RESTRICTED  
  
GPA/TN1994/3/Rev.1  
 
14 August 2003  
(24-2763) Page: 1/34 
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    
 
  
REVISION OF THE AGREEMENT ON GOVERNMENT PROCUREMENT (GPA) :  
REVISED INTERIM DRAFT OF 8 AUGUST 2003*,** 
Revision  
The following communication has been received from the delegation of the United States . The 
United  States indicates that this interim draft incorporates the comments that were received on the 
23 July 2003 draft from the following delegations : the European Community ; Hong Kong,  China ; 
Japan ; Korea ; Switzerland ; and the United States . It also indicates that this draft will for m the basis 
of the group's work to be undertaken in the week of 18 August 2003.  
 
_______________  
 
 
  
 
* In English only.   
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs101 ) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.1  
 
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  Table of Contents  
ARTICLE I  DEFINITIONS ................................ ................................ ..........................  3 
ARTICLE II  SCOPE AND COVERAGE  ................................ ................................ ...........  5 
ARTICLE III  GENERAL PRINCIPLES  ................................ ................................ ............  8 
ARTICLE IV  PUBLICATION OF PROCUREMENT INFORMATION  ................................ ... 9 
ARTICLE V  PUBLICATION OF NOTICE OF INTENDED PROCUREMENT  ........................  9 
ARTICLE V I TIME -PERIODS FOR TENDERING  ................................ ...........................  11 
ARTICLE VII  INFORMATION ON INTENDED PROCUREMENTS  ................................ .... 13 
ARTICLE VIII  CONDITIONS FOR PARTICIPATION  ................................ .......................  15 
ARTICLE IX  NEGOTIATION  ................................ ................................ ......................  18 
ARTICLE X  LIMITED TENDERING  ................................ ................................ ............  19 
ARTICLE XI  TREATMENT OF TENDERS AND CONTRACT AWARDS  .............................  21 
ARTICLE XII  TRANSPARENCY OF CONTRACT AWARD INFORMATION  ........................  22 
ARTICLE X III NON-DISCLOSURE OF INFORMATION  ................................ ...................  24 
ARTICLE XIV  DEVELOPING COUNTRIES [TO BE INSERTED]  ................................ ....... 25 
ARTICLE XV  EXCEPTIONS TO THE AGREEMENT  ................................ .........................  25 
ARTICLE XVI  MODIFICATIONS AND RECTIFICATIONS TO COVERAGE  ........................  25 
ARTICLE XVII  CHALLENGE PROCEDURES  ................................ ................................ ..... 28 
ARTICLE XVIII  CONSULTATIONS AND DISPUTE SETTLEMENT ................................ ....... 29 
ARTICLE XIX  INSTITUTIONS ................................ ................................ ......................  32 
ARTICLE XX  FINAL PROVISIONS**  ................................ ................................ ..........  32 
 
 
  GPA/TN1994/3/Rev.1  
 
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  Preamble  Parties to this Agreement (hereinafter referred to as "Parties"),  
 
Recognizing  the need for an effective multilateral framework for government procurement, with a 
view to achieving greater liberalization and expansion of, and improving the framework for, the 
conduct of international trade;  
 
Recognizing  that measures regarding government procurement should not be prepared, adopted or 
applied so as to afford protection to domestic suppliers, goods or services or discriminate among 
foreign suppliers, goods or services;  
 
Recognizing  that the transparency of  measures regarding government procurement is desirable and 
that the integrity and predictability of government procurement systems are integral to the efficient 
and effective management of public resources, the overall quality of governance, the economic 
performance of the Parties' societies, and the functioning of the multilateral trading system ; 
[NB: Chinese Taipei proposed deletion of this item. ] 
 
Recognizing  that the procedural commitments under this Agreement should be sufficiently flexible 
to accommo date the specific circumstances of each Party;  
 
[Recognizing  the need to take into account the development, financial and trade needs of developing 
countries, in particular the least -developed countries;]1 [NB: To be revised in light of revision 
of releva nt provisions related to developing countries .] 
 
Desiring  to encourage acceptance of and accession to this Agreement by WTO Members not party 
to it; 
 
Having undertaken  further negotiations in pursuance of these objectives;  
 
Hereby agree  as follows:  
 
ARTICL E I DEFINITIONS  
For purposes of this Agreement:  
 
[build -operate -transfer contract  and public works concession contract mean  any contractual 
arrangement the primary purpose of which is to provide for the construction or rehabilitation of 
physical infrastruc ture, plant, buildings, facilities or other government -owned works and under 
which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity 
grants to the supplier, for a specified period of time, temporary ownership or a right to control and 
operate, and demand payment for the use of such works for the duration of the contract;]US** 2 
[Market Access Issue ] 
 
commercial goods and services  [for the purpose of Articles [  ]]EC,SW mean goods and services 
[of a type]US,CDA,JPN [with the same technical specifications as those]EC,SW of goods and services that 
are sold or offered for sale to, and customarily purchased by, non -governmental buyers for non -
governmental purposes; [it inclu des goods and services with modifications customary in the 
commercial marketplace,]JPN,US [as well as minor modifications not customarily available in the 
commercial marketplace that do not significantly alter the nongovernmental function or essential 
physical characteristics or change the purpose]US; 
[NB: Hong Kong, China has a reservation that the definition brings in non -governmental buyers .] 
construction services contract  means a contract that has as its objective the realization by 
whatever means of ci vil or building works [, in the sense of Division 51 of the Provisional U.N. Central 
Product Classification (CPC)] ; [Bracketed Language - Market Access Issue ] 
 
 
1 Unattributed brackets [ ] indicates language that Parties are still considering.  
2** means issues on which Canada has not taken a position.  GPA/TN1994/3/Rev.1  
 
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  country or countries  include any separate customs territory that is a Party to this Agreement. I n 
the case of a separate customs territory that is a 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;  
 
days means calendar days;  
 
[electronic auction  is a repetitive process involving [ a computer networking environment ]US 
[an electronic device]EC for the presentation of new prices , [or]US revised [downwards,]EC [or]US 
[and/or]EC new values concerning certai n elements of tenders, which occurs after an initial full 
evaluation of the tenders, enabling them to be ranked using automatic evaluation methods;]EC,US 
[NB: Switzerland agrees to the introduction of a definition and is reviewing it. ] 
 
[electronic means  means using [ a computer networking environment]US [electronic 
equipment]EC for the processing (including digital compression) and storage of data [which]EC 
[that]US is transmitted, conveyed and received [ by internet,]US by wire, by radio,  by optical means 
or by other electromagnetic mean;]EC,US  [NB: Switzerland agrees to the introduction of a 
definition and is reviewing it. ] 
 
in writing  or written  means any worded or numbered expression that can be read, reproduced 
and later communicated . It may include electronically transmitted and stored information;  
 
[limited tendering  means those procurement [procedures] [processes]CT,HKC where the procuring 
entity contacts [a supplier or]HKC,EC suppliers of its choice, only under the conditions speci fied in 
[paragraph … of Article X];]EC 
 
measure  means any law, regulation, procedure, [requirement,]US administrative guidance or 
practice [administrative ruling of general application]CT; [NB: The U.S. continues to believe that 
inclusion of “requirement” is necessary to provide a measure that could be challenged 
relating to the conduct of a specific procurement . HKC is concerned that “requirement” 
would widen the scope. ] 
multi -use list  means a list of suppliers that a procuring entity has det ermined satisfy the conditions 
for participation[, in accordance with Article VIII,],JPN,CT and that the procuring entity intends to use 
more than once;  
 
notice of intended procurement  means a notice published by a procuring entity in accordance 
with Artic le V inviting interested suppliers to submit tenders;  
 
offsets  means any [measures,]CT conditions or undertakings that encourage local development or 
improve a Party's balance -of-payments accounts, such as the use of domestic content, domestic 
suppliers, t he licensing of technology, technology transfer, investment, counter -trade and similar 
actions [unless such conditions or undertakings are necessary to enable the contracts to be 
performed]HKC; [NB: Hong Kong, China is concerned that the addition of "domes tic 
suppliers" and, along with Korea, that "technology transfer" expands the scope of 
offsets.] [Market Access Issue ] 
 
[open tendering  means those procurement processes under which [, in consistency with the 
conditions for participation] CT all interested suppliers may submit a tender;]EC 
 
person  means a natural person or a juridical person;  
 
[procurement  means the process by which a [government]US [procuring entity]JPN,CT obtains the 
use of or acquires goods or services, or any combination thereof, for gov ernmental purposes and 
not with a view to commercial sale or resale, or use in the production or supply of goods or services 
for commercial sale or resale;]JPN,US [Market Access Issue ] 
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of A ppendix I of each Party;  GPA/TN1994/3/Rev.1  
 
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qualified supplier  means a supplier that a procuring entity recognizes as having satisfied the 
conditions for participation in a procurement;  
 
[recurring contracts  mean contracts, not based on an initial agreement, which are regular in 
nature or which are intended to be renewed within a given period;]EC[NB: Hong Kong, China 
would like to know what "recurring contracts" refers to and whether term contracts and 
framework agreements are covered by "recurring contracts" . HKC reserves its comments 
on Article II.7 concerning valuation of procurement, pending the clarification of the 
definition of "recurring contracts ".] 
 
[selective tendering  means those procurement p rocesses under which, in accordance with 
[paragraph  … and … of Article …] and other relevant provisions of this Agreement, only suppliers 
satisfying the conditions for participation are invited by the procuring entity to submit a tender;]EC 
 
services  includes construction services, unless otherwise specified;  
 
[standard  means 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;]EC,JPN 
 
supplier  means a pers on or group of persons that provides or could provide goods or services;  
 
[technical regulation  means a document which lays down characteristics of a product or a service 
or their related processes and production methods, including the applicable administr ative 
provisions, with which compliance is mandatory . It may also include or deal exclusively with 
terminology, symbols, packaging, marking or labeling requirements as they apply to a product, 
service, process or production method;]EC,JPN 
 
technical specif ication  means a tendering requirement that:  
 
(a) lays down the characteristics of goods or services to be procured, including quality, 
performance, safety and dimensions, or the processes and methods for their production 
[, development]US or provision; or  
 [NB: Korea needs clarification of the meaning of “development” suggested by US .] 
 
(b) addresses terminology, symbols, packaging, marking or labeling requirements, as they 
apply to a good or service.  
ARTICLE II   SCOPE AND COVERAGE  
Application of Agreement  
 
1. This Agreement applies to any measure regarding a procuring entity's procurement of goods, 
services or any combination thereof that is covered by this Agreement.  
 
2. This Agreement applies to procurement:  
 GPA/TN1994/3/Rev.1  
 
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  (a) by any contractual means, including purchase ; lease; rental or hire purchase, with or 
without an option to buy [and build -operate -transfer contracts and concessions for 
public works contracts;]US  [with or without utilization of the funds and the managerial 
or technical ability of the private sector]JPN; and [ Bracketed Language - Market 
Access Issue ] 
(b) for which the value as estimated, in accordance with paragraph 6, equals or exceeds 
the relevant threshold specified in Appendix I, at the time of publication of a notice in 
accorda nce with Article V.  
[2bis. Without prejudice to Article [Exceptions], this Agreement applies to any procurement:  
 
(a) of central government entities where the value is estimated to equal or exceed:  
 - [   ] SDR for contracts for supply of goods and service s; 
 - [   ] SDR for contracts for construction services;  
(b) of sub -central government entities where the value is estimated to equal or exceed:  
 - [   ] SDR for contracts for supply of goods and services;  
 - [   ] SDR for contracts for construction servic es; 
 
(c) of entities according to Appendix I, Annex 3 where the value is estimated to equal or 
exceed:  
 - [   ] SDR for contracts for supply of goods and services;  
 - [   ] SDR for contracts for construction services.]EC 
[Market Access Issue ]  [NB: Korea d oes not support the text (2bis) proposed by EC .] 
 
3. 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.  
Compliance  
 
4. Each Party shall [take such reasonable measures as may be available to it to]CDA,HKC ensure 
that the procuring entities listed in its Appendix I comply with the provisions of [Articles VI I to X 
of]CDA this Agreement in conducting procurement covered by this Agreement [, including those set 
out in Article III:1 and 2].EC,JPN 
[NB: Korea is considering the relationship between this paragraph and paragraph 7. ] 
 GPA/TN1994/3/Rev.1  
 
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  5. Where a procuring entity, in the context of procurement covered by this Agreement, requires 
persons not listed in Appendix I to procure in accordance with particular requirements, Article III 
shall apply mutatis mutandis  to such requirements.  
 
Valuation  
 
6. In estimating the value of a procurement for the purpose of ascertaining whether that 
procurement is covered by this Agreement, a procuring entity shall:  
 
(a) neither divide a procurement into separate procurements nor select or use a particular 
valuation method for estimating the v alue of a procurement with the intention of [totally 
or partially]CT excluding it from the application of this Agreement;  
(b) take into account all forms of remuneration, including any premiums, fees, 
commissions, interest, [other revenue streams that may be provided for under the 
contract]US,CDA [Market Access Issue ] and, where the procurement provides for the 
possibility of option clauses, the total maximum value of the procurement, inclusive of 
optional [purchases]US [procurement]CT; and 
(c) without prejudice to the terms of paragraphs 7 and 8, [where the procurement is 
conducted in multiple parts, with contracts to be awarded at the same time or over a 
given period to one or more suppliers,]CDA,US  base the calculation on:  
i. the total maximum value of the procurement over its entire duration where 
the procurement is conducted in multiple parts, with contracts to be 
awarded to one or more suppliers, at the same time or over a given time ; 
or 
 
ii. [the total maximum value of]EC the contracts, based on an initial 
contract/agreement, that are to be awarded over a given period to one or 
more suppliers.]EC,US; or 
 
iii. [on the total estimated maximum value of the procurement over its entire 
duration when the total price of the procuremen t is not specified.]SW 
[NB: The US has a reservation regarding the term "contract/agreement" as used in 
paragraphs 6 and 7. ] 
 
[7. In the case of a recurring procurement [not based on an initial contract/agreement]EC, the 
calculation of the estimated value shall be based on the total of:  
 
(a) the actual aggregate value of recurring contracts with similar characteristics awarded 
during the preceding 12 months or fiscal year, adjusted where possible to take account 
of anticipated changes in quantity or value o ver the subsequent 12 months ; or 
 
(b) the estimated aggregate value of recurring contracts to be awarded during the 
12 months subsequent to the initial contract or during the procuring entity's fiscal year, 
whichever is greater.]EC 
 
[NB: Hong Kong China ; Korea; Switzerland ; and Chinese Taipei questioned the meaning 
and application of this paragraph . HKC, reserved comments on Article II.7, pending the 
clarification of the definition of "recurring contracts” in Article I. ] 
 
8. In the case of procurement by lease, rental or hire purchase of goods or services, [or 
procurement for which a total price is not specified,] the basis for valuation shall be, with respect 
to: GPA/TN1994/3/Rev.1  
 
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  [NB: Switzerland proposes to delete from the first sentence the words “or proc urement 
for which a total price is not specified”. ] 
 
(a) fixed-term contracts, where the term is 12 months or less, the total contract value for 
their duration, or, where the term exceeds 12 months, the total value including any 
estimated residual value ; or 
(b) contracts for an indefinite period, the monthly installment multiplied by 
[48].EC,JPN,NOR,US,KOR,HKC  Where there is doubt as to whether the contract is to be a 
fixed-term contract, this basis for valuation shall be used.  
ARTICLE III  GENERAL PRINCIPL ES 
National Treatment and Non -Discrimination  
 
1. With respect to any measure and any procurement covered by this Agreement, each Party 
[and each procuring entity, respectively,]US,EC,NOR,SW shall accord immediately and unconditionally to 
the goods and services of any other Party and to the suppliers of any other Party offering the goods 
or services of any other Party, treatment no less favorable than the treatment the Party [or the 
procuring  entity]US,EC,NOR accords to:  
 
(a) domestic goods, services and suppliers ; and 
(b) goods, services and suppliers of any other Party.  
 
2. With respect to any measure and any procurement covered by this Agreement, [neither a 
Party nor]US a [procuring entity]EC,US [Party]CDA,JPN shall [not]EC,CDA,JPN: 
 
(a) treat a locally established supplier less favorably  than another locally established 
supplier on the basis of degree of foreign affiliation or ownership [of any other Party]CT; 
nor [NB: Bracketed Text needs to be revisited. ] 
(b) discriminate against a locally established supplier on the basis that the good s or services 
offered by that supplier for a particular procurement are goods or services of any other 
Party.  
Procurement Methods  
 
3. A procuring entity shall conduct procurement covered by this Agreement in a manner that is 
consistent with this Agreement,  and, except where specifically provided otherwise in this Agreement, 
in a transparent manner, using methods such as open tendering, selective tendering and limited 
tendering.  
 
[3bis. A procuring entity [, in Annexes 1 and 3,]US shall ensure that a procurem ent [official] 
[personnel]CT does not prepare or take decisions in a [procurement covered by this Agreement]NOR, US 
where the official’s impartiality may be affected by family ties, business links, cross representation 
or other reasons that may cause a conf lict of interest [, in accordance with the measures of the Party 
of the procuring entity].]NOR,US,CDA,HKC,SW [NB: Switzerland and U.S. question the application of 
this provision to Annex 3 and 2 entities, respectively. EC reserves its position on this 
provision.]  
 
Rules of Origin  
 
4. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods [or services]EC,JPN,HKC imported from [or supplied by]EC,JPN,HKC another Party that are different 
from the rules of origin the P arty applies in the normal course of trade [at the time of the transaction GPA/TN1994/3/Rev.1  
 
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  in question]EC,JPN to imports [or supplies]EC,JPN,HKC of the same goods [or services]EC,JPN,HKC from the 
same [Parties] [Party].**  [NB: Switzerland supports the deletion of "servic es" as there are 
no rules of origin applied in the normal course of trade for services .] 
 
Offsets  
 
5. With regard to procurement covered by this Agreement, a procuring entity shall not seek, take 
account of, impose or enforce offsets in the qualification and selection of suppliers, goods or services, 
in the evaluation of tenders or in the award of contracts, prior to or in the course of a procurement 
process . [NB: Hong Kong, China is concerned that the use of "enforce" expands the scope 
of th e provision .]  [Market Access Issue ] 
 
Measures Not Specific to Procurement  
 
6. 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 or formalities, and measures affecting trade in services other than measures 
regarding procurement covered by this Agreement.  
ARTICLE IV  PUBLICATION OF PROCUREMENT INFORMATION  
Each Party shall:  
 
(a) promptly pub lish any law, regulation, judicial decision, administrative ruling of general 
application, standard contract clauses that are [mandatory]EC [mandated]US [by a 
published law or regulation and]EC,US are incorporated by reference in notices and tender 
documen ts and procedure regarding procurement covered by this Agreement, and any 
modifications thereof, in officially designated electronic or paper media that are widely 
disseminated and remain readily accessible to the public and that are in the appropriate 
publications listed in Appendix IV ; and 
(b) provide an explanation thereof to any Party, on request.  
ARTICLE V  PUBLICATION OF NOTICE OF INTENDED PROCUREMENT  
1. For each procurement covered by this Agreement, except in the circumstances described in 
Article X,  a procuring entity shall publish a notice of intended procurement . The notice shall be 
published in the appropriate publication listed in Appendix II . Such publications shall be in electronic 
or paper media that are widely disseminated and remain readily accessible to the public [and [, for 
entities in Annex 1,]US shall be accessible free of charge through a single point of 
access].EC,NOR .US,KOR,SW 
 
2. A procuring entity shall include the following information in each notice of intended 
procurement:  
 GPA/TN1994/3/Rev.1  
 
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  (a) the name and address of the procuring entity and other information necessary to contact 
the procuring entity and obtain all relevant documents relating to the procurement [and 
their cost, if any]CDA.JPN,US; 
(b) a description of the procurement, including th e nature and the quantity of the goods or 
services to be procured or, where the quantity is not known, the estimated quantity;  
- [whether the procuring entity is inviting offers for purchase, lease, rental or hire 
purchase, or more than one of these methods;]EC 
- [any options]EC,CDA,NOR,US [for further procurement and, if possible, an estimate of 
when such options may be exercised;]EC 
- [for recurring contracts, if possible, an estimate of the timing of subsequent 
notices of intended procurement;]EC 
[NB: The US continues to believe that it is not necessary to require the inclusion of these 
three items of the notice.]  
 
(c) the time frame for delivery of goods or services or the duration of the contract;  
(d) the procurement method that w ill be used and whether it will involve negotiation;  
(e) the address and the time limits for the submission of tenders and, where applicable, 
any time limits for the submission of applications to qualify for participation in the 
procurement, as well as the  language or languages in which they must be submitted, if 
other than an official language of the Party of the procuring entity;  
[(f) a list and brief description of any conditions for participation of suppliers [and a list of 
any specific documents or cer tifications required from suppliers in connection 
therewith]EC,CDA]CDA,EC,JPN,KOR,SW; 
 [NB: Hong Kong, China maintained that it was not necessary to include information 
in (f) in the notice of intended procurement because such information would be 
included  in the tender documentation .] 
 
(g) where, pursuant to Article VIII, a procuring entity intends to select a limited number of 
qualified suppliers to be invited to tender, the criteria that will be used to select them 
and, where applicable, any limitation o n the number of suppliers that will be permitted 
to tender;  
(h) an indication that the procurement is covered by this Agreement ; and 
[(i) the amount and terms of payment of any sum payable for the tender documentation.]EC 
[NB: The US continues to prefer th e formulation in 2(a) .] 
[Notice of Planned Procurement  
 
3. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice 
regarding each procuring entity’s future procurement plans . The notice 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.3(a), a procuring entity 
may apply Article VI.3 for the purpose of establishing shorter tim e-periods for tendering of 
procurements covered by this Agreement.]EC,US,JPN 
 
[4. A procuring entity in [Annex 2 and]** Annex 3 may use a notice of planned procurement, as 
provided for in paragraph 3, as a notice of intended procurement provided that it [contains in GPA/TN1994/3/Rev.1  
 
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  addition the statement that]EC [no further notices will be published]EC [includes as much of the 
information  in paragraph 2 as is available].CDA,JPN,EC  [NB: The US proposes deletion of this 
paragraph as unnecessary since paragraph 3 of this Article already provides for the use 
of notices of planned procurements as a means of reducing the notice period to 10 day s.] 
 
[Summary Notice  
 
5. For each case of intended procurement, a procuring 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 procu rement;  
(b) the time limits set for the submission of tenders or, where applicable, of applications to 
be invited to tender or for qualifying for the suppliers' lists ; and 
(c) the addresses from which documents relating to the procurement may be 
requested. ]EC,SW,US,NOR 
 [NB: Switzerland insists on maintaining the publication of summary notices in one 
of the official languages of the WTO ; this is essential to have access to procurement 
markets in Asia in particular and with newly -acceding countries from othe r parts 
of the world. ] 
 
ARTICLE VI  TIME -PERIODS FOR TENDERING  
General  
 
1. A procuring entity shall ensure that any prescribed time limit is adequate to allow suppliers of 
other Parties as well as domestic suppliers:  
 
(a) to prepare and submit tenders ; and 
(b) where a procuring entity requires suppliers to meet conditions of participation to 
participate in tendering, to submit applications requesting participation.  
In determining any such time limit, a procuring entity shall, consistent with its own reasonab le 
needs, take into account such factors as the complexity of the intended procurement, the extent of 
subcontracting anticipated[, and the normal time for transmitting tenders from foreign as well as 
domestic points].EC,NOR 
 
Deadlines  
 
2. Except as provided for in paragraphs 3 and 4 [and 5]CDA, a procuring entity shall provide no 
less than 40 days:  
 
(a) from the date on which the notice of intended procurement is published to the final date 
for the submission of tenders ; or 
(b) where the entity has u sed procedures provided for in Article VIII:[8]CDA,EC,US or 9 [, 
whether or not it uses a multi -use list,]  from the date on which the entity notifies 
[initially]JPN suppliers that they will be permitted to submit tenders to the final date for 
the submissi on of tenders.  
3. Under the following circumstances, a procuring entity may establish a time -period for 
tendering that is less than 40 days from publication of a notice of intended procurement or an 
invitation to submit tenders, provided that such time -period is sufficient to enable suppliers to 
prepare and submit responsive tenders and is in no case less than 10 days prior to the final date for GPA/TN1994/3/Rev.1  
 
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  the submission of tenders : [The same shall apply to the 25 -day requirement for submitting 
applications specified in Article VIII:8.]CT,EC,JPN  [NB: The drafting of this sentence needs to be 
considered .] 
 
(a) where [a separate notice, including]US [a notice of planned procurement]EC,US under 
Article V:3 has been published at least 40 days and not more than 12 months in 
advance, [and such notice contains: a description of the procurement; the 
[approximate ]US time limits for the submission of tenders or, when appropriate, 
applications for  qualification; a statement that interested suppliers should express their 
interest in the procurement to the procuring entity; and the address from which 
documents relating to the procurement may be obtained]US [together with as much 
information under Art icle V.2 as is available]EC; 
[(b) in the case of the second or subsequent publication of notices dealing with contracts 
based on an initial agreement or contract ;]EC,US 
[NB: Hong Kong, China would like clarification of the meaning of the proposed text 
in (b).] 
(c) [where the procuring entity procures commercial goods or services;],JPN,CDA,US  
(d) where a state of urgency duly substantiated by the procuring entity renders 
impracticable the periods specified in paragraphs [2]EC [and 3] . 
[NB: Switzerland sugg ests to delete the reference to paragraph 3 because it refers 
already to the strict minimum of 10 days. ] 
 
[(e) when the period for the submission of tenders referred to in paragraph 2, for 
procurements by a procuring entity in [Annex [2 and] 3], has been f ixed by mutual 
agreement between the procuring entity and the selected suppliers . In the absence of 
agreement, the procuring entity may fix periods which shall be sufficient to enable 
responsive tendering].EC 
 [NB: Switzerland notes that ( e) : deserves further explanations .] 
 
4. When a procuring entity publishes a notice of intended procurement in accordance with Article 
V in an electronic media listed in Appendix II, the procuring entity may reduce the time -periods 
provided for in this Agreemen t by up to five days . In addition, when the complete tender 
documentation is made available electronically from the beginning of the publication of the notice, 
the procuring entity may reduce the time -periods provided for in this Agreement by up to an 
additional five days . [In addition, when the tenders may be received electronically, the procuring 
entity may reduce the time periods provided for in this Agreement by up to an additional 5 
days.]CT,KOR,JPN  The use of this provision, however, shall in no case  result in the reduction of those 
time-periods to less than 10 days from the date on which the notice of intended procurement is 
published.  
 
[5. Notwithstanding any other time -periods in this Article, when a procuring entity is purchasing 
commercial goods and services and the notice of intended procurement and the tender documents 
are published electronically, and the [bids] [tenders]HKC may be received electronically, the entity 
may reduce the time -period to no less than [10]SW days, provi ded such time is adequate to allow 
suppliers to submit responsive electronic tenders.]CDA,EC ,US  [NB: Chinese Taipei would apply to 
all goods and services, not just commercial goods and services . The US can support the 
bracketed text provided an acceptable  time period is agreed upon . Switzerland suggests 
that if the bids may be received electronically, the time -period be reduced by an additional 
5 days . For electronic auction, further reflection is necessary based upon experience. ] 
 GPA/TN1994/3/Rev.1  
 
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  6. A procuring entity sh all require all participating suppliers to submit tenders in accordance with 
a common deadline . [For greater clarity,] this requirement also applies where:  
 
(a) as a result of a need to amend information provided to [the suppliers concerned]HKC 
[suppliers]  during the procurement process, it extends the time -period for procedures 
to satisfy conditions for participation or tendering procedures ; or 
[(b) negotiations are concluded and participating suppliers may submit new 
tenders.SW]EC,JPN,US 
 [NB: Korea is reconsidering the suggested draft of Article VI.] 
 
ARTICLE VII  INFORMATION ON INTENDED PROCUREMENTS  
Tender Documentation  
 
1. A procuring entity shall provide to suppliers tender documentation that includes all information 
necessary to permit s uppliers to prepare and submit responsive tenders . Unless already provided in 
the notice of intended procurement, such documentation shall include a complete description of:  
 
(a) the procurement, including the nature and the quantity of the goods or servic es to be 
procured or, where the quantity is not known, the estimated quantity and any 
requirements to be fulfilled, including any technical specifications, conformity 
certification, plans, drawings or instructional materials;  
(b) any conditions for partici pation of suppliers [,some or all of which may be satisfied by 
inclusion on a multi -use list,]CDA,JPN [and a list of information and documents that 
suppliers are required to submit in connection therewith];EC,JPN 
(c) all criteria, including any cost factor s [, such as transport, insurance and inspection 
costs]EC,SW, to be considered in the awarding of the contract, and [, with the exception 
of]US,CT [commercial goods and services,]US [awarding to the lowest tender by 
considering cost factors only]CT the rel ative importance of such criteria ;  
 [NB: Hong Kong, China has concerns that the text proposed by CT seems to qualify 
the term "commercial goods and services", on which it has indicated its reservation 
on bringing in non -governmental buyers .] 
(d) where there will be a public opening of tenders, the date, time and place for the opening 
and, where appropriate, the persons authorized to be present ; and 
(e) any other terms or conditions, including terms of payment [and any limitation on the 
means by wh ich tenders may be submitted, e.g. paper or electronic 
means].CDA,EC,JPN,KOR,SW 
[2. In establishing any delivery date for the goods or services being procured, a procuring entity 
shall take into account such factors as the complexity of the procurement, th e extent of 
subcontracting anticipated and the realistic time required for production, de -stocking and transport 
of goods from the points of supply or for supply of services.]EC,JPN,US,SW 
 
3. A procuring entity shall promptly:  
 GPA/TN1994/3/Rev.1  
 
- 14 - 
 
  (a) provide, on request, the  tender documentation to any supplier participating in the 
procurement ; and 
(b) reply to any reasonable request for relevant information by a supplier participating in 
the procurement, provided that such information does not give that supplier an 
advantage  over its competitors in the procurement.  
Technical Specifications  
 
4. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe 
any conformity assessment procedure with the purpose or the effect of creating unnecessary 
obstacles to international trade.  
 
5. In prescribing the technical specifications for the goods or services being procured, a procuring 
entity shall, where appropriate:  
 
(a) specify the technical specification, in terms of performance and functional requir ements, 
rather than design [, method of development]US,SW or descriptive characteristics; 
[and]CDA,US,JPN,HKC,JPN,SW [or]EC 
(b) base the technical specification on international standards, where such exist [and are 
applicable to the procuring entity, excep t where the use of an international standard 
would fail to meet the procuring entity’s program requirements or would impose more 
burdens than the use of a government -unique standard]US otherwise, on [national 
technical regulations,]JPN recognized national standards or building codes [, provided 
that the notice of intended procurement or the tender documents shall state that 
equivalent solutions shall be considered].EC,SW 
6. A procuring entity shall not prescribe technical specifications that require or refe r to a 
particular trademark or trade name, patent, [copyright]US,CDA design or type, specific origin, producer 
or supplier, unless there is no other sufficiently precise or intelligible way of describing the 
procurement requirements and provided that, in s uch cases, words such as "or equivalent" are 
included in the tender documentation . [NB: Switzerland would appreciate further 
clarifications on the meaning of “copyright”. ] 
 
1.  7. A procuring entity shall 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 the 
procurement.  
8. For greater certainty, this Article is not intended to preclude a Party from preparing, adopting, 
or applying technical specifications to promote the conservation of natural resources or protect the 
environment [provided that such technical specifications are consistent with paragraphs 4 
through 7].JPN 
 
Modifications  
 
[9. If, [during the course of a procurement]US [prior to the award of a contract]HKC [before the 
time set for the receipt [and] [or] opening of tenders]CDA, a procuring entity modifies the criteria or 
technical requirements set out in previous notices and tender documentation provided to 
participating suppliers, amends or reissues the notice, it shall transmit all such modifications or 
amended or re -issued notice in writing, [giving the same circulation as the original documents upon 
which the modification or amended or re -issued notice is based]CDA: 
 GPA/TN1994/3/Rev.1  
 
- 15 - 
 
  (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 amended tenders, as 
appropriate.]CDA,US 
 [NB: Switzerland notes that in paragraph 9 two options are presented ; they do not 
fully overlap ; and that all their points should be included in one text .] 
 
[If, after publication of a notice of intended procurement, but before the time set for the 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 th e re-issued notice shall be given the same 
circulation as the original documents upon which the amendment or reissued notice is based. Any 
significant information given to one supplier with respect to a particular intended procurement shall 
be given simult aneously to all other suppliers concerned in adequate time to permit the suppliers to 
consider such information and to respond to it.]EC 
[NB: Hong Kong, China ; and Switzerland are re -examining this paragraph. ] 
 
ARTICLE VIII  CONDITIONS FOR PARTICIPATION  
General Requirements  
 
1. A procuring entity shall limit any conditions for participation in a procurement to those that 
are essential to ensure that a supplier has the legal, commercial, technical and financial abilities to 
undertake the relevant procurement.  
 
2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity 
shall:  
 
(a) evaluate the financial, commercial and technical abilities of a supplier on the basis of 
that supplier’s business activities both inside and outside the territory of the Party of 
the procuring entity, and may not impose the condition that, in order for a supplier to 
participate in a procurement, the supplier has previously been awarded one or more 
contracts by a procuring entity of a given Part y [or that the supplier has prior work 
experience in the territory of a given Party]US,EC,CDA,KOR,NOR,JPN,SW; and 
 [NB: Hong Kong, China maintained that local working experience may be necessary 
to ensure prompt and satisfactory delivery of the contract in  some cases. ] 
 
(b) base its determination of whether a supplier has satisfied the conditions for participation 
on the conditions that the procuring entity has specified in advance in notices or tender 
documentation.  
3. A procuring entity shall allow all do mestic suppliers and suppliers of other Parties that satisfy 
the conditions for participation in a particular procurement to submit a tender, unless the procuring 
entity has indicated that it may limit the number of suppliers that it will invite to submit tenders and 
sets out the criteria for such limitation in the notice of intended procurement [or tender 
documentation].  
 
[3bis. Each Party shall ensure that:  
 GPA/TN1994/3/Rev.1  
 
- 16 - 
 
  (a) each procuring entity and its constituent parts follow a single qualification procedure, 
excep t in cases of duly substantiated need for a different procedure ; and 
(b) efforts be made to minimize differences in qualification procedures between procuring 
entities.]EC,JPN,SW 
4. Nothing in this Article shall preclude the exclusion of a supplier on grou nds such as bankruptcy 
or false declarations or significant deficiencies in performance of any substantive requirement or 
obligation under a prior contract.  
 
Multi-Use Lists  
 
5. A procuring entity that maintains a multi -use list of suppliers that have sati sfied the conditions 
for participation shall [annually]EC,US,HKC,KOR,NOR,SW publish a notice inviting interested suppliers to 
apply for inclusion on the list . Such notice shall be published in the appropriate publication listed in 
Appendix III . [Where the publication is electronic, the notice shall remain readily accessible until the 
multi-use list is terminated [and, where the publication is in paper form, the notice shall be re -
published annuallyCDA,SW.]CDA,US,SW  The notice shall include:  
 
(a) a description of the goods and services [,or categories thereof,]EC,JPN ,US for which the 
list may be used;  
(b) the conditions for participation to be satisfied by suppliers and the methods that the 
procuring entity will use to verify a supplier's satisfaction of the conditions;  
(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 list;  
(d) the date on which the list will terminate [and the means for its renewal or 
termination]EC,US, [or where a date is not provided, an indication of the method by which 
advance notice will be given of the termination of use of the list]CDA,US; and 
[(e) an indication that, for procurement covered by this Agreement,]CDA,US,JPN the list may be 
used.  
[6. Where a multi -use list is valid for a period of three years or less, the notice referred to in 
paragraph 5 may be published only once, at the commencement of the use of the list, provided that 
the notice states that further  notices will not be published and this provision is not used to circumvent 
this Agreement.]EC,US  [NB: Switzerland questions the extent to which this paragraph is 
compatible with paragraph 5, which foresees an annual publication. ] 
 
7. A procuring entity s hall allow suppliers to apply at any time for inclusion on a multi -use list 
and shall include on the list all suppliers that satisfy the conditions for participation within a 
reasonably short time.  
 
Notice Inviting Applications [NB: Need to consider approp riateness of this heading.]  
 
8. Where a procuring entity intends to [limit the submission of tenders to all qualified suppliers 
or to a limited number of qualified suppliers selected by the procuring entity]CDA,EC,US  [set a time 
limit for submitting appli cations to recognise suppliers as having satisfied the conditions for 
participation in a procurement or to select a limited number of qualified suppliers]JP,KOR, [whether or 
not it uses a multi -use list,]CDA,EC the entity shall publish in the notice of int ended procurement the 
time limit for submitting applications [, which must be a minimum of [25] days from the date of 
publication of the notice.] [Such time limit shall be:  
 GPA/TN1994/3/Rev.1  
 
- 17 - 
 
  (a) a minimum of [15]SW days from the date of publication of the notice where it u ses a 
multi-use  list ; or 
 [NB: Switzerland supports shortening the time -period for submitting applications 
when using a multi -use list to 15 days, but notes that the time period should not be 
further shortened when using electronic means, owing to the com plexity of the 
projects requiring selection of qualified suppliers. ] 
 
(b) a minimum of [25] days from the date of publication of the notice where it does not use 
a multi -use list.]JPN,KOR 
[If an application is submitted within the time limit, a procuring e ntity shall examine it]CDA,EC, US and 
[may not exclude the supplier from consideration in respect of the procurement on the grounds that 
the procuring entity has insufficient time to examine the application]EC]EC. [A procuring entity may 
limit submission of  tenders to qualified suppliers that have submitted applications within this time 
limit.]JPN  [NB: Hong Kong, China preferred deleting the sentence "may not exclude the 
supplier from consideration in respect of the procurement on the grounds that the 
procu ring entity has insufficient time to examine the application" as experience showed 
that it might take considerable time to complete the qualification process .] 
 
9. Where a procuring entity selects a limited number of qualified suppliers that it will permit to 
submit tenders, the procuring entity shall include in the notice of intended procurement, or the 
tender documentation [if it is made publicly available], the following additional information:  
 
(a) an indication that the entity will limit the qual ified suppliers permitted to submit tenders ; 
and 
(b) the criteria on which the selection will be based, including, where applicable, any 
limitation on the number of suppliers that will be permitted to tender.  
[10. The time -period provided for in paragraph 8 may be reduced to [10] days where:  
 
(a) the conditions for participation for a procurement are the same as or a sub -set of the 
conditions for participation for a multi -use list ; [and]EC 
(b) the procurement is for commercial goods or services ; and 
(c) the procuring entity has published a notice establishing that multi -use list for at least 
[25] days and that notice [has]CDA,US [and all relevant documents relating to the list 
have]EC remained readily accessible in electronic form since its initial  date of 
publication.]CDA,EC,US 
Annex 2 and 3 Entities** [NB: Consideration is being given to reducing the scope of this 
paragraph. ] 
 
11. A procuring entity listed in Annexes [1,]CT [2] or [3]SW may use a notice inviting suppliers to 
apply for inclusion on  a multi -use  list as a notice of intended procurement, provided that:  
[NB: Switzerland believes that entities of Annexes 1 and 2 should get the same treatment; 
this procedure should be limited to Annex 3 entities. ] 
 GPA/TN1994/3/Rev.1  
 
- 18 - 
 
  (a) the notice sets out, in addition to  the information required in paragraph 5, as much of 
the information required in Article V:2 as is available [and contains a statement that it 
constitutes a notice of intended procurement]EC,US,SW [or that the suppliers on the 
multi -use list will receive notice of procurements covered by this Agreement]US 
[and an indication that the list may be used for procurement covered by this 
Agreement]EC,SW; 
(b) the entity promptly provides to suppliers that have expressed an interest to the entity 
[in a give n procurement]EC,US,SW, sufficient information to permit them to have a 
meaningful opportunity to assess their interest in the procurement, including all 
remaining information required in Article V:2, to the extent such information is 
available ; [and]  
[(c) a supplier having applied for inclusion on a multi -use list in accordance with paragraph 
7 shall be entitled to tender in a given procurement, if there is sufficient time to examine 
whether it satisfies the conditions for participation].EC,SW 
[(d) the tim e-period between the publication of the notice inviting suppliers to apply for 
inclusion on a multi -use list and the intended procurement should not be more than 90 
days.]SW 
Information on Procuring Entities’ Decisions  
 
12. A procuring entity shall promptl y advise a supplier of the success or failure of its application 
for inclusion on a multi -use list and of any decision by the entity to include the supplier on a multi -
use list.  
 
13. Where a procuring entity has required suppliers to apply for recognition that they have 
satisfied the conditions for participation in accordance with paragraphs 8 or 9, the entity shall 
[promptly]EC notify all such suppliers [of the failure of their applications and shall send invitations to 
tender to all successful suppliers a t the same time]EC as to the success or failure of their applications 
[at the same time].CDA 
 
14. Where a procuring entity has taken action under paragraph 12 or 13, the entity shall, on 
request of a supplier, promptly provide the supplier with a written e xplanation of the reasons for the 
entity's action.  
 
ARTICLE IX  NEGOTIATION  
1. A Party may provide for its procuring entities to conduct negotiations:  
 
(a) in the context of procurements in which they have indicated such intent in the notice of 
intended procurement in paragraph 2 of Article V ; or 
(b) it appears from the 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. [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.]EC,SW 
 
3. A procuring entity shall ensure that any elimination of tender ers in negotiations is carried out 
in accordance with the criteria set out in the notices or tender documentation.  
 
[4. A procuring entity shall transmit, in writing, any modifications to the criteria made in the 
course of negotiations to tenderers whose t enders have not yet been eliminated according to the GPA/TN1994/3/Rev.1  
 
- 19 - 
 
  criteria set out in the notices or tender documentation, and [when negotiations are 
concluded]EC,US,SW will provide a common deadline for the remaining tenderers to submit [any new 
or revised]CDA,US [final]EC tenders.]  
 
[5. Where negotiations are used, the procuring entity shall maintain a written record which 
demonstrates that the contract was awarded to the tenderer providing the most advantageous 
tender.]CDA,US,SW 
 
ARTICLE X  LIMITED TENDERING  
1. Provid ed that it does not use this provision for the purpose of avoiding competition among 
suppliers or in a manner that discriminates against suppliers of the other Parties, or that protects 
domestic suppliers, a procuring entity may [contact a supplier or supp liers of its choice]CDA,JPN,US,SW 
[use a limited tendering procedure]EC and may choose not to apply Articles [V, VI, VII:1, 2, 3, and 
8, VIII, IX and XI]CDA,JPN in the following circumstances:  
[NB: Switzerland finds it useful to mention that limited tender ing refers to “contact a 
supplier or suppliers of its choice”; it should also be defined in art. I as it is explicitly 
mentioned under Article  III, §3 (Procurement methods). ] 
 
(a) provided that the requirements of the tender documentation are not substanti ally 
modified:  
(i) where no tenders were submitted or no suppliers applied to meet the conditions 
for participation;  
 
(ii) where no tenders that conform to the essential requirements of the tender 
documentation were submitted;  
 
(iii) where no suppliers satisfied the conditions for participation ; or 
 
(iv) where the tenders submitted have been collusive;  
 
(b) where the goods or services can be supplied only by a particular supplier [and no 
reasonable alternative or substitute goods or services ex ist]EC,US for the following 
reasons:  
(i) the requirement is for a work of art;  
 
(ii) the protection of patents, copyrights or other exclusive rights, [or proprietary 
information]US,CDA,JPN; or 
 
(iii) where [due to an absence of competition]US,EC for technical reasons[, no 
reasonable alternative or substitute goods or services exist]CDA; 
 
(c) for additional deliveries [of goods or services]CDA,EC,US [by the original supplier]EC,JPN ,US 
that are intended either as replacement parts, extensions, or c ontinuing services for 
existing equipment, software, services or installations, where a change [of goods or 
services]CDA,US [of supplier]JPN would compel the entity to procure goods or services [not 
meeting requirements of interchangeability with existing equipment, software, services, 
or installations]JPN [that would:  
[NB: Switzerland notes that the relationship between (c) and (g) needs further 
scrutiny. ] 
 
(i) alter the operation or use of the existing goods or  services ; or 
 GPA/TN1994/3/Rev.1  
 
- 20 - 
 
  (ii) due to the change of goo ds or services, require existing equipment or services to 
be altered;]CDA,US 
 
(d) in so far as is strictly necessary where, for reasons of extreme urgency brought about 
by events unforeseeable by the procuring entity, the goods or services could not be 
obtained in time under tendering procedures consistent with Articles [ ];  
(e) for goods purchased on a commodity market ; or 
(f) when a procuring entity procures a prototype or a first product or service that is 
developed at its request in the course of, an d for, a particular contract for research, 
experiment, study or original development; [original development of a first good or 
service may include limited production or supply in order to incorporate the results of 
field testing and to demonstrate that the  good 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;]EC 
(g) when additional [c onstruction]JPN,CDA,US services which were not included in the initial 
procurement but which were within the objectives of the original tender documentation 
have, through unforeseeable circumstances, become necessary to complete the services 
described ther ein, and the entity needs to award contracts for the additional services to 
the contractor carrying out the services concerned since the separation of the additional 
services from the initial procurement would be difficult for technical or economic reasons  
and cause significant inconvenience to the procuring entity . However, the total value of 
contracts awarded for the additional services may not exceed 50 per cent of the amount 
of the main procurement ; [NB: Switzerland questions why this should be limited 
to construction?]  
(h) for new [construction]JPN,CDA,US [goods and]CT services consisting of the repetition of 
similar services which conform to a basic project for which an initial contract was 
awarded following an open or selective procurement method and for which the procuring 
entity has indicated in the notice of intended procurement concerning the initial service, 
that a limited procurement method might be used in awarding contracts for such new 
services ; [NB: Chinese Taipei suggested adding information  on timing or 
quantity .] 
(i) for purchases made under exceptionally advantageous conditions which only arise in 
the very short term [in the case of unusual disposals [such as arising from liquidation, 
receivership or bankruptcy]EC,US and not for routine pu rchases from regular 
suppliers;]CDA,JPN,US,EC; and 
(j) in the case of contracts awarded to the winner of a design contest provided that:  
(i) the contest has been organized in a manner that is consistent with the principles 
of this Agreement, notably as reg ards the publication of a notice of intended 
procurement ; and 
 
(ii) the participants are judged by an independent jury with a view to design contracts 
being awarded to the winners.  
 
2. A procuring entity shall prepare a report in writing on each contract a warded under 
paragraph  1. 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 1 that justified the use of such procedures.  
 GPA/TN1994/3/Rev.1  
 
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  ARTICLE XI  TREATMENT OF TENDERS AND CONTRACT AWARDS  
Receipt and Opening of Tenders  
 
1. A procuring entity shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process . [A procuring entity shall not open tenders until 
after the deadline set by the procuring entity for receipt of tenders.]EC [NB: Korea wishes to delete 
the bracketed text  suggested by EC, because the guarantee of fairness and impartiality 
includes the meaning  of the bracketed language suggested by EC .] 
 
2. A procuring entity shall treat tenders in confidence at least until the award of the contract.  
 
3. A procuring entity shall not penalize any supplier whose tender is received after the time 
specified for rec eiving tenders if the delay is due solely to mishandling on the part of the procuring 
entity.  
 
4. When a procuring entity provides suppliers with opportunities to correct unintentional errors 
of form between the opening of tenders and the awarding of the c ontract, the procuring entity shall 
provide the same opportunities to all participating suppliers.  
 
Awarding of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
comply with the essential requirements o f the notices and tender documentation and be from a 
supplier that satisfies any conditions for participation.  
 
6. A procuring entity shall not use option clauses in a manner that circumvents the provisions of 
this Agreement . [NB: Switzerland suggests that  “option clauses” should be defined in 
Article I. ] 
 
7. Unless a procuring entity determines that it is not in the public interest to award a contract, 
it shall award the contract to the supplier that the entity has determined to be fully capable of 
underta king the contract and whose tender is either the lowest price or the tender that the entity 
has determined to be the most advantageous solely on the basis of the requirements and evaluation 
criteria specified in the notices or tender documentation.  
 
8. Where a procuring entity receives a tender with a price that is abnormally lower than the 
prices in other tenders submitted, it may verify with the tenderer that it can comply with the 
conditions of participation and be capable of fulfilling the terms of the contract.  
 
[9. A procuring entity shall not cancel a procurement or modify awarded contracts in a manner 
that circumvents the obligations of this Agreement.]US.EC 
 
[Article XI bis Use of Electronic Means  [ NB: Switzerland supports this new article and 
is reviewing the text in detail .]] 
 
1. [The use of electronic means for procurement covered by this Agreement is 
encouraged.]US  [Procurement covered by this Agreement conducted, exclusively or not, by 
electronic means shall be subject to the provisions of this  Agreement.]  
 
2. Where a procuring entity intends to conduct a procurement using electronic means, either 
[wholly or partially]US [exclusively or not], it shall:  
 GPA/TN1994/3/Rev.1  
 
- 22 - 
 
  (a) state its intention to use electronic means in the notice of intended procurement;  
(b) ensure that any means and tools used for communicating electronically including 
authentication, integrity of data and encryption are non -discriminatory, generally 
available and interoperable with the information and communication technolog y 
products in general use and will not impose an unreasonable burden on other Parties' 
suppliers access to the tendering procedure;  
(c) ensure that all information necessary to permit potential suppliers to meet the 
specifications for using the necessary e lectronic means and tools is available to 
interested parties and is included by the procuring entity in the tender documentation ; 
and 
(d) use mechanisms which clearly and unambiguously guarantee that, pending the expiry 
of the deadlines set, the integrity of data is preserved, access to tenders and request 
to participate is prohibited and the timing of submission of tenders and request to 
participate is accurately established.  
3. [Procuring entities which decide] [A procuring entity that intends]US to hold an electronic 
auction in a procurement covered by this Agreement shall:  
 
(a) state their intention to use electronic auctions in the notice of intended procurement;  
 
(b) indicate in the tender documents the features on which the electronic auction will be 
run, provided that such features are quantifiable and can be expressed in figures or 
percentages, the conditions and rules under which the auction will be carried out;  
(c) provide participants, before starting the electronic auction, with [the evaluation 
facto rs that will be used, including any]US mathematical formula determining the 
automatic ranking during the electronic auction when the contract is to be awarded on 
the basis of the most economically advantageous tender;  
 
(d) ensure that electronic auctions o perate in full accordance with the general principles of 
this Agreement, in particular, equal treatment, non -discrimination and transparency.  
4. Procuring entities shall ensure full traceability of the award procedures conducted by electronic 
means.]EC,US 
 
ARTICLE XII  TRANSPARENCY OF CONTRACT AWARD INFORMATION  
Information Provided to Suppliers  
 
1. A procuring entity shall promptly inform [participating]EC suppliers [that have submitted 
tenders]CDA,JPN,US of the entity’s contract award decisions [on request, in writing]EC,SW. Subject to 
Article XIII, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation 
of the reasons that the entity did not select its tender and the re lative advantages of the successful 
supplier's tender.  
 
Publication of Award Information  
 
2. Not later than 72 days after the award of each contract covered by this Agreement, a procuring 
entity shall publish a notice in an officially designated publicatio n [listed in Appendix II] that may be 
in an electronic or paper medium. Where only an electronic medium is used, the information shall 
remain readily accessible for a reasonable period of time . [Each Party shall notify the title and 
address of the publicat ion, and any changes thereto, to the Committee.]JPN  The notice shall include 
at least the following information:  GPA/TN1994/3/Rev.1  
 
- 23 - 
 
   
(a) a description of the goods or services procured;  
(b) the name and address of the procuring entity;  
(c) the name and address of the succes sful supplier;  
(d) the value of the successful tender or the highest and lowest offers taken into account 
in the award of the contract;  
(e) the date of award ; and 
(f) type of procurement method used, and in cases where [limited] tendering was used 
pursuant  to Article [ Limited Tendering ], a description of the circumstances justifying 
the use of such procedure.  
Provision of Award Information to Parties  
 
3. On request of any other Party, [without prejudice to the provision under Article XVIII Dispute 
Settlemen t,]CDA,EC,US,SW a Party shall provide promptly such information on the award of a contract, 
including information on the characteristics and relative advantages of the successful tender and on 
the contract price, as may be necessary to determine whether th e procurement was conducted fairly, 
impartially and in accordance with this Agreement . [This information shall not be disclosed except 
after consultation with, and agreement of, the person which gave the information to the government 
of the unsuccessful tenderer.]CDA  [NB: The US questions whether this sentence is correctly 
drafted .] 
 
Maintenance of Documentation and Reports  
 
4. Each procuring entity shall maintain documentation and reports of tendering procedures and 
contract awards relating  to procurement covered by this Agreement, including the reports provided 
for in Article [ Limited Tendering ], and shall retain such documentation and reports for a period of at 
least three years from the award of the contract.  
Collection and Report of Stat istics 
 
5. Each Party shall collect and report to the Committee statistics on its [contracts]CDA,JPN covered 
by this Agreement . Each report shall [cover one year and]CDA,US be submitted within two years of 
the end of the reporting period, and shall contain  [statistics]SW: 
 
(a) For Annex 1 procuring entities:  
(i) the number and [total]CDA,JPN,US value, for all such entities, of contracts covered 
by this Agreement;  
 
(ii) the number and total value of all contracts covered by this Agreement awarded 
by such entities, broken down [by categories of goods and services according to 
a[n internationally recognized]CDA,US uniform classification system]; and  [NB: 
Switzerland suggests the deletion of “by categories of goods and services 
according to an internationall y recognized uniform classification 
system”; this should be left optional to Members depending on the use 
they may have from these statistics. ] 
 
(iii) the number and total value of contracts covered by this Agreement awarded by 
each such entity under [limi ted] tendering procedures.  
 GPA/TN1994/3/Rev.1  
 
- 24 - 
 
  [(iv) the total value of contracts awarded under derogations to the Agreement 
contained in the relevant Annexes.]CDA 
 
(b) For Annex 2 and 3 procuring entities:  
(i) the number and [total]CDA,JPN, US,SW value of contracts covered b y this Agreement 
awarded by all such entities [,broken down by Annex]JPN,CDA,US,SW; 
 
[(ii) the total value of contracts covered by this Agreement awarded by such entities, 
broken down by Annex ; and] 
 
[(iii) the value of contracts covered by this Agreement awarded by such entities under 
[limited] tendering procedures, broken down by Annex.]  
[NB: Switzerland proposes to delete ii) because it would already be covered under 
(i) and to make (iii) optional. ] 
 
(c) Where data to be provided under subparagraph [(a) and]EC,US,JPN (b) is not available, 
estimates shall be provided.  
[6. Where a Party publishes its statistics on an official website, the Party may substitute a 
notification of the website address for the submission of the data, with [ any]US instructions 
necessary to access and use such statistics.]CDA,JPN ,US,SW  
 
[6bis. Where a Party requires notices concerning awarded contracts, pursuant to Article XII.2, to be 
published electronically and where such notices are accessible through a single database in a form 
permitting automatic analysis, the Party may decide not to prepare the report mentioned in 
paragraph 4 to the Committee.]EC  [NB: Switzerland would appreciate more information on 
the relationship between this paragraph and paragra ph 4. ] 
 
ARTICLE XIII  NON-DISCLOSURE OF INFORMATION   [NB: Norway and the EC are still  
considering this Article. ]  [NB: The US proposes deletion of paragraph 1 as unnecessary . 
Switzerland suggests consideration be given to merging paragraphs 1 and 2. ] 
 
[1. [No Party or procuring entity may disclose [confidential]CDA information [, designated as 
confidential by the person providing the information]US, including [confidential]CDA information 
received pursuant to Article XII:3, disclosure of which:  
(a) would imp ede law enforcement;  
(b) might prejudice fair competition between suppliers;  
(c) would prejudice the legitimate commercial interests of particular persons ; or 
(d) would otherwise be contrary to the public interest[, without the authorization of the 
person providing the information]CDA,US.]CDA 
2. Nothing in this Agreement shall be construed to require [a Party or procuring entity to 
release]JPN,US [the release of]CDA,EC [confidential]CDA information under this Agreement where release:  
 GPA/TN1994/3/Rev.1  
 
- 25 - 
 
  (a) would imped e law enforcement;  
(b) might prejudice fair competition between suppliers;  
(c) would prejudice the legitimate commercial interests of particular [persons]CDA [suppliers 
or procuring entities, including the protection of intellectual property] ; or 
(d) would  otherwise be contrary to the public interest.  
3. [In particular, it]EC,JPN [Notwithstanding any other provision of the Agreement, a Party or a 
procuring entity]CDA,US shall not provide information to [a]CDA,US particular supplier[s] that might 
prejudice f air competition between suppliers.  
 
ARTICLE XIV  DEVELOPING COUNTRIES [TO BE INSERTED]  
ARTICLE XV  EXCEPTIONS TO THE AGREEMENT  
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or 
not disclosing any information that 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 defense purposes.  
2. Subject to the requirement that such measures are not applied in a manner that would 
constitute a means of arbitrary or unjustifiable discrimination between [Parties]JPN [countries] where 
the same conditions prevail or a disguised restriction on international trade, nothing in this 
Agreement shall be construed to prevent any Party from imposing or enforcing measures:  
 
(a) necessary to protect public mo rals, order or safety;  
(b) necessary to protect human, animal or plant life or health;  
(c) necessary to protect intellectual property ; or 
(d) relating to goods or services of handicapped persons, of philanthropic institutions or of 
prison labour.  
[3. The P arties understand that Paragraph 2(b) includes environmental measures necessary to 
protect human, animal or plant life or health]CDA,US [or natural resources]CT.]US,CDA, CT 
[NB: Hong Kong, China considered this paragraph not necessary, given paragraph 2(b). ] 
 
[4. [Having regard to general policy considerations relating to tied aid, including the objective of 
developing countries with respect to untying of such aid, this Agreement does not apply to 
procurement made in furtherance of tied aid to developing countries so long as it is practised by 
Parties.]SW,JPN [NB: Location needs to be reconsidered. ]  [Market Access Issue ] 
 
ARTICLE XVI  MODIFICATIONS AND RECTIFICATIONS TO COVERAGE ** [ NB: This 
Article reflects only the views of Japan, Korea and the United States . The EC reserves its 
position on this article and the right to submit its own drafting at a later stage . Switzerland 
is still reviewing this article. ] 
 
1. (a) Rectifications, transfers of an entity from one Annex to another or, in excepti onal cases, 
other modifications [relating to]JPN,KOR [of]US 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 r ectifications, transfers 
or other modifications are of a purely formal or minor nature, they shall become 
effective provided there is no objection [in writing,]KOR,US including reasons for it,]KOR 
[notified by any Party the benefits of which under this Agr eement may be affected by GPA/TN1994/3/Rev.1  
 
- 26 - 
 
  the proposed modification (referred to in this Article as the "affected Party")]JPN,KOR,US 
within 30 days . [NB: The US accepts in principle the concept of limiting the right 
to submit an objection to an "affected Party" but wants to ensure that that 
term does not unduly limit the Parties that may submit objections ; it may be 
necessary to define the term .]  In other cases, the Chairman of the Committee shall 
promptly convene a meeting of the Committee. The Committee shall consider t he 
proposal and any claim for compensatory adjustments [made by any affected 
Party]JPN,KOR, 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 
notificat ion. In the event of an agreement not being reached , the matter may be 
pursued [by any affected Party]JPN,KOR in accordance with the procedures [provided 
for]US [contained]JPN in Article XVIII   [or arbitration].JPN  [NB: The US opposes the 
addition of “arb itration” in the absence of a clarification the operation of such 
a process in this context .] 
 
[(b) If no affected Party has requested the procedures contained in Article  XXII [or 
arbitration] within [120]KOR [210] days from the date of circulation of the proposed 
modifications under subparagraph (a), the proposed modifications shall become 
effective. The period under this subparagraph may be extended by mutual 
agreement.]JPN,KOR  
 
[(c) (the same provisions as paragraph (2)(e) below.)]JPN 
 
2. (a) Where a Party wishes[, in exercise of its rights,]JPN,KOR to withdraw an entity from 
Appendix I on the grounds that government control or influence over it has been 
effectively eliminated, that Party [(referred to in this Article as the "modifying 
Party")]JPN,KOR 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 
[by any P arty the benefits of which under this Agreement may be affected by the 
proposed modification (referred to in this Article as the "affected Party")].JPN,KOR,US 
 
[(b) The notification shall contain evidence that government control or influence over it has 
been effectively eliminated, including information [that addresses]US [on]JPN the 
following [factors]US [criteria]JPN,KOR: 
 [NB: Hong Kong, China would  like to clarify whether consideration of a request to 
remove an entity from Appendix I will be based on al l the factors for which the 
information is required or whether such consideration can be based on the 
information provided for a single factor . HKC considers that the modifying Party does 
not need to provide in his notification of modifications information  to address all the 
factors/criteria listed in this paragraph .] 
 
 - [whether there is a legal nexus or relationship between the government 
and the entity;]US 
 
 - [whether]US the government [does not control a majority of]JPN,KOR [holds a 
direct or indirect controlling interest in]US the entity's capital nor voting 
rights;  
  [NB: Hong Kong, China does not see a need for the first two 
factors/criteria since the relationship and/or linkage between the entity 
and the government could be addressed in other factors/criteria. ] 
 
 - [whether]US the government [does not]JPN,KOR appoint[s]US more than half 
of the members of the entity's managing board [or such other number as GPA/TN1994/3/Rev.1  
 
- 27 - 
 
  would have]US [which has]JPN,KOR the power to deci de on 
operations;]JPN,KOR,US  
 
 - [whether the government provides support to or subsidizes the entity, and, 
if so, whether such support represents a one -time public investment or a 
continuous operating subsidy;]US 
 
 - [the operation of the entity is financ ed by its business revenue, not by 
government subsidies]JPN [Not more than 50% of the entity's financing 
comes from the State or public bodies];  
 
 - [whether the government exercises formal or informal oversight or 
supervision of an entity’s business decis ions, beyond the normal regulatory 
oversight for all suppliers in a particular industry;]US   
  [NB: Hong Kong, China would like illustration of this 
factor/criteria .] 
 
 - [whether there are any personnel linkages between the entity and the 
government;]US 
 
 - [the government does not have control or influence over the entity's 
procurement decisions;]JPN 
 
 - [the government does not provide the entity with any special or exclusive 
rights to operate;]JPN [whether the government has granted spec ial or 
exclusive legal or economic rights or benefits that may alter the 
competitiveness of an entity’s goods or services in a commercial market or 
otherwise influence the entity’s business decisions;]US [and]CT,US  
   [NB: Hong Kong, China would like illus tration of the US bracket .] 
 
 - [whether the entity is exclusively engaged in the provision of goods or 
services in commercial markets subject to genuine competition, or whether 
it has mixed governmental and commercial functions.]US  [there are more 
than o ne [entity] [supplier]CT that engage in the provision of goods or 
services on the market.]JPN   
   [NB: Hong Kong, China would like illustration of the US bracket .] 
 
[(b)bis The market in which the entity operates is directly exposed to competition on 
markets to which access is not restricted, it being acknowledged that government 
control or influence over an entity through shareholding, participation on the 
management board, financing or any other means may be neutralised insofar as the 
entity's procuremen t is concerned where the entity is exposed to competition on 
markets to which access is not restricted.]  
(c) In the event of an objection  notified [, in writing,[including reasons for it,]KOR by any 
affected Party]JPN,KOR,US the modifying Party shall enter into consultations with such 
affected Party . If agreement is not reached between the modifying Party and any 
affected Party [within [120]KOR [210] days from the date of circulation of the proposed 
modifications under subpar agraph (a)]JPN,KOR [, or within 90 days where the information 
provided with the notification pursuant to subparagraph (b) is comprehensive],] the 
matter may be pursued [by such affected Party]JPN,KOR in accordance with the procedures 
on consultations and d ispute settlement contained in Article XVIII  [[or arbitration] by 
written request, including reasons why the affected Party objects to the proposed 
modification]JPN. [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.]JPN,US GPA/TN1994/3/Rev.1  
 
- 28 - 
 
  [(d) If no affected Party has requested the procedures contained in Article XVIII  [or 
arbitration] within [30 days after the expir y of]KOR the [120]KOR [210] -day period of 
consultations under subparagraph (c), the proposed modification shall become 
effective . The period of consultation may be extended by mutual agreement.]JPN,KOR 
[(e) If the modifying Party implements its proposed wi thdrawal and does not comply with 
the findings of the arbitration, any affected Party that  participated in the arbitration may 
modify or withdraw substantially equivalent benefits under its Appendix I in conformity 
with those findings . Notwithstanding Arti cle III, such modification or withdrawal may be 
implemented solely with respect to the modifying Party.]JPN 
[3. The Committee on Government Procurement shall establish procedures for rectifications or 
modifications to Appendices . Any Party wishing to recti fy or modify its Appendices in accordance 
with preceding paragraphs shall comply with such procedures.]JPN,KOR 
 
ARTICLE XVII  CHALLENGE PROCEDURES  
[Consultations between the Procuring Entity and Supplier  
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement 
arising in the context of a procurement [covered by this Agreement]US in which the supplier has, or 
has had, an interest, each Party shall encourage the procuring entity and supplier to seek resolution 
of the complaint through consultations . The procuring entity shall accord impartial and timely 
consideration to any such complaint in a manner that is not prejudicial to [the supplier’s participation 
in ongoing or future procurement]US the supplier's rights to se ek corrective measures under the 
challenge system.  
 
Challenge  
 
2. Each Party shall provide timely, effective, transparent and non -discriminatory means for a 
supplier to challenge an alleged breach of this Agreement arising in the context of a procurement 
[covered by this Agreement,]US in which it has, or has had, an interest [, without prejudice to the 
supplier’s participation in ongoing or future procurements]US. [The procedural rules for all]EC,US 
[challenges]US [challenge procedures]EC shall be in writin g and made generally available.  
 
3. Each supplier shall be allowed a [reasonable]EC [sufficient]US period of time to prepare and 
submit a challenge, which in no case shall be less than 10 days from the time when the basis of the 
complaint [is]EC [became]US known or reasonably should have [been]EC [become]US known to the 
supplier.  
 
4. [Supplier challeng es relating to procurement covered by this Agreement shall be reviewed by 
an]EC [Each Party shall establish or designate at least one]US impartial administrative or judicial 
authority [, which]EC [that]US is independent of its procuring entities [to receiv e and review 
complaints of suppliers arising in the context of a procurement covered by this Agreement, without 
prejudice to the supplier’s participation in ongoing or future procurements].US 
 
[5. Where a body other than an authority referred to in paragra ph 4 initially reviews a complaint, 
the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative 
or judicial authority that is independent of the procuring entity that is the subject of a challenge.]US 
 
6. A revie w body that is not a court shall either be subject to judicial review or shall have 
procedures which provide that:  
 GPA/TN1994/3/Rev.1  
 
- 29 - 
 
  (a) the procuring entity shall respond in writing to the complaint and disclose all relevant 
documents to the review body;  
 [NB: Hong Kong, China considered that the procuring entity may not have the right 
to release commercial sensitive information of a supplier without the supplier’s 
consent .] 
 
(b) the [parties]EC [participants]CDA,US to the proceedings shall have the right to be heard  
prior to a decision of the review body being taken on the complaint;  
(c) the [parties]EC [participants]CDA,US to the proceedings shall have the right to be 
represented and accompanied;  
(d) the [parties]EC [participants]CDA,US to the proceedings shall have  access to all 
proceedings [, subject to Article XIII (Non -Disclosure of Information)]US ; 
(e) the [parties]EC [participants]CDA,US to the proceedings shall have the right to request that 
the proceedings take place in public [, subject to Article XIII (Non -Disclosure of 
Information),]US and [that]EC witnesses [may be presented]US [are called upon]EC; 
and 
 [NB: Hong Kong, China considered that it was necessary to have the agreement of 
the parties to the proceeding to decide whether or not the proceeding shou ld take 
place in public .] 
 
(f) [decisions or]EC,US [findings and]CDA recommendations relating to supplier [challenges]EC 
[complaints]US shall be provided, in a timely fashion, in writing, with an explanation of 
the basis for each decision or recommendation . 
7. [Each Party shall adopt or maintain procedures that ]US [Challenge procedures shall]EC 
provide for:  
 
(a) [rapid]EC [prompt]US interim measures [, pending the resolution of a complaint,]US to 
correct breaches of the Agreement and to preserve [the supplier’s opportunity to 
participate in the procurement]US [commercial opportunities]EC. Such [measures]US 
[action]EC may [include]US [result in]EC suspension of the [procurement process]EC 
[contract award or the performance of a contract that has already  been awarded]US. 
However, procedures may provide that overriding adverse consequences for the 
interests concerned, including the public interest, may be taken into account when 
deciding whether such measures should be applied . In such circumstances, just cause 
for not acting shall be provided in writing;  
[(b) an assessment and a possibility for a decision on the justification of the challenge ; 
and]EC 
(c) [provide for]EC correction of the breach of the Agreement or compensation for the loss 
or damages suffe red, which may be limited to costs for [the preparation of the]US tender 
[preparation]EC or [complaint]US [protest]EC 
ARTICLE XVIII  CONSULTATIONS AND DISPUTE SETTLEMENT **  [ NB: Parties are still 
reviewing this article, only preliminary views are noted belo w. Switzerland notes that the 
change in Article XVIII:1 makes it clear that Article XXIII as elaborated in the DSU is the 
relevant legal basis for dispute settlement (subject to specific exceptions) . The addition 
“shall apply to consultations and the settl ement of disputes under this agreement” is 
probably not really necessary .] GPA/TN1994/3/Rev.1  
 
- 30 - 
 
   
1. [The provisions of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes under the WTO Agreement (hereinafter referred to as the "Dispute Settlement 
Understanding") shall be applicable except as otherwise provided below.]CDA,EC,JPN  [The provisions 
of Article XXII and XXIII of GATT [, except Article XXIII:1(c),]US as elaborated and applied by the 
Understanding on Rules and Procedures Governing the Settleme nt of Disputes under the WTO 
Agreement (Dispute Settlement Understanding) shall apply to consultations and the settlement of 
disputes under this Agreement, except as otherwise specifically provided herein.]US,SW  
[NB: Switzerland observes that the change p roposed by the US makes it clear that Article 
XXIII as elaborated in the DSU is the relevant legal basis for dispute settlement (subject 
to specific exceptions) . The addition “shall apply to consultations and the settlement of 
disputes under this agreement ” is probably not really necessary. ] 
 
[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 [or their]CT 
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,]CDA,KOR,JPN it may with a view to 
reaching a mutually satisfactory resolution of the matte r, [request consultations.]EC [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 Unders tanding (hereinafter referred to as "DSB"), as specified below . Any Party thus 
approached shall give sympathetic consideration to the representations or proposals made to 
it]KOR,CDA,JPN[Whenever a Party to this Agreement other than the consulting Parties c onsiders that it 
has a substantial trade interest in such consultations, it may notify the consulting Parties and the 
Dispute Settlement Body (DSB), within 10 days after the date of the circulation of the request for 
consultations under this paragraph, of its desire to be joined in such consultations.]EC 
[2bis. Where the dispute concerns the award of a specific procurement, paragraphs 8 and 9 of 
Article  4 of the Dispute Settlement Understanding (DSU) may be invoked by the complaining 
Party.]EC 
 
[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 ot her 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]CDA  Where a dispute exclusively 
concerns provisions of this Agreement, only M embers of the WTO Party to this Agreement shall 
participate in decisions or actions taken by the DSB under this Agreement.]KOR,CDA,EC, 
 
4. [Panels shall have the following terms of reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of the panel:  
 
 "To examine, in the light of the relevant provisions of this Agreement and of (name of any 
other covered Agreement cited by the parties to the dispute), the matter referred to the DSB by 
(name of party) in document 
  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in this Agreement."]KOR, ,CT 
 
[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]KOR, JPN,CT [only Memb ers of the WTO that are 
Party to this Agreement shall participate in decisions or actions taken by the Dispute Settlement 
Body with respect to those parts of the dispute concerning this Agreement]US .]KOR, JPN,CT ,US ,SW [A 
Member of the WTO may seek to jo in in consultations pertaining to this Agreement, 
pursuant to Article 4.11 of the DSU, only if that Member is also a Party to this 
Agreement.]US GPA/TN1994/3/Rev.1  
 
- 31 - 
 
   
[5. Panels established by the DSB to examine disputes under this Agreement [ shall]US [should] 
include persons qualified in the area of government procurement.]US, KOR, JPN,CT,SW  [NB: U.S. 
proposes substitution of “shall” for “should” to conform to the current GPA .] 
 
6. [Every effort shall be made to accelerate the proceedings to the greatest extent 
possible.]KOR,JPN,CT,US  [Notwithstanding the provisions of paragraphs 8 and 9 of Article 12 of the 
Dispute Settlement Understanding, the panel shall attempt]CDA,KOR,JPN,CT [Where the dispute concerns 
the award of a specific procurement the panel shall aim,]EC,SW to pro vide its final report to the parties 
to the dispute not later than [three months]EC [four months, and in case of delay not later than seven 
months,]CDA,KOR,JPN,US,CT, 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 
paragraph 1 of Article 20 and paragraph 4 of Article 21 of the Dispute Settlement Understanding by 
[two]CDA,KOR,JPN,CT [three]EC months . Moreover, notwithstanding the p rovisions of paragraph 5 of 
Article 21 of the DSU, 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.]EC,KOR,JPN,CT  [NB: Switzerland notes that as 
regards the EC proposal to accelerate the panel proceedings according to the outlined 
time-tables in paragraph 6, it seems obvious that, in the field of government procurement, 
speedy panel proceeding s are extremely important . It might be advisable at least to try 
to speed up panel proceedings as much as possible ('the panel shall aim to'). ] 
 
[6bis. (a) If, in the communication referred to in Article [21.3] of the DSU, the Party concerned 
informs the D SB that it is not possible to bring the measures found to be inconsistent 
with this Agreement into conformity with the Agreement, the Party concerned shall, 
immediately after having made the communication referred to in Article [21.3] of the 
DSU, enter int o consultations with a view to developing mutually acceptable 
compensation.  
 
(b) Any Party which has entered into such consultations, may at any time request an 
arbitration to determine the level of nullification or impairment that was caused by the 
measur e found to be inconsistent with this Agreement.  
(c) Unless a request for arbitration has been made, the Party concerned shall, within 30 
days from the request for consultations, submit to all Parties who have entered into 
such consultations, a proposal for  mutually acceptable compensation.  
(d) When an arbitration has been requested, the Party concerned shall submit such a 
proposal within 30 days of the award of the arbitrator . Any such proposal shall be 
consistent with the award of the arbitrator.  
(e) Such arbitration shall be carried out by the original panel, if members are available, or 
by an arbitrator, which term shall be interpreted as referring to an individual or a group, 
appointed by the Director General and shall be completed within 60 days after t he 
request for arbitration.  
(f) If no proposal for compensation has been submitted within the periods referred to in 
subparagraphs (c) or (d), or if no agreement has been reached within 60 days from the 
submission of the later of:  
 (i) a proposal for mutually acceptable compensation ; or 
 
 (ii) such a proposal made subsequent to an arbitration award,  
 
the complaining Party shall be entitled to request authorization from the DSB to suspend the 
application to the Party concerned of concessions and other o bligations under the covered GPA/TN1994/3/Rev.1  
 
- 32 - 
 
  agreements that is appropriate in light of the level of nullification or impairment that was caused by 
the measure.]EC 
 
[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 r esult in the 
suspension of concessions or other obligations under any other Agreement listed in the said 
Appendix  1.]CDA,KOR,JPN,US,CT 
 
ARTICLE XIX  INSTITUTIONS  
Committee on Government Procurement  
 
1. A Committee on Government Procurement composed of repre sentatives from each of the 
Parties shall be established . This Committee shall elect its own 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.  
 
2. The Committee may establish working parties or other subsidiary bodies that shall carry out 
such fu nctions as may be given to them by the Committee.  
 
Observers  
 
3. Any WTO Member that is not a Party to this Agreement shall be entitled to participate in the 
Committee as an observer upon submission of a written notice to the Secretariat . Any [government 
eligible to apply for WTO membership] [WTO observer]CT may submit a written request to the 
Secretariat to participate in the Committee as an observer, and may be accorded observer status by 
the Committee.  
 
ARTICLE XX  FINAL PROVISIONS**  
Acceptan ce and Entry into Force  
 
1. This Agreement shall enter force on [ ] for those WTO Members [and whose agreed coverage 
is set out in Annexes  1 through  5 of Appendix  I,]US,HKC,JPN and which have, by signature, accepted 
this Agreement on [ ], or have, by or on  that date, signed the Agreement subject to ratification and 
have subsequently ratified the Agreement before [ ].  
 
Transitional Arrangements  
 
2. Between the Parties to this Agreement that are also Parties to the Agreement on Government 
Procurement dated 15  April 1994 (“1994 Agreement”), [the rights and obligations of this Agreement 
shall supersede those under]JPN the 1994 Agreement [shall cease to apply [for each of its Members 
upon acceptance of this Agreement]SW]EC,SW ,US]EC,US,SW  When all Parties to the 1994 Agreement have 
accepted this Agreement, the 1994 Agreement shall be terminated . [NB: May need to revisit after 
Cancun.]  
 
Accession  
 
3. Any Member of the WTO that is not a Party to this Agreement may accede to this Agreement 
on terms to be agreed between that Member and the Parties . Accession shall take place by deposit 
with the Director -General of the WTO of an instrument of accession that states the terms so agreed . 
This Agreement shall enter into force for an acceding Member on the 30th day foll owing the date of 
its accession to this Agreement.  
 GPA/TN1994/3/Rev.1  
 
- 33 - 
 
  Reservations  
 
4. No Party may enter any reservation in respect of any provisions of this Agreement.  
 
National Legislation  
 
5. Each Party 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 its procuring entities] [ Align with definition of measure ]EC, with the 
provisions of this Agreement . [NB: The US does not believe that this obligation should be 
aligned with the definition of “measures ”.] 
 
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 regula tions.  
 
Reports and Future Work  
 
7. The Committee shall annually inform the General Council of the WTO of developments relating 
to the implementation and operation of this Agreement.  
 
[7bis. Not later than the end of the third year from the date of entry i nto 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]EC,ISR [without pre judice to the needs of developing countries]ISR.]EC,ISR,HKC 
[NB: Hong Kong, China suggested deleting “and achieving the greatest possible extension 
of its coverage among all Parties”, since “with a view to improving this Agreement” is 
already general and f ine.] 
[8. The 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.]HKC  [Market Access Issue ] 
 
9. 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 Or ganization (hereinafter referred to as "WTO Agreement") [and 
negotiations regarding trade in services,]CDA,EC,US,HKC the Parties shall take the results of that work 
programme and those negotiations into account in amending Article [ ] as appropriate . [NB. May 
have to revisit in light of developments in the work programme.]  
 
Amendments  
 
10. The 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]US,HKC [take effect for the Parties that have accepted them upon acceptance 
by two thirds of the Parties and th ereafter for each other Party upon acceptance by it].EC,JPN 
 
Withdrawal  
 
11. 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] th e 
Director -General of the WTO [receives written notice of the withdrawal] .US  Any Party may 
upon such notification request an immediate meeting of the Committee.  
 
12. If a Party to this Agreement ceases to be a Member of the WTO, it shall cease to be a Par ty 
to this Agreement with effect from the same date.  
 GPA/TN1994/3/Rev.1  
 
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  Non-application of this Agreement between Particular Parties  
 
13. This Agreement shall not apply as between any two Parties if either Party, at the time it 
accepts or accedes to this Agreement, does not consent to such application.  
 
Appendices  
 
14. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
15. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
16. This Agreement shall be deposit ed 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 [ ] and of each amendment thereto pursuant to paragraph  10, and a  
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  11. 
 
Registration  
 
17. This Agreement shall be registered in accordance with the provisions of Article  102 of the 
Charter of the United N ations.  
 
Done at [ ] this [ ] day of [ ] 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.  
 
 
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