RESTRICTED  
  
GPA/TN1994/3/Rev.37  
28 March  2011 
(24-2798) 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 TEXT  
AND DRAFT DECISIONS ILLUSTRATING POSSIBILITIES FOR  
GIVING LEGAL EFFECT TO THE REVISED AGREEMENT,  
AS AT 10 MARCH  2011*, ** 
NOTE BY THE SECRETARIAT  
Revision  
In the course of the informal session on text -related issues that took place on 10  March  2011, the 
Secretariat was asked to issue an updated document reflecting the state of the work on 
Article  XXII of the revised Agreement on Gove rnment Procurement together with the related draft 
decisions and text 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 ele ments:  
 
(1) text of Article XXII (pages 2 -6 of the attached document) . N.B.: This text reflects the 
discussion that took place during the informal session on text -related issues on  
10 March  2011 and, particularly, the revisions that were made to, and the updating of 
Parties' positions concerning,  paragraphs 3, 7,  12 and 15 ; 
 
(2) decision to be taken if the revised text is given effect as a new agreement (page 7); 
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 8-10). 
 
Elements 2 and 3 above are alternatives and reflect work in progress . Element s 2 and 3 were not 
changed in the course of the discus sion on 1 0 March  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.  
 
_______________  
 
 
* 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: negs3 59) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.37  
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  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]US 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 chang es 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 15  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.1 
 
[3. The provisions of Articles  XVIII and XX of this Agreement shall apply to covered 
procurement that has commenced after the entry into force of th is Agreement.2] 
 
[3bis. The provisions of Articles XVIII and XX of this Agreement shall apply to covered 
procurements 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 h as 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 [contract has been 
awarded] [supplier or supplier s has been contacted] after the entry into force of this 
Agreement.]NOR,EU 
 
[N.B. : 3 and 3bis are alternatives. ] [If the revised Agreement is given legal effect as a 
new Agreement, this paragraph  (3 or 3bis)  may not be needed. ] [Paragraph 3bis 
provides the proposed solution of Norway, supported by the EU, to its concern regarding 
illegal direct awards .] 
 
[N.B. : If the revision is given legal  effect as an amendment, paragraphs 2 and 3 /3bis  
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 states 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 o f any provision of this Agreement.  
 
1 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  
2 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  GPA/TN1994/3/Rev.37  
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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 its 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 re gulations.  [Where a Party maintains 
officially designated electronic media that provide links to its current laws and regulations relevant 
to this Agreement [which are available in one of the WTO official languages]EU, and such media are 
listed in Appendix  II, the Party may fulfil this requirement by informing the Committee annually of 
any changes [unless such changes are substantive and in such cases, a notification shall be made 
immediately]NOR,KOR,JPN,SGP,CT,EU].US,NOR,KOR,JPN,SGP,C T [The Parties shall h ave an opportunity to discuss 
the annual notification of a Party during the informal meeting of the Committee which follows the 
date the notification was made.]US,JPN 
 
[N.B. : The Parties are currently reflecting on this proposal, including whether there 
should be a distinction in notifications of minor and substantive changes. ] [Canada, the 
United States, and Israel proposed moving this item to Future Work Programmes .] 
 
[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 of 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 
 
Monitoring of Reciprocal Market Access Commitments  
 
9. Each Party shall [seek to] avoid introducing [or contin uing] 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 ; and Singapore support deleting "seek to".]  
 
[10. Upon [entry into force of the Agreement] [completion of the coverage negotiations 
undertaken by the Parties pursuant to Article XXIV:7(b) and (c) of the 1994 Agreement], all 
discriminatory measures maintained by a Party under its Appendix I which have for effect a 
restriction of  access to procurement otherwise covered and which are inconsistent with Article  IV:1 
and 2 (Non -Discrimination) of this Agreement shall be set out in a list of inconsistent measures to 
be attached to Appendix I of this Agreement . All such discriminatory m easures shall be subject to 
improvements, progressive reduction and elimination at a formal session of the Committee  on 
Government Procurement , at least once a year . Additionally, the review of the list shall be taken 
up by the Parties as a part of the cov erage negotiations under paragraph [11].]EU,SWI,SGP,NOR,LIE  
 
[10bis. 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 exclusi ons it maintains and;  
 
(b) any measure it applies to a covered procurement that has the effect of excluding that 
procurement from the Agreement . 
 
Each Party shall submit its list no later than [X] months following the completion of the 
negotiations undertaken by the Parties pursuant to Article XXIV:7(b) and (c) of the 1994 
Agreement . A consolidated list shall be reviewed and discussed by the Committee pursuant to 
Article XXI with a view to progress ively reducing and eliminating discriminatory measures and 
expanding the scope of covered procurement under this Agreement . In addition, this list shall be 
used for the purposes of future negotiations under paragraph [11]. A new Party that accedes to 
the A greement shall provide a list as set out in this article.]EU,CDA,SWI,NOR,LIE GPA/TN1994/3/Rev.37  
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  Future Negotiations  
 
[11. Not later than the end of [two years] from the date of entry into force of this Agreement, 
and periodically thereafter, the Parties shall undertake furth er negotiations, 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]EU [; and seeking to pro gressively reduce and eliminate discriminatory 
measures]US,CDA,KOR,JPN,CT. 
 
[N.B. : If the revision is given legal effect as an amendment, any reference to [X] years 
from the date of entry into force of this Agreement should be [X] years from 
1 January  1996 .] 
 
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, medium -sized and minority enterprises (SMEs);  
 
(ii) the advantages and disadvantages of developing common nomenclature f or 
goods and services;  
 
(iii) the advantages and disadvantages of developing standardised notices ; [and] 
 
(iv) the collection and dissemination of statistical data[ ; and 
 
(v) the treatment of green and social considerations and safety standards in 
internat ional procurement]EU,SWI,NOR,LIE. 
 
(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 that t he Parties shall adopt, only by consensus, the work 
programmes referred to in the sub -paragraph (a) and decisions with the list of 
additional work programmes ref erred to in the sub -paragraph (b)(i). ] 
 
[The Committee shall undertake further work, through the adoption of work programmes, with the 
aim to facilitate the negotiations provided for in paragraph [11] and the implementation of the 
Agreement . The Committee shall adopt a Decision with a list of work programmes which is 
reviewed and updated periodically.]JPN 
 
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 yea r from the date of entry into force of this Agreement, 
the Committee shall examine the applicability of Article  XX:2(b).  
 
[N.B. : The US suggests that Parties should further reflect on the need for this 
paragraph.]  
 GPA/TN1994/3/Rev.37  
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  Amendments  
 
15. The Parties may amend thi s Agreement . The decision to approve amendments shall be made 
by consensus and these amendments shall  become effective, in respect of those Parties which 
accept them, upon acceptance by [2/3 or 3/4] of the Parties and thereafter for each other Party 
upon a cceptance by it.3 
 
[N.B. : Singapore is reflecting on paragraph 15.]  
 
[16. Amendments to provisions of this Agreement 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] of the 
Parties.4]EU 
 
Withdrawal  
 
17. Any Party may withdraw from this Agreement . The withdrawal shall take effect upon the 
expiration of 60  days from the date the Director -General of the WTO receives written notice of the 
withdrawal . Any Party may upon such notification request an immediate meeting of the 
Committee.  
 
18. 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  
 
19. 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  
 
20. The Ap pendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
21. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
22. 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 paragraphs  16 or  17, and a 
notification of each accession thereto pursuant to paragraph  4 and of each withdrawal pursuant to 
paragraph  18. 
 
Registration  
 
23. This Agreement shall be registered in accordance with the provisions of Article  102 of the 
Charter of the United Nations.  
 
Done at [Marrakesh]US [...] this [fifteenth]US [...] day of [Apr il 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.]  
 
3 Negotiators' Note:  The Parties are still considering the need for and the content of this p aragraph.  
4 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  GPA/TN1994/3/Rev.37  
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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 PROCUREMENT5 
 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  Agree ment") as of its date of entry into force;  
 
 Considering  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 accor dance with the provisions of the 
2008 Agreement notwithstanding 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 bec ome Parties to the 2008  Agreement;  
 
 Decides  as follows:  
 
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 1 994 Agreement, vis-à-vis a Party to the 1994 Agreement 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 i nto force on the date of entry into force of the  2008 Agreement.  
 
 
5 Negotiators' Note:  The Parties are still considering the need for and the content of this Decision.  GPA/TN1994/3/Rev.37  
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  DECISION  AND PROTOCOL  OF AMENDMENT IF THE REVISED TEXT IS GIVEN  
EFFECT AS AN AMENDMENT TO THE EXISTING (1994) AGREEMENT6 
 
DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  ON ADOPTION O F  
"THE PROTOCOL AMENDING THE AGREEMENT ON GOVERNMENT PROCUREMENT"  
 
[DRAFT DECISION]  
DECISION OF [DAY/MONTH/YEAR]  
 The Committee on Government Procurement,  
 
 Having regard to paragraph  9 of Article  XXIV of the WTO Agreement on Government 
Procurement done a t 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 t he 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 f or acceptance;  
 
 Considering  that not all the Parties to the 1994 Agreement 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 paragraph  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 Parties 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 sha ll 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 the 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 accepted the Protocol.  
 
 
6 Negotiators' Note:  The Parties are stil l considering the need for and the content of this Decision, 
Protocol and textual amendment.  GPA/TN1994/3/Rev.37  
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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 Arti cle XXIV of the 1994 Agreement, 
shall provide that:  
 
(a) the acceding WTO Member 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 19 94 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 purpose of clarification of what 
was in subparagraph (e).]  
 
(d) notwithstanding subparagraph [(c)], the acceding WTO Member shall extend coverage 
of its procurement in its Annexes to Appen dix I to all Parties to the 1994 Agreement, 
including those Parties 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] . GPA/TN1994/3/Rev.37  
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  PROTOCOL AMENDING THE AGREEMENT ON G OVERNMENT 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 pursuant 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 i n the Annex hereto.  
 
2. This Protocol shall be open for acceptance by the Parties to the 1994  Agreement.  
 
3. This 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 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 fo llowing 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 e ach acceptance thereof.  
 
5. This Protocol shall be registered in accordance with the provisions of Article  102 of the 
Charter of the United Nations.  
 
 Done at Geneva this [...] day of [...] two  thousand  and [...] in a single copy, in the English, 
French an d Spanish languages, each text being authentic.  
 
[INSERTION OF PREAMBLE, ARTICLES  I-XXII OF THE REVISED TEXT AND APPENDICES]  
 
__________