assistance which it may deem 
appropriate to potential tenderers in least -developed countries in submitting their tenders and 
selecting the produc ts or services which are likely to be of interest to its entities as well as to 
suppliers in least -developed countries, and likewise assist them to comply with technical regulations 
and standards relating to products or services which are the subject of th e intended procurement.  
 
Article ZZII:  Accession by developing and least -developed countries  
 
1. Parties shall encourage countries acceding to the WTO as well as non -Parties developing and 
least-developed countries to accede to the Agreement on Government Procurement (GPA) and 
establish competitive public procurement regimes based on transparency, non -discrimination and 
national treatment.  
 
2. Upon accession to the Agreement, an acceding country shall enjoy all the benefits of the 
Agreement on the basis of reciprocity.  
 
3. In the course of accession negotiations, due account shall be taken of the development, 
financial and trade situation of acceding countries.  
 
4. An acceding country shall adapt its national legislation on public procurement to make it 
compatible with this Agreement with, if necessary, transitional periods and review provisions linked 
with economic development.  
 
5. An acceding country shall submit to the Agreement its central -level government entities upon 
accession for goods and service s under Appendix I, Annex 1.  
 
6. An acceding country shall submit to the Agreement its sub -central -level government entities 
for goods and services under Appendix I, Annex 2, and its entities covered under Appendix I, Annex  3 
for goods and services with, i f necessary, transitional periods and review provisions linked with 
economic development.  
  GPA/TN1994/2/Rev.9  
- 188 - 
  7. Mutually acceptable temporary exclusions from the rules on national treatment with respect 
to certain entities, products or services that are included in the cov erage lists of an acceding country 
can be negotiated in particular circumstances linked with economic development.  
 
Article ZZIII:  Temporary exemptions to coverage for developing and least -developed 
countries Parties and further negotiations  
 
1. In accorda nce with paragraph 6 of Article XXIV, a developing or least -developed country Party 
may modify its coverage lists or may request the Committee on Government Procurement to grant 
temporary exemptions from the rules on national treatment for certain entities , products or services 
that are included in its coverage lists, having regard to the particular circumstances of each case 
and taking duly into account its development, financial and trade situation.  
 
2. Temporary exemptions shall be temporary, reviewed ev ery two years, subject to 
compensations negotiations with other Parties and eliminated with the re -establishment of the 
previous situation.  
 
3. In the course of further negotiations in accordance with paragraph 7 of Article XXIV, each 
developing and least -developed country Party shall give consideration to the possibility of enlarging 
its coverage lists, having regard to its development, financial and trade situation.  
 
Article ZZIV:  Technical assistance and information centres  
 
1. Each Member shall, upon re quest, provide all technical assistance which it may deem 
appropriate to acceding Parties and upon request to Parties which demonstrate need for capacity 
building.  
 
2. Technical assistance shall relate, inter alia , to: 
 
- the solution of particular technic al problems relating to publications of tender and award 
notices, tender procedures, tender documentation, award procedures, remedy systems;  
 
- training of local purchasing entities.  
 
3. Developed country Parties shall establish, individually or jointly, information centres to 
respond to reasonable requests from all Parties for information relating to, inter alia , laws, 
regulations, procedures and practices regarding government procurement , notices about intended 
procurements which have been published, addresses of the entities covered by this Agreement, and 
the nature and volume of products or services procured or to be procured, including available 
information about future tenders . The Co mmittee may also set up an information centre.  
 
Article ZZV:  Review  
 
1. The Committee shall review on a two -year basis the operation and effectiveness of Articles  ZZI 
to ZZIV and, after each four years of its operation on the basis of reports to be submitt ed by Parties, 
shall carry out a major review in order to evaluate its effects . As part of the four -year reviews and 
with a view to achieving the maximum implementation of the provisions of this Agreement, including 
in particular Article III, and having regard to the development, financial and trade situation of the 
developing countries concerned, the Co mmittee shall examine whether exclusions provided for in 
accordance with the provisions of Articles ZZII and ZZIII shall be modified or extended.  
  GPA/TN1994/2/Rev.9  
- 189 - 
  COMMENTS  
 
• Switzerland proposes to re -organize and streamline the content of Article V and add elements 
relevant to accession by developing and least -developed countries to the Agreement on 
Government Procurement.  [Switzerland – Job No. 1274]  
• In addition, Switzerland proposes to move these five new articles (presently Article V of the 
Agreement on Government Proc urement) near the end of the Agreement as it is already the 
case in several other WTO Agreements for provisions referring to developing and 
least-developed countries.  [Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.9  
- 190 - 
  ATTACHMENT 3  
 
ISSUES RAISED AND POINTS MADE IN INFORMAL CO NSULTATIONS REGARDING  
 THE SIMPLIFICATION AND IMPROVEMENT OF THE APPENDICES  
TO THE AGREEMENT  
 A summary of the discussion relating to the simplification of Appendices at the informal 
consultations held in 1997 to 1999 is contained under Item A.1(i) of the Checklist of Issues Raised 
and Points Made, a note by the Secretariat, dated 7 September  1999 (Job No. 5189) . Below is an 
update of that section of the Checklist in the light of further discussions held on the issue at the 
informal consultations of 3 0 January 2001. 
 
_______________  
 
 
A. CHOICE BETWEEN POSITIVE AND NEGATIVE LISTS  
1. It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of presenting the Annexes in the form of negative lists, starting with 
Annex  1. The Committee could define the general principles that would guide the Parties in 
determining which entities should be excluded from the coverage of the Agreement, for example for 
national security reasons . This would also have the e ffect of reducing the residual exceptions and 
derogations under the General Notes to Appendix I of individual Parties.  [Job No. 5189]  
 
2. The view has been expressed that there was an obvious connection between the need for a 
general definition of government procurement and the discussion in relation to the Annexes . It was 
not possible to have a standard solution for every case and scenario . The main question was whether 
the universe of procurement covered under the Agreement was clearly determined or not . If a 
positive list was being used, there was a need for a very comprehensive list.  [EC] 
 
3. The view has also been expressed that it was desirable to maintain the presentation of the 
Annexes in the form of positive lists for the overall consistency of the Annexes.  [Job No. 5189] The 
presentation of the Annexes to Appendix I of individual Parties in the form of detailed positive lists 
was complex but what was important was that they were clear as compared to simply having a 
generic definition referring to en tities covered by certain types of laws.  [Switzerland ; Japan]  
 
4. In this connection, the point has also been made that Parties had the obligation to ensure that 
all the entities that had been specified in Appendix  I complied with the requirements under the 
Agreement effectively . A negative list approach could raise certain difficulties for Parties in this 
respect.  [Job No. 5189] To have entities positively listed increased their awareness of the 
Agreement . A comprehensive positive list also gave an indication  to other Parties of what entities 
were covered in different countries and how procurement was being organized.  [Switzerland]  
 
5. It has also been said that the choice between positive and negative lists of entities  was often 
a matter of practicality and the practicality may differ from system to system . Therefore, the matter 
needed to be considered on a case -by-case basis . For instance in the US, there was no convenient 
way of defining coverage in a generic sense since if a negative list of entities was creat ed of all the 
townships or counties that might not be subject to the Agreement, it could turn out to be a fairly 
difficult task.  [US] 
  GPA/TN1994/2/Rev.9  
- 191 - 
  6. It has also been stated that, while the Appendices in the form of positive lists were lengthy 
when compiled into a singl e document for all Members, the widespread use of electronic posting in 
readily accessible form on the WTO website had provided improved transparency and access to 
information for users . According to this view, the loose -leaf process for the Annexes had al so worked 
well. [Canada]  
 
B. ANNEX 4 ON SERVICES  
7. In relation to the coverage of services in Annex 4, one view has been that a negative list 
approach might be preferable in seeking as comprehensive coverage of services as possible, subject 
to limited negoti ated exceptions whereas a positive list tended to give the impression that the 
starting -point was to assume that everything was excluded until a decision was made to cover a 
type of service . The real issue was the extent of coverage . If coverage was limite d and the 
classification system was very complicated and a detailed analysis was necessary in any particular 
sector, it may not make any difference whether a positive or negative list was used . On the other 
hand, if the ambition was to have extensive cover age of services, then a negative list approach 
would be more appropriate and, in fact, easier to implement, because it would only be necessary to 
refer to a short negative list and if the service in question was not on that negative list, it would be 
clear that that service was covered . A detailed analysis would not be required as was the case under 
a long positive list.  [US] 
 
8. The point has also been made that there were many questions as to what type of services 
were covered . If a negative list was used fo r Annex 4, it would be necessary to define services . 
There was a question as to whether there was a definition of services that was sufficiently 
comprehensive that there would be no doubt that a negative list could be sufficiently clear.  
[Switzerland ] It has also been said in this connection that, if reference was made to a concrete 
classification of services, the use of a positive or negative list was only a matter of presentation 
because there was a clear view of what was covered and what was not covered.  [EC] 
 
9. The point has also been made that Annex  4 could be presented as a negative list only after 
the uniform extension of the coverage of the Agreement in the area of services.  [Job No. 5189]  
 
C. LINKAGES BET WEEN THE ANNEXES  
10. The view has been held that, while it might be feasible to present Annexes  1 and 2 in the form 
of negative lists, positive lists were particularly relevant to Annex 3 entities because the scope of 
public corporations or enterprises covered changed from country to country.  [Job No. 5189; Japan]  
 
11. It has been suggested that attention should be focused on the linkages between some of the 
Annexes, in particular Annexes 2 and 3 since it was not always easy to determine what was covered 
by which Annex.  [Switzerland]  
 
D. PRESENTATION OF ANNEXES  
12. It has been stated that Annexes were not presented consistently among the Parties . For 
example, in the case of some Parties, notes relating to Annexes 2, 3 and 4 often appeared in the 
General Notes . For other Parties, there were sim ilar notes that had actually been incorporated into 
the Annexes themselves . Consideration could be given to ways in which the approaches could be 
harmonized in relation to those types of issues which could assist non -Parties and Parties to 
anticipate where  relevant notes could be found in relation to coverage in various Annexes.  [US] 
 
 
__________