RESTRICTED  
  
GPA/ACC/A US/19  
 
22 December 2016  
(16-7019) Page: 1/4 
Committee on Government Procurement  Original: English  
 
ACCESSION OF AUSTRALIA  TO THE AGREEMENT ON GOVERNMENT PROCUREME NT 
COMMUNICATION FROM THE EUROPEAN UNION  
The following communication, dated 20 December 2016, is being circulated at the request of the 
Delegation of the European Union.  
 
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COMMEN TS FROM THE EUROPEAN  UNION ON THE REVISED  OFFER OF AUSTRALIA 
(GPA/ACC/AUS/17)  
The European Union (EU) welcomes the efforts of Australia to accede to the Agreement on 
Government Procurement and for submitting a revised offer on 30 September 2016 
(GPA/ACC/AU S/17).  
 
The EU hereby submits its comments requiring further improvements in Australia's revised offer. 
The EU reserves the right to withdraw, amend, reduce or extend its comments in the light of 
negotiations with Australia and the comments of other GPA P arties.  
 
The EU requests some changes in the revised offer to align with the level of the EU commitments 
under the GPA. The EU comments and requests for further improvements are indicated below.  
 
1  GENERAL  
1. The EU notes that a number of changes in the names of entities contained in the revised 
offer have been introduced. These modifications are justified by changes in the "machinery of 
government" without any negative implications on the offered coverage. However, in certain cases 
doubt remains if this is ind eed the case. Further explanations from Australia would be therefore 
welcome in order to confirm.  
2. The EU regrets that the limited improvement with respect to coverage of entities. Some 
entities which were offered in TPP, KAFTA and JAEPA are not included in  the revised offer. The EU 
requests Australia to explain the reasons for this and to provide information on the economic 
importance of those entities. The EU also reiterates its requests indicated in the observations on 
the initial offer dated 10 February 2016. In particular, we request Australia to enlarge the scope of 
offered coverage by including entities of lower sub -central levels such as cities and public entities 
operating in the utilities sector.  
3. The EU positively notes that the offer has been impro ved with respect to the coverage of 
services through the use of a negative list approach.  
4. The notes containing reservations, in particular those relating to procurement of motor 
vehicles and to preferences to SMEs are of great concern to the EU. The EU ask s that those are 
eliminated.  
5. Finally the EU reiterates its request that the legislation in States and territories providing for 
"Buy Local " requirements and various preferential treatment programmes should be fully aligned 
with GPA provisions.  GPA/ACC/AUS/19  
 
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  6. The EU also  urges Australia to provide detailed explanations on the compatibility of the new 
Commonwealth Procurement Rules (CPRs) with the GPA. In particular, could Australia explain how 
the requirement for compliance with an Australian standard and only in the abse nce of such with 
international one is compatible with the GPA requirements as set out in Article X:2 (b). Could 
Australia provide clarification how "reasonable enquiries"  are done in this context? The EU also 
requests detailed clarification on the way how the "economic benefit to the Aus tralian economy"  
test would be applied in a non -discriminatory manner towards foreign suppliers?  
2  ANNEX 1  
2.1  Entities  
7. The EU notes that here are only 63 entities compared to 65 in the first offer. CrimTrac 
Agency and the Family Court and Federal Circuit Court are not any more part of the list. The EU 
understands that those entities were merged with entities which were already covered in 
Australia's initial offer thus there is no subtraction of coverage in the revised offer.  
8. Changes were introduced in the names of 5 entities. The EU reiterates its request indicated 
in the observations on the initial offer aiming at full coverage of entities at central level.  
2.2  Notes  
9. A new N ote on procurement of motor vehicles is introduced. The gen eral note from Annex 7 
is deleted and introduced under Annexes 1 to 3.  
10. Concerning the N otes included in the first offer no change has been introduced. Therefore, 
the EU requests concerning Notes 2, 3 .a., 3.b., 3.d. are still valid.  
3  ANNEX 2  
3.1  Thresholds  
11. The revised offer does not contain a lowering of threshold values and the EU therefore notes 
that the revised offer did not lead to improvement. The EU reiterates its request to Australia to 
align the applicable thresholds to the level of thresholds applied b y the EU.  
3.2  Entities and corresponding notes  
12. The EU reiterates its requests indicated in the observations on the initial offer with respect to 
the coverage of sub -central government entities. The EU notes that the Australian revised offer 
does not meet EU's request in particular with respect to important procurement by local procuring 
entities and the main public entities (including public undertakings) operating in the utilities sector 
for any of the States and Territories.  
13. Following the deletion of the Note on motor vehicles under Annex 7 , a Note is introduce d for 
several territories (5 out of 8). It appears that in the remaining 3 territories there is no motor 
vehicle production. In conclusion, the EU understands that this does not lead to any substantial 
improvement. Further explanations are therefore expected from Australia in order to confirm.  
14. Additional observations are included below.  
3.2.1   Australian Capital Territory  
15. The EU notes that the list of entities has not been expanded in comparison to the first of fer. 
The revised offer does not meet EU's request with respect to covering lower sub -central entities 
and others operating in the water supply sector such as Iconwater.  
16. The Note is extended - covering in addition to already mentioned utility services also h ealth 
and welfare services, education services. We understand that this change relates to the fact that in 
the revised offer Australia provides now for a negative list of services. Concerning the exclusion of GPA/ACC/AUS/19  
 
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  utilities services, the EU re iterates its comme nt that this N ote appears to be very broad and invites 
Australia to consider the need for such exclusion.  
3.2.2   New South Wales  
17. The EU notes that the number of covered entities has been overall reduced: 36 compared to 
39 included in the first offer. The Departme nt of Trade and Investment, Regional Infrastructure 
and Services; Ministry for Police and Emergency Services; Motor Accidents Authority of NSW; 
Office of Finance and Services; WorkCover NSW are removed from the list. Department of 
Industry, Skills and Regi onal Development and State Insurance Regulatory Authority are added.  
18. On the basis of clarifications provided by Australia at this stage, the reduction results mostly 
from the machinery -of-government changes and that there is no withdrawal of coverage. 
However, it seems that the transformation of WorkCover NSW has resulted in three entities  - the 
State Insurance Regulatory Authority, Safe Work NSW and Care NSW. It is noted that only the 
former is covered in the revised offer. On this basis, Australia's offe r should cover also Safe Work 
NSW and Care NSW.  
19. The EU notes that the revised offer does not meet EU's request with respect to entities 
operating in the utilities sector.  
3.2.3   Northern territory  
20. A number of entities have been deleted from the list: 26 included now out of 39 . However, 
Australia explained that these changes reflect machinery -of-government changes and do not lead 
to change of coverage.  
21. Australia has not responded positively to the EU request as formulated in the initial 
comments to cover in particu lar water and electricity companies such as Power Water Corporation 
and ports such as Darwin Port Corporation. Neither the Department of Infrastructure nor the 
Department of Transport are covered in the revised offer. In its replies to the EU questions 
Australia states that it is not in a position to cover these two entities. Could Australia state the 
reasons for that?  
22. The EU welcomes that the reservation related to Charles Darwin University is narrowed 
down.  
3.2.4   Queensland  
23. The EU positively notes positively th at Australia adds the Public Safety Business Agency to 
the list of covered entities. However, the revised offer does not meet the EU request to spell out in 
the offer the list of entities declared to be departments pursuant to section 14 of the Public Serv ice 
Act 2008 and to cover entities operating in water, energy and ports which are not privatised.  
3.2.5   South Australia  
24. The EU observes that in the revised offer the Legal Services Commission is not anymore part 
of the offered coverage. Australia should provide further clarification on the reasons for that and 
the economic impact of this exclusion.  
25. The EU reiterates its requests indicated in the observations on the initial offer regarding the 
inclusion of main entities, including public undertakings in the fields  of water, energy, railways and 
ports. The Australian revised offer does not meet the EU request for coverage of these entities  
3.2.6   Tasmania  
26. The EU welcomes the addition of Tourism Tasmania.  
27. However, the EU reiterates its requests indicated in the observation s on the initial offer 
regarding the inclusion of main public entities in the fields of water, energy, railways and ports. 
The Australian revised offer does not meet the EU request for coverage of these entities.  GPA/ACC/AUS/19  
 
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  3.2.7   Victoria  
28. There is no improvement of the co verage of entities compared to the initial offer. Thus the 
EU reiterates its requests indicated in the observations on the initial offer regarding the inclusion of 
main public entities in the fields of water, energy, railways and ports. The Australian revi sed offer 
does not meet the EU request for coverage of these entities.  
29. The EU observes that N otes are moved from Annex 7  - concerning procurement of motor 
vehicles and procurement by entities on behalf of non -covered entities.  
3.2.8   Western Australia  
30. The EU po sitively notes the addition of the Department of Transport. The EU reiterates its 
requests indicated in the observations on the initial offer regarding the inclusion of main public 
entities in the fields of water, energy, railways and ports. The Australian  revised offer does not 
meet the EU request for coverage of these entities.  
3.3  Notes to Annex 2  
31. The EU notes that Australia includes two additional notes providing for reciprocity at sub -
central level.  
4  ANNEX 3  
32. The EU is concer ned with the addition of a new N ote on procurement of motor vehicles. 
Consequently, the exclusion remains broad even though it has been removed from the General 
Notes.  
33. The EU reiterates its request to expand Annex 3 by covering GBEs at central level, in 
particular those operating in the utilities sectors.  
5  ANNEX 5  
34. The EU welcomes the negative list approach followed by Australia for the coverage of 
services.  
6  ANNEX 7  
35. The EU notes that Notes 1. e., f., g., i. are removed from Annex 7 but those are re -
introduced in the other Annexes. Thus, it appears that the outcome does not lead to any 
substantive change/ increase of coverage.  
36. The EU notes that the exclusion of any form of preference to benefit small and medium sized 
enterprises remains as broad as in the first offer and reiterates its reques t to delete this Note. 
37. The EU reitera tes its request concerning the N ote on procurement funded by grants and 
sponsorship payments.  
38. The Note concerning unsolicited innovative proposals has been changed by providing a 
reference to Article XIII:1 of the GPA. However, the EU concerns  about the reference to 
Article  XIII:1 being very broad have not been addressed.  
39. Finally the EU considers that Note 2. c. should be deleted as  the GPA in its Article II:3 (e ) 
provides for a specific provision excluding from the scope  of the agreement procurement relating 
to international assistance, international agreement relating to the stationing of troops, etc  
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