RESTRICTED  
  
GPA/TN1994/3/Rev.5  
11 May 2004 
(24-2727) Page: 1/34 
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  
AS AT 23  APRIL  2004 *,** 
Revision  
This note reflect s the state of the negotiations on the revision of the text of the Agreement on 
Government Procurement under Article  XXIV:7 as at the end of the meeting of the Informal Group 
of the Committee on Government Procurement of  21-23 April 2004. It does not includ e any new 
comments made during the meeting of 21 -23 April 2004 concerning Articles XIV (Developing 
Countries) and XVI (Modifications and Rectifications to Coverage), as some Parties volunteered to 
prepare for the next meeting  language relating to those Art icles, which would take into account such 
comments.  
 
_______________  
 
 
 
 
* 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: negs144) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.5  
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  Table of Contents  
Article  I Definitions  ................................ ................................ ................................ .........  3 
Article  II Scope and Coverage  ................................ ................................ ..........................  5 
Article  III General Principles  ................................ ................................ .............................  7 
Article  IV Publication of Procure ment Information  ................................ ................................  8 
Article  V Publication of Notice of Intended Procurement  ................................ ........................  8 
Article  VI Time-Periods for Tendering  ................................ ................................ ...............  10 
Article  VII Information on Intended Procurements  ................................ ..............................  11 
Article  VIII Conditions for Participation  ................................ ................................ .............  13 
[Article  IX Negotiation  ................................ ................................ ................................ .... 17 
Article  X Limited Tendering  ................................ ................................ .............................  18 
Article  XI Treatment of Tenders and Contract Awards  ................................ .........................  20 
Article  XII Transparency of Contract Award Information  ................................ ......................  21 
Article  XIII Non-Disclosure of Information  ................................ ................................ .........  23 
Article  XIV Developing Countries  ................................ ................................ ......................  23 
Article  XV Exceptions to the Agreement  ................................ ................................ ............  26 
Article  XVI Modifications and Rectifications to Coverage  ................................ ......................  26 
Article  XVII  Challenge Procedures  ................................ ................................ ....................  29 
Article  XVIII  Consultations and Dispute Settlement  ................................ .............................  30 
Article  XIX Institutions  ................................ ................................ ................................ ... 32 
Article XX  Final Provisions  ................................ ................................ ...............................  32 
 
 
Preamble  
 
Parties to this Agreement (hereinafter referred to as "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 in ternational trade;  
 
Recognizing  that measures regarding government procurement should not be prepared, adopted or 
applied so as to afford protection to domestic suppliers, goods or services or discriminate among 
foreign suppliers, goods or services;  
 
Recog nizing  that the integrity and predictability of government 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 Agreement 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;]1 [NB: To be revised in light of revision of 
relevant provisions related to developing countries.]  
 
 
1 Unattributed brackets [ ] indi cates language that Parties are still considering.  GPA/TN1994/3/Rev.5  
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  Recognizing the desirabi lity of transparent measures regarding government procurement and the 
importance of carrying out procurements in a transparent and impartial manner, avoiding conflict of 
interest and corrupt practices, in accordance with relevant international instruments.  
 
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 objectives;  
 
Hereby agree  as follows:  
 
Article  I Definitions  
For purposes of this Agreement:  
 
[build -operate -transfer contract  and public works concession contract mean  any contractual 
arrangement the primary purpose of which is to provide for the construction or rehabilitation of 
physical infrastructure, plant, buildings, facilities or other government -owned works and under 
which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity 
grants to the supplier, for a specified period of time, temporary ownership or a right to control and 
operate, and demand payment for th e use of such works for the duration of the contract;]US [Market 
Access Issue ] 
 
commercial goods and services  mean goods and services with characteristics similar to those of 
goods and services that are sold or offered for sale to, and customarily purchase d by, 
non-governmental buyers for non -governmental purposes ; it includes goods and services with 
modifications customary in the commercial marketplace [as well as minor modifications not 
customarily available in the commercial marketplace that do not signi ficantly alter the 
non-governmental function or essential physical characteristics or change the purpose]US,CDA; 
 
construction services contract  means a contract that has as its objective the realization by 
whatever means of civil or building works[, in th e sense of Division 51 of the Provisional U.N . Central 
Product Classification (CPC)] ; [Bracketed Language - Market Access Issue ] 
 
country or countries  include any separate customs territory that is a Party to this Agreement . In 
the case of a separate customs territory that is a Party to this Agreement, where an expression in 
this Agreement is qualified by the term "national", such expression shall be re ad as pertaining to 
that customs territory, unless otherwise specified;  
 
days means calendar days;  
 
[electronic auction  means  an iterative process involving [a computer networking environment]US 
[an electronic device]EC [hardware and software configured]EC for the presentation of new prices 
[or]US,EC revised [downwards,]EC or new values concerning certain elements of tenders, which occurs 
after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation 
methods;]EC,US ,KOR [NB: Canada questions the need for the phrase "which occurs after an 
initial full evaluation of the tenders" and whether it is necessary to prejudge the sequence 
of the evaluation and auction . According to the EC, for an electronic auction to take place,  
without running the risk of discrimination, it is necessary that an initial full evaluation of 
the tenders has taken place prior to the launching of the electronic auction and the 
subsequent application of the mathematical formula .] 
 GPA/TN1994/3/Rev.5  
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  [electronic means  means using [a computer networking environment]US [electronic equipment]EC 
[hardware and software configured]EC for the [electronic]EC processing (including digital 
compression) and storage of data that is transmitted, conveyed and received by Internet, by wire, 
by radio, by optical means or by other electromagnetic mean;]EC,US [NB: Canada, Japan and Israel 
reserve their position on this definition because of its links to other provisions.]  
 
in writing  or written  means any worded or numbered exp ression that can be read, reproduced 
and later communicated . It may include electronically transmitted and stored information;  
 
limited tendering  means a procurement method where the procuring entity contacts a supplier or 
suppliers of its choice, only under the circumstances specified in Article  X; [NB: Japan  and Canada 
propose to delete this definition.]  
 
measure  means any law, regulation, procedure, [or any act of a procuring entity relating to  a 
covered procurement]EC [requirement applied in a particula r procurement ,]US,NOR,JPN administrative 
guidance or practice [administrative ruling of general application]CT; 
 
multi -use list  means a list of suppliers that a procuring entity has determined satisfy the conditions 
for participation in that list, and that the procuring entity intends to use more than once;  
 
notice of intended procurement  means a notice published by a procuring en tity in accordance 
with Article  V inviting interested suppliers to submit tenders;  
 
offsets  in government procurement means any [measures,]CT conditions or undertakings that 
encourage local development or improve a Party's balance -of-payments accounts, suc h as the use 
of domestic content, domestic suppliers, the licensing of technology, technology transfer, 
investment, counter -trade and similar actions [unless such conditions or undertakings are necessary 
to enable the contracts to be performed]HKC; [NB: Hong Kong, China is concerned that the 
addition of "domestic suppliers" and, along with Korea and Israel, that "technology 
transfer" expands the scope of offsets.]  
 
open tendering  means a procurement method where all interested suppliers may submit a tender ; 
[NB: Japan and Canada propose to delete this definition.]  
 
person  means a natural person or a juridical person;  
 
[procurement  means the process by which a [government]US [procuring entity]JPN,CT obtains the 
use of or acquires goods or services, or any com bination thereof, for governmental purposes and 
not with a view to commercial sale or resale, or use in the production or supply of goods or services 
for commercial sale or resale;]JPN,US [Market Access Issue ] 
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of Appendix I of each Party;  
 
qualified supplier  means a supplier that a procuring entity recognizes as having satisfied the 
conditions for participation;  
 
[recurring contracts  mean contracts  [that are rela ted to the regular purchase of the same goods 
or services and that are not subject to a framework purchasing system]EC-[, not based on an initial 
contract or agreement, which are regular in nature or which are intended to be renewed within a 
given period;] CT 
 
selective tendering  means a procurement method where only suppliers satisfying the conditions 
for participation are invited by the procuring entity to submit a tender ; [NB: Japan and Canada 
propose to delete this definition.]  
 
services  includes construction services, unless otherwise specified;  
 GPA/TN1994/3/Rev.5  
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  [standard  means a document approved by a recognized body, that provides, for common and 
repeated use, rules, guidelines or characteristics for products or services or related processes and 
produ ction methods, with which compliance is not mandatory . It may also include or deal exclusively 
with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, process or production method;]JPN,EC,US ,KOR,NOR 
 
supplier means a person or group of persons that provides or could provide goods or services;  
 
[technical regulation  means a document which lays down characteristics of a product or a service 
or their related processes and production methods, including the ap plicable administrative 
provisions, with which compliance is mandatory . It may also include or deal exclusively with 
terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
service, process or production method;]JPN,E C 
 
technical specification  means a tendering requirement that:  
 
(a) lays down the characteristics of goods or services to be procured, including quality, 
performance, safety and dimensions, or the processes and methods for their production 
or provision ; or 
 
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they 
apply to a good or service.  
 
Article  II Scope and Coverage  
Application of Agreement  
 
1. This Agreement applies to any measure regarding a procuring entity's procurement of goods, 
services or any combination thereof that is covered by this Agreement.  
 
2. This Agreement applies to procurement:  
 
(a) by any contractual means, including purchase ; lease; rental or hire purchase, with or 
without an option to buy [and  build-operate -transfer contracts and concessions for 
public works contracts;]US [with or without utilization of the funds and the managerial 
or technical ability of the private sector]JPN; and [Bracketed Language – Market 
Access Issue ] 
 
(b) for which the value as estimated, in accordance with paragraph  6, equals or exceeds 
the relevant threshold specified in Appendix  I, at the time of publication of a notice in 
accordance with Article  V. 
 
[2bis. Without prejudice to Article  [Exceptions], this Agreement applies to any procurement:  
 
(a) of central government entities where the value is estimated to equal or exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services;  
 
(b) of sub -central govern ment entities where the value is estimated to equal or exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services;  
 
(c) of entities according to Appendix  I, Annex  3 where the value is estimated to equa l or 
exceed:  
- [] SDR for contracts for supply of goods and services;  
- [] SDR for contracts for construction services.]EC 
[Market Access Issue ] [NB: Korea does not support the text (2 bis) proposed by the EC.]  
 
3. For each Party, Appendix  I shall be divided into five Annexes:  
 GPA/TN1994/3/Rev.5  
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  (a) Annex  1 specifies the central government entities whose procurement is covered by this 
Agreement;  
 
(b) Annex  2 specifies the sub -central government entities whose procurement is covered 
by this Agreement;  
 
(c) Annex  3 specif ies all other entities whose procurement is covered by this Agreement;  
 
(d) Annex  4 specifies the services covered by this Agreement ; and 
 
(e) Annex  5 specifies the construction services covered by this Agreement.  
 
Compliance  
 
4. Each Party shall [take such reasonable measures as may be available to it to]CDA,HKC ensure 
that the procuring entities listed in its Appendix  I comply with the provisions of [Articles  VII to X 
of]CDA this Agreement in conducting procurement covered by this Agreement.  [NB: The EC, the US, 
Switzerland, Singapore, Japan , Norway  and Korea have reservation on the bracketed 
language. ] 
 
5. Where a procuring entity, in the context of procurement covered by this Agreement, requires 
persons not listed in Appendix  I to procure in acc ordance with particular requirements, Article  III 
shall apply mutatis mutandis  to such requirements.  
 
Valuation  
 
6. In estimating the value of a procurement for the purpose of ascertaining whether that 
procurement is covered by this Agreement, a procuring entity shall:  
 
(a) neither divide a procurement into separate procurements nor select or use a particular 
valuation method for estimating the value of a procurement with the intention of totally 
or partially excluding it from the application of this Agreem ent; 
 
[(b) include the maximum total estimated value of the procurement over its entire 
duration [, whether awarded to one or more suppliers]EC, taking into account [all forms of 
remunerations, inc luding]EC premiums, fees, commissions, interest [and other revenue 
stream s that may be provided for in such contracts ][Market Access Issue ] and, where the 
procurement provides for the possibility of option clauses, the total maximum value [or 
total maximum estimated value] of the procurement, inclusive of op tional purchases [, 
and any estimated residual value in the case of leases, rentals and hire 
purchases ]CDA,US,HKC; and]CDA,US,HKC ,EC 
 
[(c) deem the procurement [the estimated value of which cannot be provided]HKC to be 
covered if the scope of the work or th e period of the contract is indefinite.]CDA,US,HKC  
 
[NB: C anada  is proposing that subparagraphs  6(b) and (c) also replace 
paragraphs  7 and 8. The EC considers  Canada's proposal to relate to market access as it 
would change coverage. ] 
 
[7. In the case of a  recurring procurement, the calculation of the estimated value shall be based 
on the total of:  
 
(a) the actual aggregate value of recurring contracts with similar characteristics awarded 
during the preceding 12  months or fiscal year, adjusted where possibl e to take account 
of anticipated changes in quantity or value over the subsequent 12  months ; or 
[NB: Hong Kong, China considers that the scope of "recurring co ntracts with 
similar characteristics" should be clarified.]  
 GPA/TN1994/3/Rev.5  
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  (b) the estimated aggregate value of recurring contracts to be awarded during the 
12 months subsequent to the initial contract or during the procuring entity's fiscal year, 
whichever is greater.]EC 
[NB: Korea, Switzerland  and Canada  question the meaning and application of this 
paragraph. ] 
 
[8. In the case of procurement by lease, rental or hire purchase of goods or services, or 
procurement for which a total price is not specified, the basis for valuation shall be, with respect to:  
 
(a) fixed-term contracts, where the term is 12  months or less, the total contract value for 
their duration, or, where the term exceeds 12  months, the total value including any 
estimated residual value ; or 
 
(b) contracts for an indefinite period, the monthly  instalment multiplied by 48 . Where there 
is doubt as to whether the contract is to be a fixed -term contract, this basis for valuation 
shall be used. ]EC,JPN,NOR,US,KOR 
 
Article  III General Principles  
National Treatment and Non -Discrimination  
 
1. With respe ct to any measure and any procurement covered by this Agreement, each Party 
[and each procuring entity [, respectively, ]EC,NOR,SWI,JPN]US,EC,NOR,SW I,JPN shall accord immediately and 
unconditionally to the goods and services of any other Party and to the sup pliers of any other Party 
offering the goods or services of any other Party, treatment no less favourable than the treatment 
the Party [or the procuring entity]US,EC,NOR ,JPN accords to:  
 
(a) domestic goods, services and suppliers ; and 
 
(b) goods, services and suppliers of any other Party.  
 
2. With respect to any measure and any procurement covered by this Agreement, neither a Party 
nor a procuring entity shall:  
 
(a) treat a locally established supplier less favourably than another locally established 
supplier on the basis of degree of foreign affiliation or ownership ; nor 
 
(b) discriminate against a locally established supplier on the basis that the goods or services 
offered by that supplier for a particular procurement are goods or services of any other 
Party.  
 
Procurement Methods  
 
3. A procuring entity shall conduct procurement covered by this Agreement in a manner that is 
consistent with this Agreement, and, except where specifically provided otherwise in this Agreement, 
in a trans parent [and impartial]EC,US,JPN,SWI,NOR manner [, using methods such as open tendering, 
selective tendering and limited tendering ]. 
 
3bis. [A procuring entity  in Annex  1 shall ensure that the impartiality of its procurement process 
may not be affected by fa mily ties, business links, cross representation or other reasons that may 
cause a conflict of interest, in accordance with the measures of the Party of the procuring entity .]JPN 
[A procuring entity shall ensure that the impartiality of the procurement proc ess is not affected by 
a procurement official's personal interests, such as family ties or business links .]NOR 
 
Rules of Origin  
 
4. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods or services imported from  or supplied by another Party that are different from the rules of GPA/TN1994/3/Rev.5  
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  origin the Party applies  at the same time  in the normal course of trade to imports or supplies of the 
same goods or services from the same Party.  
 
Offsets  
 
5. With regard to procurement cov ered by this Agreement, a procuring entity shall not seek, take 
account of, impose or enforce offsets in the qualification and selection of suppliers, goods or services, 
in the evaluation of tenders  [and]HKC [or in] the award of contracts [, prior to or in the course of a 
procurement process ]. 
 
Measures Not Specific to Procurement  
 
6. The provisions of paragraphs  1 and 2 shall not apply to customs duties and charges of any 
kind imposed on, or in connection with, importation, the method of levying such dut ies and charges, 
other import regulations or formalities, and measures affecting trade in services other than measures 
governing procurement covered by this Agreement.  
 
Article  IV Publication of Procurement Information  
Each Party shall:  
 
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general 
application, standard contract clauses that are mandated by law or regulation and are 
incorporated by reference in notices and tender documentation and procedure rega rding 
procurement covered by this Agreement, and any modifications thereof, in officially 
designated electronic or paper media that are widely disseminated and remain readily 
accessible to the public and that are in the appropriate publications listed in 
Appendix  IV; and 
 
(b) provide an explanation thereof to any Party, on request.  
 
Article  V Publication of Notice of Intended Procurement  
1. For each procurement covered by this Agreement, except in the circumstances described in 
Article  X, a procuring entity  shall publish a notice of intended procurement . The notice shall be 
published in the appropriate publication listed in Appendix  II. The notices shall be in electronic or 
paper media that are widely disseminated and remain readily accessible to the public . [[For procuring 
entities in Annex  1 s]US,HKC ,JPN [In all cases, t]EC [[The notices]  [where electronic ]US,HKC ,JPN shall 
[always]EC be [electronically]EC accessible free of charge  through a single point of 
access].EC,NOR, US,KOR,SW I,HKC,JPN [Procuring entities in Annexes  2 and 3 shall be encouraged to make 
such publications available free of charge through a single point of access. ]US,JPN] [Where electronic, 
the Party shall ensure the notices are accessible from one location.]CDA 
 
2. Each notice of intended procurement shall include : 
 
(a) the name and address of the procuring entity and other information necessary to contact 
the procuring entity and obtain all relevant documents relating to the procurement, and 
their cost and terms of payme nt, if any;  
 
(b) a description of the procurement, including the nature and the quantity of the goods or 
services to be procured or, where the quantity is not known, the estimated quantity;  
 
- [whether the procuring entity is inviting offers for purchase, lease, rental or hire 
purchase, or more than one of these methods;]EC 
 
- [any options]EC,CDA,NOR,US [for further procurement and, if possible, an estimate of 
when such options may be exercised;]EC 
 
- [for recurring contracts, if possible, an estimate of the timing of subsequent 
notices of intended procurement;]EC [NB: The US, Japan, CT , Singapore  and GPA/TN1994/3/Rev.5  
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  Canada continue to believe that it is not necessary to require the 
inclusion of these three items of the notice.]  
 
(c) the time -frame for deliver y of goods or services or the duration of the contract;  
 
(d) the procurement method that will be used and whether it will involve negotiation [, 
electronic means ]EC [or electronic auction]CDA,US [and any intention that tenders be 
submitted by electronic means]CDA,US ,JPN; 
 
(e) the address and the time -limits for the submission of tenders and, where applicable, 
any time -limits for the submission of applications to qualify for participation in the 
procurement  
 
(f) the language or languages in which tenders or applications must be submitted, if other 
than an official language of the Party of the procuring entity;  
 
(g) a list and brief description of any conditions for participation of suppliers [inclu ding any 
specific documents or certifications required from suppliers in connection 
therewith]EC,CDA,ISR,US ,SWI,NOR[, unless such information is already included in the tender 
documentation, which is available at the same time as the notice of intended 
procurement]HKC,JPN; 
 
(h) where, pursuant to Article  VIII, a procuring entity intends to select a limited number of 
qualified suppliers to be invited to tender, the criteria that will be used to select them 
and, where applicable, any limitation on the number of suppliers that will be permitted 
to tender ; and 
 
(i) an indication that the procurement is covered by this Agreement.  
 
[Summary Notice  
 
3. For each case of intended procurement, a procuring entity shall publish [in a summary notice ] 
at least the information in paragraph  2 (a), (b) and (e) in one of the official languages of the 
WTO.]CDA,SWI ,US 
 
Notice of Planned Procurement  
 
4. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice 
regarding each procuring entity's future procurement plans . The notice should include the 
subject -matter of the procurement and the planned date of the publication of the notice of intended 
procurement . When the published information is in accordance with Article  VI:3 (a), a procuring 
entity may apply Article  VI:3 for the purpose of establishing shorter time -periods for tendering of 
procurements covered by this Agreement.  
 
[5. A procuring entity in [Annex  [1,]CT 2 and] Annex  3 may use a notice of planned pr ocurement 
as a notice of intended procurement provided that it [contains in addition the statement 
thatinterested suppliers should express their interest in the procurement to the entity]EC,US [and 
includes as much of the information in paragraph  2 as is a vailable].CDA,JPN,EC 
 
[Summary Notice  
 
5. For each case of intended procurement, a procuring entity shall publish [in a paper media 
listed in Appendix  2]ISR a summary notice in one of the official languages of the WTO.  [In addition, 
t]ISR [T]he notice [may be published also in electronic media and contain the following 
information:]ISR [shall contain at least the following information]:  
 
(a) the subject -matte r of the procurement;  
 GPA/TN1994/3/Rev.5  
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  (b) the time -limits set for the submission of tenders or, where applicable, of applications to 
be invited to tender or for inclusion on multi -use lists ; and 
 
(c) the addresses from which documents relating to the procurement may be 
requested. ]JPN,KOR,EC 
 
Article  VI Time -Periods for Tendering  
General  
 
1. [A procuring entity shall ensure that any prescribed time -limit, including any extension of this 
time-limit, is common for all interested  or participating suppliers and is adequate to allow suppliers 
of other Parties as well as domestic suppliers:  
 
(a) to prepare and submit tenders ; and 
 
(b) where a procuring entity requires suppliers to meet conditions of participation to 
participate in tendering, to submit applications req uesting participation.  
 
In determining any such time -limit, a procuring entity shall, consistent with its own reasonable 
needs, take into account such factors as the complexity of the intended procurement, the extent of 
subcontracting anticipated, and the normal time for transmitting tenders from foreign as well as 
domestic points. ]US,EC 
 
[A procuring entity shall provide sufficient time for suppliers to prepare and submit tenders, taking 
into account the nature and complexity of the procurement . Such time -limits shall be common for 
suppliers of other Parties as well as domestic suppliers.]CDA,JPN 
 
Deadlines  
 
2. Except as provided for in paragraphs  3 and 4, a procuring entity shall provide  no less than 
40 days:  
 
(a) from the date that the notice of intended procurement is published [and the tender 
documents are made available]CDA,EC,JPN to the final date for the submission of tenders ; 
or 
 
(b) where [the entity has used procedures provided for in Article  VIII:[...] [, whether or not 
it uses a multi -use list,] ] [suppliers [are required to ]CDA [who]JPN meet conditions for 
participation in advance of the tendering process,]CDA,JPN from the date [on which ] 
[that]CDA the entity [initially]JPN notifies suppliers [that] they will be [permitted ] 
[invited]JPN to submit tenders to the final date for the submission of tenders.  
 
3. Under the following circumstances, a procuring entity may establish a time -period for 
tendering that is less than 40  days [from publication of a notice of intended procurement or an 
invitation to submit tenders, provided that such time -period is sufficient to enable suppliers to 
prepare and submit responsive tenders ] and is in no case less than 10  days [prior to the final date 
for submission ]: [The same shall apply to the 25 -day require ment for submitting applications 
specified in Article  VIII:[8].]CT,EC,JPN 
 
(a) where [a separate notice, including]US,CDA,JPN a notice of planned procurement under 
Article  V:3 has been published at least 40  days and not more than 12  months in 
advance [, [and such notice contains : a description of the procurement ; the approximate 
time-limits for the submission of tenders or, when appropriate, applications for 
qualification ; a statement that interested suppliers should express their interest in the 
procurement  to the procuring entity ; and the address from which documents relating 
to the procurement may be obtained]US,JPN [together with as m uch information under 
Article  V:2 as is available]EC]; 
 GPA/TN1994/3/Rev.5  
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  (b) in the case of the second or subsequent publication of notices [dealing with contracts 
based on an initial agreement or contract;]EC,US where a procuring entity [chooses to ]HKC 
publish [es] a second or subsequent notice based on an initial agreement or 
contract]HKC,EC,US 
 
[(c)]JPN,US [b]CDA,JPN [where the procuring entity procures commercial goods or 
services;]JPN,CDA,US 
 
[(d)] [(c)]CDA,JPN where a state of urgency duly substantiated by the procuring entity renders 
impracticable the periods specified in para graph  2; or 
 
[(e) when the period for the submission of tenders referred to in paragraph  2, for 
procurements by a procuring entity in [Annex  [2 and] 3], has been fixed by mutual 
agreement between the procuring entity and the selected suppliers . In the abse nce of 
agreement, the procuring entity may fix periods which shall be sufficient to enable 
responsive tendering].EC 
 
4. A procuring entity may reduce the time -period of 40  days by [no more than]ISR [an increment 
of] five days for [each] [any]ISR one of the following circumstances:  
 
(a) the notice of intended procurement is published electronically ; [or]ISR 
 
(b) the [complete]EC tender documentation is made available electronically from the date 
of the publication of the notice of intended procurement ; [and] [or]ISR 
 
[(c) the tenders can be received electronically by the procuring entity ]. 
 
[The use of this provision, however, shall in no case result in the reduction of those time -periods to 
less than 10  days from the date on which the notice of intended p rocurement is published.]EC 
 
[5. Notwithstanding any other time -periods in this Article, where  a procuring entity is purchasing  
commercial goods [or]EC,US,SWI [and]CDA services [and the notice of intended procurement and the 
tender documents are published electronically, and the tenders may be received 
electronically ]EC,US,SWI [and all the circumstances listed in paragraph  4 are met]CDA, the entity may 
reduce the time -period to no less than [10]SWI,EC [5]US [three]CDA days[, provided such time is 
adequate to allow suppliers to submit responsive electronic tenders ]EC,US,SWI.]CDA,EC,US,SW I 
 
[6. Where a procuring entity in Annex  [2 or]US,CDA 3 has selected all or a limited number of 
qualified suppliers, the time -period for bidding may be fixed by mutu al agreement between the 
procuring entity and the selected suppliers . In the absence of agreement, the period shall not be 
less than 10  days.]CDA,US 
 
Article  VII Information on Intended Procurements  
Tender Documentation  
 
1. A procuring entity shall provide to suppliers tender documentation that includes all information 
necessary to permit suppliers to prepare and submit responsive tenders . Unless already provided in 
the notice of intended procurement, such documentation shall include a complete descr iption of:  
 
(a) the procurement, including the nature and the quantity of the goods or services to be 
procured or, where the quantity is not known, the estimated quantity and any 
requirements to be fulfilled, including any technical specifications, conform ity 
certification, plans, drawings or instructional materials;  
 
(b) any conditions for participation of suppliers including a list of information and documents 
that suppliers are required to submit in connection therewith;  
 
(c) all criteria, including any cost factors, to be considered in the awarding of the contract, 
and the relative importance of such criteria;  GPA/TN1994/3/Rev.5  
- 12 - 
  (d) where there will be a public opening of tenders, the date, time and place for the opening 
and, where appropriate, the persons authorized to be  present ; and 
 
(e) any other terms or conditions, including terms of payment and any limitation on the 
means by which tenders may be submitted, e.g. paper or electronic means.  
 
2. In establishing any delivery date for the goods or services being procured, a procuring entity 
shall take into account such factors as the complexity of the procurement, the extent of 
subcontracting anticipated and the realistic time required for production, de -stocking and transport 
of goods from the points of supply or for suppl y of services.  
 
3. A procuring entity shall promptly:  
 
(a) provide, on request, the tender documentation to any supplier participating in the 
procurement ; and 
 
(b) reply to any reasonable request for relevant information by a supplier participating in 
the procurement, provided that such information does not give that supplier an 
advantage over its competitors in the procurement.  
 
Technical Specifications  
 
4. A procuring entity shall not prepare, adopt or apply any technical specificatio n or prescribe 
any conformity assessment procedure with the purpose or the effect of creating unnecessary 
obstacles to international trade.  
 
5. In prescribing the technical specifications for the goods or services being procured, a procuring 
entity shall, where appropriate:  
 
(a) specify the technical specification, in terms of performance and functional requirements, 
rather than design or descriptive characteristics ; and [NB: The EC would prefer using 
"or" instead of "and" at the end of this sentence.]  
 
(b) base the technical specification on international standards, where such exist otherwise, 
on [national technical regulations,]CDA,EC recognized national standards or building 
codes[, provided that the notice of intended procurement or the tender documents shall 
state that equivalent solutions shall be considered].EC,SW I 
 
[5bis. Procuring entities [shall] [may]  consider tenders which do not comply with the design or 
descriptive characteristics of the technical specification but do demonstrably meet the requirements 
thereof and are fit for the purposes intended . In this case, t he reference to the technical 
specifications in the tender documents must include words such as "or equivalent".]EC 
 
6. A procuring entity shall not prescribe technical specificatio ns that require or refer to a 
particular trademark or trade name, patent, copyright , design or type, specific origin, producer or 
supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement 
requirements and pro vided that, in such cases, words such as "or equivalent" are included in the 
tender documentation.  
 
7. A procuring entity shall not seek or accept, in a manner that would have the effect of 
precluding competition, advice that may be used in the preparation  or adoption of any technical 
specification for a specific procurement from a person that may have a commercial interest in the 
procurement.  GPA/TN1994/3/Rev.5  
- 13 - 
  [8. For greater certainty, this Article is not intended to preclude a Party from preparing, adopting, 
or applying t echnical specifications to promote the conservation of natural resources or protect the 
environment [provided that such technical specifications are consistent with 
paragraphs  4 through  7].JPN,EC]JP,EC,US,SWI ,NOR [NB: Chinese Taipei reserves its position o n the 
last bracket.]  
 
[8bis. Requirements and evaluation criteria which require subjective assessment or professional 
judgment should be kept to a minimum and should only be used where justified.]HKC 
 
Modifications  
 
[9. If, [during the course of a procurement]US [prior to the award of a contract]HKC,CDA, a procuring 
entity modifies the criteria or technical requirements set out in previous notices and tender 
documentation provided to participating suppliers, [or]US amends or reissues the notice, it shall 
transmit all such modifications or amended or re -issued notice in writing:  
 
(a) to all the suppliers that are participating at the time the information is [modified or]US 
amended, if [the identities of the suppliers are]US known, and in all other cases, in the 
same manner as the original information  [was transmitted]US; and 
 
(b) in adequate time to allow such suppliers to modify and re -submit amended tenders, as 
appropriate.]CDA,US 
 
[If, after publication of a notice of intended procurement, but before the time set for the opening or 
receipt of tenders [prior to the award of the contract]CDA as specified in the notices or the tender 
documentation, a procuring entity amends or re -issues the notice, the entity shall circulate the 
amendment or the re -issued notice in the same manner as the original documents u pon which the 
amendment or re -issued notice is based.  [A procuring entity shall provide]US,EC [A]JPN[a]US,ECny 
significant [additional]EC information given to [all suppliers at the same time]US,EC [one supplier with 
respect to a particular intended procure ment shall be given simultaneously to all other suppliers 
concerned]JPN in adequate time to permit the suppliers to consider such information and to respond 
to it].EC,JPN,US,HKC,CDA 
 
Article  VIII Conditions for Participation  
General Requirements  
 
1. A procuring entity shall limit any conditions for participation in a procurement to those that 
are essential to ensure that a supplier has the legal, commercial, technical and financial abilities to 
undertake the relevant procurement.  
 
2. In assessing whethe r a supplier satisfies the conditions for participation, a procuring entity 
shall:  
 
(a) evaluate the financial, commercial and technical abilities of a supplier on the basis of 
that supplier's business activities both inside and outside the territory of th e Party of 
the procuring entity [. Procuring entities shall ensure that conditions for participation 
shall not be less favourable to suppliers of other Parties than to domestic suppliers and 
shall not discriminate among suppliers of other Parties. ]HKC[, and may not impose the 
condition that, in order for a supplier to participate in a procurement, the supplier has 
previously been awarded one or more contracts by a procuring entity of a given Party 
or that the supplier has prior work experience in the territo ry of a given 
Party]US,EC,CDA,KOR,NOR,JPN,SW I; and [NB: Hong Kong, China proposes deletion of this 
bracket and suggest s a new paragraph 2 bis.] 
 
(b) base its determination on the conditions that the procuring entity has specified in 
advance in notices or tender documentation.  
 GPA/TN1994/3/Rev.5  
- 14 - 
  [2bis. If essential for the satisfactory performance of the contracts, the procuring entities may 
specify that the suppliers have prior and relevant working experience in the territory provided that 
this is not used to dis criminate against suppliers of any other Parties.]HKC 
 
3. [Nothing in this Article shall preclude the exclusion of ] [A procuring entity may exclude]EC,NOR 
a supplier on grounds such as bankruptcy [or][,]EC,NOR false declarations [or significant deficiencies  
in performance of any substantive requirement or obligation under a prior contract ] [, convictions 
for criminal offences, professional misconduct or failure to pay taxes]EC,NOR. 
 
Multi-Use Lists  
 
[4.]CDA,US,JPN [8.]EC [A procuring entity that maintains a multi -use list of suppliers [that have satisfied 
the conditions for participation ] shall annually publish [or otherwise make available continuously in 
electronic form]US,CDA ,KOR,JPN a notice inviting interested suppliers to apply for inclusion on the list . 
Such notice shall be published in the appropriate publication listed in Appendix  III.] [Where a 
multi-use list of suppliers that have satisfied the conditions for participation is maintained, and where 
the list can be used by such suppliers to  prove that they meet some or all of the conditions for 
participation in respect of more than one procurement, a notice shall be published annually in one 
of the publications listed in Appendix  III.]EC,SWI The notice shall include:  
 
(a) a description of th e goods and services, or categories thereof, for which the list may be 
used;  
 
(b) the conditions for participation to be satisfied by suppliers and the methods that the 
procuring entity will use to verify a supplier's satisfaction of the conditions;  
 
(c) the name and address of the procuring entity and other information necessary to contact 
the entity and obtain all relevant documents relating to the list;  
 
(d) [the date on which the list will terminate ] [the period of validity of the list]EC,NOR and the 
means for its renewal or termination, [or where a date is not provided, an indication of 
the method by which notice will be given of the termination of use of the list]CDA,US ,JPN; 
and 
 
(e) an indication that, for procurement covered by this Agreement, the list may be used.  
 
[9. The notice referred to in paragraph 8 of this Article may be published only once, at the 
beginning of the validity of the list, provided that:  
 
(a) the period of validity  is three years or less and is stated in the notice;  
 
(b) the notice states  that further notices will not be published ; and 
 
(c) this provision is not be used to circumvent the provisions of this Agreement. ]EC,US [NB: 
Switzerland , Canada, Singapore  and Japan question the extent to which this 
paragraph is compatible wi th paragraph  5, which foresees an annual 
publication. ] 
 
[7.] [5.]CDA,JPN,US [10.]EC A procuring entity shall allow suppliers to apply at any time for inclusion on 
a multi -use list and shall include on the list all suppliers that satisfy the conditions for participation 
within a reasonably short time.  
 
[[13.]EC,SWI Each Party shall ensure that:  
 
(a) each procuring entity and its constituent parts follow a single qualification procedure, 
except in cases of duly substantiated need for a differen t procedure ; and 
 
(b) efforts be made to minimize differences in qualification procedures between procuring 
entities.]SWI,EC GPA/TN1994/3/Rev.5  
- 15 - 
  [Notice Inviting Applications]CDA,JPN 
 
[6. A procuring entity that issues a separate notice inviting applications from suppliers to meet 
conditions for participation shall publish the notice in the appropriate publication listed in 
Appendix  III. Such notice shall include:  
 
(a) the name and address of the procuring entity and other information necessary to contact 
the procu ring entity and obtain all relevant documents relating to the procurement, and 
their cost and terms of payment, if any;  
 
(b) a description of the procurement, including the nature and the quantity of the goods or 
services to be procured or, where the quant ity is not known, the estimated quantity;  
 
(c) a list and brief description of the conditions for participation of suppliers including any 
specific documents or certifications required from suppliers in connection therewith ; 
 
(d) where a procuring entity i ntends to select a limited number of qualified suppliers to be 
invited to tender, the criteria that will be used to select them and, where applicable, 
any limitation on the number of suppliers that will be permitted to tender.]CDA 
 
[Qualification and s]EC [[S]USelective Tendering]EC,US 
 
[7. Except where a notice of a multi -use list or a separate notice inviting applications to meet 
conditions for participation has been [published or]JPN readily accessible in electronic form for a 
reasonable period of time, a procuring entity that intends to limit the submission of tenders to all 
qualified suppliers or to a limited number of qualified suppliers selected by the procuring entity in 
advance of the deadline for submitting tenders, shall publish the time limit for  submitting 
applications in the notice of intended procurement.]CDA,JPN [NB: Canada considers that this 
paragraph addresses the same issue as paragraph  8.] 
 
[3.] [8.]CDA,JPN A procuring entity shall allow all domestic suppliers and suppliers of another Party 
that satisfy the conditions for participation in a particular procurement to submit a tender, unless 
the procuring entity has indicated that it may limit the number of suppliers that it will invite to submit 
tenders and sets out[, where appli cable, any limitation on the number of suppliers that will be 
permitted to tender]US,CDA,JPN the criteria for such limitation in the notice of intended procurement 
[[or]JPN,US,CDA [, where publicly available, in]CDA tender documentation].JPN,US,CDA 
 
[6. Where, consistent with the efficient operation of the procurement system, a procuring entity 
intends to select only a limited number of qualified suppliers, it shall:  
 
(a) indicate in the notice of intended procurement the number of suppliers meeting the 
conditions for participation  whose tenders will be examined;  
 
[(b) comply with the provisions  of Article VIII:4  and 5;]EC,SW I and 
 
[(c) make the selection on the basis of objective and non-discriminatory criteria indicated in 
the notice  of intended  procurement or, where publicly available in the tender documents 
for such selection. ]EC,SWI ,NOR]EC,NOR 
 
[8. Where a procuring entity intends to [limit the submission of tenders to all qualified suppliers 
or to a limited number of qualified suppliers selec ted by the procuring entity]US [set a time -limit for 
submitting applications to recognise suppliers as having satisfied the conditions for participation in 
a procurement or to select a limited number of qualified suppliers]JPN,KOR, [, except where a notice  
of a multi -use list has been readily accessible in electronic form for a reasonable period of time,]US 
the entity shall publish in the notice of intended procurement the time -limit for submitting 
applications .] 
 
[4. (a) Where a procuring entity intends to  set a time -limit for submitting applications to 
recognize suppliers as having satisfied the conditions for participation in a procurement GPA/TN1994/3/Rev.5  
- 16 - 
  and that the time -limit for submitting applications is different to the time -limit for 
submitting tenders, the procur ing entity shall publish in the notice of intended 
procurement the time -limit for submitting applications.  
 
[(b) Where the tender documents are not made publicly available from the date of 
publication of the notice of intended procurement, the procuring en tity shall ensure that 
those documents are [provided ] [made available]  at the same time to all qualified 
suppliers. ]EC,SWI 
 
[5. A procuring entity shall provide a sufficient period of time for suppliers to prepare and submit 
applications . As a rule, this p eriod shall be at least 25  days from the date of publication of the notice 
of intended procurement, except in the circumstances foreseen under Article VI:3,  4 and 5.]EC,SWI]EC 
 
[Such time -limit shall be:  
 
(a) a minimum of [15]SWI days from the date of publication of the notice where it uses a 
multi-use list ; or [NB: Switzerland supports shortening the time -period for 
submitting applications when using a multi -use list to 15  days, but notes that 
the time -period should not be further shortened when using electronic means, 
owing to the complexity of the projects requiring selection of qualified 
suppliers.]  
 
(b) a minimum of [25]  days from the date of publication of the notice where it does not use 
a multi -use list.]JPN,KOR 
 
[If an application is submitted within the time -limit, a procuring entity shall examine it]US and [may 
not exclude the supplier from consideration in respect of the procurement on the grounds that the 
procuring entity has insufficient time to examine the application]US [,unless  due to the complexity 
of the procurement the entity is not able to complete the examination of the application [within the 
time-period allowed for tendering ]US [before commencement of tendering]HKC]US. [A procuring entity 
may limit submission of tenders to qualified suppliers that have submitted applications within this 
time-limit.]JPN [NB: Hong Kong, China preferred deleting the sentence "may not exclude the 
supplier from consideration in respect of the procurement on the grounds that the 
procuri ng entity has insufficient time to examine the application" as experience showed 
that it might take considerable time to complete the qualification process .] 
 
[7. Where applications from suppliers for recognition that they satisfy conditions for participat ion, 
and all other requested documents relating thereto, are submitted within the time -limits referred to 
in Article  VIII:5, their applications shall be treated in the same way as any other applications 
submitted within the time -limits . The process of, and  time required for, verifying if such suppliers 
satisfy the conditions for participation shall not be used to exclude such suppliers from being 
considered for the procurement.]EC,SWI 
 
[9. The time -period provided for in paragraph 8 may be reduced to [10] d ays where:  
 
(a) the conditions for participation for a procurement are the same as or a sub -set of the 
conditions for participation for a multi -use list;  
 
(b) the procurement is for commercial goods or services ; and 
 
(c) the procuring entity has published a notice establishing that multi -use list for at least 
[25] days and that notice has remained readily accessible in electronic form since its 
initial date of publication.]US 
 GPA/TN1994/3/Rev.5  
- 17 - 
  [Annex 2 and 3 Entities ] 
 
[10.] [9.]CDA [12.]EC A procuring entity listed in Annexes  [2]US or [3]SWI,US,CDA,NOR,EC may use a 
notice inviting suppliers to apply for inclusion on a multi -use list as a notice of intended procurement, 
provided that:  
 
(a) the notice sets out, in addition to the information required in paragraph  [5][8]EC, as 
much of the information required in Article  V:2 as is available and contains a statement 
that it constitutes a notice of intended procurement  [or that only the suppliers on the 
multi-use list will receive further notice of procurements that are covered by the 
multi-use list]US,CDA; 
 
(b) the entity promptly provides to suppliers that have expressed an interest to the entity 
in a given procurement, sufficient information to permit them to have a meaningful 
opportunity to assess their interest in th e procurement, including all remaining 
information required in Article  V:2, to the extent such information is available ; and 
 
[(c) a supplier having applied for inclusion on a multi -use list in accordance with 
paragraph  [7]SWI[10]EC shall be entitled to tender in a given procurement, if there is 
sufficient time to examine whether it satisfies the conditions for participation].EC,SW I 
 
Information on Procuring Entities' Decisions  
 
[14. A procuring entity shall promptly inform a supplie r of its decision and, upon request from the 
supplier, promptly provide it with a written explanation of the reasons for the procuring entity's 
decision to:  
 
(a) accept or reject the supplier's application for recognition of satisfaction of conditions for 
participation, or for inclusion on a multi -use list ; or 
 
(b) cease to recognize  a supplier as satisfying the conditions for participation for a 
procurement or for inclusion on a multi -use list. ]EC,SWI 
 
[12.] [10.]CDA,JPN,US Where a procuring entity has req uired suppliers to apply for recognition 
that they have satisfied the conditions for participation in accordance with 
paragraphs  [8 or 9 11] [4-7]CDA, the entity shall promptly notify all such suppliers of the results of 
their applications [.]CDA [and [at the same time]US,EC,CDA shall [allow all successful applicants to submit 
tenders .]JPN,US,CDA [send invitations to tender to all successful applicants .]EC] 
 
[13.] [11.]CDA,JPN,US Where a procuring entity has taken action under paragraph  [10]CDA, the 
entity shall, on request of a supplier, promptly provide the supplier with a written explanation of the 
reasons for the entity's action.  
 
[11. A procuring entity shall promptly advise a supplier of the success or failure of its application 
for inclusion on a multi -use list and of any decision by the entity to include the supplier on a multi -use 
list.] [NB: Canada would combine this paragraph with p aragraph  13.] 
 
[Article  IX Negotiation  
1. A Party may provide for its procuring entities to conduct negotiations:  
 
(a) in the context of procurements in which they have indicated such intent in the notice of 
intended procurement in paragraph  2 of Article  V; or 
 
(b) it appears from the evaluation that no one tender is obviously the most advantageous 
in terms of the specific evaluation criteria set forth in the notices or tender 
documentation.  
 
2. A procuring entity [shall treat tenders in confidence . In particular, it]EC,ISR,SW I [shall not provide 
information intended to assist particular participants to bring their tenders up to the level of other GPA/TN1994/3/Rev.5  
- 18 - 
  participants.]EC,ISR,SW I,CT [NB: Canada , the US  and Korea believe that this issue is already 
addressed by Article s XI:2 and XIII:3, and suggest to delete this paragraph.]  
 
3. A procuring entity shall ensure that any elimination of tenderers in negotiations is carried out 
in accordance with the criteria set out in the notices or tender documentation.  
 
4. A procuring entity shall transmit, in writing, any modifications to the criteria made in the 
course of negotiations to tenderers whose tenders have not yet been eliminated according to the 
criteria set out in the notices or tender documentation, and when nego tiations are concluded will 
provide a common deadline for the remaining tenderers to submit any new or revised tenders. ] 
[NB: The US and Canada suggest deleting the entire Article  as its substance is covered 
elsewhere . Hong Kong, China, EC and Switzerland disagree as they consider that this 
Article is important on the substance and not all its elements are found elsewhere. ] 
 
Article  X Limited Tendering  
1. Provided that it does not use this provision for the purpose of avoiding competition among 
suppliers or in a manner that discriminates against suppliers of the other Parties, or that protects 
domestic suppliers, a procuring entity may [contact a supplier or suppliers of its choice]CDA,JPN [use 
a limited tendering procedure]EC,US,NOR,SWI and may choose not to apply Articles  [...] in the following 
circumstances : [NB: Switzerland finds it useful to mention that limited tendering refers to 
"contact a supplier or suppliers of its choice" ; it should also be defined in Article  I as it is 
explicitly ment ioned under Article  III:3 (Procurement methods) . Canada and the US 
propose mat ching the Articles in the current Agreement ; Japan proposes to make 
reference to Articles  V, VI, VII:1,  2, 3, and  8, VIII,  IX and XI.] 
 
(a) provided that the requirements of the tender documentation are not substantially 
modified:  
 
(i) where no tenders were submitted or no suppliers applied to meet the conditions 
for participation;  
 
(ii) where no tenders that conform to the essential requirements of the tender 
documentation were submitted;  
 
(iii) where no suppliers satisfied the conditions for participation ; or 
 
(iv) where the tenders submitted have been collusive;  
 
(b) where the goods or services can be supplied only by a particular supplier and no 
reaso nable alternative or substitute goods or services exist for the following reasons:  
 
(i) the requirement is for a work of art;  
 
(ii) the protection of patents, copyrights or other exclusive rights[, or proprietary 
information]US,CDA,JPN; or [NB: The EC is w ondering what is the extent or 
definition of proprietary information.]  
 
(iii) due to an absence of competition for technical reasons;  
 
(c) for additional deliveries of goods or services [by the original supplier]EC,JPN,US that are 
intended either as replac ement parts, extensions, or continuing services for existing 
equipment, software, services or installations, where a change [of goods or services]CDA 
[of supplier]JPN,US,EC ,KOR would compel the entity to procure goods or services [ [either]EC 
not meeting re quirements of interchangeability with [or not operable with]EC existing 
equipment, software, services, or installations]JPN,KOR,EC [that would : [NB: Switzerland 
notes that the relationship between (c)  and (g) needs further scrutiny.]  
 
(i) alter the operation or use of the existing goods or services ; or GPA/TN1994/3/Rev.5  
- 19 - 
  (ii) due to the change of goods or services, require existing equipment or services to 
be altered;]CDA,US 
 
(d) in so far as is strictly necessary where, for reasons of extreme urgency brought about 
by events unforeseeable by the procuring entity, the goods or services could not be 
obtained in time under tendering procedures consistent with Articles  []; 
 
(e) for goods purchased on a commodity market ; or 
 
(f) where a procuring entity procures a p rototype or a first [product ] [good]US or service 
that is developed at its request in the course of, and for, a particular contract for 
research, experiment, study or original development . [Original development of a first 
good or service may include limite d production or supply in order to incorporate the 
results of field testing and to demonstrate that the good or service is suitable for 
production or supply in quantity to acceptable quality standards , but does not include  
quantity production or supply to establish commercial viability or to recover research 
and development costs;]EC,JPN ,US 
 
(g) where additional [construction]JPN,CDA,US ,KOR services which were not included in the 
initial procurement but which were within the objectives of the original tende r 
documentation have, through unforeseeable circumstances, become necessary to 
complete the services described therein, and the entity needs to award contracts for 
the additional services to the contractor carrying out the services concerned since the 
separation of the additional services from the initial procurement would be difficult for 
technical or economic reasons and cause significant inconvenience to the procuring 
entity . However, the total value of contracts awarded for the additional services may 
not exceed 50  per cent  of the amount of the main procurement ; [NB: Switzerland, 
Norway and the EC question why this should be limited to construction?]  
 
(h) for new [construction]JPN,CDA,US ,KOR services consisting of the repetition of similar services 
which conform to a basic project for which an initial contract was awarded following an 
open or selective procurement method and for which the procuring entity has indicated 
in the notice of intend ed procurement concerning the initial service, that a limited 
procurement method might be used in awarding contracts for such new services ; [NB: 
Only Chinese Taipei would like to add the words "goods and" before "services" 
in the first line.]  
 
(i) for purc hases made under exceptionally advantageous conditions which only arise in 
the very short term in the case of unusual disposals such as arising from liquidation, 
receivership or bankruptcy and not for routine purchases from regular suppliers ; and 
 
(j) in the case of a contract awarded to [a] winner of a design contest provided that:  
 
(i) the contest has been organized in a manner that is consistent with the principles 
of this Agreement, notably as regards the publication of a notice of intended 
procurement ; and 
 
(ii) the participants are judged by an independent jury with a view to a design 
contract being awarded to [a] winner.  
 
2. A procuring entity shall prepare a report in writing on each contract awarded under 
paragraph  1. Each such report shall include the name of the procuring entity, the value and kind of 
goods or services procured and a statement indicating the circumstances and conditions described 
in paragraph  1 that justified the use of such procedures.  
 GPA/TN1994/3/Rev.5  
- 20 - 
  Article  XI Treatment of Tenders and Contract Awards  
Receipt and Opening of Tenders  
 
1. A procuring entity shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process.  
 
2. A procuring entity shall treat tenders in confidence at l east until the award of the contract.  
 
3. A procuring entity shall not penalize any supplier whose tender is received after the time 
specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring 
entity.  
 
4. When a p rocuring entity provides suppliers with opportunities to correct unintentional errors 
of form between the opening of tenders and the awarding of the contract, the procuring entity shall 
provide the same opportunities to all participating suppliers.  
 
Awardi ng of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
comply with the essential requirements of the notices and tender documentation and be from a 
supplier that satisfies any conditions for participat ion. 
 
6. A procuring entity shall not use option clauses in a manner that circumvents the provisions of 
this Agreement.  
 
7. Unless a procuring entity determines that it is not in the public interest to award a contract, 
it shall award the contract to the s upplier that the entity has determined to be fully capable of 
undertaking the contract and whose tender is either the lowest price or the tender that the entity 
has determined to be the most advantageous solely on the basis of the requirements and evaluati on 
criteria specified in the notices or tender documentation.  
 
8. Where a procuring entity receives a tender with a price that is abnormally lower than the 
prices in other tenders submitted, it may verify with the tenderer that it can comply with the 
condi tions of participation and be capable of fulfilling the terms of the contract.  
[9. A procuring entity shall not cancel a procurement or modify awarded contracts in a manner 
that circumvents the obligations of this Agreement.]US.EC ,NOR,JPN 
 
[Article  XIbis Use of Electronic Means ] [NB: Switzerland supports this new Article and 
is reviewing the text in detail . Israel is still considering this proposed Article . Canada is 
questioning whether  2 (b), 2 (d) and 3 (d) are necessary.]  
 
1. [Procurement covered by this Agreement conducted, exclusively or not, by electronic means 
shall be subject to the provisions of this Agreement.]EC,SGP,KOR,JPN,SWI 
 
2. Where a procuring entity intends to conduct a procurement using electronic means, either 
wholly or partially, it shall:  
 
[(a) indicate [in the notice of intended procurement]US,EC its intention to [require that tenders 
be submitted by electronic means]US,EC;] 
 
(b) ensure that any means and tools used for communicating electronically including 
authentication, integrity of data and encryption are [non -discriminatory] [.]JPN, 
[generally available and interoperable with the information and communication 
technology products in general use and will not impose an unreasonable b urden on 
other Parties' suppliers access to the tendering procedure] ; [NB: Canada and the US 
have reservations on th is subparagraph .] 
 GPA/TN1994/3/Rev.5  
- 21 - 
  (c) ensure that all information necessary to permit potential suppliers to meet the 
specifications for using the necessar y electronic means and tools is available to 
interested parties and is included by the procuring entity in the tender documentation ; 
and [NB: Canada and the US wonder whether this should be a paragraph  2 in 
Article  VII.]  
 
(d) use mechanisms which clearly and unambiguously guarantee that, pending the expiry 
of the deadlines set, the integrity of data is preserved, access to tenders and request 
to participate is prohibited and the timing of receipt of tenders and request to participate 
is accurately established.  
 
3. [A procuring entity that intends  to hold an electronic auction in a ] [A]US procurement covered 
by this Agreement [may be conducted by electronic auction, provided that the procuring entity]US 
shall: [NB: Japan and Israel are wondering whet her the requirements of confidentiality 
allow for the use of electronic auction.]  
 
[(a) state their intention to use electronic auctions in the notice of intended procurement; ] 
[NB: Canada wonders whether this is not already addressed by Article  V:2.]  
 
(b) indicate in the tender documents the features on which the electronic auction will be 
run, provided that such features are quantifiable and can be expressed in figures or 
percentages, and the conditions and rules under which the auction will be carried ou t; 
[NB: Canada and the US believe this should be located in Article  VII relating to 
evaluation criteria.]  
 
(c) provide participants, before starting the electronic auction, with the evaluation factors 
that will be used, including [any]US [the]EC mathematic al formula determining the 
automatic ranking during the electronic auction when the contract is to be awarded on 
the basis of the most economically advantageous tender ; [NB: Canada believes this 
should be located in Article  VII relating to evaluation criteria.]  
 
(d) ensure that electronic auctions operate in full accordance with the general principles of 
this Agreement, in particular, equal treatment, non -discrimination and transparency.  
 
[4. [A p]US,EC[P]rocuring entit [ies][y]US,EC shall ensure [that all stages of the procurement 
procedure] [ full traceability of the [conduct of a procurement]SWI,US [award procedures ]] conducted 
by electronic [auction]US,SWI ,SGP [means  remain fully traceable for a period of at least three years 
from the award of the contract ]EC.]EC,US ,KOR [NB: Japan , the US , Korea and the EC suggest to 
include some time -limit for traceability . Canada, the US and Singapore wonder whether 
this is not addressed in Article  XII:4.] 
 
Article  XII Transparency of Contract Award Information  
Information Provided to Suppliers  
 
1. A procuring entity shall promptly inform [participating]EC,NOR suppliers [that have submitted 
tenders]CDA,JPN,US of the entity's contract award decisions [ and, on request, in writing] .EC,SW I,NOR 
Subject to Article  XIII, a procuring entity shall, on request, provide an unsuccessful supplier with an 
explanation of the reasons that the entity did not select its tender and the relative advantages of 
the successful supplier's tender.  
 
Publication of Award Information  
 
2. Not later than 72  days after the award of each contract covered by this Agreement, a procuring 
entity shall publish a notice in an officially designated publication listed in Appendix  II that may be 
in an electronic or paper medium . Where only an electronic medium is used, the information shall 
remain readily accessible for a reasonable period of time . The notice shall include at least the 
following information:  
 GPA/TN1994/3/Rev.5  
- 22 - 
  (a) a description of the goods or services procured;  
 
(b) the name and  address of the procuring entity;  
 
(c) the name and address of the successful supplier;  
 
(d) the value of the successful tender or the highest and lowest offers taken into account 
in the award of the contract;  
 
(e) the date of award ; and 
 
(f) type of procurement method used, and in cases where limited tendering was used 
pursuant to Article  [X (Limited Tendering) ], a description of the circumstances justifying 
the use of such procedure.  
 
Provision of [Award ] Information to Parties  
 
3. On request of any other Party, [and subject to Article  XIII:[2]  [1]EC]EC without prejudice to 
the provision under Article  XVIII [Dispute Settlement ], a Party shall provide promptly such 
information on the [procurement and]EC award of a contract, including information on the  
characteristics and relative advantages of the successful tender and on the contract price, as may 
be necessary to determine whether the procurement was conducted fairly, impartially and in 
accordance with this Agreement.  [In cases where release of this i nformation would prejudice 
competition in future tenders, t]EC,SWI [T]he Party that receives t hat information shall not disclose  it 
to any supplier, except after consultation with, and agreement of, the Party that provided the 
information . 
 
Maintenance of Documentation and Reports  
 
4. Each procuring entity shall maintain documentation and reports of tendering procedures and 
contract awards relating to procurement covered by this Agreement, including the reports provided 
for in Article  [X (Limited Tendering) ], and shall retain such documentation and reports for a period 
of at least three  years from the award of the contract.  
 
Collection and Report of Sta tistics  
 
5. Each Party shall collect and report to the Committee statistics on its contracts covered by this 
Agreement . Each report shall cover one  year and be submitted within two  years of the end of the 
reporting period, and shall contain:  
 
(a) For Annex  1 procuring entities:  
 
(i) the number and total value, for all such entities, of contracts covered by this 
Agreement;  
 
(ii) the number and total value of all contracts covered by this Agreement awarded 
by such entities, broken down by [categories of] good s and services [according 
to a[n internationally recognized]CDA,US uniform classification system] ; and [NB: 
Switzerland suggests the deletion of "by categories of goods and services 
according to an internationally recognized uniform classification 
system" ; this should be left optional to Members depending on the use 
they may have from these statistics . The EC is considering the need for a 
uniform classification system to be agreed upon among the GPA Parties.]  
 
(iii) the number and total value of contracts c overed by this Agreement awarded by 
each such entity under limited tendering.  
 GPA/TN1994/3/Rev.5  
- 23 - 
  [(iv) the total value of contracts awarded under derogations to the Agreement 
contained in the relevant Annexes.]CDA [NB: All parties, except Canada, agree 
to delete this subpar agraph. ] 
 
(b) For Annex  2 and 3 procuring entities:  
 
(i) the number and total value of contracts covered by this Agreement awarded by 
all such entities, broken down by Annex;  
 
[(ii) the value of contracts covered by this Agre ement awarded by such entities under 
limited tendering, broken down by Annex].CDA [NB: All parties, except Canada, 
agree to delete this subparagraph.]  
 
(c) Where data to be provided under subparagraph  [(a) and]EC,US,JPN (b) is not available, 
estimates shal l be provided.  
 
6. Where a Party publishes its statistics on an official website, the Party may substitute a 
notification of the website address for the submission of the data, with any instructions necessary 
to access and use such statistics.  
 
7. Where a Party requires notices concerning awarded contracts, pursuant to Article  XII:2, to be 
published electronically and where such notices are accessible to the pub lic through a single database 
in a form permitting [automatic ] analysis  of the covered contract s, the Party may substitute a 
notification of the website address for the submission of the data, with any instructions necessary 
to access and use such data.  
 
Article  XIII Non-Disclosure of Information  
[NB: The United States and Japan suggest that subparagr aph 2 (b) should be deleted as 
unnecessary.]  
 
1. Notwithstanding any other provision of the Agreement, a Party or a procuring entity may not 
provide information to a particular supplier that might prejudice fair competition between suppliers.  
 
2. Nothing in this Agreement shall be construed to require a Party or procuring entity [or an 
authority or review body under Article  XVII [or XVIII]EC]EC,US to release [confidential]CDA,JPN 
information under this Agreement where release:  
 
(a) would impede law  enforcement;  
 
(b) [might prejudice fair competition between suppliers; ] 
 
(c) would prejudice the legitimate commercial interests[, including the protection of 
intellectual property,]CDA,US,JPN of particular persons ; or 
 
(d) would otherwise be contrary to the public interest.  
 
[except to the extent that it may be required to be disclosed in the context of proceedings under 
Articles  XVII or XVIII.]EC 
 
Article  XIV Developing Countries  
[NB: All parties are reviewing this Article.]  
 
[1. In negotiations on accession to, and in the implementation and administration of, the 
Agreement, the Parties shall take special consideration of developing and least -developed countries' 
(thereafter developing countries) development, financial and trade needs  and circumstances, 
recognizing that these may differ significantly from country to country . In this context, the Parties 
shall give due consideration to requests by a developing country for transitional measures with GPA/TN1994/3/Rev.5  
- 24 - 
  regard to its market access commitment s under paragraph  3, as well as its implementation of the 
procedural obligations of the Agreement under paragraph  5. The Parties shall accord special and 
differential treatment, as provided for by this Article[.]EC [: 
 
(a) to any least -developed country th at accedes to this Agreement ; and 
 
(b) to any other developing country that accedes to this Agreement, provided that such 
country demonstrates to the Parties ' satisfaction a need for such 
treatment]SWI,US.]EC,SWI,US 
 
[bearing in mind the importance attache d to the concept of development, in particular as it refers 
to small and medium enterprises from developing countries, the Parties shall give due consideration 
to a request by a developing country to invoke the use of "offsets" as defined in Article I and under 
the conditions stated below.]ISR 
 
2. [Subject to the coverage that a developed country Party has negotiated with an acceding 
developing country, the]SWI,US [Each]EC developed country Party shall provide immediately to the 
goods, services and supplier s of the acceding developing country the most favourable treatment 
offered by that developed country Party under Appendix  I upon accession of the developing country.  
[However, with respect to a developing country other than a least -developed country, where  the 
Parties have agreed to [transitional measures,] provided for in paragraph  3 for such country, in 
order to maintain appropriate reciprocal trade opportunities under the Agreement, any Party may 
agree with the acceding country to limit the scope of cove rage that the Party provides to that country 
during the agreed transition period . Any such limitations shall be clearly identified in the Committee's 
accession decision and in each Party's Annexes or Notes to Appendix  I.]SWI,US 
 
3. A developing country Party may, with the agreement of the Parties, [adopt or]EC retain 
transitional measures upon its accession to the Agreement, during an agreed -upon transition period 
with a phase -out schedule that may include:  
 
(a) price preference programmes, provi ded that the price preference programme:  
 
(i) provides a preference only for the part of the tender incorporating goods or 
services originating in the Party applying the preference or goods or services 
originating in other developing countries that have pr eferential agreements with 
the Party applying the preference ; and 
 
(ii) is transparent, and its application is clearly stated in notices of intended 
procurement and notices inviting suppliers to apply for participation in 
procurement covered by the Agreeme nt; [or]EC 
 
[(b) offsets, provided that:  
 
(i) any requirement for, or consideration of, the imposition of offsets is clearly stated 
in notices of intended procurement and notices inviting suppliers to apply for 
participation in procurement covered by the Agreement ; and 
 
(ii) the offsets are applied in a non -discriminatory manner ; [or]SWI,US]SWI,US,EC 
 
 [Offsets  
 
- Notwithstanding Article  III:5, require the incorporation of local content, offset 
procurement, [transfer of technology], or any other measur es that are consistent 
with the meaning of "offsets" under Article I to this Agreement.  
 
- Requirements regarding the imposition of offsets shall be stated clearly in notices 
of intended procurements and in any other relevant documentation.]ISR [NB: 
Israel  and Korea are still considering their position on "transfer of 
technology".]  
 
[(c) limitations on its coverage such as the partial or total exclusion of a specific sector or 
entities]SWI,US. GPA/TN1994/3/Rev.5  
- 25 - 
  4. The agreed -upon transition period shall not exceed [X]  years for developing countries and 
[2X] years for least -developed countries.  
 
5. In order for a developing country Party to bring its measures into conformity with the 
Agreement, it may, with the agreement of the Parties, apply a specified implementation p eriod, 
which shall be:  
 
(a) for a least -developed country Party, [three] years from the entry into force of the 
Agreement for that Party ; and 
 
(b) for any other developing country Party, the period necessary to adopt measures relating 
to [specific provisio ns of]SWI,US the Agreement,  
 
provided that the Party complies with Article  III [non-discrimination ]. 
 
6. At the end of the transition period, provided for in paragraph  3, and the implementation 
period, provided for in paragraph  5, the developing country Pa rty shall fully comply with the 
Agreement.  
 
7. Any developing country Party that has been permitted to retain a transitional measure under 
paragraph  3, or apply an implementation period under paragraph  5, shall list in an Annex to its 
Appendix  I: 
 
(a) the price preference programme or offset, including the schedule for phase -out of the 
measure;  
 
[(b) the schedule for the expansion of coverage;]SWI,U S and 
 
(c) the implementation period [, and where applicable, specific procedural obligat ions and 
any interim measures that it will take with regard to those obligations]SWI,US. 
 
8. After the Agreement has entered into force for a developing country Party, the Committee, on 
request of the developing country Party, and with a three -fourths majority vote, may:  
(a) extend the transitional period for measures permitted under paragraphs  3 or 5 where a 
developing country Party demonstrates a need for an extension of the transitional 
measure ; or 
 
(b) approve the application of a new transi tional measure in special circumstances 
unforeseen during the accession process, provided that the measure is consistent with 
paragraph  3. 
 
9. A Party benefiting from a transitional measure provided for under paragraphs  3 or 5 shall take 
such steps as may be necessary to ensure the fulfilment of all of its obligations at the end of the 
transitional period . The Party shall notify the Committee of such steps, including any special technical 
cooperation needs.  
 
10. During a developing country 's accession proce ss or after the entry into force of this Agreement 
for that country, the Parties shall give due consideration to any request by such country for technical 
cooperation in relation to that country 's implementation of this Agreement.  
 
11. Each Party shall est ablish an information centre to respond to reasonable requests from a 
developing country Party for information related to the Party's efforts to fully benefit from its 
participation in the Agreement . Such information may include information relating to pro curements 
plans, procedures or requirements with respect to procurement covered by the Agreement.  
 
12. The GPA Committee shall review the operation and effectiveness of this Article every 
five years[, and more frequently, as necessary, with regard to devel oping country Parties that have 
measures that are subject to this Article]SWI,US. 
 GPA/TN1994/3/Rev.5  
- 26 - 
  Article  XV Exceptions to the Agreement  
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or 
not disclosing any information that it considers necessary for the protection of its essential security 
interests relating to the procurement of arms, ammunition or war materials, or to procurement 
indispensable for national security or for national defence purposes.  
 
2. Subject to the requirem ent that such measures are not applied in a manner that would 
constitute a means of arbitrary or unjustifiable discrimination between Parties where the same 
conditions prevail or a disguised restriction on international trade, nothing in this Agreement sha ll 
be construed to prevent any Party from imposing or enforcing measures:  
 
(a) necessary to protect public morals, order or safety;  
 
(b) necessary to protect human, animal or plant life or health;  
 
(c) necessary to protect intellectual property ; or 
 
(d) relating to goods or services of handicapped persons, of philanthropic institutions or of 
prison labour.  
 
[3. The Parties understand that paragraph  2(b) includes environmental measures necessary to 
protect human, animal or plant life or health]CDA,US [or natural resources].CT]US,CDA,C T [NB: Hong 
Kong, China ; Korea; the EC ; and Japan considered this paragraph not necessary, given 
paragraph  2(b).]  
 
[4. [Having regard to general policy considerations relating to tied aid, including the objective of 
devel oping countries with respect to untying of such aid, this Agreement does not apply to 
procurement made in furtherance of tied aid to developing countries so long as it is practised by 
Parties.]SWI,JPN [NB: Location needs to be reconsidered . Norway proposes  to delete this 
paragraph. ] [Market Access Issue ] 
 
Article  XVI Modifications and Rectifications to Coverage  
[NB: This Article reflects only the views of Japan, Korea and the United States . The EC 
reserves its position on this Article and the right to submit its own drafting at a later stage . 
Switzerland , Singapore  and Canada are  still reviewing this Article.]  
 
[1. For purposes of this Article, where a procuring entity that is the subject of a  proposed 
rectification, transfer, modification or withdrawal, pursuant to paragraph  2 or 3 of this Article is 
required to accord the treatment described in Articles  VII to X to goods, services or suppliers of 
another party, then the latter party shall be considered an 'affected party '.]US 
 
[2]US [1.(a)]JPN,KOR [A Party shall notify the Committee of any]US Rectification [s]JPN,KOR, 
transfer [s]JPN,KOR of an entity from one Annex to another or, in exceptional cases, other 
modification [s]JPN,KOR [(hereinafter collectively referred to as "modification"]US [relating 
to]JPN,KOR [of]US Appendices  I through  IV [shall be notified to the Committee ]JPN,KOR, 
along with information as to the likely consequences of the change for the mutually 
agreed coverage provided in this Agreement.  [The Committee shall circulate the 
notification.]US If [no affected Party submits to the Committee an objection in writing 
to]US the [proposed]US [rectifications, transfers or other ]JPN,KOR modification [s are of a 
purely formal or minor nature, they ]JPN,KOR [within 30  days of circulation of the 
notification, the proposed modification]US shall become effective [provided there is no 
objection in writing, notified by any Party the benefits of which under this Agreement 
may be affected by the proposed modification (referred to in this Article as the "affected 
Party") within 30  days. ]JPN,KO R [Where and aff ected Party submits an objection that the 
proposed modification is not of a purely formal or minor nature,]US [In other 
cases, ]JPN,KOR the Chairman of the Committee shall promptly convene a meeting of the 
Committee . The Committee shall consider the proposal and any claim for com pensatory 
adjustments [made by any affected Party]JPN,KOR, with a view to maintaining a balance 
of rights and obligations and a comparable level of mutually agreed coverage provided GPA/TN1994/3/Rev.5  
- 27 - 
  in this Agreement prior to such notification . In the event of an agreement  not being 
reached , the matter may be pursued [by any affected Party]JPN,KOR in accordance with 
the procedures [provided for]US [contained]JPN in Article  XVIII [or arbitration].JPN [NB: 
The US continues to oppose the addition of "arbitration" in the absenc e of a 
clarification the operation of such a process in this context.]  
 
[(b) If no affected Party has requested the procedures contained in 
Article  [XXII]JPN,KOR [XVIII]US [or arbitration] within [120]KOR [210]  days from the date 
of circulation of the prop osed modifications under subparagraph  (a), the proposed 
modifications shall become effective . The period under this subparagraph may be 
extended by mutual agreement.]JPN,KOR 
 
[(c) (the same provisions as paragraph  (2)(e) below.)]JPN 
 
[3]US [2.]JPN,KOR (a) Where a Party wishes[, in exercise of its rights,]JPN,KOR to withdraw 
an entity from Appendix  I on the grounds that government control or influence over it 
has been effectively eliminated  [or that the entity concerned is engaged in the provisio n 
of goods or services in markets to which access is not restricted and are subject to 
genuine competition]EC, that Party [(referred to in this Article as the "modifying 
Party")]JPN,KOR shall notify the Committee.  [The Committee shall circulate the 
notific ation. If no affected Party submits to the Committee an objection in writing to the 
proposed withdrawal within 30  days of circulation of the notification, the proposed 
withdrawal]US [Such modification ]JPN,KOR shall become effective the day after the end of  
the following meeting of the Committee, provided that the meeting is no sooner than 
30 days from the date of [circulation of the]US notification and no [affected Party submits 
a written]US objection [has been made by any Party the benefits of which under this 
Agreement may be affected by the proposed modification (referred to in this Article as 
the "affected Party")]JPN,KOR [within 30  days of the circulation]US. [NB: The United 
States proposes the modifications noted in caps and strikeout to clarify the 
operation of the paragraph.]  
 
[(b) The notification shall contain evidence that government control or influence over it has 
been effectively eliminated, including information [that addresses]US [on]JPN the 
following [factors]US [criteria]JPN,KOR: [NB: Hong Kong, China would  like to clarify 
whether consideration of a request to  remove an entity from Appendix  I will 
be based on all the factors for which the information is required or whether 
such consideration can be based on the information provided for a  single 
factor . HKC considers that the modifying Party does not need to provide in his 
notification of modifications information to address all the factors/criteria 
listed in this paragraph .] 
 
- [whether there is a legal nexus or relationship between the g overnment and the 
entity;]US [NB: Hong Kong, China does not see a need for the above factor 
since the relationship and/or linkage between the entity and the 
government could be addressed in other factors.]  
 
- [whether]US the government [does not control a majority of]JPN,KOR [holds a direct 
or indirect controlling interest in]US the entity's capital [nor]JPN,KOR [and]US voting 
rights;  
 
- [whether]US the government [does not]JPN,KOR appoint[s]US more than half of the 
members of the entity's managing board [or such other number as would have]US 
[which has]JPN,KOR the power to decide on operations;]JPN,KOR,US 
 
- [whether the government provides support to or subsidizes the entity, and, if so, 
wheth er such support represents a one -time public investment or a continuous 
operating subsidy;]US 
 
- [the operation of the entity is financed by its business revenue, not by 
government subsidies]JPN [Not more than 50  pre-cent of the entity's financing 
comes from the State or public bodies];  GPA/TN1994/3/Rev.5  
- 28 - 
  - [whether the government exercises formal or informal oversight or supervision 
of an entity's business decisions, beyond the normal regulatory oversight for all 
suppliers in a particular industry;]US [NB: Hong Kong,  China would like 
illustration of this factor/criteria.]  
 
- [whether there are any personnel linkages between the entity and the 
government;]US [NB: Hong Kong, China does not see a need for the above 
factor since the relationship and/or linkage between the  entity and the 
government could be addressed in other factors.]  
 
- [the government does not have control or influence over the entity's procurement 
decisions;]JPN 
 
- [the government does not provide the entity with any special or exclusive rights 
to opera te;]JPN [whether the government has granted special or exclusive legal or 
economic rights or benefits that may alter the competitiveness of an entity's 
goods or services in a commercial market or otherwise influence the entity 's 
business decisions;]US [and]CT,US [NB: Hong Kong, China would like 
illustration of the US bracket .] 
 
- [whether the entity is exclusively engaged in the provision of goods or services 
in commercial markets subject to genuine competition, or whether it has mixed 
governmental and commercial functions.]US [there are more than one [entity] 
[supplier]CT that engage in the provision of goods or services on the market.]JPN 
[NB: Hong Kong, China would like illustration of the US bracket .] 
 
[(b)bis The market in which the  entity operates is directly exposed to competition on markets 
to which access is not restricted, it being acknowledged that government control or 
influence over an entity through shareholding, participation on the management board, 
financing or any other means may be neutralized insofar as the entity's procurement is 
concerned where the entity is exposed to competition on markets to which access is not 
restricted. ] [NB: The US does not support this paragraph.]  
 
(c) In the event of an objection  notified, in  writing, by any affected Party]JPN,KOR,US the 
modifying Party shall enter into consultations with such affected Party . If agreement is 
not reached between the modifying Party and any affected Party [within 
[120]KOR [210]  days from the date of circulation of the proposed modifications under 
subparagraph  (a)]JPN,KOR [, or within 90  days where the information provided with the 
notification pursuant to subparagraph  (b) is comprehensive],] the matter may be 
pursued [by such affected Party]JPN,KOR in accordance with the procedures on 
consultations and dispute settlement contained in Article  XVIII [[or arbitration] by 
written request, including reasons why the affected Party objects to the proposed 
modification].JPN [In considering the proposed modification to App endix  I and any 
consequential compensatory adjustment, allowance shall be made for the 
market -opening effects of the removal of government control or influence.]JPN,US 
 
[(d) If no affected Party has requested the procedures contained in Article  XVIII [or 
arbitration] within [30  days after the expiry of]KOR the [120]KOR [210] -day period of 
consultations under subparagraph  (c), the proposed modification shall become 
effective . The period of consultation may be extended by mutual agreement.]JPN,KOR 
 
[(e) If the modifying Party implements its proposed withdrawal and does not comply with 
the findings of the arbitration, any affected Party that  participated in the arbitration may 
modify or withdraw substantially equivalent benefits under its Appendix  I in confor mity 
with those findings . Notwithstanding Article  III, such modification or withdrawal may be 
implemented solely with respect to the modifying Party.]JPN 
 
[3. The Committee on Government Procurement shall establish procedures for rectifications or 
modifica tions to Appendices . Any Party wishing to rectify or modify its Appendices in accordance 
with preceding paragraphs shall comply with such procedures.]JPN,KOR 
 GPA/TN1994/3/Rev.5  
- 29 - 
  Article  XVII  Challenge Procedures  
[Consultations between the Procuring Entity and Supplier  
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement 
arising in the context of a procurement covered by this Agreement in which the supplier has, or has 
had, an interest, each Party shall encourage the procuring entity and  supplier to seek resolution of 
the complaint through consultations . The procuring entity shall accord impartial and timely 
consideration to any such complaint in a manner that is not prejudicial to [the supplier's participation 
in ongoing or future procur ement]US,CDA ,JPN the supplier's rights to seek corrective measures under 
the challenge system.  
 
Challenge  
 
2. Each Party shall provide timely, effective, transparent and non -discriminatory means for a 
supplier to challenge an alleged breach of this Agreeme nt arising in the context of a procurement 
covered by this Agreement, in which it has, or has had, an interest[, without prejudice to the 
supplier's participation in ongoing or future procurements].US,CD A The procedural rules for all  
challenges shall be in  writing and made generally available.  
 
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, 
which in no case shall be less than 10  days from the time when the basis of the complaint became 
known or reasonably sh ould have become known to the supplier.  [NB: Hong Kong , China believes 
that the time -period allowed for submitting a bid challenge should be specified.]  
 
4. [Supplier challenges relating to procurement covered by this Agreement shall be reviewed by 
an]EC [Each Party shall establish or designate at least one]US,CDA impartial administrative or judicial 
authority that is independent of its procuring entities [to receive and review complaints of suppliers 
arising in the context of a procurement covered by thi s Agreement].US,CDA 
 
5. Where a body other than an authority referred to in paragraph  4 initially reviews a complaint, 
the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative 
or judicial authority that is ind ependent of the procuring entity that is the subject of a challenge.  
 
6. A review body that is not a court shall either be subject to judicial review or shall have 
procedures which provide that:  
 
(a) the procuring entity shall respond in writing to the complaint and disclose all relevant 
documents to the review body;  
 
(b) the participants to the proceedings shall have the right to be heard prior to a decision 
of the review body being made  on the complaint;  
 
(c) the participants to the proceedings shall h ave the right to be represented and 
accompanied;  
 
(d) the participants to the proceedings shall have access to all proceedings[, subject to 
Article  XIII (Non-Disclosure of Information)]US; 
 
(e) the participants to the proceedings shall have the right to re quest that the proceedings 
take place in public[, subject to Article  XIII (Non-Disclosure of Information),]US and that 
witnesses may be presented ; and 
 
(f) [decisions or]EC,US [findings and]CDA recommendations relating to supplier [challenges]EC 
[complaint s]US shall be provided, in a timely fashion, in writing, with an explanation of 
the[ir]CDA basis[.]CDA [for each decision or recommendation ]. 
 GPA/TN1994/3/Rev.5  
- 30 - 
  7. [Each Party shall adopt or maintain procedures that]US,CDA [Challenge procedures shall]EC 
provide for:  
 
(a) rapid interim measures[, pending the resolution of a complaint,]US,CDA [to correct 
breaches of the Agreement and ] to preserve the supplier's opportunity to participate in 
the procurement . Such interim measures may result in suspension of the procurement 
process [.]EC [, including contract award or the performance of a contract that has 
already been awarded. ]US,CD A However, procedures may provide that overriding adverse 
consequences for the interests concerned, including the public interest, may be taken 
into account when deciding whether such measures should be applied . In such 
circumstances, just cause for not acting shall be provided in writing ; [NB: The United 
States proposes deletion of "to correct breaches of the Agreement a nd since 
such actions would be taken only in the final action of the Court.]  
 
(b) correction of the breach of the Agreement or compensation for  the loss or damages 
suffered, which may be limited to costs for the preparation of the tender or [complaint]US 
[challenge]EC [; and 
 
(c) protection of the confidentiality of information subject to Article  XIII:1]EC 
 
Article  XVIII  Consultations and Dispute Settlement  
1. [The provisions of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes under the WTO Agreement (hereinafter referred to as the "Dispute Settlement 
Understanding") [shall be applicable ] [apply]CDA except as otherwise provided below.]CDA,EC,JPN ,NOR 
[The provisions of Article  XXII and XXIII of GATT[, except Article  XXIII:1(c),]US as elaborated and 
applied by the Understanding on Rules and Procedures Governing the Settlement of Disputes under 
the WTO Agreement (Dispute Settlement Understanding) [shall] apply to consultations and the 
settlement of disputes under this Agreement, exce pt as otherwise specifically provided herein.]US,SW I 
 
[2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement 
is being impeded as the result of the failure of another Party or Parties to carry out its [or their]CT 
obligations under this Agreement, [or the application by another Party or Parties of any measure, 
whether or not it conflicts with the provisions of this Ag reement,]CDA,KOR,JPN it may with a view to 
reaching a mutually satisfactory resolution of the matter, [request consultations.]EC,CDA [make 
written representations or proposals to the other Party or Parties which it considers to be concerned . 
Such action [must]CDA [shall] be promptly notified to the Dispute Settlement Body established under 
the Dispute Settlement Understanding (hereinafter referred to as "DSB"), as specified below . Any 
Party thus approached shall give sympathetic consideration to the represe ntations or proposals made 
to it.]KOR,CDA,JP N [Whenever a Party to this Agreement other than the consulting Parties considers that 
it has a substantial trade interest in such consultations, it may notify the consulting Parties and the 
Dispute Settlement Bo dy (DSB), within 10  days after the date of the circulation of the request for 
consultations under this paragraph, of its desire to be joined in such consultations.]EC,JPN [NB: Japan 
and the EC indicated that further thinking should be devoted to avoiding t hat third Parties 
be entitled to join consultations in the context of disputes related not only to the GPA but 
also to other WTO Agreements . Japan indicated that the DSU renegotiations still need to 
address the whether the standard should be "substantial t rade interest".]  
 
[2bis. Where the dispute concerns the award of a specific procurement, paragraphs  8 and 9 of 
Article  4 of the Dispute Settlement Understanding (DSU) may be invoked by the complaining 
Party.]EC 
 
3. Where a dispute exclusively concerns provisions of this Agreement, only Parties to this 
Agreement [shall] [may]CDA participate in decisions or actions taken by the DSB under this 
Agreement.  
 
4. [In the case of a dispute in which provisions both of this Agr eement and of one or more other 
Agreements listed in Appendix  1 of the Dispute Settlement Understanding are invoked by one of the GPA/TN1994/3/Rev.5  
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  parties to the dispute, [paragraph  3 [shall apply ] [applies]CDA only to those parts of the panel report 
concerning the interpr etation and application of this Agreement]KOR,JPN,CT [only Members of the WTO 
that are Party to this Agreement [shall] [may]CDA participate in decisions or actions taken by the 
Dispute Settlement Body with respect to those parts of the dispute concerning t his 
Agreement].US,CDA]KOR,JPN,CT,US,SW I,CDA [A Member of the WTO may seek to join in consultations 
pertaining to this Agreement, pursuant to Article  4.11 of the DSU, only if that Member is also a Party 
to this Agreement.]US 
 
[5. [Each p]CDA[P]anel[s] established by the DSB to examine disputes under this Agreement 
[must]CDA [shall] include persons qualified in the area of government procurement.]US,KOR,JPN,CT,SW I,CDA 
 
[5bis. [Each p]CDA[P]anel[s] [must]CDA [shall] adopt appropriate procedures to protec t confidentiality 
of information subject to Article  XIII:1.]EC 
 
6. [Every effort shall be made to accelerate the proceedings to the greatest extent 
possible.]KOR,JPN,CT,U S [Notwithstanding the provisions of paragraphs  8 and 9 of Article  12 of the 
Dispute S ettlement Understanding, the panel shall attempt]CDA,JPN,CT [Where the dispute concerns 
the award of a specific procurement the panel shall aim,]EC,SW I to provide its final report to the parties 
to the dispute not later than [three months]EC [four months, and in case of delay not later than seven 
months,]CDA,JPN,CT, after the date on which the composition and terms of reference of the panel are 
agreed . Consequently, every effort shall be made to reduce also the periods foreseen in paragraph  1 
of Article  20 and paragraph  4 of Article  21 of the Dispute Settlement Understanding by 
[two]CDA,JPN,CT [three]EC months . Moreover, notwithstanding the provisions of paragraph  5 of 
Article  21 of the DSU, the panel shall attempt to issue its decision, in case of a disagreement as to 
the existence or consistency with a covered Agreement of measures taken to comply with the 
recommendations and rulings, within 60  days.]EC,JPN,CT 
 
[6bis. (a) In the communication referred to in Article  [21.3] of the DSU, the Party concer ned 
shall inform the DSB whether it is possible to bring the measures found to be 
inconsistent with this Agreement into conformity with the Agreement . If the Party 
concerned indicates that it is not possible to bring the measures found to be inconsistent 
with this Agreement into conformity with the Agreement, that Party shall, immediately 
after having made that communication, enter into consultations with a view to 
developing mutually acceptable compensation.  
 
(b) Any Party which has entered into such consu ltations, may at any time request an 
arbitration to determine the level of nullification or impairment that was caused by the 
measure found to be inconsistent with this Agreement.  
 
(c) Unless a request for arbitration has been made, the Party concerned shall, within 
30 days from the request for consultations, submit to all Parties who have entered into 
such consultations, a proposal for mutually acceptable compensation.  
 
(d) When an arbitration has been requested, the Party concerned shall subm it such a 
proposal within 30  days of the award of the arbitrator . Any such proposal shall be 
consistent with the award of the arbitrator.  
 
(e) Such arbitration shall be carried out by the original panel, if members are available, or 
by an arbitrator, which  term shall be interpreted as referring to an individual or a group, 
appointed by the Director -General and shall be completed within 60  days after the 
request for arbitration.  
 
(f) If no proposal for compensation has been submitted within the periods refer red to in 
subparagraphs  (c) or (d), or if no agreement has been reached within 60  days from the 
submission of the later of:  
 
(i) a proposal for mutually acceptable compensation ; or 
 
(ii) such a proposal made subsequent to an arbitration award,  GPA/TN1994/3/Rev.5  
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  the complain ing Party shall be entitled to request authorization from the DSB to suspend the 
application to the Party concerned of concessions and other obligations under the covered 
agreements that is appropriate in light of the level of nullification or impairment t hat was caused by 
the measure.]EC 
 
[7. Notwithstanding paragraph  2 of Article  22 of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in Appendix  1 to the Dispute Settlement Understanding 
other than this Agreement shall not result in the suspension of concessions or other obligations 
under this Agreement, and any dispute arising under this Agreement shall not result in the 
suspension of concessions or other obligations under any other Agreement listed in t he said 
Appendix  1.]CDA,KOR,JPN,US,CT,ISR 
 
Article  XIX Institutions  
Committee on Government Procurement  
 
1. A Committee on Government Procurement composed of representatives from each of the 
Parties shall be established . This Committee shall elect its own Chairman and shall meet as 
necessary, but not less than once  a year, for the purpose of affording Parties the opportunity to 
consult on any matters relating to the operation of this Agreement or the furtherance of its 
objectives, and to carry out such othe r responsibilities as may be assigned to it by the Parties.  
 
2. The Committee may establish working parties or other subsidiary bodies that shall carry out 
such functions as may be given to them by the Committee.  
 
Observers  
 
3. Any WTO Member that is not a  Party to this Agreement shall be entitled to participate in the 
Committee as an observer upon submission of a written notice to the Secretariat . Any WTO observer 
may submit a written request to the Secretariat to participate in the Committee as an observe r, and 
may be accorded observer status by the Committee.  
 
Article XX  Final Provisions  
Acceptance and Entry into Force  
 
1. This Agreement shall enter force on  [] for those WTO Members whose agreed coverage is set 
out in Annexes  1 through  5 of Appendix  I, and which have, by signature, accepted this Agreement 
on [], or have, by or on that date, signed the Agreement subject to ratification and have 
subsequently ratif ied the Agreement before  []. 
 
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 . 
When all Parties to the 1994  Agreement have accepted this Agreement, the 1994  Agreement shall 
be terminated.  
 
Accession  
 
3. Any Member of the WTO that is not a Party to this Agreement may accede to this Agreement 
on terms to be agreed between that Member and the Pa rties. 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 an acceding Member on the 30th day following the date of 
its accessio n to this Agreement.  
 GPA/TN1994/3/Rev.5  
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  Reservations  
 
4. No Party may enter any reservation in respect of any provisions of this Agreement.  
 
National Legislation  
 
5. Each Party shall ensure, not later than the date of entry into force of this Agreement for it, 
the conformit y of its laws, regulations and administrative procedures, and the rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
6. 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.  
 
Reports and Future Work  
 
7. The Committee shall annually inform the General Council of the WTO of developments relating 
to the implementation and operation of this Agreement.  
 
[7bis. Not later than the end of the third  year from the date of entry into force of this Agreement, 
and periodically thereafter, the Parties thereto shall undertake further negotiations, with a view to 
improving this Agreement [and achieving t he greatest possible extension of its coverage among all 
Parties]EC [without prejudice to the needs of developing countries]ISR.]EC,IS R [NB: Hong Kong, China 
suggested deleting "and achieving the greatest possible extension of its coverage among 
all Partie s", since "with a view to improving this Agreement" is already general and fine .] 
 
[8. The Parties shall seek to avoid introducing or continuing discriminatory measures and practices 
that distort open procurement and shall, in the context of negotiations, seek to eliminate those which 
remain on the date of entry into force of this Agreement.]HKC [Market Access Issue ] 
 
9. Following the conclusion of the work programme for the harmonization of rules of origin for 
goods be ing undertaken under the Agreement on Rules of Origin in Annex  1A of the Agreement 
Establishing the World Trade Organization and negotiations regarding trade in services, the Parties 
shall take the results of that work programme and those negotiations into account in amending 
Article  [] as appropriate.  [NB. Switzerland considers the reference to rules of origin to be 
redundant .] 
 
Amendments  
 
10. The Parties may amend this Agreement having regard, inter alia , to the experience gained in 
its implementation . Such an amendment, once the Part ies have concurred in accordance with the 
procedures established by the Committee, shall [not enter into force for any Party until it has been 
accepted by such Party]HKC [take effect for the Parties that have accepted them upon acceptance by 
two thirds of the Parties and thereafter for each other Party upon acceptance by it].EC,JP N 
[NB: Hong Kong, China is checking whether it can withdraw its proposal.]  
 
Withdrawal  
 
11. 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.  
 
12. If 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 from the same date.  
 
Non-application of this Agreement between Particular Parties  
 GPA/TN1994/3/Rev.5  
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  13. This Agreement shall not apply as between any two Parties if either Party, at the time it 
accepts or acce des to this Agreement, does not consent to such application.  
 
Appendices  
 
14. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
15. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
16. 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 paragraph  [] and of each amendment thereto pursuant to paragraph  10, and a 
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  11. 
 
Registration  
 
17. This Agreement shall be registered in accordance wit h the provisions of Article  102 of the 
Charter of the United Nations.  
 
Done at [] this [] day of [] in a single copy in the English, French and Spanish languages, each text 
being authentic, except as otherwise specified with respect to the Appendices heret o. 
 
 
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