RESTRICTED  
  
GPA/TN1994/3/Rev.9  
 
10 June 2005  
(24-2744) Page: 1/40 
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 2 JUNE  2005*,** 
CLEAN TEXT  
NOTE  BY THE SECRETARIAT  
Revision  
This note reflects 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 held in the week of 30 May 2005.  
 
As agreed at the informal drafting session, the proposal by the United States regarding the suggested 
structure and content of Annexes to Appendix I as well as the two draft Committee decisions relating 
to Article XVI (Modifications and Rectif ications to Coverage) are also included in this document.  
 
_______________  
 
  
 
* 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: negs1 75) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.9  
 
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  TABLE OF CONTENTS  
 
Article  I Definitions  ................................ ................................ ................................ .........  3 
Article  II Scope and Coverage  ................................ ................................ ..........................  5 
Article  III General Principles  ................................ ................................ .............................  8 
Article  IV Publication of Procurement Information  ................................ ................................  9 
Article  V Publication of Notice of Intended Procurement  ................................ ........................  9 
Article  VI Time-Periods  ................................ ................................ ................................ ... 11 
Article  VII Information on Intended Procurements  ................................ ..............................  12 
Article  VIII Conditions for Participation  ................................ ................................ .............  16 
Article  IX Negotiation  ................................ ................................ ................................ ..... 19 
Article  X Limited Tendering  ................................ ................................ .............................  19 
Article  XI Treatment of Tenders and Contract Awards  ................................ .........................  21 
Article  XIbis Use of Electronic Means]  ................................ ................................ ..............  21 
Article  XII Transparency of Contract Award Information  ................................ ......................  22 
Article  XIII Disclosure of Information  ................................ ................................ ................  24 
Article  XIV Developing Countries  ................................ ................................ ......................  25 
Article  XV Exceptions to the Agreement  ................................ ................................ ............  26 
Article  XVI Modifications and Rectifications to Coverage  ................................ ......................  27 
Article  XVII  Domestic Review of Supplier Challenges  ................................ ...........................  29 
Article  XVIII  Consultations and Dispute Settlement  ................................ .............................  30 
Article  XIX Institutions  ................................ ................................ ................................ ... 32 
Article XX  Final Provisions  ................................ ................................ ...............................  32 
 GPA/TN1994/3/Rev.9  
 
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  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 international trade;  
 
Recognizing  that measures regarding govern ment 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;  
 
Recognizing  that the integrity and predictability of government pro curement 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 Agreemen t 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;]* [NB: To be revised in light of revision 
of relevant provisions related to developing countries.]  
 
Recognizing the desirability of transparent measures regarding government procurement and the 
importance of carrying out procurements in a transparent and impartia l 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:  
 
(a) [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 g overnment -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 pa yment for the use of such works for the duration of the contract;]US [Market 
Access Issue ] 
 
(b) 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 cust omarily 
purchased 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 
 
* Unattributed brackets [ ] indicates language that Parties are still considering.  GPA/TN1994/3/Rev.9  
 
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  that do not significantly alter the non -governmental function or essential physical 
characteristics or change the purpose]US,CDA; 
 
(c) construction services contract  means a contract that has as its objective the 
realization by whatever means of civil or bu ilding works[, in the sense of Division  51 of 
the Provisional U.N. Central Product Classification (CPC)] ; [Bracketed Language - 
Market Access Issue ] 
 
(d) 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;  
 
(e) days means calendar days;  
 
(f) [[electronic auction  means an iterative process involving electronic means for the 
presentation of new prices or new values concerning certain eleme nts of 
tenders[.]CDA]CDA,SWI,US,EC [, which [occurs]EC,KOR [may occur]US after an initial [full]EC,SWI 
evaluation of the tenders, enabling them to be ranked using automatic evaluation 
methods]EC,US,KOR,SWI;]EC,US,KOR,CDA,SWI [NB: According to the EC, for a n 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 
mathematic al formula.]  
 
(g) [electronic means  means [using [electronic equipment]EC,NOR [hardware and software 
configured] for the electronic]EC,NOR 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 means;]EC,US ,NOR [NB: Japan 
reserves its position on this definition bec ause of its links to other provisions.]  
 
(h) in writing  or written  means any worded or numbered expression that can be read, 
reproduced and later communicated . It may include electronically transmitted and 
stored information;  
 
(i) 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.]  
 
(j) measure  means any law, regulation, procedure,  administrative guidance or practice[, 
or any action of a procuring entity relating to a covered procurement]EC,US, JPN,NOR,KOR,SWI 
[NB: Hong Kong, China is considering this proposed definition.]  
 
(k) 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;  
 
(l) notice of intended procurement  means a notice published by a procurin g entity in 
accordance with Article  V inviting interested suppliers to submit tenders;  
 
(m) offsets  in government procurement means any [measures,]CT conditions or 
undertakings that encourage local development or improve a Party's balance -of-
payments accou nts, such 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 GPA/TN1994/3/Rev.9  
 
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  "domestic suppliers" and, along with Korea and Israel, that "technology 
transfer" expands the scope of offsets.]  
 
(n) open tendering  means a procurement method where all interested suppliers may 
subm it a tender ; [NB: Japan and Canada propose to delete this definition.]  
 
(o) person  means a natural person or a juridical person;  
 
(p) [procurement  means the process by which a procuring entity]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;]US [Market Access Issue ] [NB: The EC is 
reflecting on this definition and on the US proposal in Article II.]  
 
[(q) procuring entity  means an entity covered under Annexes  1, 2 and 3 of Appendix  I of 
each Party; ] 
 
(r) qualified supplier  means a supplier that a procuring entity recognizes as having 
satisfied the cond itions for participation;  
 
(s) 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 proposes to delete this definition.]  
 
(t) services  includes construction services, unless otherw ise specified;  
 
(u) 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 production 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;  
 
(v) supplier  means a person or group of persons that provides or  could provide goods or 
services;  
 
(w) technical specification  means a tendering requirement that:  
 
(i) lays down the characteristics of goods or services to be procured, including 
quality, performance, safety and dimensions, or the processes and methods f or 
their production or provision ; or 
 
(ii) 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 r egarding covered procurement[, whether or not it is 
conducted by electronic means .EC 
 
2. For the purposes of this Agreement, covered procurement means procurement  [for 
governmental purposes]CDA,KOR: 
 
(a) of goods, services, or any combination thereof, as provided for in Appendix I : 
 GPA/TN1994/3/Rev.9  
 
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  [(i)]US,JPN as provided for in Appendix I [and subject to any exclusions 
 therein]CDA[; and 
 
(ii) not procured with a view to commercial sale or resale]US,JPN [or use in the 
production or supply of goods or services for commercial sale or resale]KOR; 
 
(b) by any contractual means, including purchase ; lease; rental or hire purchase, with or 
without an option to buy [and build -operate -transfer contracts and conce ssions for 
public works contracts;]US [with or without utilization of the funds and the managerial 
or technical ability of the private sector]JPN; [Bracketed Language – Market Access 
Issue ] 
 
(c) for which the value as estimated, in accordance with paragrap h 6, equals or exceeds 
the relevant threshold specified in [Appendix  I], at the time of publication of a notice in 
accordance with Article  V; [Bracketed Language – Market Access Issue ] 
 
 (d) by [a governmental agency covered under Appendix  I (hereinafter r eferred to as 
"procuring entity" in this Agreement)]KOR a procuring entity[ ; and 
 
 (e) that is not excluded from coverage by this Agreement]US,EC,JPN,NOR,SWI,ISR. 
 
[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 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;  
 
(c) of entities according to Appendix  I, Annex  3 where the value is estimated to equal or 
exceed:  
- [ ] SDR for contracts for supply of goods and services;  
- [ ] SDR for contracts for construction services.]EC,NOR 
[Market Access Issue ]  
 
[3. This Agreement does not apply to:  
 
 (a) acquisition or rental of land, existing buildings, or other immovable 
property or the rights thereon;  
 
 (b) acquisition of fiscal agency or depository services, liquidation and 
management services for regulated financial institutions, and sale and distribution 
services for government debt;  
 
 (c) non-contractual agreements or any form of assistance that a Party provides, 
including cooperative agreements, grants, loans, equity infusions, guarantees, and 
fiscal incentives;  
 
 (d) purchases funded by international grants, loans or other assistance, where 
the provision of such assis tance is subject to conditions inconsistent with this 
Agreement;  
 
 (e) procurement of research and development services;  
 
 (f) procurement for the direct purpose of providing foreign assistance;  
 
 (g) procurement of any good or service component of a contract where either 
the entity conducting the procurement or the procurement itself is not covered by 
this Agreement;  and GPA/TN1994/3/Rev.9  
 
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   (h) employment of government employees.]US [Market Access Issue]  
 
3./4. For each Party, Appendix  I shall be divided into [five][sev en]US Annexes:  
 
(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 specifies all othe r entities whose procurement is covered by this Agreement;  
 
[(d) Annex  4 specifies the goods covered by this Agreement;]US 
 
(d)/(e)   Annex  [4/5] specifies the services covered by this Agreement;  [and]  
 
(e)/(f)  Annex  [5/6] specifies the construction services covered by this Agreement[;  and 
 
(g) Annex  7 sets out the General Notes applicable to the Annexes].US 
 
Compliance  
 
4./5. 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 covered procurement .  
 
5./6. Where a procuring entity, in the context of covered procurement, requires persons  not listed 
in Appendix  I to procure in accordance with particular requirements, Article  III shall apply 
mutatis  mutandis  to such requirements.  
 
Valuation  
 
[NB: Parties are still considering paragraphs 6./7. -8./9.]  
 
6./7. In estimating the value of a procu rement for the purpose of ascertaining whether it is a 
covered procurement, 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 wit h the intention of totally 
or partially excluding it from the application of this Agreement;  and; 
 
(b) include the estimated maximum total value of the procurement over its entire duration, 
whether awarded to one or more suppliers, taking into account all forms of 
remuneration, including : 
 
 (i) premiums, fees, commissions, interest[ and other revenue streams that may be 
provided for in such procurements] [Market Access Issue ]; and 
 
 (ii) where the procurement provides for the possibility of option clauses, the 
 estimated maximum total value of the procurement, inclusive of optional 
 purchases.  
 
7./8. Where an individual requirement [for a procurement]US,CDA,HKC results in [the award of mor e 
than one contract, or in the award of contracts in separate parts, the calculation of the estimated 
maximum total value shall be based on]US,CDA,HKC [more than one procurement over a certain period, 
the estimated value shall be the greater of]EC: 
 
 (a) the aggregate value of [recurring contracts]US,CDA,HKC [procurements]EC of the same 
type of good or service awarded during the preceding 12  months or preceding fiscal GPA/TN1994/3/Rev.9  
 
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  year, adjusted where possible to take into account anticipated changes in the 
quantity or value of the good or service being procured over the subsequent 
12 months;  or 
 
 (b) the estimated aggregate value of [recurring contracts]US,CDA,HKC [procurements]EC of 
the same type of good or service to be awarded during the procuring entity's fiscal 
year or the 12  months [subsequent to the initial contract award, whichever is 
greater]US,CDA,HKC [starting  with the initial procurement award].EC 
 
8./9. 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:  
 
 (a) in the case of a fixed -term contract:  
 
  (i) where the term of the contract is 12  months or less, the total estimated 
 maximum value for its duration, or  
 
 (ii) where the term of the contract exceeds 12  months, the total estimated 
 maximum value, including[, for a lease, rental, or hire purchase], an y 
estimated residual value;  
 
 (b) where the contract is for an indefinite period, the estimated monthly 
instalment multiplied by 48;  and 
 
(c) where there is doubt as to whether the contract is to be a fixed -term contract, 
subparagraph (b) shall be used.  
 
Article  III General Principles  
National Treatment and Non -Discrimination  
 
1. With respect to any measure and any covered procurement, each Party, including its procuring 
entities, shall accord immediately and unconditionally to the goods and services of any  other Party 
and to the suppliers of any other Party offering the goods or services of any Party, treatment no less 
favourable than the treatment the Party, including its procuring entities, 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 covered procurement, 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 service s of any other 
Party.  
 
Procurement Methods  
 
3. A procuring entity shall conduct covered procurement in a manner that is consistent with this 
Agreement, and, except where specifically provided otherwise in this Agreement, in a transparent 
and impartial mann er[, using methods such as open tendering, selective tendering and limited 
tendering].  [NB: Japan is still considering the bracketed language.]  
 GPA/TN1994/3/Rev.9  
 
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  [Conflict of Interest  
 
3bis. A procuring entity shall ensure that the impartiality of its procurement process m ay not be 
affected by family ties, business links[, cross representation]KOR or other reasons that may cause a 
conflict of interest.]KOR,NOR 
 
Rules of Origin  
 
4. For purposes of covered procurement, 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 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 covered procurement, 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, or in the award of contracts[.]HKC [, [prior to or]US,CDA ,KOR in the course of a procurement 
process] .US,CDA,EC ,KOR,NOR. 
 
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 metho d of levying such duties and charges, 
other import regulations or formalities, and measures affecting trade in services other than measures 
governing covered procurement.  
 
Article  IV Publication of Procurement Information  
Each Party shall:  
 
(a) promptly pu blish 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 regarding 
cover ed procurement, 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 covered procurement, except in the circumstances described in Article  X, a procuring 
entity shall publish a notice of intended procurement  in the appropriate media listed in Appendix  II. 
Such media shall be widely disseminated and shall remain readily accessible to the public.  [[For 
procuring entities in Annex  1, the]JPN,KOR,US [The]EC,NOR notices [where electronic]JPN,US shall be 
[electronically]EC,NOR accessible free of charge through a single point of access.]EC,NOR,KOR,SWI,JPN,US 
[Procuring entities in Annexes  2 and 3 shall be encouraged to make such publications available free 
of charg e through a single point of access.]JPN 
 
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 t he 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 quantity is not known, the estimated quantity;  
 GPA/TN1994/3/Rev.9  
 
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  (c) for recurring contracts, if possible, an estimate of the timing of subsequent notices of 
intended procurement;  
 
(d) any options;  
 
(e) the time -frame for delivery of goods or services or the duration of the contract;  
 
(f) the procurement method that will be use d and whether it will involve negotiation  [or 
the use of electronic means]EC [or electronic auction and any requirement that tenders 
be submitted by electronic means]CDA,US,JPN,NOR; [NB: The EC considers that the 
second bracketed language is too limitative  and does not cover all situations 
where electronic means can be used.  In any event, the EC considers that the 
bracketed language should be located in Article  XIbis:2(a).]  
 
(g) the address and the time -limits for the submission of tenders and, where applic able, 
any time -limits for the submission of applications to qualify for participation in the 
procurement;  
 
(h) the language or languages in which tenders or applications must be submitted, if other 
than an official language of the Party of the procuring en tity; 
 
(i) a list and brief description of any conditions for participation of suppliers[, including any 
specific documents or certifications required from suppliers in connection 
therewith]EC,CDA,ISR,US,SWI,NOR[, unless such information is already include d in the tender 
documentation, which is available at the same time as the notice of intended 
procurement]JPN; 
 
(j) where, pursuant to Article  VIII, a procuring entity intends to select a limited number of 
qualified suppliers to be invited to tender, the cr iteria that will be used to select them 
and, where applicable, any limitation on the number of suppliers that will be permitted 
to tender;  and 
 
(k) an indication that the procurement is covered by this Agreement.  
 
Summary Notice  
 
3. For each case of intended procurement, where the notice of intended procurement is not 
already published in one of the official languages of the WTO,  a procuring entity shall publish, by 
the time of publication of the notice of intended procurement, in a readily accessible  summary notice 
at least the following information in one of the WTO languages:  
 
(a) the subject -matter of the procurement;  
 
(b) the time -limits set for the submission of tenders or, where applicable, any time -limits 
for the submission of applications to q ualify for participation in the procurement or for 
inclusion on a multi -use list;  
 
(c) [a list or a brief description of any conditions for participation;]EC and 
 
[(d)]EC the addresses from which documents relating to the procurement may be requested.  
 
[NB: Korea and Japan consider that the summary notice shall apply even if the notice of 
intended procurement is published in a WTO language.]  
 
Notice of Planned Procurement  
 
4. Procuring entities are encouraged to publish as early as possible in each fiscal y ear 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 GPA/TN1994/3/Rev.9  
 
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  procurement . When the published information is in acc ordance with Article  VI:3 (a), a procuring 
entity may apply Article  VI:3 for the purpose of establishing shorter time -periods for tendering of a 
covered procurement.  
 
5. A procuring entity in [Annex  2 and]US Annex  3 may use a notice of planned procurement as a 
notice of intended procurement provided that it includes as much of the information in paragraph  2 
as is available and a statement that interested suppliers should express their interest in the 
procurement to the entity.  
 
Article  VI Time -Periods  
[NB: Parties are still considering the revisions of paragraphs 2 et seq.]  
 
General  
 
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for 
suppliers to prepare and submit requests for participation a nd responsive tenders, taking into 
account such factors as:  
 
(a) the nature and complexity of the procurement; 
(b) the extent of subcontracting anticipated ; and 
 
(c) the time for transmitting tenders from foreign as well as domestic points where 
electronic  means are not used.  
 
Such time -periods, including any extension of the time -periods, shall be common for all [interested 
or participating] suppliers [of other Parties as well as domestic suppliers] .  
 
Deadlines  
 
2. Except as provided for in paragraphs 4 and 7, a procuring entity shall establish, as a general 
rule, that the final date for the submission of requests for participation shall not be less than 
[25] days from the date of publication of the notice of intended procurement [or other no tice inviting 
suppliers to submit applications].US,CDA 
 
3. Except as provided for in paragraphs  [4 and 5]EC[4 through 7]US,CDA, a procuring entity shall 
establish that the final date for the submission of tenders shall not be less than 40  days from the 
date on which:  
 
 (a) the notice of intended procurement is published [and the tender documentation is 
made available]KOR,SWI; or 
 
 (b) the entity notifies suppliers that they will be invited to submit tenders, whether or 
not it uses a multi -use list.  
 
4. A procuring entity may reduce the time -periods set out in paragraphs 2 and 3 to not less than 
10 days where:  
 
 (a) the procuring entity published [a separate notice, including]US,CDA a notice of planned 
procurement under Article  V:4 at least 40  days and not more than 12  months in 
advance, and such notice contains:  
 
  (i) a description of the procurement;  
 
  (ii) the approximate time-limits for the submission of tenders or requests for 
 participation;  
 
  (iii) a statement that interested suppliers should express their interest in the 
 procurement to the procuring entity;  and GPA/TN1994/3/Rev.9  
 
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  (iv) the address from which documents relating to the  procurement may be 
 obtained;  and 
 
  (v) as much of the information that is required under Article  V:2 for the notice 
of  intended procurement, as is available;  
 
 [(b) a procuring entity publishes a second or subsequent notice relating to contracts of a 
recurring nature;]US,CDA 
 
 [(c) the procuring entity procures commercial goods or services;]US,CDA; and 
 
 [(c/d)]  a state of urgency duly substantiated by the procuring entity renders impracticable 
the periods specified in paragraph  2 and 3.  
 
5. A procuring  entity may reduce the time -period of 40  days by five  days for each one of the 
following circumstances:  
 
 (a) the notice of intended procurement is published electronically;  
 
 (b) the [complete]EC tender documentation is made available electronically from the date 
of the publication of the notice of intended procurement[;  and 
 
 (c) the tenders can be received electronically by the procuring entity].US,CDA 
 
6. The use of paragraph  5, in conjunction with paragraph  4, 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 
procurement is published.  
 
7. Notwithstanding any other time -periods in this Article, where a procuring entity is purchasing 
commercial goods or services and  the notice of intended procurement and the tender documents 
are published electronically, and the tenders may be received electronically, the entity may reduce 
the time -period to no less than [10]EC [5]US [3]CDA days, provided such time is sufficient to a llow 
suppliers to submit responsive electronic tenders.  
 
8. 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 tendering may be fixed by mutual agreement between the 
procuring e ntity and the selected suppliers.  In the absence of agreement, the period shall not be 
less than 10  days.  
 
Article  VII Information on Intended Procurements  
Tender Documentation  
 
1. A procuring entity shall provide to suppliers tender documentation that inc ludes 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 description of:  
 
(a) the procurement, including the nat ure 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, conformity 
certification, plans, drawings or instructiona l 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, except where price is the sole criterion, the relative importance of such criteria;  
 GPA/TN1994/3/Rev.9  
 
- 13 - 
 
  [(c)bis where the evaluation will include an electronic auction, the rules under which the 
auction will be conducted, the values on which the auction will be based, and the criteria 
to be used in determining the ranking of the tenders;] CDA,JPN,US  
 [NB: The European Communities disagree with the location of this 
subparagraph, and consider that it should be located in Article  XI:bis. As to the 
substance, the European Communities consider that this provision is too 
narrow and not accurate because:  
- it mentions the 'rules' under which the auction will be conducted and not 
also the 'conditions' which can be different (e.g., what is an admissible 
tender, how much time will elapse?);  
- it refers to the 'values' on which the auctions will be based, while it would 
be more adequate to refer to 'features' (e.g., in the case of auctions 
based on economically most advantageous tender);  
- it doe s not specify that the 'features' must be quantifiable and can be 
expressed in figures or percentages (Canada's proposal seems to refer 
only to auctions based on the price);  
- it does not mention the mathematical formula to be used for the ranking 
of tende rs when it is based on features of the economically most 
advantageous tender;  
- full prior evaluation before the auction is run is a prerequisite : in the case 
of the economically most advantageous tender it is impossible to conduct 
an e -auction without preliminary evaluation and incorporation of the 
data to the algorithm ; and 
- it is not accurate to refer to 'criteria' for ranking . Ranking is automatically 
determined on the basis of new values or prices, whereas 'criteria' stay 
the same throughou t the procurement process.]  
 
(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]EC 
 
[(e) any information necessary to permit suppliers to use the tender documentation and 
submit a responsive tender  where  
 
(i) the tender documentation is available through electronic means;  
 
(ii) electronic means [are available for]CT [must be used in]US,CDA ,JPN preparing the 
tender ; or 
 
(iii) [the tender must be subm itted through]US,CDA electronic means [are available for 
submission of tenders]CT; and]US,CDA ,JPN 
[NB: The EC considers this provision to be too narrow in comparison with 
Article  XIbis:2(c), and that the matter is best addressed in that latter 
provision . As such, paragraph  (e) as proposed does not seem to have much 
added value with respect to the general principle already stated in the chapeau 
of this Article . The reason for being specific in the case of e -procurement would 
be to provide for mor e detail and to cover more than simply the preparation 
and sending of tenders.  
- In this perspective, "information necessary to permit suppliers to use the 
tender documentation and submit a responsive tender" does not cover 
"information necessary to meet t he specification for using the necessary 
means and tools" as included in Article  XIbis. Indeed, the second 
formulation covers also the specifications for individual connection and 
everything that is at an earlier stage than simply access to the tender 
docu mentation and submission of tenders.  
- There is no distinction in the Canadian formulation between the 
connection necessary for participating in an e -auction and the device for 
receiving tenders.  GPA/TN1994/3/Rev.9  
 
- 14 - 
 
  - There are no checks and balances as to the nature of the  electronic 
means and tools to be used.  
- There are no minimum conditions for establishing the mechanism for 
receiving tenders in order to ensure equal treatment and non -
discrimination of suppliers.  
- The condition that information must be made "available to interested 
Parties" in addition to being included in the tender documentation is 
missing . This, added to the fact that the Canadian proposal refers to 
"suppliers" instead of "potential suppliers", could lead to the information 
being circulate d only to the suppliers that are already 
introduced/connected/selected.]  
 
[(e)/(f)]  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 establis hing 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 -stock ing and transport 
of goods from the points of supply or for supply 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 req uest 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 prepar e, adopt or apply any technical specification 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 service s 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  
 
(b) base the technical specification on international standards, where such exist otherwise, 
on national technical regulations, recognized national standards or building codes[, 
provided that the notice of intended procurement or the tender documentation shall 
state that equival ent solutions shall be considered].EC,SWI ,HKC. 
 
[5bis. Procuring entities [shall]EC [may] consider tenders which do not comply with the design or 
descriptive characteristics of the technical specification but do demonstrably meet the requirements 
thereof a nd are fit for the purposes intended . In this case, the reference to the technical 
specifications in the tender documentation must include words such as "or equivalent".]EC,KOR ,HKC,NOR 
 
[5ter. Where design or descriptive characteristics are used in the technical specification, procuring 
entities [shall]EC [may] consider tenders that do not meet the specifications but do demonstrably 
meet the requirements thereof and are fit for the purposes intended.  In this case, the reference to 
the technical specifica tions in the tender documentation must include words such as "or equivalent".]  
[NB: Paragraphs 5 bis, 5ter and the bracketed language in subparagraph 5(b) are 
alternatives.]  
 GPA/TN1994/3/Rev.9  
 
- 15 - 
 
  6. A procuring entity shall not prescribe technical specifications 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 provided that, in suc h 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 an y technical 
specification for a specific procurement from a person that may have a commercial interest in the 
procurement.  
 
[8. For greater certainty, this Article is not intended to preclude a Party from preparing, adopting, 
or applying technical specific ations 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,HKC [NB: Chinese Taipei reserves its position on the 
last br acket.]  
 
Modifications  
 
9. Where, prior to the award of a contract, a procuring entity modifies the criteria or technical 
requirements set out in a notice or tender documentation provided to participating suppliers, or 
amends or reissues a notice or tender  documentation, it shall transmit in writing all such 
modifications or amended or re -issued notice or tender documentation:  
 
(a) to all the suppliers that are participating at the time the information is amended, if 
known, and in all other cases, in the sa me manner as the original information ; and 
 
(b) in adequate time to allow such suppliers to modify and re -submit amended tenders, as 
appropriate.  
 GPA/TN1994/3/Rev.9  
 
- 16 - 
 
  Article  VIII Conditions for Participation  
[NB: Parties are considering this proposed Article.  Japan suggests the following structure:  
General Requirements;  Multi -Use Lists;  Uniformity of Qualification and Registration 
Procedures;  Notice Inviting Applications;  and Information on Procuring Entities' 
Decisions.]  
 
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 whether a supplier sati sfies the conditions for participation, a procuring entity:  
 
(a) shall 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 the Party of 
the pr ocuring entity ; and  
 
(b) shall base its determination on the conditions that the procuring entity has specified in 
advance in notices or tender documentation;  
 
(c) 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;  and 
 
[(d) may require relevant prior experience where essential to meet the requirements of the 
procurement].EC,US,CDA,HKC 
 
3. A procuring entity may ex clude a supplier on grounds such as:  
 
 (a) bankruptcy;  
 
 (b) false declarations;  
 
 (c) [significant deficiencies in performance of any substantive requirement or obligation 
  under a prior contract]US,CDA; 
 
(d) [final]EC,CDA,US judgments [or judgments which have the force of res judicata ]EC in 
respect of serious crimes or other serious publi c offences;  
 
(e) [professional misconduct [or acts or omissions that adversely reflect upon the 
professional conduct, integrity or honesty of the supplier]HKC]EC,HKC,NOR; or 
 
 (f) failure to pay taxes.  
 
Selective Tendering  
 
4. A procuring entity  that inten ds to use selective tendering shall, in the notice of intended 
procurement[, or in a separate notice in the appropriate publication listed in Appendix III that 
includes the information in Article V:2(a), (b), (g) and (i)]US,CDA: 
 
 (a) invite suppliers to s ubmit a request for participation;  and 
 
(b) indicate the time -limit for submitting requests for participation, as provided for in 
Article  VI:2. 
 
5. A procuring entity shall recognize as qualified suppliers all domestic suppliers and suppliers of 
other Parties that meet the conditions for participation in a particular procurement, unless the GPA/TN1994/3/Rev.9  
 
- 17 - 
 
  procuring entity states in the notice or, where publicly avai lable, in the tender documentation,  any 
limitation on the number of suppliers that will be permitted to tender and the criteria for such 
limitation.  
 
6. Where the tender documentation is not made publicly available from the date of publication 
of the notice referred to in paragraph 4, the procuring entity shall ensure that those documents are 
made available at the same time to all the qualified suppliers selected in accordance with paragraph 
5. 
 
7. Where a supplier submits a request for participation, and all required documents relating 
thereto, within the time -limit, as provided for in Article VI:2, a procuring entity, [whether or not it 
uses a multi -use list,]EC shall examine the request and may not exclude the supplier from 
consideration in respect o f the procurement on the grounds that the procuring entity has insufficient 
time to examine the application[, unless, due to the complexity of the procurement, the entity is not 
able to complete the examination of the application [within the time period al lowed for the 
submission of tenders]US [before commencement of the tendering period]HKC].US,HKC [The process of, 
and time required for, verifying if such suppliers meet the conditions for participation shall not be 
used to exclude such suppliers from being  considered for the procurement.]EC 
 
Multi-Use Lists  
 
8. A procuring entity may maintain a multi -use list of suppliers, provided that it annually 
publishes [or otherwise makes available continuously in electronic form]US a notice inviting interested 
suppli ers to apply for inclusion on the list in one of the appropriate publications listed in Appendix  III. 
The notice shall include:  
 
 (a) a description of the goods and services, or categories thereof, for which the list may 
be used;  
 
 (b) the conditions for p articipation 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 period of validity of the list and the means for its renewal or termination, or 
where the period of validity is not provided, an indication of the method by which 
notice will be given of the termination of use of the list;  and 
 
 (e) an indication that the list may be used for procurement covered by this Agreement.  
 
[9. Notwithstanding paragraph  8, a procuring entity may publish the notice referred to in 
paragraph  8 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;  and 
 
 (b) the notice states that further notices will not be published.]EC,US 
 
10. A procuring entity shall allow suppliers to appl y at any time for inclusion on a multi -use list 
and shall include on the list all qualified suppliers within a reasonably short time.  
 
Uniformity of Qualification and Registration Procedures  
 
[11. Each Party shall ensure that:  
 
 (a) each procuring entity a nd its constituent parts follow a single qualification procedure, 
except in cases of duly substantiated need for a different procedure;  and 
 GPA/TN1994/3/Rev.9  
 
- 18 - 
 
   (b) its procuring entities make efforts to minimize differences in their qualification and 
registration procedures .]EC,US 
 
Annex [2 and]US 3 Entities  
 
12. A procuring entity listed in Annex [2 or]US 3 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  8, 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; [and]US 
 
 (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 assess their 
interest in the 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  10 shall be entitled to tender in a given procurement, if there is sufficient 
time to examine whether it sa tisfies the conditions for participation].EC,NOR 
 
Information on Procuring Entities' Decisions  
 
13. A procuring entity shall promptly inform any supplier that submits a request for participation 
or for inclusion on a multi -use list of its decision.  
 
14. Where a procuring entity rejects a supplier's request or ceases to recognize a supplier as 
qualified [or removes a supplier from a multi -use list]KOR, the entity shall inform the supplier and, 
on request of the supplier, promptly provide the supplier with a written explanation of the reasons 
for its decision.  
 
 GPA/TN1994/3/Rev.9  
 
- 19 - 
 
  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) where 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 procur ing entity shall:  
 
(a) ensure that any elimination of tenderers in negotiations is carried out in accordance 
with the evaluation criteria set out in the notices or tender documentation ; and 
 
(b) when negotiations are concluded, provide a common deadline fo r the remaining 
tenderers to submit any new or revised tenders.  
 
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 use a limited tendering procedure and may choose not 
to apply Articles  [V, VI, VII:1 -3 and 9, VIII, IX, and XI:1, 3 -9] in the following circumstances:  
 
(a) provided that the require ments 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 
reasonable a lternative 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 wonderin g 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 that are intended 
either as replacement parts, exten sions, or continuing services for existing equipment, 
software, services or installations, where a change of supplier would compel the entity 
to procure goods or services that do not meet requirements of interchangeability with 
[or are not operable with]EC existing equipment, software, services, or installations;  
[that would:   
 
(i) alter the operation or use of the existing goods or services ; or GPA/TN1994/3/Rev.9  
 
- 20 - 
 
   
(ii) due to the change of goods or services, require existing equipment or services to 
be altered;]CDA 
[NB: Switzerland notes that the relationship between (c)  and (g) needs further 
scrutiny.]  
 
(d) insofar 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 prototype or a first good 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 limited production or supply in order to incorporate the results of field testing 
and to demonstrate that t he 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;  
 
(g) where additional [c onstruction]JPN,CDA,US,KOR services which were not included in the 
initial procurement but which were within the objectives of the original tender 
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 rea sons 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 t his 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 procuremen t method and for which the procuring entity has indicated 
in the notice of intended procurement concerning the initial service, that a limited 
procurement method might be used in awarding contracts for such new services;  
 
(i) for purchases made under excep tionally 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 p rocuring 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.9  
 
- 21 - 
 
  Article  XI Treatment of Tenders and Contract Awards  
Receipt a nd 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 least until [award of the contract] 
[contract award decision].  
 
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 pr ocuring 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.  
 
Awarding 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 part icipation.  
 
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 supplier 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 ev aluation 
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  
conditions 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,SWI ,HKC,KO R 
 
Article  XIbis Use of Electronic Means  
[NB: 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,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 procu rement its intention to use electronic 
means;]EC,KOR [NB: The United States, Japan and Canada consider that this 
provision should be located in Article V:2 (f).] 
 
(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 GPA/TN1994/3/Rev.9  
 
- 22 - 
 
  technology products in general use and will not impose an unreasonable burden on 
other Parties' s uppliers access to the tendering procedure] ; [NB: Canada, the US and 
Japan have reservations on this subparagraph and consider that, to the extent 
these matters need to be covered, they should be addressed in Article  III.] 
 
(c) ensure that all information necessary to permit potential suppliers to meet the 
specifications for using the necessary electronic means and tools is available to 
interested parties and is included by the procuring entity in the tender documentation ; 
and [NB: Canada, the US and Japan believe that this paragraph should be 
modified and moved to paragraph  1 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 tender s and request 
to participate is prohibited and the timing of receipt of tenders and request to participate 
is accurately established . [NB: The US, Canada and Japan consider that, to the 
extent these matters need to be covered, they should be addressed in A rticle 
III. The EC is wondering whether this is covered elsewhere.]  
 
3. [A procuring entity that intends to hold an electronic auction in a] [A]US covered procurement 
[may be conducted by electronic auction, provided that the procuring entity]US shall: [NB: Israel is 
wondering whether the requirements of confidentiality allow for the use of electronic 
auction . The EC believes that there is no contradiction between the running of an 
electronic auction and requirements of confidentiality.]  
 
[(a) state their i ntention to use electronic auctions in the notice of intended procurement;]  
[NB: Japan, Canada and the United States consider that this provision should 
be located in 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 out ; 
[NB: Japan, Canada and the US believe this should be located in Arti cle 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 mathematical formula determining the 
automatic ranking during the electron ic auction when the contract is to be awarded on 
the basis of the most economically advantageous tender ; [NB: Japan and Canada 
believe 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.]EC 
 
[4. A procuring entity shall ensure that all stages of the procurement procedure conducted by 
electronic [auction]SGP [means]EC remain fully traceable for a period of at least three years from the 
award of the contract.]EC,KOR [NB: Canada, the US and Singapore wonder whether this should 
not be addressed in Article  XII:4 bis, if at all necessary .] 
 
Article  XII Transparency of Contract Award Information  
Information Provided to Suppliers  
 
1. A procuring entity shall promptly inform participating suppliers of the entity's contract award 
decisions and, on request, in writing.  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.  
 GPA/TN1994/3/Rev.9  
 
- 23 - 
 
  Publication of Award Information  
 
2. Not lat er 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 mediu m is used, the information shall 
remain readily accessible for a reasonable period of time . The notice shall include at least the 
following information:  
 
(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.  
 
Maintenance of Documentation and Reports  
 
3. Each procuring entity shall maintain documentation and rep orts of tendering procedures and 
contract awards relating to covered procurement, 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.  
 
[3bis. A procuring entity shall ensure that all stages of the procurement procedure conducted by 
electronic [auction]SGP [means] remain fully traceable for a period of at least three years from the 
award of the contract.]KOR] [NB: The EC considers that this provision should be located in 
Article  XIbis:4 as the obligation of traceability does not correspond to the obligation of 
maintaining documentation or reports.  The US, Japan and Canada are still considering the 
content of, and the need for, this paragraph.]  
 
Collection and Report of Statistics  
 
4. Each Party shall collect and report to the Committee statistics o n 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]US,CDA goods and 
services [according to an internationally recognized uniform clas sification 
system]CDA,US,JPN; and 
 
(iii) the number and total value of contracts covered by this Agreement awarded 
by each such entity under limited tendering;  
 GPA/TN1994/3/Rev.9  
 
- 24 - 
 
  [(iv) the total value of contracts awarded under derogations to the Agreement 
contained in the relevant Annexes.]CDA 
 
(b) For Annex  2 and 3 procuring entities, the number and total value of contracts 
covered by this Agreement awarded by all such entities, broken down by Annex.  
 
(c) Where data to be provided under subparagraph  [(a) and]EC,US,JPN (b) is not available, 
estimates shall be provided.  
 
5. 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 in structions necessary 
to access and use such statistics.  
 
6. 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 public through a single database  
in a form permitting analysis of the covered contracts, 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 Disclosure of Information  
Provision of Information to Parties  
 
1. On request of any other Party, a Party shall provide promptly any information necessary to 
determine whether the procurement was conducted fairly, impartially and in accordance with this 
Agreement, including information  on the characteristics and relative advantages of the successful 
tender.  [In cases where release of this information would prejudice competition in future tenders, 
t]EC [T]he Party that receives that information shall not disclose it to any supplier, exce pt after 
consultation with, and agreement of, the Party that provided the information.  
 
Non-Disclosure of Information  
 
2. Notwithstanding any other provision of the Agreement, a Party or a procuring entity may not 
provide information to a particular suppli er that might prejudice fair competition between suppliers.  
 
3. 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,HKC,JPN to release [confidential]CDA,J PN 
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, of particular persons;  or 
 
(d) would otherwise be contrary to the public interest.  
 
[4. Information subject to paragraph 3 shall be made available to an authority or review body 
under Article XVII or a panel under Article XVIII where it is determ ined by the authority, review body 
or panel that such information is necessary for it to decide the outcome of a challenge or a dispute.  
Any information subsequently made available pursuant to this paragraph shall be subject to 
procedures to ensure that it s confidentiality is preserved.]EC 
 GPA/TN1994/3/Rev.9  
 
- 25 - 
 
  Article  XIV Developing Countries  
In negotiations on accession to, and in the implementation and administration of, the Agreement, 
the Parties shall take special consideration of developing countries' and least -developed countries' 
(collectively referred to hereafter as "developing countries", unless specifically identified otherwise) 
development, financial and trade needs and circumstances, recognizing that these may differ 
significantly from country to country.  In this c ontext, the Parties shall give due consideration to 
requests by a developing country for transitional measures with regard to its market access 
commitments under paragraph  [2/3], as well as its implementation of the procedural obligations of 
the Agreement under paragraph  [4/6].  [As provided for in this Article, the Parties shall accord special 
and differential treatment to:  
 
(a) least-developed countries;  and 
 
(b) any other developing country, where and to the extent that this special and 
differential treat ment meets its development needs.]EC,HKC,NOR,SWI,KOR 
 
[2. Each Party shall provide immediately to the goods, services and suppliers of the developing 
country the most favourable treatment offered by that Party under Appendix  I upon accession of the 
develop ing country[, unless the developing country has scheduled transitional measures other than 
price preferences or offsets]EC,SWI,KOR.]EC,NOR,SWI,KOR,HKC 
 
2./3. Based on its development needs, and with the agreement of the Parties, a developing country 
may, upon its accession to the Agreement, adopt or retain one or more of the following transitional 
measures, in accordance with a phase -out schedule, set out in an Annex to its Appendix  I, and in a 
manner that does not discriminate among the Parties:  
 
 (a) a price preference programme, provided that the programme:  
 
(i) provides a preference only for the part of the tender incorporating goods or 
services originating in the developing country applying the preference or 
goods or services originating in other de veloping countries that have 
preferential agreements with the developing country applying the 
preference;  and 
 
(ii) is transparent, and the preference and its application in the procurement are 
clearly described in the notice of intended procurement and th e notice 
inviting suppliers to apply for participation in procurement covered by the 
Agreement;  
 
(b) an offset, provided that any requirement for, or consideration of, the imposition of 
the offset is clearly stated in the notice of intended procurement and  the notice 
inviting suppliers to apply for participation in procurement covered by the 
Agreement;  
 
(c) the phased -in addition of specific entities or sectors;  and 
 
(d) a transitional threshold that is higher than its permanent threshold.  
 
3./4. [Each Part y shall provide immediately to the goods, services and suppliers of the developing 
country the most favourable treatment offered by that Party under Appendix  I upon accession of the 
developing country, subject to the coverage set out in the Party's Annexes  or Notes to 
Appendix  I.]CDA,JPN,US Where the Parties have agreed to transitional measures [other than price 
preferences or offsets]EC,SWI under paragraph  [2/3] for a developing country other than a 
least-developed country, any Party may limit the scope of  coverage that the Party provides to that 
country during the application of the transitional measures in order to maintain an appropriate 
balance of opportunities under the Agreement.  Any such limitations shall be clearly identified in the 
Committee's acce ssion decision and in each Party's Annexes or Notes to Appendix  I. [NB: Norway 
and Hong Kong, China suggest to delete this paragraph because of paragraph 2. ] 
 
[5. The agreed -upon transition period shall not exceed 10  years for developing countries and 
20 years for least -developed countries.]EC,SWI,KOR GPA/TN1994/3/Rev.9  
 
- 26 - 
 
  4./6. In order for a developing country to bring its measures into conformity with [Articles 
[procedural articles ] of the]US,CDA[this]EC,NOR,SWI Agreement, it may, with the agreement of the 
Parties, apply a sp ecified implementation period, which shall be:  
 
 (a) for a least -developed country, [three] years upon its accession to the Agreement;  
and 
 
 (b) for any other developing country, the period necessary to adopt measures relating 
to the [specific]CDA,JPN,US provisions of the Agreement[,  
 
provided that the developing country complies with Article  III [( National treatment and  
Non-discrimination) ].US,JPN,EC,NOR,SWI [NB: Canada and the United States believe that the last 
phrase may not clearly describe what is expected of developing countries. ] 
 
5./7. Any developing country that has been permitted to apply an implementation period 
under paragraph  [4/6] shall list in an Annex to its Appendix  I the implementation period, and 
where applicable, spec ific procedural obligations and any interim measures that it will take with 
regard to those obligations.  
 
6./8. After the Agreement has entered into force for a developing country, the Committee, on 
request of the developing country[, and with a three -fourths majority vote,]EC,NOR,SWI,KOR may: 
 (a) extend the transition period for measures permitted under paragraph  [2/3] 
or the implementation period permitted under paragraph  [4/6] where a developing 
country demonstrates a need for the extension;  or 
 
 (b) approve the application of new transitional measures that are set out in 
paragraph [2/3], in special circumstances unforeseen during the accession process.  
 
7./9. At the end of the transition period for measures permitted under paragraph  [2/3], the 
implement ation period permitted under paragraph  [4/6], and any extensions permitted under 
paragraph  [6/8], the developing country shall fully comply with the Agreement.  
 
8./10.  A developing country benefiting from a transitional measure provided for in paragraphs  [2/3] 
or [6/8], or an implementation period provided for in paragraph  [4/6], or any extension thereof 
under paragraph  [6/8] shall take such steps as may be necessary to ensure the fulfilment of all of 
its obligations at the end of any such period.  The devel oping country shall notify the Committee of 
such steps, including any special technical cooperation and capacity building needs.  
 
9./11.  During a developing country's accession process or after the entry into force of this Agreement 
for that country, the P arties shall give due consideration to any request by such country for technical 
cooperation and capacity building in relation to that country's implementation of this Agreement.  
 
10./12.  The Committee shall review the operation and effectiveness of this A rticle every five 
years.  
 
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 requirement that such measures are not applied in a ma nner 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 shall 
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;  GPA/TN1994/3/Rev.9  
 
- 27 - 
 
  (c) necessary to protect intellectual property ; or 
 
(d) relating to goods or services of handicapped pers ons, 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,CT 
 
[4. Having regard to general policy considerations relating to tied aid, including the objective of 
developing 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,KOR,CDA,US [NB: Location needs to be reconsidered.  Norway proposes to delete 
this paragraph.]  [Market Access Issue ] 
 
Article  XVI Modifications and Rectifications to Coverage  
Notification of Proposed Modification  
 
1. A Party shall notify the Committee of any proposed rectification, transfer of an entity from one 
Annex to another, withdrawal of an entity, or other modification (referred to generally in this Article 
as "modification") of Appendices I thr ough IV . The Party proposing the modification ("modifying 
Party") shall include in the notification:  
 
(a) for any proposed withdrawal of an entity from Appendix I in exercise of its rights on the 
grounds that government control or influence over it has bee n effectively eliminated, 
[including by virtue of liberalization,]EC evidence that such government control or 
influence has been effectively eliminated, including information that addresses, as 
appropriate, the indicative criteria developed by the Committe e in accordance with 
paragraph  9;1 or 
 
(b) for any other proposed modification, information as to the likely consequences of the 
change for the mutually agreed coverage provided in this Agreement.  
 
Objection to Notification  
 
2. A Party whose rights under this Agreement may be affected by[, or who has a systemic interest 
relating to,]CDA a proposed modification notified under paragraph  1 shall notify the Committee of any 
objection to the proposed modification within 45  days.  The notification shall set out r easons for the 
objection.  The modifying Party and the objecting Party shall seek to resolve the objection through 
consultations.  
 
3. In such consultations, the Parties concerned shall consider the proposed modification and, in 
the case of a notification un der paragraph  1(b), any claim for compensatory adjustments, with a 
view to maintaining a balance of rights and obligations and a comparable level of mutually agreed 
coverage provided in this Agreement prior to such notification.  If the modifying Party and the 
objecting Party are able to resolve the objection through consultations, and the modifying Party 
revises its proposed modification as a result of those consultations, the modifying Party shall notify 
the Committee in accordance with paragraph 1, and an y such revised modification shall only be 
effective after fulfilling the requirements of this Article.  
 
Arbitration  
 
4. If the modifying Party and an objecting Party are unable to reach agreement within 120  days 
from the end of the objection period in paragraph  2, or at any earlier date agreed by the Parties, 
the modifying Party or any objecting Party may refer the matter to arbitration, by notifying the 
Committee.  [Any affected Party having submitted an objection and wishing to enforce a right to 
compe nsation must refer the matter to arbitration.]EC 
 
 
1 The Parties will agree upon the indicative criteria before the conclusion of the GPA review/negotiations.  GPA/TN1994/3/Rev.9  
 
- 28 - 
 
  [5. Arbitration pursuant to this Article shall be the exclusive means to resolve any 
[dispute][disagreement] arising with respect to the conformity of a proposed modification with this 
Article, the level of  compensatory adjustment necessary to maintain the balance of rights and 
obligations and a comparable mutually agreed coverage provided in this Agreement consequent 
upon a modification made pursuant to this Article, or the withdrawal of substantially equiv alent 
benefits pursuant to paragraph [9].]ISR 
 
6. Where more than one party requests arbitration, those parties shall join those arbitrations 
into a single arbitration, unless a single arbitration is [inappropriate] [impracticable].NOR 
 
7. Any party having  a substantial interest in a matter brought to arbitration and having notified 
its interest to the Committee (referred to hereafter as "third party") shall have an opportunity to be 
heard by the arbitrator and to make written submissions to the arbitrator.  These submissions shall 
also be given to the parties to the arbitration and shall be reflected in the arbitration report.  
 
8. The arbitrator shall determine:  
 
 (a) in the case of a proposed withdrawal under paragraph  1(a), whether 
government control or in fluence over the entity proposed to be withdrawn has been 
effectively eliminated;  and 
 
 (b) in the case of any other proposed modification, whether the proposed 
modification would result in a level of coverage comparable to, or greater than, the 
level of m utually agreed coverage provided in the Agreement and would otherwise 
maintain the balance of rights and obligations under the Agreement.  If the arbitrator 
determines that the level of coverage is not comparable, it shall also determine the 
appropriate lev el of compensatory adjustments.  
 
9. The modifying Party shall submit to the arbitrator prima facie evidence in support of its 
proposed modification.  
 
10. The arbitrator shall issue a reasoned determination to the Parties to the arbitration and to the 
Committee, within 90 days of the appointment of the arbitrator.  
 
[11. Any party to the arbitration may lodge an appeal to the Appellate Body exclusively in respect 
of issues of law or legal interpretation developed by the arbitrator within 30 days of the c irculation 
of the determination to the Committee.  The provisions of the DSU on appeal shall apply mutatis 
mutandis  to an appeal brought under this provision.  The arbitrator's report, as modified by the 
Appellate Body, shall be promptly circulated to the Co mmittee.]EC,ISR [NB: The United States 
supports the concept of appeal, but believes that the language needs further 
consideration.]  
 
Implementation  
 
12. A proposed modification shall become effective only where:  
 
 (a) no Party submits to the Committee a written objection to the proposed modification 
within 45  days after circulation of the notification of the proposed modification to 
the Parties to the Agreement under paragraph 1;  
 
 (b) each objecting Party has notified the Committee that it wi thdraws its objection to 
the proposed modification;  
 
 (c) no Party refers the matter to arbitration within 120 days from the end of the 
objection period in paragraph 2;  or 
 
 (d) an arbitrator has determined that:  
 
  (i) in the case of a proposed withdrawal  under paragraph 1(a), government 
 control or influence over the entity has been effectively eliminated;  
 GPA/TN1994/3/Rev.9  
 
- 29 - 
 
   [(ii) in the case of a proposed withdrawal under paragraph 1(a), government 
control or influence has not been effectively eliminated and satisfactory  
compensatory adjustment has been offered by the modifying Party;]EC or 
 
(iii) in the case of any other proposed modification, the proposed modification 
would result in a level of coverage comparable to the level of mutually 
agreed coverage provided in the  Agreement and would otherwise maintain 
the balance of rights and obligations under the Agreement.  
 
[13. Pursuant to subparagraph 10(d)(ii), where an arbitrator determines that government control 
or influence has not been effectively eliminated, the modifying Party may request the arbitrator to 
determine the level of compensatory adjustment which would result in a level of coverage 
comparable to the level of mutually agreed coverage provided in the Agreement.  Any party that has 
participated in the ori ginal arbitration will be invited to participate in such an arbitration.  The 
arbitrator shall issue a reasoned determination to the Parties to the arbitration and to the Chairman 
of the Committee, within 60  days of the request.]EC 
 
[If in the case of a pro posed withdrawal under paragraph  1(a), an arbitrator determines that 
government control or influence has not been effectively eliminated, the modification shall become 
effective only where the parties to the arbitration agree on compensatory adjustments.  Where the 
modifying Party offers compensation, but there is disagreement as to the level of compensatory 
adjustment which would result in a level of coverage comparable to the level of mutually agreed 
coverage provided in the Agreement, any party to the ori ginal arbitration may request the arbitrator 
to determine the level of compensatory adjustment.  The arbitrator shall issue a reasoned 
determination to the Parties to the arbitration and to the Chairman of the Committee, within 60  days 
of the request.]NOR 
 
Committee Responsibilities  
 
14. The Committee shall develop working procedures for arbitrations under this Article, criteria 
that indicate the effective elimination of government control or influence over an entity, and criteria 
that indicate how to determ ine the level of compensatory adjustment to be offered for modifications 
made pursuant to this provision.  
 
Article  XVII  Domestic Review of Supplier Challenges  
1. Each Party shall provide timely, effective, transparent and non -discriminatory means for a 
supplier to challenge an alleged [failure to [properly]US apply]US,CDA [alleged failures of its procuring 
entities to comply with the Party's procedures governing covered procurements]US [breach of]EC this 
Agreement arising in the context of a covered procure ment, in which it has, or has had, an interest.  
The procedural rules for all  challenges shall be in writing and made generally available.  
 
2. In the event of a complaint  by a supplier [relating to]US,CDA [that there has been a breach of 
this Agreement arising in the context of]EC a covered procurement 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 prejudicial neither to the supplier's 
participation in ongoing or future procurement nor to the supplier's rights to seek correct ive 
measures under the challenge system.  
 
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 challenge became 
known or reasonably should have become known to the supplier [but in no case later than 30 days 
after the procuring entity has informed the participating suppliers of the decision on contract 
award].HKC,CT 
 
4. Each Party shall establish or designate at least one impartial adm inistrative or judicial 
authority that is independent of its procuring entities to receive and review challenges  of suppliers 
arising in the context of a covered procurement.  
 GPA/TN1994/3/Rev.9  
 
- 30 - 
 
  5. Where a body other than an authority referred to in paragraph  4 initially reviews a challenge, 
the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative 
or judicial authority that is independent of the procuring entity that is the subject of a challenge.  
 
6. A review body t hat 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 challenge  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 challenge;  
 
(c) the participants to the proceedings shall have the right to be represented and 
accompanied;  
 
(d) the participants to the proceedings s hall have access to all proceedings[, subject to 
Article  XIII (Disclosure of Information)]HKC; 
 
(e) the participants to the proceedings shall have the right to request that the 
proceedings take place in public[, subject to Article  XIII (Disclosure of 
Information),]JPN and that witnesses may be presented;  and 
 
(f) decisions or recommendations relating to supplier challenges shall be provided, in a 
timely fashion, in writing, with an explanation of the basis for each decision or 
recommendation.  
 
7. Each Party  shall adopt or maintain procedures that provide for:  
 
(a) rapid interim measures to preserve the supplier's opportunity to participate in the 
procurement.  Such interim measures may result in suspension of the procurement 
process.  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;  and 
 
(b) correction of the breach of the Agreement or compensation for the loss or damages 
suffered, which may be limited to [either the]HKC costs for the preparation of the 
tender or [the costs for the]HKC challenge.  
 
Article  XVIII  Consultations and Dispute Settlement  
[NB: Parties are considering the proposed revisions to this Article. ] 
 
[1. Each Party shall accord sympathetic consideration to, and shall afford adequate opportunity 
for consultation regarding, such representations as  may be made by another Party with respect to 
any matter affecting the operation of this Agreement.]US,EC 
 
1./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 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 Agreement,]CDA,JPN,KOR,US it may with a view to reaching a 
mutually satisfactory resolution of the matter, [have recourse to the provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Dis putes (hereinafter "the Dispute Settlement 
Understanding")]EC,JPN,NOR,CT,US [request consultations].CDA 
 GPA/TN1994/3/Rev.9  
 
- 31 - 
 
  [3. The Dispute Settlement Understanding applies to consultations and the settlement of disputes 
under this Agreement, with the following modifications : 
 
(a) [other Parties to the Agreement with a substantial trade interest in the consultations 
may request to be joined in the consultations;  
 
 (b)]EC in the case of a dispute in which provisions both of this Agreement and of 
one or more other Agreements listed in Appendix  1 of the Dispute Settlement 
Understanding are invoked by one of the parties to the dispute, only Members of the 
WTO that are Party to this Agreement may participate in deliberations, decisions or 
actions of the Dispute Settlem ent Body with respect to those parts of the dispute 
concerning this Agreement ; 
 
 (c)  [each panel established by the Dispute Settlement Body to examine 
disputes under this Agreement should include at least one person qualified in the 
area of government pro curement, unless Parties agree otherwise ; 
 
 (d)]US,CDA,JPN disputes concerning the award of a specific procurement shall be 
considered "cases of urgency" under paragraphs  8 and 9 of Article  4 of the Dispute 
Settlement Understanding[ ; and 
 
 (e) notwithstand ing 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 the said 
Appendix  1]US,ISR,JPN,CDA.]US,EC 
 
[4. (a) In the communicati on referred to in Article  [21.3] of the DSU, the Party 
concerned 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 co mpensation.  
 
(b) Any Party which has entered into such consultations 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 arbitration has been requested, the Party concerned shall submit 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 mem bers 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 compensati on has been submitted within the periods referred 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 GPA/TN1994/3/Rev.9  
 
- 32 - 
 
  (ii) such a proposal made sub sequent to an arbitration award;  
 
the complaining 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 that was caused by 
the measure.]EC 
 
[The Dispute Settlement Body shall have the authority to authorize consultations regarding remedies 
when withdrawal of measures found to be in contravention of the Agreement i s not possible.]US 
 
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 other 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 Agre ement 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 observer, and 
may be accor ded 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 s ignature, accepted this Agreement 
on [ ], or have, by or on that date, signed the Agreement subject to ratification and have 
subsequently ratified 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 Parties . 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 accession to this Agreement.  
 GPA/TN1994/3/Rev.9  
 
- 33 - 
 
  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 conformity of its laws, regulations and administrative procedures, and the rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
6. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of s uch 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.  
 
8. Not later than the end of [the tenth  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 the greatest possible extension of its coverage am ong all 
Parties [on the basis of mutual reciprocity]US[on the basis of an appropriate balance of 
opportunities]CDA[without prejudice to the needs of developing countries].ISR 
 
[9. The Parties shall seek to avoid introducing or continuing discriminatory mea sures 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 ] 
 
10. Following the conclusion of the work program me for the harmonization of rules of origin for 
goods being 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 re sults of that work programme and those negotiations into account in amending 
Article  [ ] as appropriate.  
 
[10bis. Not later than the end of the third year from the date of entry into force of this 
Agreement, the Committee shall undertake further work to es tablish a common nomenclature for 
describing the subject of procurement notices and common standardized notices in view of improving 
the effectiveness of cross border procurement and simplifying the description and content of such 
notices.]EC 
 
Amendments  
 
11. The Parties may amend this Agreement having regard, inter alia , to the experience gained in 
its implementation.  Such an amendment, once the Parties have concurred in accordance with the 
procedures established by the Committee, shall [take effect for th e Parties that have accepted them 
upon acceptance by two thirds of the Parties and thereafter for each other Party upon acceptance 
by it].EC,JPN,KOR 
 
Withdrawal  
 
12. 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.  
 
13. If a Party to this Agreement ceases to be a Member of the WT O, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 GPA/TN1994/3/Rev.9  
 
- 34 - 
 
  Non-application of this Agreement between Particular Parties  
 
14. This Agreement shall not apply as between any two Parties if either Party, at the time it 
accepts or accede s to this Agreement, does not consent to such application.  
 
Appendices  
 
15. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
16. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
17. 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 pursu ant to paragraph  10, and a 
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  11. 
 
Registration  
 
18. This Agreement shall be registered in accordance with the provisions of Article  102 of t he 
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 hereto.  
 GPA/TN1994/3/Rev.9  
 
- 35 - 
 
  [PROPOSED STRUCTURE AND CONT ENT OF ANNEXES TO APPENDIX  I 
PROPOSAL BY THE UNITED STATES  
ANNEX 1  
 
Central Government Entities  
 
1. This Agreement applies to central government entities listed in this Annex where the value 
of the procurement is estimated, in accordance with Article II:6 -8, to equal or exceed, for 
procurement of:  
 
 (a) goods and services:  [threshold ] 
 
 (b) construction services:  [threshold ] 
 
2. Unless otherwise specified in this Schedule, all agencies subordinate to the listed entities are 
covered by this Agre ement.  
 
List of Entities  
 
1. Entity A ( Note 2 ) 
 
Notes to Annex 1  
 
1. Entity A:  This Agreement does not cover the procurement of [ e.g., specific subordinate entity 
of Entity A ]. 
 
_______________  
 
 
ANNEX 2  
 
Sub-Central Government Entities  
 
1. This Agreement applies to the sub -central government entities [ listed in this Annex or whose 
coverage under this Agreement is specified through definitions or descriptions in this Annex ], where 
the value of the procurement is estimated, in accordance with Article II:6 -8, to equal or exceed:  
 
 (a) goods and services:  [threshold ] 
 
 (b) construction services:  [threshold ] 
 
2. [A statement relating to the coverage of agencies subordinate to the covered entities .] 
 
Covered Entities  
 
List of Entities  
 
1. Entity A ( Note 2 ) 
 
 OR 
 
Specification of coverage of the Annex through definitions or descriptions  
 
[When a Party lists entities based on reference to legislation or generic descriptions, provide an 
explanation describing precisely how a supplier deteremines that such an entity is within the scope 
of the referenced legislation or description.]CDA 
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  Notes to Annex 2  
 
1. This Agreement covers procurement only by those entities listed in this Annex or otherwise 
covered by this Annex.  
 
2. Entity A:  This Agreement does not cover the pr ocurement of [ specific good or service ]. 
 
_______________  
 
 
ANNEX 3  
 
Other Entities  
 
1. This Agreement applies to the entities listed in this Annex where the value of the 
procurement is estimated, in accordance with Article II:6 -8, to equal or exceed:  
 
 (a) goods and services:  [threshold ] 
 
 (b) construction services:  [threshold ] 
 
2. [A statement relating to the coverage of agencies subordinate to the covered entities .] 
 
List of Entities  
 
1. Entity A  
 
Notes to Annex 3  
 
_______________  
 
 
ANNEX 4  
 
Goods  
 
1. This Agreement applies to all goods procured by the entities listed in Annexes 1 through 3, 
unless otherwise specified in this Agreement.  
 
_______________  
 
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  ANNEX 5  
 
Services  
 
1. This Agreement applies to all services procured by the entities listed in Annexes 1 through 3, 
unless otherwise specified in this Agreement, including this Annex.  
 
2. This Agreement does not cover the procurement of the following services, as elaborated in 
the WTO system of classification – MTN.GNS/W/120:  
 
[List of excluded services ] 
 
Notes to Annex 5  
 
[Any notes related to coverage of services would be set out here. ] 
 
_______________  
 
 
ANNEX 6  
 
Construction Services  
 
1. This Agreement applies to all construction services procured by the entities listed in Anne xes 1 
through 3, unless otherwise specified in this Agreement, including this Annex.  
 
2. This Agreement does not cover the procurement of the following construction services:  
 
[List of excluded services ] 
 
Notes to Annex 6  
 
[Any notes related to coverage of construction services would be set out here. ] 
 
_______________  
 
 
ANNEX 7  
 
General Notes  
 
 Unless otherwise specified herein, the following General Notes apply without exception to this 
Agreement, including to Annexes 1 through 6.]US 
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  PROPOSED DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  
PURSUANT TO ARTICLE  XVI:11 OF THE REVISED GPA  
INDICATIVE CRITERIA RELATING TO ELIMINATION  
OF GOVERNMENT CONTROL OR INFLUENCE  
Decision of [day/month/year]  
 
[NB: The Parties are reviewing the proposed crite ria,  
but recognize that further work is needed. ] 
 
 
 The Committee on Government Procurement,  
 
 Noting  that Article XVI:11 provides that the Committee shall develop criteria that may indicate 
the effective elimination of government control or influence ove r an entity;  
 
 Hereby decides  as follows:  
 
 The following indicative criteria are relevant in determining whether government control or 
influence over a procuring entity has been effectively eliminated[, either]EC: 
 
 (a) whether there is a legal nexus or relationship between the government and the entity;  
 
(b) whether the government holds a direct or indirect controlling interest in the entity's 
capital and voting rights;  
 
 (c) whether the government appoints any of the entity's managers or directors;  
 
(d) whether the government exercises formal or informal oversight or supervision of an 
entity's business decisions or operations, beyond the normal regulatory oversight of the 
relevant industry;  
 
 (e) whether there are any personnel linkages between the entit y and the government;  
 
 (f) the extent to which the entity is financially or commercially dependent on the 
government through such means as:  
 
  (i) the government [provides support to or]US subsidizes the entity, and, if so, 
 whether such subsidy represent s a one -time public investment or a  continuous 
operating subsidy;  and 
 
  (ii) the government purchases a substantial proportion of the entity's goods or 
 services;  
 
(g) 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;  [and]US [or]EC 
 
[(h) whether the entity is exclusively engaged in the provision of goods or services i n 
commercial markets subject to genuine competition or whether it has mixed 
governmental and commercial functions.]US 
 
[(h) whether the entity is engaged in the provision of goods or services in commercial 
markets subject to genuine competition and to whic h 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 neutralised insofar as the entity's procurement is concer ned where the entity is 
exposed to genuine competition on markets to which access is not restricted].EC 
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  PROPOSED DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  
PURSUANT TO ARTICLE  XVI:11 OF THE REVISED GPA  
WORKING PROCEDURES FOR ARBITRATION UNDER ARTICLE XVI  
Decision of [day/month/year]  
 
[NB: The Parties are reviewing the proposed procedures,  
but recognize that further work is needed. ] 
 
 
 The Committee on Government Procurement,  
 
 Noting  that Article XVI:11 provides that the Commi ttee shall develop working procedures for 
arbitrations under Article XVI:11;  
 
 Hereby adopts  the following working procedures for arbitrations under Article XVI:  
 
Appointment of the Arbitrator  
 
1. The expression "arbitrator" shall be interpreted as referri ng either to an individual or a group.  
Arbitrators shall be drawn from the same body of persons eligible to serve as panelists under 
Article  XVIII of this Agreement.  Unless the Parties participating in the arbitration otherwise agree, 
the arbitrator shall consist of three persons.  
 
2. If the Parties participating in the arbitration cannot agree on an arbitrator within 20  days after 
referring the matter to arbitration, the Director -General shall appoint the arbitrator within 10  days, 
after consulting the Par ties. 
 
Procedures  
 
3. In its proceedings the arbitrator shall follow the relevant provisions of the Agreement.  In 
addition, the following working procedures shall apply.  
 
4. The arbitrators shall meet in closed session.  The parties to the arbitration shall be present at 
the meetings only when invited by the arbitrators to appear before them.  
 
5. The deliberations of the arbitrators and the documents submitted shall be kept confidential.  
Nothing in these Procedures shall preclude a party to an arbitration from disclosing statements of 
its own positions to the public.  Parties shall treat as confidential information submitted by another 
party to the arbitrator which that party has designated as confidential.  Where a party to the 
arbitration sub mits a confidential version of its written submissions to the arbitrator, it shall also, 
upon request of a party, provide a non -confidential summary of the information contained in its 
submissions that could be disclosed to the public.  
 
6. Before the subst antive meeting of the arbitrators with the parties, the parties to the arbitration 
shall transmit to the arbitrator written submissions in which they present the facts of the case and 
their arguments.  
 
7. At its substantive meeting with the parties, the ar bitrator shall ask the party which has 
requested arbitration to present its case.  Subsequently, and still at the same meeting, the party 
against which the arbitration has been brought shall be asked to present its point of view.  
 
8. The arbitrator shall invite all third parties that have notified their interest in the arbitration to 
present their views during the arbitration.  [N.B.  Further consideration needs to be given 
regarding the details of participation by third parties.]  
 
9. The ar bitrator may at any time put questions to the parties and ask them for explanations 
either in the course of a meeting with the parties or in writing.  
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  10. The parties to the arbitration shall submit to the arbitrator a written version of their oral 
stateme nts. 
 
11. In the interest of full transparency, the presentations, rebuttals and statements shall be made 
in the presence of the parties.  Moreover, each party's written submissions, including any responses 
to questions put by the arbitrator, shall be made available to the other party or parties.  
 
12. Any additional procedures specific to the arbitration.  
 
Proposed Timetable for Arbitration  
 
13. If the parties participating in the arbitration are unable to agree on a timetable for the 
arbitration within 10  days after the appointment of the arbitrator, the following timetable shall 
apply2: 
 
 (a) Receipt of first written submissions of the parties:  
 
  (1) requesting party:     ----------  1 week  
  (2) responding party:     ----------  2-3 weeks  
 
 (b) Receipt of third party submissions:   ----------  1 week  
 
 (c) Meeting with the parties:    ----------  1-2 weeks  
 
 (d) Replies to questions:     ----------  1-3 weeks  
 
 (e) Receipt of written rebuttals of  
  the parties:       ----------  1-2 weeks  
 
 (f) Issuance  and circulation of  
  the arbitrator's report:     ----------  4-6 weeks  
 
The above calendar may be changed in the light of unforeseen developments.  Additional meetings 
with the parties shall be scheduled if required.  
 
 
__________  
 
2 [Negotiator's note: The entire Article XVI process normally would take a maximum of 324 days 
(i.e. about 46 weeks or 10 ½ months): 45 days to object to proposed modification; 120 days to consult; 
20 days to choo se an arbitrator; 10 days for the Director -General to appoint an arbitrator; 10 days for parties 
to discuss, and possibly agree on, a timetable; 70 -119 days for the arbitration (from first submission to 
issuance and circulation of report).]