RESTRICTED  
  
GPA/TN1994/3/Rev.40  
21 October  2011 
(24-3296) Page: 1/9 
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:  
THE STATE OF WORK ON ARTICLE XXII WITH RELATED DRAFT  
DECISIONS  AND PROTOCOL OF AMENDMENT ILLUSTRATING  
POSSIBILITIES FOR  GIVING LEGAL EFFECT TO THE  
REVISED AGREEMENT,  AS AT 18 OCTOBER  2011*,** 
NOTE BY THE SECRETARIAT  
Revision  
In the course of the informal session on text -related issues that took place on 
17-18 October 2011, the Secretariat was asked to issue an updated document reflecting the state 
of the work on Article  XXII of the revised Agreement on Government Procurement together with 
the related draft decisions and protocol of amendment  illustrating possibilities for giving legal 
effect to the revised Agreement . All agreed qualifiers were to be retained.  
 
This note comprises the requested document . It embodies three elements:  
 
(1) text of Article XXII (pages 2 -5 of the attached document) . N.B.: This text reflects the 
discussion that took place during the informal session on text -related issues on  
17-18 October  2011 and, particularly, the revisions that were made to, and the 
updating of , Parties' positions  regarding the relevant paragraphs (e.g., see current 
paragraphs 10 and 1 5), and also the deletion of some paragraphs  (i.e. the previous 
paragraphs 10, 10 ter, and 10 quater ). 
 
(2) decision to be taken if the revised text is given effect as a new agreement (page 6); 
and 
 
(3) decision  and protocol of amendment to be adopted if the revised text is given effect as 
an amendment to the existing (1994) Agreement (pages 7-9). N.B.: This text reflects 
the discussion that took place during the informal session on text -related issues on 
17 October  2011 and, pa rticularly, the addition of an alternative in paragraph 4(d) 
and a n NB. 
 
Elements 2 and 3 above are alternatives and reflect work in progress . Element 2 was  not changed 
in the course of the discussion on 17-18 October  2011. 
 
All elements of the attached text are subject to further consideration by Parties with the 
understanding that nothing is agreed until everything is agreed.  
 
For the assistance of delegation s, the Chairman has indicated that all outstanding issues in 
Article  XXII (see, e.g.,  the current paragraphs 9, 10, 11, 12, and 15) must be resolved, through 
consultations amongst the relevant Parties, in advance of the coming plurilateral sessions to be 
 
* 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: negs379) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.40  
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  held in Geneva in the week beginning 2 8 November  2011. Additionally, Parties are request ed to  
give urgent at tention to Elements 2 and/or 3, in consultation with relevant advisors, if appropriate, 
as the approach to be followed in bringing  the revised text into force should be similarly resolved, 
in the same timeframe.  
_______________  
TEXT OF ARTICLE XXII  
[N.B. : This Article will need to be reconsidered in light of decisions to be taken regarding 
the giving of legal effect to the revised GPA . The Parties are still reviewing the entire 
Article and may propose additional changes to this Article.]  
 
Article  XXII  Final Provisions  
Acceptance and Entry into Force  
 
1. This Agreement shall enter into force on [ 1 January  1996]US [...] for those WTO Members 
whose agreed coverage is set  out in the Annexes to Appendix I, and that have, by signature, 
accepted this Agreement on [1 5 April 1994]US [...], or have, by or on that date, signed this 
Agreement subject to ratification and have subsequently ratified this Agreement before 
[1 January  1996]US [...]. 
 
[N.B. : If the revision is given legal effect as an amendment, these changes would be 
necessary to restore the language of the original provision.]  
 
Transitional Arrangements  
 
2. Between the Parties to this Agreement that are also Parties to the Agreement on 
Government Procurement dated 1 5 April 1994 ("1994  Agreement"), the 1994  Agreement shall 
cease to apply on the date of entry into force of this Agreement for those Parties . When all Parties 
to the 1994  Agreement have accepted this Agreement, the 1994  Agreement shall be terminated.  
 
3. The provisions of Articles  XVIII and XX of this Agreement shall apply to covered 
procurement for which a notice of intended procurement pursuant to Article VII:1 and 2 or a notice 
of planned procurement pursuant to Article VII:5 has been published after the  entry into force of 
this Agreement . For covered procurements where no such notice has been published, the 
provisions of Articles XVIII and XX of this Agreement shall apply when a supplier or suppliers has 
been contacted after the entry into force of this Agreement.  
 
[N.B. : If the revised Agreement is given legal effect as a new Agreement, this paragraph 
may not be needed. ] [If the revision is given legal effect as an amendment, paragraphs 
2 and 3 should be deleted as unnecessary.]  
 
Accession  
 
4. Any Member  of the WTO may accede to this Agreement on terms to be agreed between that 
Member and the Parties, as set out in a decision of the Committee . Accession shall take place by 
deposit with the Director -General of the WTO of an instrument of accession that sta tes the terms 
so agreed . This Agreement shall enter into force for a Member acceding to it on the 30th day 
following the deposit of its instrument of accession.  
 
Reservations  
 
5. No Party may enter a reservation in respect of any provision of this Agreement.  
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  Domestic Legislation  
 
6. 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 it s procuring entities, with the provisions of this Agreement.  
 
7. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of such laws and regulations.  
 
[Reciprocal Market Access Commitments  
 
8. Notwithstanding Article IV:1 and 2 (Non -Discrimination) of this Agreement, the Parties may 
maintain and make commitments with respect to covered procurement on the basis of mutual 
reciprocity, including commitments made as a result o f negotiations undertaken by the Parties to 
expand the scope of covered procurement and negotiations on accession to this Agreement . Such 
commitments shall be specified in a Party's Annexes to Appendix I.]US 
 
Review of  Market Access Commitments  
 
9. Each Pa rty shall [seek to] avoid introducing [or continuing] discriminatory measures that 
distort open procurement.  
 
[N.B. : The US, Israel, Korea and Japan support deleting "or continuing". ] [The EU ; 
Norway ; Switzerland ; Hong Kong, China ; Singapore ; and Canada  support deleting "seek 
to".]  
 
10. [Further to Article IV:1 and 2 (Non -Discrimination), each Party shall provide, without 
prejudice to its rights and obligations under the Agreement, a list of:  
 
(a) country -specific exclusions it maintains ; and 
 
(b) any measure that has the effect of restricting access to procurement otherwise 
covered by the Agreement .]EU,NOR,SWI,CDA,SGP,HKC  
 
[Each Party shall provide a list of:  
 
(a) country -specific exclusions it maintains in its Annexes to Appendix I ; and 
 
(b) any n ote or provision listed in its Annexes to Appendix I that restricts access to 
procurement covered by the Agreement.]US,ISR,JPN,KOR  
 
Each Party shall submit its list no later than [X] months following the [date of entry into force of 
the Protocol, or on [X]  months following the Party's deposit of its instrument of acceptance, 
whichever date is later] [ completion of the negotiations undertaken by the Parties pursuant to 
Article XXIV:7(b) and (c) of the 1994 Agreement ]. In addition, any Party may add to the 
consolidated list any [other note or provision in another Party 's Annexes to Appendix 1  that 
excludes procurement from the Agreement] [measure that has the effect of restricting the access 
to procurement otherwise covered by the Agreement] . The Secretariat sh all prepare a consolidated 
list and circulate it to the Parties . The Committee on Government Procurement shall review and 
discuss  the need to maintain the exclusions [and measures referred to in (a) and (b) 
above ]EU,CDA,SWI,NOR  [, notes and provisions set out in the consolidated list]US,ISR,JPN,KOR at the annual 
meeting of the Committee provided for in Article XXI :3(a) with a view to progressively reducing 
and eliminating discriminatory measures and expanding the scope of covered procurement under 
this Agreement . In addition, the Committee shall use this list for the purposes of future 
negotiations under paragraph [11]. A new Party that accedes to the Agreement shall provide a list 
as set out in this paragraph within one year of its accession . 
 
Future Negotiations  
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  11. Not later than the end of t hree years from the date of entry into force of [this Agreement ] 
[this Agreement as amended] [the Protocol amending this Agreement] , and periodically thereafter, 
the Parties shall undertake further negot iations, with a view to improving the Agreement and 
achieving the greatest possible extension of its coverage among all Parties on the basis of mutual 
reciprocity, taking into consideration the needs of developing countries[ ; and seeking to 
progressively r educe and eliminate discriminatory measures] .US,CDA,KOR,JPN,CT 
 
Future Work Programmes  
 
12. (a) The Committee shall undertake further work to facilitate the negotiations provided for 
in paragraph  [11] and the implementation of the Agreement, through the adoption of 
work programmes for the following items:  
 
(i) the treatment of small  and medium -sized enterprises (SMEs);  
 
(ii) the collection and dissemination of statistical data ; [and] 
 
(iii) the treatme nt of sustainable procurement [; and 
 
(iv) safety standards in international procurement] .EU,SWI,NOR,LIE ,KOR,CT 
 
(b) The Committee shall adopt:  
 
(i) a decision with a list of additional work programmes, which shall be  reviewed 
and updated periodically ; and 
 
(ii) a decision setting out the work to be undertaken on a particular work 
programme under subparagraph (a) or (b)(i).  
 
[N.B.: Japan is of the view t hat t he Parties shall adopt, only by consensus, the work 
programmes referred to in subparagraph (a) and decisions with the list of additional 
work programmes referred to in subparagraph (b)(i). ] 
 
13. Following the conclusion of the work programme to harmonize rules of origin for goods being 
undertaken under the Agreement on Rules of Origin in Annex  1A of the WTO Agreement and 
negotiations regarding trade in services, the Parties shall take the results of that work programme 
and those negotiations into  account in amending Article  IV:5, as appropriate.  
 
14. Not later than the end of the fifth year from the date of entry into force of this Agreement, 
the Committee shall examine the applicability of Article  XX:2(b).  
 
Amendments  
 
15. The Parties may amend t his Agreement . The decision to approve an amendment shall be 
made by consensus . An amendment shall become effective as follows:  
 
(a) [except as provided for in subparagraph (b) ,] an amendment shall take effect, in 
respect of those Parties that accept it, u pon acceptance by [2/3 or 3/4] of the Parties 
and thereafter for each other Party upon acceptance by it;  
 
(b) [an amendment of a nature that would not alter the rights and obligations of the 
Parties shall take effect for all Parties upon acceptance by [2/3 or 3/4] of the Parties. ] 
 
[N.B.: Singapore is reflecting on the bracketed language  in paragraph 15. ] 
 
Withdrawal  
 
16. Any Party may withdraw from this Agreement . The withdrawal shall take effect upon the 
expiration of 60  days from the da te the Director -General of the WTO receives written notice of the GPA/TN1994/3/Rev.40  
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  withdrawal . Any Party may upon such notification request an immediate meeting of the 
Committee.  
 
17. Where a Party to this Agreement ceases to be a Member of the WTO, it shall cease to be a 
Party to this Agreement with effect on the date on which it ceases to be a Member of the WTO.  
 
Non-application of this Agreement between Particular Parties  
 
18. This Agreement shall not apply as between any two Parties where either Party, at the time it 
accepts or accedes to this Agreement, does not consent to such application.  
 
Appendices  
 
19. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
20. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
21. This Agreement shall be deposited with the Director -General of the WTO, who shall promptly 
furnish to each Party a certified true copy of this Agreement, of each rectification or modification 
thereto pursuant to Article  XIX and of each amendment pursuant to pa ragraphs  16 or  17, and a 
notification of each accession thereto pursuant to paragraph  4 and of each withdrawal pursuant to 
paragraph  18. 
 
Registration  
 
22. This Agreement shall be registered in accordance with the provisions of Article  102 of the 
Charter o f the United Nations.  
 
Done at [Marrakesh]US [...] this [fifteenth]US [...] day of [April one  thousand  nine hundred  and 
ninety -four]US [...] in a single copy[,]US in the English, French and Spanish languages, each text 
being authentic, except as otherwise specified with respect to the Appendices to this Agreement.  
 
[N.B. : If the revision is given legal effect as an amendment, the original text should be 
retained.]  GPA/TN1994/3/Rev.40  
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  DECISION IF THE REVISED TEXT IS GIVEN EFFECT AS A NEW AGREEMENT  
 
[DRAFT DECISION]  
ARRANGEMENT FOR THE PERIOD OF COEXISTENCE OF THE 1994 AGREEMENT ON GOVERNMENT  
PROCUREMENT AND THE [2008] AGREEMENT ON GOVERNMENT PROCUREMENT1 
 The Committee on Government Procurement,  
 
 Noting that not all Parties to the Agreement on Government Procurement dated 
15 April 1994 (hereinafter referred to as the "1994  Agreement") may become a Party to the 
Agreement on Government Procurement done on […  2008] (hereinafter referred to as the 
"2008  Agreement") as of its date of entry into force;  
 
 Conside ring that, during the period of coexistence of the 1994 Agreement and the 
2008 Agreement, a Party to the 1994  Agreement which has become a Party to the 
2008 Agreement should have the right to act in accordance with the provisions of the 
2008 Agreement notw ithstanding any inconsistency with the provisions of the 1994  Agreement, 
vis-à-vis Parties to the 1994  Agreement that are not Parties to the 2008  Agreement;  
 
 Considering moreover that, during that period of coexistence, a Party to the 
1994 Agreement which  has become a Party to the 2008  Agreement should not be under a legal 
obligation to extend the benefits accorded solely under the 2008  Agreement to the Parties of the 
1994 Agreement which have not yet become Parties to the 2008  Agreement;  
 
 Decides  as foll ows: 
 
1. A Party to the 1994  Agreement that is a Party to the 2008  Agreement may maintain or 
adopt any measure consistent with the provisions of the 2008  Agreement, notwithstanding the 
provisions of the 1994  Agreement, vis-à-vis a Party to the 1994 Agreeme nt that is not a Party to 
the 2008  Agreement until the entry into force for that Party to the 2008  Agreement.  
 
2. A Party to the 1994  Agreement that is a Party to the 2008  Agreement is not under any 
obligation to accord to goods, services and suppliers of any other Party to the 1994  Agreement 
that has not yet become a Party to the 2008  Agreement the benefits accorded solely as a result of 
the commitments or other obligations assumed under the 2008  Agreement.  
 
3. The provisions of Articles  XX and XXII of the  1994 Agreement shall not apply in respect of 
measures referred to in paragraph  1. 
 
4. This Decision shall enter into force on the date of entry into force of the  2008 Agreement.  
 
1 Negotiators' Note:  The Parties are still considering the need for and the content of this Decision.  GPA/TN1994/3/Rev.40  
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  DECISION  AND PROTOCOL  OF AMENDMENT IF THE REVISED TEXT IS GIVEN EFFECT AS 
AN AMENDMENT TO THE EXISTING (1994) AGREEMENT2 
 
DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  ON ADOPTION OF "THE 
PROTOCOL AMENDING THE AGREEMENT ON GOVERNMENT PROCUREMENT"  
 
[DRAFT DECISION]  
DECISION OF [DAY/MONTH/YEAR]  
 The Committee on Government Pr ocurement,  
 
 Having regard to paragraph  9 of Article  XXIV of the WTO Agreement on Government 
Procurement done at Marrakesh on 15  April 1994 ("the 1994  Agreement");  
 
 Having undertaken  further negotiations pursuant to Article  XXIV:7(b) [and (c)]SGP of the 
1994 Agreement and reached agreement on amendments to improve the 1994  Agreement;  
 
 Noting the consensus among the Parties to the 1994 Agreement, all of whom are 
participating in this Decision, to adopt the Protocol Amending the Agreement on Government 
Procurement (" the Protocol") attached to this Decision and to submit the Protocol to their 
respective Governments for acceptance;  
 
 Considering  that not all the Parties to the 1994 Agreem ent may be able to conclude their 
domestic procedures for acceptance of the Protocol by the time the Protocol has entered into force 
and that therefore, there may be a period when not all the Parties to the 1994  Agreement are 
Parties to the Protocol;  
 
 Decides as follows:  
 
1. The Protocol Amending the Agreement on Government Procurement attached to this 
Decision is hereby adopted, and open for acceptance by Parties to the 1994  Agreement.  
 
2. Pursuant to paragraph  3 of the Protocol and consistent with paragr aph 9 of Article  XXIV of 
the 1994  Agreement, the Protocol shall enter into force for those Parties to the 1994  Agreement 
that have deposited their respective instruments of acceptance thereof, on the 30th day following 
such deposit by [2/3 or 3/4] of the P arties to the 1994  Agreement . Thereafter the Protocol shall 
enter into force for each Party to the 1994  Agreement which has deposited its instrument of 
acceptance thereof, on the 30th day following the date of such deposit.  
 
3. Upon the entry into force of  the Protocol,  
 
(a) as between a Party to the 1994  Agreement, which is also a Party to the Protocol, and 
a Party only to the 1994  Agreement, the 1994 Agreement shall apply, including 
Appendix I of the 1994 Agreement;  
 
(b) notwithstanding subparagraph (a), a Party to the 1994  Agreement for which the 
Protocol has entered into force may maintain or adopt any measure consistent with 
the Protocol, even if that measure is inconsistent with the 1994 Agreement and even 
with respect to a Party to t he 1994  Agreement for which the Protocol has not entered 
into force ; and 
 
(c) a Party that has accepted the Protocol shall only be required to provide the 
procurement that it covers under Appendix I attached to the Protocol to the other 
Parties that have a ccepted the Protocol.  
 
 
2 Negotiators' Note:  The Parties are still consideri ng the need for and the content of this Decision, 
Protocol and textual amendment.  GPA/TN1994/3/Rev.40  
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  4. Upon entry into force of the Protocol, any terms of accession to the 1994 Agreement agreed 
after the date of this Decision, pursuant to paragraph 2 of Article XXIV of the 1994 Agreement, 
shall provide that:  
 
(a) the acceding WTO M ember shall be bound by the Protocol;  
 
(b) as between such acceding WTO Member and a Party only to the 1994  Agreement, the 
1994 Agreement shall apply, including Appendix I of the 1994 Agreement;  
 
(c) notwithstanding subparagraph (b), the acceding WTO Member may maintain or adopt 
any measure consistent with the Protocol, even if that measure is inconsistent with 
the 1994 Agreement and even with respect to a Party only to the 
1994 Agreement; [and] 
 
[N.B. : The addition in (b) and (c) has been added for pur pose of clarification of what 
was in subparagraph (e).]  
 
(d) notwithstanding subparagraph [(c)][(b)], the acceding WTO Member shall extend 
coverage of its procurement in its Annexes to Appendix I to all Parties to the 1994 
Agreement, including those Partie s that have not accepted the Protocol[ ; and 
 
(e) the terms of paragraph 3 shall apply to such WTO Member once it becomes a Party to 
the 1994 Agreement] . 
 
N.B.: Israel proposes the deletion of sub -paragraph (e) in light of sub -paragraphs (b) 
and (c).  
 
PROTOCOL AMENDING THE AGREEMENT ON GOVERNMENT PROCUREMENT  
 
[DRAFT]  
 The Parties to the Agreement on Government Procurement, done at Marrakesh on 
15 April 1994, (hereinafter referred to as "the 1994  Agreement"),  
 
 Having undertaken  further negotiations purs uant to Article  XXIV:7(b) [and (c) ]SGP of the 
1994 Agreement;  
 
 Hereby agree  as follows:  
 
1. The Preamble , Articles  I through XXIV, and Appendices of the 1994  Agreement shall be 
deleted and replaced by the provisions as set forth in the Annex hereto.  
 
2. This Protocol shall be open for acceptance by the Parties to the 1994  Agreement.  
 
3. This Protocol shall en ter into force for those Parties to the 1994  Agreement that have 
deposited their respective instruments of acceptance thereof, on the 30th day following such 
deposit by [2/3 or 3/4] of the Parties to the 1994  Agreement . Thereafter this Protocol shall enter  
into force for each Party to the 1994  Agreement which has deposited its instrument of acceptance 
thereof, on the 30th day following the date of such deposit.  
 
4. This Protocol shall be deposited with the Director -General of the World Trade Organization, 
who shall promptly furnish to each Party to the 1994  Agreement a certified true copy of this 
Protocol, and a notification of each acceptance thereof.  
 
5. This Protocol shall be registered in accordance with the provisions of Article  102 of the 
Charter of th e United Nations.  
 GPA/TN1994/3/Rev.40  
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   Done at Geneva this [...] day of [...] two  thousand  and [...] in a single copy, in the English, 
French and Spanish languages, each text being authentic.  
 
 
[INSERTION OF PREAMBLE, ARTICLES  I-XXII OF THE REVISED TEXT AND APPENDICES]  
 
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