RESTRICTED  
  
GPA/TN1994/3/Rev.32  
12 February  2010 
(24-2806) Page: 1/10 
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 FEBRUARY  2010*,** 
NOTE BY THE SECRETARIAT  
Revision  
In the informal closing session that took place on 10 February  2010, 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 toge ther 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 elements:  
 
(1) text of Art icle 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 that took 
place on 10 February  2010 and, particularly, the updating of Parties' positions 
concerning p aragraph  10bis; 
 
(2) decision to be taken if the revised text is given effect as a new agreement (page 6); 
and 
 
(3) decision, protocol and textual amendment to be adopted if the revised text is given 
effect as an amendment to the existing (1994) Agreement (pages 7-10). 
 
Elements 2 and 3 above are alternatives and reflect work in progress . They were not changed in 
the co urse of the session on 10 February  2010. 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: negs325) w as derestricted on 8 November 2023.  GPA/TN1994/3/Rev.32  
- 2 - 
  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]US [1 through 6 of] Appendix  I, and that 
have, by signature, accepted this A greement 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 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 this Agreement.2 [N.B. : If the 
revision is given legal effect as an amendment, paragraphs 2 and 3 should be deleted as 
unnecessary. ] [If the revised Agreement is given legal effect as a new Agreement, this 
paragraph may not be needed.]  
 
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 th at 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] [any] reservation in respect of any provision of  this Agreement.  
 
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 regulations.  
 
8. Each Party shall seek to avoid introducing or continuing discriminatory measures that distort 
open procurement.  
 
 
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.32  
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  Future Work  
 
9. Not later than the end of [...] from the date of entry into force of this Agreement, and 
periodically thereafter, the Parties shall undertake fu rther 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]EU, taking into consideration the needs of developing countries.  
[N.B. : If the re vision is given legal effect as an amendment, in this paragraph and those 
that follow, including paragraphs 12, 13 and 14, any reference to X  years from the date 
of entry into force of this Agreement should be X  years from 1  January  1996.]  
 
10. The Parties shall, in the context of the negotiations referred to in paragraph  9, seek to 
eliminate discriminatory measures that remain on the date of entry into force of this Agreement.3 
 
[Coverage negotiations and future work  
 
10bis. 
 
(a) Notwithstanding Article IV:1 and 2 (Non -Discrimination) of this Agreement, the Parties 
may negotiate and make commitments on the basis of mutual reciprocity in respect of 
coverage negotiations : 
 
(i) to be undertaken by the Parties not later than the end of  [...] from the date of 
entry into force of this Agreement, and periodically thereafter ; and 
 
(ii) undertaken by the Parties with any WTO Member intending to accede to this 
Agreement.  
 
(b) All coverage negotiations referred to in subparagraphs (a)(ii) and (iii) shall be 
undertaken by the Parties with a view to:  
 
(i) improve this Agreement and achieve the greatest possible extension of its 
coverage among all Parties on the basis of mutual reciprocity, taking into 
consideration the needs of developing countri es; 
 
(ii) avoid introducing or continuing discriminatory measures and practices that 
distort open procurement;  
 
(iii) progressively reduce and eliminate discriminatory measures and practices that 
distort open procurement and which remain on the date of ent ry into force of 
this Agreement.  
 
(c) All discriminatory measures and practices maintained by a Party inconsistent with 
Article  IV:1 and 2 (Non -Discrimination) of this Agreement shall, upon completion of 
the coverage negotiations referred to in subparagrap h (a), be set out in a list of 
inconsistent measures and practices to be attached to its Appendix I as integral part 
of its commitments under this Agreement . All such discriminatory measures and 
practices shall be subject to improvements, progressive reduc tion and elimination  at a 
formal session of the GPA Committee, at least once a year  as part of coverage 
negotiations under subparagraph (a)(ii) . Additionally, the review of the list should be 
taken up by the Parties as a part of the coverage negotiations u nder 
subparagraph  (a)(ii). ]EU 
 
[N.B. : The EU is proposing to replace paragraphs 9 and 10 by paragraph 10bis.]  
[N.B. : The EU considers that the legality of country -specific derogations in view of the 
MFN requirement in Article  IV of the revised GPA  is an important point .] 
[N.B. : The EU suggests that if this type of provision is needed, then it should be 
addressed in a separate provision.  (GATS Article II could be a possible model for this 
provision.)]  
 
 
3 Negotiators' Note: The Parties shall review the content of this paragraph before the end of the 
negotiations.  GPA/TN1994/3/Rev.32  
- 4 - 
  11. 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 nego tiations into account in amending Article  IV:5, as appropriate.  
 
12. Not later than the end of the third year from the date of entry into force of this Agreement, 
the Committee shall undertake further work to consider the advantages and disadvantages of 
developing common nomenclature for goods and services and standardized notices.  
 
13. Beginning two years after entry into force of this Agreement, the Committee shall regularly 
assess the effectiveness of the use of Articles  XVI:4 and 5.  
 
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 this Agreement [having regard, inter alia , to the experience gained 
in its implementation].  [Such an amendment, once the Parties have concurred [by consensus to 
submit it for acceptance] [in accordance with the procedures established by the Committee], shall 
take effect for the Parties that have accepted it upon acceptance by [...] of the Parties and 
thereafter for each other Party upon acceptance by it.]4 [N.B. : Some Parties favour the 
approach in the second sentence over paragraphs 16 and 17 . The bracketed phrases in 
the second sentence are alternatives.]  
 
[16. Amendments to  provisions of this Agreement of a nature that would alter the rights and 
obligations of the Parties, shall take effect for the Parties that have accepted them upon 
acceptance by [2/3] of the Parties and thereafter for each other Party upon acceptance by i t. The 
Committee may decide by a [3/4] majority of the Parties that any amendment made effective 
under this paragraph is of such a nature that any Party that has not accepted it within a specified 
period shall be free to withdraw from this Agreement or to remain with the consent of the 
Committee.5 
 
17. 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.6]EU,US 
 
Withdrawal  
 
18. 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 reques t an immediate meeting of the 
Committee.  
 
19. 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 Ag reement between Particular Parties  
 
20. 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  
 
21. The Appendices to this Agreeme nt constitute an integral part thereof.  
 
 
4 Negotiators' Note: The Parties are still considering the need for and the content of this paragraph.  
5 Negotiators' Note: The Parties are still considering the need for and the content of this paragraph.  
6 Negotiators' Note: The Parties are still considering the need for and the content of this paragraph.  GPA/TN1994/3/Rev.32  
- 5 - 
  Secretariat  
 
22. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
23. This Agreement shall be deposited with the Director -General of the WTO, who shall promptly 
furnish to each Party a certified tr ue copy of this Agreement, of each rectification or modification 
thereto pursuant to Article  XIX and of each amendment pursuant to paragraph s 16 or  17, and a 
notification of each accession thereto pursuant to paragraph  4 and of each withdrawal pursuant to 
paragraph  18. 
 
Registration  
 
24. 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 [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 amen dment, the original text should be 
retained.]  GPA/TN1994/3/Rev.32  
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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 PROCUREMENT7 
 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 Governm ent Procurement done on […  2008] (hereinafter referred to as the 
"2008  Agreement") 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 ha s become a Party to the 
2008 Agreement should have the right to act in accordance 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 Pa rties 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 th e 2008  Agreement to the Parties of the 
1994 Agreement which have not yet become 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 t he provisions of the 2008  Agreement, notwithstanding the 
provisions of the 1994  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 re sult 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.  
 
 
7 Negotiators' Note: The Parties are still considering the need for and the content of this D ecision.  GPA/TN1994/3/Rev.32  
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  DECISION, PROTOCOL AND TEXTUAL AMENDMENT IF THE REVISED TEXT IS GIVEN 
EFFECT AS AN AMENDMENT TO THE EXISTING (1994) AGREEMENT8 
 
DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  ON ADOPTION OF  
"THE P ROTOCOL AMENDING THE AGREEMENT ON GOVERNMENT PROCUREMENT"  
[DRAFT DECISION]  
DECISION OF [DATE/MONTH/YEAR]  
 The Committee on Government Procurement,  
 
 Having regard to paragraph  9 of Article  XXIV of the WTO Agreement on Government 
Procurement done at Marrake sh 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 Partie s to the 1994 Agreement, all of whom are 
participating in this Decision, to adopt the Protocol Amending the Agreement on Government 
Procurement ("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 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 Parti es to the 1994  Agreement are 
Parties to the Protocol;  
 
 Decides  as follows:  
 
1. The Protocol Amending the Agreement on Government Procurement ("the Protocol") 
attached to this Decision is hereby adopted.  
 
2. The Protocol shall be open for acceptance by Par ties to the 1994  Agreement until 
[31 December  2008] or such later date as may be decided by the Committee.  
 
3. Pursuant to paragraph  3 of the Protocol and consistent with paragraph  9 of Article  XXIV of 
the 1994  Agreement, the Protocol shall enter into forc e for those Parties to the 1994  Agreement 
that have deposited their respective instruments of acceptance thereof, on the 30th day following 
such deposit by [...] of the Parties to the 1994  Agreement . Thereafter the protocol shall enter into 
force for each other Party to the 1994  Agreement which has deposited its instrument of 
acceptance thereof, on the 30th day following the date of such deposit.  
 
4. Consistent with the terms of the Protocol, after the date of entry into force of the Protocol, 
any WTO Member that accedes to the Agreement on Government Procurement shall be deemed to 
have acceded to the 1994  Agreement as amended by the Protocol.  
 
5. As between a Party to the 1994  Agreement, which is also a Party to the Protocol, and a 
Party only to th e 1994  Agreement, the provisions of the 1994 Agreement shall apply.  [Meanwhile, 
a Party to the 1994  Agreement that has not yet accepted the Protocol should respect any measure 
taken by a Party which accepts the Protocol in accordance with the provisions of  the 
1994 Agreement as amended by the Protocol.]JPN 
 
[A Party to the 1994  Agreement for which the Protocol has entered into force may maintain or 
adopt any measure consistent with the provisions of the Protocol, notwithstanding the provisions 
of the 1994  Agreement, vis-à-vis a Party to the 1994  Agreement for which the Protocol has not 
entered into force until the entry into force for that Party. ] [N.B. : The US suggests that Parties 
consider this paragraph as a means to address the coexistence issue.]  
 
 
8 Negotiators' Note: The Parties are still considering the need for and the content of this Decision, 
Protocol and textual amendment.  GPA/TN1994/3/Rev.32  
- 8 - 
  [6. Any WTO Member that accedes to the 1994  Agreement as amended by the Protocol after the 
date of entry into force of the Protocol in pursuance to paragraph  4 above shall not be bound by 
the provisions of the 1994  Agreement vis-à-vis a Party to the 1994  Agreem ent which has not yet 
accepted the Protocol.  
 
7. As between the Parties to the 1994  Agreement as amended by the Protocol, any reference 
to the "Agreement on Government Procurement" contained in the Marrakesh Agreement 
establishing the World Trade Organizat ion means reference to the amended Agreement. ]JPN GPA/TN1994/3/Rev.32  
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  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  Agreeme nt"), 
 
 Having undertaken  further negotiations pursuant to Article  XXIV:7(b) and (c) of the 
1994 Agreement;  
 
 Hereby agree  as follows:  
 
1. The Preamble and Articles  I through XXIV of the 1994  Agreement shall be deleted and 
replaced by the amended versions of those articles of the 1994  Agreement as set forth in the 
Annex hereto.  [N.B. : Consideration should be given as to whether "of those articles" is 
necessary.]  
 
2. This Protocol shall be open for acceptance by the Parties to the 1994  Agreement until 
[31 December  2008] or such later date as may be decided by the Committee.  
 
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 [...] of the Parties to the 1994  Agreement . Thereafter this Protocol shall enter into force 
for each other Party to the 1994  Agreement which has deposited its instrument of acceptance 
thereof, on the 30th day following the date of such deposit.  
 
[3bis. 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 provisions of the 1994  Agreement shall apply . Any WTO 
Member that accedes to the 1994  Agreement as amended by the Protocol after the date of entry 
into force of the Protocol in pursuance to paragraph  3 above shall not be bound by the provisions 
of the 1994  Agreement vis-à-vis a Party to the Agreement w hich does not accept the Protocol.]JPN 
 
4. [Except as otherwise provided by the amended versions of the Articles of the 
1994 Agreement, no]SGP [No] Party may enter a reservation in respect of any of the provisions of 
this Protocol, including its Annex.  
 
5. 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.  
 
6. This Prot ocol 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 and Spanish languages, each text being authentic.  GPA/TN1994/3/Rev.32  
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  AGREEMENT ON GOVERNMENT PROCUREMENT [(1994)]SGP, AS AMENDED IN 2008  
Preamble  
 
 The Parties to this Agreement (hereinafter referred to as "the Parties"),  
 
 Recognizing  the need for an effective multilateral framework for government procurement, 
with a view to achieving greater liberalization and expansion of, and improving the framework for, 
the conduct of international trade;  
 
 Recognizing  that measures regarding gover nment procurement should not be prepared, 
adopted or applied so as to afford protection to domestic suppliers, goods or services, or to 
discriminate among foreign suppliers, goods or services;  
 
 Recognizing  that the integrity and predictability of governme nt procurement systems are 
integral to the efficient and effective management of public resources, the performance of the 
Parties' economies and the functioning of the multilateral trading system;  
 
 Recognizing  that the procedural commitments under this Ag reement should be sufficiently 
flexible to accommodate the specific circumstances of each Party;  
 
 Recognizing  the need to take into account the development, financial and trade needs of 
developing countries, in particular the least developed countries;  
 
 Recognizing the importance of transparent measures regarding government procurement, of 
carrying out procureme nts in a transparent and impartial manner and of avoiding conflicts of 
interest and corrupt practices, in accordance with applicable international instruments, such as the 
United Nations Convention Against Corruption;  
 
 Recognizing the importance of using,  and encouraging the use of, electronic means for 
procurement covered by this Agreement;  
 
 Desiring  to encourage acceptance of and accession to this Agreement by WTO Members not 
party to it;  
 
 Having undertaken  further negotiations in pursuance of these ob jectives [pursuant to 
Article  XXIV:7(b) and (c) of the 1994  Agreement prior to its 2008  amendments]SGP. 
 
 Hereby agree  as follows:  
 
[INSERTION OF ARTICLES  I-XXII OF THE REVISED TEXT AND APPENDICES]  
 
__________