WORLD TRADE  
ORGANIZATION  RESTRICTED 
GPA/M/47 
20 August 2012 
 (12-4527) 
Committee on Government Procurement  
  
 
MINUTES OF THE FORMAL MEETING OF 18 JULY 2012 
 
Chairmen:  Mr Nicholas Niggli (Switzerland); Mr Bruce Christie (Canada)
1 
  
1. The Chairman welcomed delegations to the mee ting.  He said that, in preparation for the 
meeting, delegations had received an Airgram2 setting out the proposed agenda for the meeting. 
2. The Committee adopted the following ag enda, as outlined in the Airgram: 
A. Election of a new Chairman for the remainder of 2012; 
 
B. Approval of the request for Observer status from Malaysia; 
 
C. Domestic Legislation – Recent Developments; 
 
D. Other Business. 
 
3. No items were proposed for discussion under the heading of Other Business. 
A. ELECTION OF A NEW CHAIRMAN FOR THE REMAINDER OF 2012 
4. The Chairman, Mr Niggli, recalled that, on 30 March 2012, following the adoption of the 
results of the GPA renegotiation, he had made clea r his intention to step down from the position of 
Chair of the Committee.  While he had greatly en joyed his involvement as Chair and appreciated the 
opportunity to serve, a change of Chairs was both h ealthy and timely.  In this regard, he understood 
that a consensus existed among the Parties in favour of  the election of Mr Bruce Christie of Canada as 
Chairman for the rest of the year.  He noted, in a ddition, that Parties might well wish Mr Christie to 
continue as Chair into 2013;  if th is were the case, it would need to be confirmed by the Committee at 
the beginning of next year following the normal procedures. 
5. He noted, furthermore, that the Secretariat had circulated, on 25 June 2012, a fax asking for 
any delegations objecting to Mr Chri stie's election to so inform the Secretariat.  Since no objections 
had been voiced at the time, all delegations were now expected to support Mr Christie's election. 
6. The Committee elected Mr Bruce Christie as Chairman. 
7. The incoming Chairman, Mr Christie, thanked th e Parties for the confidence that they had 
placed in him, and took the opportunity to pay tri bute to his predecessor, Mr Nicholas Niggli.  He was 
conscious that he was taking up the position of Chai rman at a very auspicious time, given that the 
revised Agreement had recently been adopted by the Co mmittee.  It now had to be brought into force, 
                                                      
1 The first part of the meeting, up to and including the election of the Committee's new Chairman, was 
chaired by the outgoing Chairman, Mr Nicholas Niggli of Switzerland.  Following his election, the new 
Chairman, Mr Bruce Christie of Canada, chaired the remaining proceedings. 
2 WTO/AIR/3978, dated 6 July 2012. GPA/M/47 
Page 2  
 
  which constituted the next major cha llenge before Parties.  In addition, there were prospects for very 
significant accessions to the Agreement on the horizon. 
8. He was very grateful for everything that hi s predecessor, Mr Niggli, had done over the past 
five years to make the conclusion of the GPA re negotiation possible, to achieve concrete progress on 
accessions to the Agreement, and to raise the prof ile of the Agreement not just throughout the 
Organization but all over the world.  In the weeks and months leading up to the Ministerial 
Conference in December, Mr Niggli had worked very  hard to resolve all outstanding issues and he 
knew that, without his efforts, assuredly, the successful  conclusion of the nego tiations would not have 
come about. 
9. Continuing, Mr Christie said that he himself would do his best to carry forward the work of 
the Committee and to achieve further progress durin g his time as Chair which, as Parties knew, was 
expected to end no later than the summer of 2013, when  he expected to be calle d back to Canada.  He 
looked forward to the opportunity that Parties had provided to him and counted on the support of 
Parties and the Secretariat in achieving the shared objectives of the Parties. 
10. The representatives of Jordan;  Singapore;  the European Union;  Canada;  Korea;  Japan; 
Switzerland;  Israel;  the United States;  Liechtens tein;  Chinese Taipei;  Hong Kong, China;  Norway; 
the Netherlands with respect to Aruba;  Chile;  New Zealand;  Saudi Arabia;  Australia;  Columbia;  
India;  and Turkey welcomed the new Chairman  and expressed their support for him and their 
commitment to the Committee's work.  Further, they  took the opportunity to express their appreciation 
to the outgoing Chairman, Mr Niggli, thanking him for his many contributions and devotion to the 
work of the Committee, especially in light of th e recent conclusion of the re-negotiations and the 
progress achieved on recent and pending accessions.  The important successes that the Committee had 
achieved would not have been possible without his efforts and leadership. 
11. On behalf of himself and Mr Niggli, the Chai rman warmly thanked all Parties for their kind 
words and support. 
B. APPROVAL OF THE REQUEST FOR OBSERVER STATUS FROM MALAYSIA  
12. The Chairman recalled that Malaysia's request for Observer status had been circulated on 
22 May 2012.3  
13. The Committee accepted Malaysia's request for Observer status. 
14. The representative of Malaysia congratulated th e Chairman for his appointment and thanked 
the previous Chairman for supporting Malaysia's ap plication for Observer status.  She also thanked 
the Parties and the Secretariat for facilitating Mala ysia's admission to the Committee as an Observer.  
Recognizing the value that government procurement c ontributed to international trade, Malaysia was 
currently involved in negotiations to insert governme nt procurement chapters in several regional trade 
agreements.  As most of the provisions to be incl uded in such chapters were based on the revised GPA 
text, Malaysia was of the view that participation in the Committee would be highly beneficial.  Noting 
that the Committee had recently adopted the revi sed GPA text, admission as Observer would allow 
her delegation to observe key deve lopments, new issues and trends, as well as the Committee's work 
on the recently adopted Future Work Programmes. 
15. The government procurement regime in Malaysia  was based on the fundamental principles of 
public accountability, transparency, best value for money and fair and open competition.  However, 
following current trends and in the light of the ch anging landscape of international trade, Malaysia 
                                                      
3 GPA/W/318, dated 22 May 2012.  GPA/M/47 
 Page 3 
 
 
  continued to review its government  procurement regime.  To assist Malaysia in this endeavour, 
Malaysia welcomed and appreciated any technical assistance that could be offered by GPA Parties or the Secretariat.  Her delegation looked forward to participating in the Committee's future meetings. 
16. The representative of the United States welcomed Malaysia to the Committee as an Observer.  
Her delegation has had the pleasure to work with Ma laysia in another negotiation and appreciated its 
commitment to procurement reform and to opening up its procurement market.  Participation in the 
Committee as an Observer represented a good first step  which would help Malaysia consider further 
steps in the future. 
17. The representative of the European Union equall y welcomed Malaysia as an Observer to the 
Committee.  His delegation had had the pleasure of meeting Malaysia in preparation for the meeting 
and had understood Malaysia's high level of interest in learning more about the work of the 
Committee and the rules under the Agreement on Gove rnment Procurement.  In cooperation with 
other Parties, his delegation suggested that th e Committee spend time explaining the Agreement and 
its rules to Malaysia, as requested.  Becoming an Observer in the Committee represented a first step 
towards accession to the Agreement.  This w as why his delegation was highly supportive of 
Malaysia's request and encouraged Malaysia to  consider taking further steps down that path. 
18. The representative of Singapore warmly welc omed Malaysia to the Committee as an 
Observer.  As a neighbour and key trading pa rtner of Malaysia, Singapore strongly supported 
Malaysia's request.  Singapore attached high im portance to the GPA and to the work of the 
Committee.  In the past year, the Committee had concluded extensive nego tiations and had adopted 
the results of these negotiations. Malaysia's request  was testament to the fact that Parties had 
significantly improved the Agreement, made it rele vant to today's needs and realities, and could 
collectively be proud of the result.  Equally and importantly, in joining the Committee as Observer, 
Malaysia had reaffirmed once more its commitment  to the principles of openness, transparency, and 
non-discrimination, as well as to fair and open compe tition.  These were key principles of the GPA.  
Singapore hoped that the example set today by Malaysia would encourage other WTO members 
currently not Party or Observers to the Agreement to join the Committee. 
19. The representative of Japan extended a cordial welcome to Malaysia and expressed Japan's 
appreciation for Malaysia's decision and its co mmitment.  Japan therefore strongly supported 
Malaysia's request.  Japan looked forward to furthe r deepening its ties and understanding in the field 
of government procurement with Malaysia. 
20. The representative of Canada joined other Parti es in welcoming Malaysia to the Committee as 
an Observer.  As Malaysia had rightly pointed ou t, the GPA was increasingly being used as the basis 
for the negotiation of procurement commitments in re gional trade Agreements.  This formed part of 
the benefits accruing from the renegotiation of the Ag reement.  Like other Parties, his delegation 
hoped to work very closely with Malaysia in rela tion to government procurement obligations, in the 
future. 
21. The representative of Hong Kong, China thanked Malaysia for the interest that it had shown 
in the Agreement and for its commitment to furt her improving its government procurement regime.  
Hong Kong, China warmly welcomed Malaysia to  the Committee as an Observer and looked forward 
to Malaysia taking further steps, in the future, with regard to the GPA. 
22. The representative of Korea congratulated Mala ysia for its admission to the Committee as an 
Observer.  Korea stood ready to share its experiences with regard to the GPA to help Malaysia to 
better understand the Agreement. GPA/M/47 
Page 4  
 
  23. The representative of Switzerland welcomed Ma laysia to the Committee and joined other 
Parties' comments in this regard.  Switzerland was e qually ready to share its experiences to the extent 
they could be of help to Malaysia, especially with  regard to the relationship between sub-central and 
central government entities' procurement. 
24. The representative of Chinese Taipei welcomed Malaysia to the Committee as an Observer 
and said that her delegation looked forward to a possible future accession by Malaysia to the GPA. 
C. DOMESTIC LEGISLATION – RECENT DEVELOPMENTS  
25. The Chairman recalled that this agenda item derived from a written request that had been 
made to the Chair, via the Secretariat, by the Eur opean Union.  In its request, the European Union had 
indicated that it wished, under the proposed item, to seek information from the delegation of the 
United States regarding a law adopted recently by th e United States' state of Florida that purportedly 
banned companies with business links in Cuba and Syria from submitting government tenders in that 
state. 
26. The representative of the European Union said th at, according to information available to his 
delegation, a law had been passed in the state of  Florida which banned companies with business links 
to Cuba and Syria, including their parents, subs idiaries and affiliates, from bidding on government 
contracts in that state.  Florida was a state cove red by the United States' GPA commitments.  Based on 
the documents and information availa ble, his delegation had doubts as to the compatibility of this law 
with the United States' obligations under the GPA.  The law had the potential to nullify the benefits 
accorded to other Parties under the Agreement.  Overall, the situation seemed reminiscent of a 
previous case that had been subject to WTO dispute settlement proceedings. 
27. His delegation was aware that an injunction had b een issued so that th e law was currently not 
in force.  He, therefore, sought general info rmation from the United States on the Florida law, 
including relevant references and information on the on-going court proceedings regarding the 
validity of the law, in particular in regard to a pot ential expiry of the injunction.  The European Union 
also wished to be kept informed about any further steps the United States intended to take, both at the 
domestic and international levels , in order to ensure compliance with its GPA obligations. 
28. The European Union trusted that the United Stat es would be in a position to provide the other 
GPA Parties with sufficient assurances and that it would continue to ensure compliance with its GPA 
commitments, as it had done in the past.  The Euro pean Union also attached great importance to the 
role of the GPA Committee in bringing transparen cy to the legal obligations of Parties under the 
Agreement and in raising awareness on any potential issues arising in that regard. 
29. The representative of Canada said that his delegati on shared the concerns that had been raised 
by the European Union.  Canada had been followi ng developments regarding the Florida legislation 
with interest and agreed with the European Union that the poten tial restrictions in government 
procurement provided for in the law appeared to be  inconsistent with the United States' obligations 
under the GPA.  He noted that the law was subject to a legal challenge before the state's Federal 
Court, which had temporarily suspended the applica tion of the law, pending the determination of the 
constitutional questions at play.  Canada intended to continue mon itoring the situation and looked 
forward to periodic updates from the delegation of th e United States on the stat us of the legislation 
and on-going litigation in that regard. 
30. The representative of Norway echoed the concerns  raised by the delegations of the European 
Union and Canada, and said that her delegation looked forward to hearing from the United States on 
the way forward.  GPA/M/47 
 Page 5 
 
 
  31. The representative of the United States welcomed  the opportunity to provide information and 
responses to the questions that had been raised.  She said that the United States was firmly committed 
to the GPA and wished to assure the membership that it would make every effort to stay in 
compliance with its obligations under the Agreement.  In this particular case, the law in question had 
been enjoined and was not in effect , so no Party was currently affected. 
32. On 1 May 2012, the Governor of the United States' state of Florida had signed legislation 
called "House Bill 959" which generally prohibits ag encies from contracting with certain companies 
that have business operations in Syria and Cuba.  The new legislation had been scheduled to enter into 
effect on 1 July 2012.  However, on 4 June 2012, a United States subsidiary of a Brazilian 
conglomerate has filed a lawsuit against the state of Florida challenging the constitutionality of the 
legislation and seeking to enjoin the enforcement of  the legislation.  On 25 June 2012, the Federal 
District Court of Florida issued a preliminary injunc tion barring enforcement of the legislation.  Under 
the United States' legal system, a preliminary injunction is an order issued by a court, either before or 
during a trial, to halt specified action in order to prevent an irreparable injury from occurring before 
the court had had the chance to decide the case on the merits. 
33. In its decision, the District Court had stated  that the preliminary injunction was warranted 
because there was a "substantial likelihood" that th e court would find that the new legislation was 
unconstitutional as a violation of the United States Supremacy Clause, the Foreign Affairs Power, and 
the Foreign Commerce Clause of the United States' c onstitution.  The state of Florida has until late 
July to appeal the injunction.  However, the injunction remains in effect unless and until the court 
decides to modify it.  It has no expiration date so  that it would remain valid until there was further 
action by the court.  As the court proceedings were  at a very preliminary stage, the United States' 
government has not taken any position on the legislation,  nor on the merits of the lawsuit.  However, 
the legislation was not in effect, so that neither GP A Parties nor their suppliers  were being harmed or 
denied the opportunity to participate in any Florid a state procurement as a result of this legislation. 
34. The representative of the European  Union said that his delegation wished to be informed and 
updated about any changes regarding the situation, on a regular basis. 
35. The representative of Switzerland thanked the Un ited States for the very clear information 
provided.  His delegation was satisfied that the Fl orida court had issued an injunction preventing the 
application of the law.  As to the constitutionality of the law, the issues raised were of high relevance 
to Switzerland due to the fact that Switzerland, lik e the United States, had a federal structure.  The 
GPA required Parties to treat suppliers of other Part ies in a fair and non-discriminatory manner.  The 
law raised a systemic issue in regard to how Parti es ensured that sub-central entities that had a certain 
independence from the federal level acted in comp liance with international obligations under the 
GPA.  To address this issue, Switzerland had created a permanent commission composed of sub-central entities and federal entities in order to est ablish channels of communication between them. 
36. The representative of Singapore thanked the Unite d States for the clarification and joined 
other Parties in the concerns that had been raised with regard to the compatibility of the United States' 
legislation with the GPA obligations. 
37. The representative of the United States said that  her delegation would continue to monitor the 
situation and would inform GPA Parties of any new developments at the next meeting of the 
Committee.  
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