RESTRICTED  
  
GPA/TN1994/3/Rev.18  
 
20 March 2007  
(24-2581) Page: 1/9 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994   
 
* Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs234 ) was derestricted on 8 November 2023.  
LEGAL CHECK OF THE PROVISIONALLY AGREED REVISED AGREEMENT  
ON GOVERNMENT PROCUREMENT:  POINTS FOR CONSIDERATION  
BY DELEGATIONS * 
NOTE BY THE SECRETARIAT  
Revision  
In the informal closing session held on 15 February 2007, the Secretariat was asked to identify, by 
mid-March, any issues regarding the legal drafting of the text of the provisionally agreed revised 
Agreement on Government Procurement ( GPA/W/297 ) and legal issues in relation to the Final 
Provisions that might merit consi deration by delegations (Chairman 's statement in the informal 
closing session, Job No. 1058 of 16  February  2007, paragraph 7).  
 
Attached is a list of such issues.  As envisioned in the informal closing session, the list has been 
prepared by the Secretariat to the Committee on Government Procurement in consultation with the 
Secretariat 's Legal Affairs Division.  
 
The attention of delegations is drawn to two "horizontal " drafting issues.  First, in some but not all 
places in the text, commas have been placed bef ore "and" or "or" at the end of a sequence of items.  
To avoid the risk of unintended meaning being given to this difference, a single approach might be 
considered.  The practice in other WTO agreements, as reflected in the WTO style guidelines1, is not 
to place such commas unless necessary for purposes of clarity.  It might also be noted that in some 
places where language has been modelled on other WTO legal provisions commas have been added, 
even though no difference in meaning may be intended.  Examples are  the definitions of "standard " 
and "technical specification " in Articles I(r) and (t)(ii).  These appear to be modelled on Articles 1 
and 2 of Annex 1 of the WTO Agreement on Technical Barriers to Trade.  However, in both instances, 
the new GPA provisions co ntain commas after the word "marking " which are not found in the TBT 
provisions.  
 
Second, the new Agreement at several places refers to "each Party 's Appendix I " or "a Party 's 
Appendix I ". However, under the present (1994) Agreement, there is only one Appendix which is 
common to all the Parties.  If it is the intention to keep the same structure of the Appendices, one 
solution might be to refer to "a Party 's Appendix I Annexes " or similar in the relevant places, 
especially now that each Party 's General N otes will be put in an Annex.2 
 
It should also be noted that the Secretariat has not provided any comments in regard to 
Article  XXII:16 -18, as these paragraphs appear to set out options that are still under active 
consideration by delegations.  
 
As outlined in the Chairman 's statement in the informal closing session, delegations are invited to 
reflect on the points in this Note and to identify any other points meriting consideration, if possible 
by end -March . Any points submitted by delegations will be circulated by the Secretariat to all 
participants in the negotiations.  The points raised by the Secretariat and by delegations will then be 
 
1 According to Part 3.1 of the WTO Editorial Manual, "[a] comma is not placed be fore "and" at the end of 
a sequence of items unless one of the items contains another "and", unless  it is necessary for clarity... ". WTO 
Editorial Manual, Version 5.0, 1  March 2007.  
2 In particular, such words might be inserted in Articles I(n), II:2(a)(i), II:2(e), II:3 (chapeau), 
II:4 (chapeau), II:4(f), IV:3 and IV:5.  GPA/TN1994/3/Rev.18  
 
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  discussed and any consequential rectifications agreed (or otherwise) by delegations in a plurilateral 
format, in the course of the planned meetings in the week of 16 -20 April.  
 
 
_______________  GPA/TN1994/3/Rev.18  
 
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  ATTACHMENT 
SPECIFIC POINTS REGARDING THE DRAFTING OF THE TEXT  
 The following legal and linguistic rectifications might be considered in regard to specific 
provisions in the provisionally agreed text:  
 
Preamble : 
 
 Following the style of the WTO Agreement, the first line of the Preamble might read:  "The 
Parties  to this Agreement (hereinafter referred to as "the Parties ")". 
 
 It might be appropriate, in the Preamble, to make reference to the legal basis of the 
negotiations leading to the revised GPA.  This might be done, for example, by inserting the words 
"pursua nt to Article  XXIV:7(b) and (c) of the 1994 Agreement on Government Procurement 
(hereinafter referred to as "the 1994 Agreement ")" after "these objectives " in the recital beginning 
"Having undertaken... ". 
 
Article I : 
 
 In Article I(a), should "commercial g oods and services " read "commercial goods or services "? 
If so, in the same definition, "goods and services " might read "goods or services ". The same point 
arises in Article XI:7.  
 
 In Article I(b), in the light of developments concerning issues to be addre ssed in the coverage 
negotiations, further consideration might be given to the appropriateness of a definition of 
"construction services contract ". Currently, this term is not used in the text of the Agreement, 
although the term "construction services " is used in Articles I(q) and II:4(e).  In the event that a 
definition is retained, "U.N." might be replaced by "United Nations ". 
 
 In Article I(g), (l) and (p), "where " might be replaced by "whereby ". 
 
 Does the definition of "limited tendering " in Article I(g) adequately cover what is intended?  
For instance, would it be helpful to include language along the following lines:  "limited tendering  
means a procurement method whereby  the procuring entity only contacts a supplier or suppliers of 
its cho ice."? 
 
 In Article I(k), the term "offsets " might be defined in the singular form in the light of the use 
of "offset " in the singular in Article IV:3(b) of the Agreement.  
 
 In Article I(n), the reference to "each Party " might be understood as requiring that an entity 
has to be covered for all Parties.  Accordingly, and in view of the above -noted point regarding the 
unity of Appendix I, this definition might be revised to read:  "procuring entity  means an entity 
covered und er Annex 1, 2 or 3 of Appendix I in respect  of a Party". 
 
 In Article I(o), the word "relevant " might be inserted before "conditions for participation ". 
 
 In the light of the definition of "qualified supplier " in Article I(o), the definition in Article I(i ) 
might read as follows:  "multi -use list  means a list of qualified  suppliers that the procuring entity 
intends to use more than once ". Similarly, the definition in Article I(p) might read as follows:  
"selective tendering  means a procurement method whereby  only qualified  suppliers are invited by 
the procuring entity to submit a tender ". 
 
 In Article I(r), the comma after "recognized body " should be deleted (as superfluous).  
 
Article II : 
 
 
 In English only.  GPA/TN1994/3/Rev.18  
 
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   Article II:2(a) refers to "goods . .. as specified in each Party 's Appendix I ". In the event that 
Parties decide not to add a specific annex on goods (see Article II:4 and footnote), consideration 
might need to be given to the adequacy of the reference to goods in paragraph 2(a) of this Art icle. 
 
 Since Article II:2 purports to provide a comprehensive definition of covered procurement, 
subparagraph II:2(e) might refer to Article III (Exceptions to the Agreement) in addition to the other 
provisions cited.  
 
 In Article II:4 (chapeau and subpar agraph (f)), "annexes " might be in initial capitals.  
 
 In Article II:4(d), should it be made clear that Annex 4 does not include construction services?  
 
 Since the chapeau to Article II:6(b) already refers to "estimated total value ", is it necessary 
to rep eat this in sub -subparagraph (ii)?  If not, Article II:6(b)(ii) might read as follows:  "where the 
procurement provides for the possibility of option clauses, the value of such  optional purchases ". 
 
 In the chapeau to Article II:7, "hereafter " might be repla ced by "hereinafter ". The same point 
arises in Article IV:1 (chapeau).  
 
 In Article II:7(a) (third line), the words "where possible " might be placed within commas.  
 
 In Article II:8(c), the words "is it" should read "it is". 
 
Article III : 
 
 Negotiators might consider changing the title of Article III to "General and Security 
Exceptions ", given that certain other provisions also contain exceptions.  The words "to the 
Agreement " are, in any case, anomalous since the exceptions are part of the Ag reement.  
 
 In Article III:2(d), the word "natural " might be inserted before "persons with disabilities ", in 
the light of the definition of "person " in Article I(m).  
 
Order of Article IV and Article V : 
 
 Consideration might be given to reversing the order of the current Articles IV and V, given 
that the latter contains general principles and the former contains some exceptions to the application 
of these principles.  As an example, currently, the general prohibition against the use of offsets (in 
Article V:6) comes after the provision on the use of offsets by developing countries (in 
Article  IV:3(b)).  
 
Article IV:  
 
 In Article IV:4, the word "for" at the end of the chapeau might be moved to the beginning of 
subparagraphs (a) and (b), respectively.  
 
 Article IV:6 might refer to "the Committee on Government Procurement established by 
Article  XXI:1 of the Agreement (hereinafter referred to as "the Committee ")" rather than "the 
Committee ". 
 
Article V : 
 
 The header to paragraphs 1 and 2 of Article  V refers to  "National Treatment and 
Non-Discrimination ". Notwithstanding that the same wording is used in the 1994 Agreement, would 
it be more appropriate to refer simply to "Non-discrimination " since this term is generally understood 
to include both national treatme nt and MFN (both of which are covered in the paragraphs 
themselves)?  
 
 Article V:2(a) prohibits treatment of a locally established supplier less favourably than another 
locally established supplier on the basis of "degree of foreign affiliation or ownershi p". Might this 
wording be interpreted as giving rights to non -Parties to the Agreement?  If so, would the intent of 
this provision be made more clear by substituting the words "on the basis of affiliation with, or 
ownership by persons of, another Party "? GPA/TN1994/3/Rev.18  
 
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 In Article V:2, the word "nor" after the semicolon in subparagraph  (a) should be changed to 
"or". 
 
 In Article  V:5, the words "no Party may " might be changed to "a Party shall not " consistent 
with the formulation in Articles V:2 (chapeau) and V:6.  
 
 In Article V:7, a colon might be inserted after the word "apply to " (in the first line) and 
semicolons, rather than commas, used after the words "importation "; "charges "; and "formalities ". 
 
Article VI : 
 
 In Article  VI:1(a), "clauses " might be used in the singular, rather than the plural, the same as 
"law", "regulation ", "judicial decision ", etc. 
 
 Also in Article  VI:1(a), "notices and tender documentation " might read "notices or tender 
documentation ". 
 
Article VII : 
 
 In the chapeau to  Article VII:1, the comma after "at least " (in the fourth line) might be 
removed.  
 
 In Article  VII:1(a), (b) and the chaussette, the text might refer to "entities listed  in Annex 1, 
2 or 3" rather than to "entities in Annex 1, 2 or 3 ". The same point arise s in Article  VII:5 and in 
Article  XI:8. 
 
 In Article VII:2(c), "recurring contracts " might read "recurring procurements " (in the light of 
the definition in Article  II:7).  
 
 In Article VII:3 (third line), "the notice " might read "the summary  notice " (to dis tinguish it 
from the notice of intended procurement which is mentioned in the same sentence).  
 
 In Article VII:4, the following words might be added at the end of the first sentence:  
"hereinafter referred to as "notice of planned procurement "". This will a nchor the cross -references 
in Articles  VII:5 and XI:4(a).  
 
 In Article  VII:5, it is unclear if the word "it" (second line) refers to the procuring entity or to 
the notice of planned procurement.  To remedy this, the relevant words might read "provided that 
the entity includes in the notice of planned procurement ". 
 
 Also in Article  VII:5, "the information in paragraph 2 " (also in the second line) might read:  
"the information referred to  in paragraph 2 ". 
 
Article VIII : 
 
 In Article  VIII:2(c), the term "may not " might be changed to "shall not". The same point arises 
in Articles  IX:11 and XVII:2.  
 
Article IX : 
 
 In Article  IX:3, should "foreign suppliers " read "suppliers of another Party "? This would follow 
the approach in Ar ticle IX:5. 
 
 The heading to Article  IX:12 might read "Annex  2 and 3 Entities " rather than "Annexes  2 and  3 
Entities ". 
 
Article X : 
 
 In Article  X:2(a), "specify the technical specifications ... " might read "frame  the technical 
specifications... "? 
 GPA/TN1994/3/Rev.18  
 
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   In Arti cles X:9, the term "notice " might be amended to read "notice of intended procurement "? 
The same point arises in Articles  X:11, XII:1(b) and XII:2(a).  
 
Article XI : 
 
 In Article  XI:1 (last sentence), "common " might be changed to "the same ". 
 
 In Article  XI:4(b), "procurements of a recurring nature " might read "recurring procurements " 
(given the definition in Article  II:7).  
 
 In Article  XI:7 (fifth line), the reference to "commercial goods and services " might read 
"commercial goods or services ", particularly if the same change is made in the definition of this term 
in Article  I(a). 
 
Article XIII : 
 
 In Article  XIII:1 "the other Parties " might be changed to "any other Party " – consistent with 
Article  V. 
 
 In Article  XIII:1(a), the words "provided that the requirements of the tender documentation 
are not substantially modified " might be moved to a chaussette to that subparagraph.  
 
 In Article  XIII:1(c) (both the chapeau and subparagraph (c)(i)), should "goods and services " 
read "goods or services "? 
 
 In Article  XIII:1(c)(i), "can not " should read "cannot ". 
 
 In Article  XIII:1(c)(ii), should "such separation " read "such a change "? 
 
 In Article  XIII:1(d), "could not " should read "cannot ". 
 
 In Article  XIII:1(f) , the commas after "production " and "viability " might be removed.3 
 
 Also in Article  XIII:1(f), should "to incorporate the results of field testing and to demonstrate 
that ... " read "to incorporate the results of field testing or to demonstrate that ... "? 
 
Article XV : 
 
 In Article  XV:4, the term "must" (used twice in this paragraph) might be replaced by "shall". 
 
 Also in Article  XV:4, "satisfies the conditions " might read "complies with  the conditions " (to 
harmonize with the language in Article  XV:6 (see below)).  
 
 In the chapeau of Article  XV:5, "contract and " should be changed to "contract and that". 
 
 In Articles  XV:5 and XV:6, are the expressions "capable of undertaking the contract " and 
"capable of  fulfilling the terms of the contract " intended to be equivalent?  If so, should they be 
harmonized?  
 
 In Article  XV:6, "can comply with the conditions " might read "complies  with the conditions ". 
 
 In Article  XV:6, "conditions of participation " might read "conditions for participation " (as 
elsewhere in the Agreement).  
 
Article XVI : 
 
 In Article  XVI:1 (third line), "that" might be replaced by "why". 
 
 The heading to Article  XVI:4 "Collection and Report of Statistics " might be changed to 
"Collecti on and Report ing of Statistics ". 
 
3 See, in this regard, the footnote to Article XV:1(e) in the 1994 Agreement.  GPA/TN1994/3/Rev.18  
 
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Article XVII : 
 
 In Article  XVII:2, "may not provide information to a particular supplier that might prejudice 
fair competition between suppliers " might read "shall not provide to any particular supplier 
information that mi ght prejudice  fair competition between suppliers ". 
 
Article XVIII : 
 
 In the title of Article  XVIII and paragraph 6(f) of Article  XVIII, "supplier challenges " might 
read "challenges by suppliers ". 
 
 In the chaussette  to Article  XVIII:1, "in which it has " might be changed to "in which the 
supplier  has". 
 
 In Article  XVIII:2 (second to fourth lines), the words "a breach of this Agreement ... 
implementing this Agreement " might be replaced by the words "a breach or a fail ure as set out in 
paragraph 1 ". The same change might be made in Article  XVIII:7(b) (first to fourth lines).  
 
 Also in Article  XVIII:2 (fifth line), "each Party " might be changed to "the Party concerned ". 
Currently, the wording implies that all Parties mus t encourage the procuring entity and supplier to 
seek resolution of the complaint.  
 
 In Article  XVIII:6(b), for the sake of consistency with other WTO agreements, the definition 
of participants might be introduced with the words "hereinafter referred to as ". 
 
 In Article  XVIII:6(e), the comma after "shall" should be deleted.  
 
Article XIX : 
 
 In Article  XIX:1, the definition of "modifying Party " might be introduced with the words 
"hereinafter referred to as ". 
 
 In Article  XIX:1(b), "provided in " might be changed to "provided for in". 
 
 In Article  XIX:3, the definition of "objecting Party " might be introduced with the words 
"hereinafter referred to as ". 
 
 In Article  XIX:3(a) and (b), it might improve clarity to refer, respectively, to "paragraph  8(b)" 
and "paragraph  8(c)" instead of referring to "paragraph 8 " in both instances.  
 
 In Article  XIX:6, should "Notwithstanding Article  V:1(b) ... " read "Notwithstanding 
Article s V:1(b) and V:2(b)  ... "? 
 
 Article  XIX:8(a) should end with a semicolon rather than a colon.  
 
 In regard to Article  XIX:8(c), should the word "of" be inserted before "substantially equivalent 
coverage " to implicate the words "level of " earlier in the sentence?  
 
Article XX : 
 
 Negotiators might consider whether the punctuation in Article  XX:1 should f ollow Article  4.2 
of the DSU, assuming that there is no intention to have a different meaning.  The DSU provision 
reads as follows:  
 
"Each Member undertakes to accord sympathetic consideration to and afford adequate 
opportunity for consultation .... " 
Article XXI : 
 
 In Article  XXI:1, it might be preferable to state "There shall be a Committee on Government 
Procurement " (as in Article  IV:2 of the WTO Agreement) or "There is hereby established a Committee GPA/TN1994/3/Rev.18  
 
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  on Government Procurement " (as in Article  16.1 of the Anti -Dumping Agreement) rather than the 
current formulation "A Committee on Government Procurement ... shall be established ". 
 
 In regard to Article  XXI:3(b), "General Council of the WTO " might read "General Council 
pursuant to Article  IV:8 of the WTO Agreement ". 
 
 In Article  XXI:4, the words "to the Secretariat " might read "to the Committee ". 
 
Article XXII : 
 
 In regard to Article  XXII:1, the wording of this provision (dealing with acceptance of the new 
Agreement) is similar to t he 1994 Agreement (Article  XXIV:1) but differs from the related language 
used in the WTO Agreement (Article  XIV:1).  Nonetheless, if Parties prefer this, no legal problem is 
foreseen.  One question that might merit consideration is whether the "by or " in the  phrase "by or 
on" is necessary.  Presumably, "on" would be sufficient if all Parties intend to sign the new Agreement 
on the same day.  Another question is whether an original party to the conclusion of the negotiations 
which, for any reason, cannot sign on  the designated day, should not be afforded a further period 
in which to sign, prior to the deadline for ratification.  As things stand, it would appear that such a 
party would need to negotiate its accession to the new Agreement under Article  XXII:5.  
 
 In Article  XXII:2 (first and second lines), "the Agreement on ... ( "1994 Agreement ")" might 
read "the 1994 Agreement " (given that this will now have been defined in the Preamble).  
 
 In Article  XXII:2 (third line), "for those Parties " might be deleted (as redundant and possibly 
misleading).  
 
 In Article  XXII:2 (fourth line), "shall be terminated " might read "shall be deemed to be  
terminated ". 
 
 In regard to Article  XXII:3, this provision appears to raise three questions:  
 
 - First, is it the intention of the negotiators that the new Agreement would apply 
only to covered procurement that has commenced after the entry into force of the 
Agreement?  If so, the word "only" might be inserted after the word "apply " in the 
first line of this pro vision.  
 
 - Second, would the current wording mean that there would be no right of recourse 
with regard to procurement that has commenced under the 1994 Agreement, given 
that the application of the 1994 Agreement will be precluded by paragraph 2?  Is this 
what is intended?  
 
 - Third, is the time of commencement (referred to in the second line) sufficiently 
clear?  
 
Consideration might be given to deleting Article  XXII:4 from the provisionally agreed text.  The 
header "Provisional Application " would seem inappr opriate because, under Article  25 of the Vienna 
Convention on the Law of Treaties, provisional application takes place before entry into force.  The 
text of Article  XXII:4 might be deleted because the revised Agreement will bind only its Parties and, 
in the ir respect, the 1994 Agreement will cease to apply under Article  XXII:2.  
 
 In Article  XXII:5, "between that Member and the Parties " might be changed to "between that 
Member and the Committee on Government Procurement ". Negotiators might also consider whether 
the second and third sentences of this Article are strictly necessary or can be left to the terms of 
accession to be agreed (as under the WTO Agreement).  Regarding the two options in the last 
sentence, namely [on the 30th day following] "the deposit of its instrument of accession " and "the 
date of its accession to this Agreement ", the first option corresponds to normal WTO procedure and 
would seem preferable, even if the second option corresponds to the 1994 Agreement 
(Article  XXIV:2).  
 
 Also in regard to Article  XXII:5 (fourth line), the term "an acceding Member " might be changed 
to "a Member acceding to it " (for greater clarity).  
 GPA/TN1994/3/Rev.18  
 
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   In Article  XXII:6, "any provisions " should read "any provision ". 
 
 In Article  XXII:9, "The Parties " might read "Each Party " (similarly to Articles  XXII:7 and 8).  
 
 Also in Article  XXII:9, "discriminatory measures and practices " might read "discriminatory 
measures " (given that the definition of "measure " in Article I(h) includes a "practice "). 
 
 In Artic le XXII:10, the word "thereto " should be deleted.  
 
 A full stop is missing at the end of Article  XXII:13.  
 
 In Article  XXII:14, "effective use " might read "effectiveness of the use ". 
 
 In Article  XXII:20, the words "from the same date ... ceases " might be replaced by "the date 
on which it ceases ". 
 
 In regard to the "Done ... " clause following Article  XXII:25, "hereto " might be replaced by "to 
this Agreement ". 
 
__________