WORLD TRADE  
ORGANIZATION  S/WPGR/W/54 
20 June 2006 
 
 (06-3010) 
Working Party on GATS Rules Original:   English 
  
 
 
COMMUNICATION FROM THE EUROPEAN COMMUNITIES 
 
Government Procurement in Services
 
 
 
 The following communication, dated 19 June 2006, from the delegation of the European 
Communities is being circulated to the Member s of the Working Party on GATS Rules.  
 
_______________ 
 
 1. In its communications on government procurem ent in services of July 2002, May 2003, 
May 2004 and June 2005, the Eu ropean Communities (hereinafter the EC) submitted proposals for a 
framework that could be developed under the GA TS, including an Annex to the GATS on procedural 
rules for government procurement and the possi bility to make specific commitments in GATS 
Schedules to open up to international competiti on government procurement in services.  These 
communications underlined the flexibility of such fra mework and the benefits that could be drawn 
from it.  The underlying principle would be th at each WTO Member would undertake relevant 
government procurement commitments only in th e sectors it wishes to open to international 
competition in accordance with the procedur al rules laid down in the Annex.  
2. In its communication submitted in May 2004  (S/WPGR/W/48), the EC gave concrete 
examples showing that undertaking  government procurement commitments under the GATS was 
feasible.  In its communication of June 2005 (S/W PGR/W/52), the EC defined a set of procedural 
rules to be developed in an Annex to the GATS on government procurement in services. 
3. The EC is hereby putting forward a new contribu tion that aims at proposing the text of this 
Annex to the GATS on government procurement in services.  This contribution further builds upon 
the WTO Secretariat Note S/WPGR/W/49 on the government procurement provisions contained in 
economic integration agreements.  As Singapore had underlined in its Statement of 24 November 
2004, most of the  agreements reviewed in that Secretariat Note contain procedural rules typically covering such topics as non-discrimination, valu ation of contracts, technical specifications, 
procurement methods, qualification of suppliers, procedural rules regard ing invitations to participate, 
time limits for tendering and deliver y, tender documentation, and award of contracts.  These elements 
provide the structure of an Annex to the GATS, and the EC communication of June 2005 has precised the types of rules that could be developed under the relevant headings. 
4. Going one step further, the text of the hereby proposed Annex to the GATS on government 
procurement borrows as much as possible from the provisions contained in existing economic 
integration agreements and already in  force.  Given the need for the proposed provisions to be adapted 
to the situation of developing countries, as Singapore had emphasized in its communication of November 2004, a specific S&D regime taking into account
 the specific development, financial and 
trade needs of developing countries has been set up in Title 5.  S/WPGR/W/54 
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  I. SUMMARY OF THE PROPOSED GATS ANNEX ON GOVERNMENT 
PROCUREMENT IN SERVICES 
T
ITLE 1:  OBJECTIVES  
5. The proposed text indicates that the Anne x results from the negotiations mandated by 
Article XIII:2 of the GATS.  It confirms that all the provisions of the GATS apply to government 
procurement of services, with the exception of Ar ticles II, XVI and XVII (in accordance with Article 
XIII:1). 
TITLE 2:  DEFINITIONS  
6. This Title defines a number of terms used in th e text of this Annex, in particular open, 
selective and limited tendering procedures. 
7. For the sake of clarity, it is precised that the term "procuring entity" refers only to entities 
listed in the Schedule of specific commitments of each Member, so that the procuring entities 
encompassed by the commitments of a Member are clearly defined. 
TITLE 3:  SCOPE  
8. The scope of the Annex is defined in accordan ce with the wording of GATS Article XIII:1.  
For a purpose of clarity, since a number of provisions of the draft Annex relate to procedural rules 
affecting individual procurements of services, it is  specified that any action by a covered procuring 
entity relating to government procuremen t falls under the scope of this Annex 
9. As suggested in the latest EC communication, th e text includes a provision precising that this 
Annex covers government procuremen t of services, defined as govern ment procurement contracts in 
which services are the primary subject of the contract. 
10. The text states that Members have the possib ility to negotiate and undertake commitments 
relating to government procurement of servi ces in their Schedules of specific commitments. 
11. The Annex states that, with the exception of the MFN clause, its provisions only apply to 
sectors in which specific government procurement co mmitments have been taken under the Schedule, 
with the limitations set therein.  Thus, apart fro m the MFN treatment, the scope of these provisions is 
limited to contracts pertaining to the sectors and the procuring entities defined in each Member’s 
schedule. 
12. The case where a contract involves several servi ce sectors, that raised discussions in the 
Working Party, is addressed through a specific provision. 
13. A provision also excludes covered procurements  intended to enable an activity when this 
activity becomes exposed to competition in a Member territory. 
TITLE 4:  EXCLUSIONS AND EXCEPTIONS TO THIS ANNEX  
14. Article XIV and XIVbis of the GATS already in clude a range of exceptions, that do not need 
to be repeated in the Annex on government proc urement.  Parties to the GPA have negotiated 
additional exceptions, in particular in order to pr otect intellectual property or concerning measures 
based on social grounds.  The proposed text provides for similar exceptions.  S/WPGR/W/54 
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  TITLE 5:  SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  
15. It is recalled that the positive list structure of the GATS and the flexibility of the proposed 
approach, notably the possibility to schedule partia l commitments including specific limitations, mean 
that WTO Members would retain full discretion a bout the coverage of the commitments they would 
undertake to open their government procurement market s to international competition.  In addition to 
this "built-in flexibility", this Title provides for two other kinds of flexibilities helping developing 
countries to open up progressively their government procurement markets in the service sectors they 
see fit : 
16. The first provision is the possibility for developing countries to make use of a price 
preference programme or an offset for a tran sitional period, under certain conditions.  The second 
provision allows a developing country Member to  apply an implementation period if necessary to 
bring its domestic regime into conformity with th e provisions of this Annex provided it complies with 
basic principles of national treatment and non discrim ination.  The use of these special provisions 
would have to be mentioned in the Schedule of specific commitments of the concerned Members. 
TITLE 6:  GENERAL PRINCIPLES  
17. The text provides for National Treatment, subject to the limitations indicated in a Member’s 
schedule. 
18.  As suggested in the previous communications , the text provides for the application of the 
MFN treatment to government procurement in servi ces.  This provision would apply across the board 
as suggested through previous discussions held in the Working Party on GATS Rules. 
19. This Annex provides for a one-off possibility to schedule MFN exemptions at the time of its 
entry into force, to take account of the fact that  MFN exemptions relating to government procurement 
were not scheduled at the time of entry into force of the GATS because Article II GATS was not 
applying to government procurement.  The schedu ling of MFN exemptions relating to government 
procurement could follow the usual framework of  the GATS lists of MFN exemptions, with an 
additional list attached to this Annex. 
20. In addition, the suggested text includes an excep tion to the MFN principle to ensure that the 
more favourable treatment that GPA parties may acc ord to each others in the framework of the GPA 
regime is not extended on an MFN basis to non GPA parties. 
21. A specific paragraph provides basic principles to  ensure a proper use of electronic means, 
more and more commonly used in procurements. 
22. Another general principle provided by the text is  the absence of application of rules of origin 
for services supplied under government procurement di fferent from the rules applied for the same 
services in the normal course of trade. 
23. Like in many economic integra tion agreements, the suggested Annex includes a provision that 
prohibits offsets, except under the special and differential treatment for developing countries. 
TITLE 7:  THRESHOLDS AND VALUATION RULES  
24. Threshold values would be indicated in the Members’ Schedules.  Although the present 
framework is very flexible, the experience pleads for the existence of only two thresholds: one for 
construction services, and another one  for all other services.  In addition, the EC reiterates the 
practical interest of harmonized thresholds amongst Members. S/WPGR/W/54 
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  25. The suggested Annex includes provisions common to most of economic integration 
agreements regarding the valuation of contracts.  In particular, Members’ procuring entities are not 
allowed to split or divide government procuremen t contracts with the intention of avoiding or 
circumventing the application of specific commit ments for procurement above certain thresholds. 
T
ITLE 8:  PUBLICATION OF PROCUREMENT INFORMATION  
26.  The text requires the publication of any measur e of general applicati on and general procedure 
covering government procurement in services in an of ficial publication to be listed in the Schedule of 
specific commitments. 
TITLE 9:  PUBLICATION OF NOTICES  
27. Effective access to government procurement opportunities is closely linked to competitive 
and transparent procedural rules.  This Title covers the publication of a notice of intended 
procurement and the information it should include. 
28. The draft Annex provides the possibility of publishing noti ces of planned procurement, 
allowing service suppliers to be informed in adva nce of future procurements.  As an additional 
flexibility, entities operating in the utilities sectors ma y use such a notice of planned procurement as a 
notice of intended procurement, under some conditions. 
TITLE 10:  INFORMATION ON INTENDED PROCUREMENT  
29. The proposed Annex indicates simple usual rul es: the information made available should 
allow suppliers to submit tenders in a responsive ma nner.  Besides, the procuring entity should reply 
to requests from suppliers for documentation or information. 
30. The suggested text provides for simple and us ual rules regarding technical specifications.  
These should allow tenders to provide a wide range of possible technical solutions.  In particular, 
technical specifications shall be in terms of perfo rmance or functional requirements rather than design 
or descriptive characteristics, a nd based on recognized standards. 
TITLE 11:  CONDITIONS FOR PARTICIPATION  
31. This Title provides for a set of common rules re garding non discrimination, transparency, and 
openness of the qualification process for suppliers. 
32. Specific provisions address the case of selective te ndering, with procedural rules regarding 
invitations to participate and examination of request s by suppliers for participation in a procurement. 
33. The Annex allows multi-use lists of suppliers, under some conditions relating to applications 
for qualification and inclusion in the list.  Entities operating in the utilities sector are provided with an 
additional flexibility with the possibility to use a no tice inviting suppliers to apply for inclusion on a 
multi-use list as a notice of intended procurement under a few conditions. 
34. Finally, the proposed text is intended to ensure  that service suppliers are informed of the 
outcome of their requests for qualification, or of the termination of their qualification, with appropriate explanations upon request.  S/WPGR/W/54 
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  TITLE 12:  TIME PERIODS  
35. The text provides for general principles governing the fixing of time periods by Members.  In 
addition, it is suggested to adopt a common ra nge of time periods.  Taking into account the 
information provided by the WTO Secretariat about existing provisions on this matter in plurilateral 
or bilateral agreements, the text indicates as a gene ral rule a minimum period of 40 days between the 
date of publication of the notice of intended proc urement and the final date for the submission of 
tenders. 
36.  When the procuring entity requires suppliers to satisfy qualification requirements in order to 
participate in the procurement, a minimum peri od of 25 days is provided between the date of 
publication of the notice of intended procurement, and the final date for submission of applications to 
be invited to tender by suppliers.  A period of 40 da ys is provided between th e date of issuance of the 
invitation to tender and the final date for submission of tenders. 
37. The text provides that these limits may be redu ced in certain specified circumstances, but to 
no less than 10 days. 
TITLE 13:  NEGOTIATION  
38. As it is the case in some agreements, as highlighted by document S/WPGR/W/49, the Annex 
opens the possibility of conducting negotiations. 
TITLE 14:  LIMITED TENDERING  
39. The Annex allows the use of limited tenderi ng, under conditions and circumstances closely 
circumscribed as it is the case in several economic in tegration agreements: for example in the absence 
of suitable response to a prior procurement, situa tions of extreme urgency brought about by events 
unforeseeable by the procuring entity, and objective necessity or relevance to contract with a 
particular supplier. 
TITLE 15:  TREATMENT OF TENDERS AND CONTRACT AWARD  
40. The text asserts basic principles relating to the procedures of treatment of tenders and the 
conditions to be met by the latte r to be considered for award. 
41. The general rule is that contracts are awarded either to the lowest tender or to the tender 
determined to be the most advantageous in terms of the specific evaluation criteria set earlier in the 
procurement notice or tender documentation.  A range  of possible award criteria is provided in the 
text.   
TITLE 16:  TRANSPARENCY OF PROCUREMENT INFORMATION  
42. The proposed text is intended to ensure that tenderers are promptly informed of the outcome 
of the award process and have access upon request to explanations relating to the rejection of their 
tenders.  In addition, procuring entities are requi red to publish a notice of contract award. 
TITLE 17:  DOMESTIC REVIEW  
43. Without prejudging the outcome of ongoing discu ssions on Domestic Regulations, and for the 
purpose of specifically implementing GATS Article VI:2 for government procurement of services, a 
range of measures is provided unde r this Title, relating to challenges of a breach of the Annex by 
service suppliers.  These measures are related to, but not only, the provision of a review procedure, S/WPGR/W/54 
Page 6  
 
  consultations between a complain ing supplier and the concerned pr ocuring entity, designation of an 
impartial administrative or judicial authority to re ceive and review a challenge, judicial review of 
review bodies, procedures for interim measur es, or corrective or compensation actions. 
II. CONCLUSIONS 
44. The EC looks forward to discussing this proposed Annex to the GATS on government 
procurement in services. 
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  S/WPGR/W/54 
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  ANNEX TO THE GATS  
ON GOVERNMENT PROCUREMENT 
 
TITLE 1:  OBJECTIVES  
 
1. Pursuant to the mandate given by Article XIII: 2 of the Agreement, the Members have agreed 
to the following Annex with the objective of ela borating upon the provisions of the Agreement with 
respect to measures affecting government procurem ent. With the exception of Articles II, XVI and 
XVII of the Agreement, and unless otherwise stated, all provisions of the Agreement are applicable to 
the matters regulated in this Annex. 
TITLE 2:  DEFINITIONS  
2. For purposes of this Annex: 
a) Commercial services  mean services of a type that are generally sold or offered for sale 
in the commercial market place to, and cu stomarily purchased by, non-governmental 
buyers for non-governmental purposes; 
b) Limited tendering procedures  are those procedures where a procuring entity contacts a 
supplier or suppliers of its choice only under the circumstances speci fied in Paragraph 
50; 
c) 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; 
d) Notice of intended procurement  means a notice published by a procuring entity 
inviting interested suppliers to submit request for participation and tenders; 
e) Procuring entity  means an entity covered under specific commitments on government 
procurement in the Schedule of each Member; 
f) Offsets  in government procurement means any condition or undertaking that encourage 
local development or improve a Member's ba lance-of-payments accounts, such as the use 
of domestic content, the licensing of technol ogy, investment, counter-trade, and similar 
actions; 
g) Open tendering procedures  are those procedures whereby any interested supplier may 
submit a tender; 
h) Selective tendering procedures  are those procedures whereby, consistent with 
Paragraphs 37 and 38 and othe r relevant provisions of this Annex, only suppliers 
satisfying the conditions for par ticipation may submit a tender. 
 S/WPGR/W/54 
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  T
ITLE 3:  SCOPE  
3. This Annex applies to laws, regulations, require ments, or any action by a covered procuring 
entity, concerning the procurement of services purchased for governmental purposes and not with a view to commercial resale or with a view to u se in the supply of services for commercial sale.  
4. For the purposes of this Annex, covered pr ocurement includes the procurement of goods 
incidental to the supply of services if the value of these incidental goods does not exceed that of the 
services themselves, but not goods contracts per se . 
5. In accordance with GATS Article XVIII, Member s may negotiate commitments with respect 
to measures within the scope of Paragraph 3 and inscribe them in their Schedules. 
6. With the exception of Paragraph 16, the provi sions of this Annex apply to measures 
concerning procurement of services only in the sect ors where specific commitments on Government 
Procurement have been undertaken according to  a Member’s Schedule of specific commitments, 
under the conditions and limitations set therein.  
7. In case a single procurement contract involves mo re than one service sector, it shall be subject 
to the provisions of this Annex if all the ser vice sectors concerned are covered by a Member’s 
commitments pursuant to this Annex. In such a ca se, and where the provisions of this Annex provide 
for different obligations, it shall be subject to the provisions of the Annex ap plying to the predominant 
service sector concerned. 
8. Procurements covered under a Member’s speci fic commitments on government procurement 
and intended to enable an activity by a procuring ent ity shall not be subject to the provisions of this 
Annex if, in the Member in which it is performed, the activity is directly exposed to competition on 
markets. Each Member shall notify the Council for Trade in Services about such activities. 
T
ITLE 4:  EXCLUSIONS AND EXCEPTIONS TO THIS ANNEX  
9. Nothing in this Annex shall be construed to  prevent any Member from taking any action or 
not disclosing any information that it considers n ecessary for the protection of its essential security 
interests relating to the procurement of arms, am munition, or war materials, or to procurement 
indispensable for national security or for national defence purposes . 
10. Subject to the requirement that such measu res are not applied in a manner that would 
constitute a means of arbitrary or unjustifiable di scrimination between the Members where the same 
conditions prevail or a disguised restriction on inte rnational trade, nothing in this Annex shall be 
construed to prevent any Member from imposing or enforcing measures: 
a) necessary to protect intellectual property; or 
b) relating to services of handicapped persons , philanthropic institutions, or prison labour.  
 
TITLE 5:  SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  
11. In the implementation and administration of this Annex, Members shall take special 
consideration of developing count ries' development, financial and trade needs and circumstances. In 
this context, there shall be appropriate flexib ility for individual developing country Members for 
transitional measures as provided fo r under Paragraphs 12 and 13.  S/WPGR/W/54 
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  12. Based on its development needs,  a developing country Member may adopt or retain one or 
more of the following transitional measures for a maximum period of 10 years, in accordance with a phase-out schedule, set out in its Schedule of sp ecific commitments, and in a manner that does not 
discriminate among the Members: 
a) a price preference programme, provided that the programme: 
i) provides a preference only for the part of  the tender incorporating services originating 
in the developing country Member applying the preference or services originating in 
other developing countries Members that have preferential agreements with the 
developing country Member applying the preference; and 
ii) is transparent, and the preference and it s application in the procurement are clearly 
described in the notice of intended procurement covered by this Annex; 
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 this Annex; 
 
13. In order for a developing country Member to br ing its measures into conformity with this 
Annex, it may apply a specified implementation pe riod, which shall be the period necessary for it to 
adopt measures relating to specific provisions of this  Annex, provided that the developing country 
Member complies with paragraphs 15 and 16. 
14. Any developing country Member wishing to  apply an implementation period under 
paragraph 13 shall list in its Schedule of specific commitments the implementation period, and where 
applicable, specific procedural obligations and any interim measures that it will take with regard to 
those obligations. 
TITLE 6:  GENERAL PRINCIPLES  
National treatment and non discrimination  
 
15. With respect to all measures within the scope of  this Annex and subject to any conditions and 
qualifications set out in its Schedule of specific commitments, each Member shall accord to services 
and service suppliers of any other Member treatment no less favourable than that it accords to its own 
like services and service suppliers. 
16. a) With respect to any measure within the sc ope of this Annex, each Member shall accord 
to services and service suppliers of any othe r Member treatment no less favourable than 
that it accords to like services and service suppliers of any other country. 
b) A Member may maintain a measure inconsistent  with a) provided that such a measure is 
listed at the date of entry into force of th e present Annex. The list of such exemptions 
shall be added to this Annex.  
c) By way of derogation from a), where a Member which is also a Party to the Agreement 
on Government Procurement (GPA) grants, as a result of its obligations under the GPA, 
more favourable treatment to services and servi ce suppliers of another GPA Party than it S/WPGR/W/54 
Page 10  
 
  does to WTO Members which are not GPA Parties, it shall not be required to grant such 
treatment to services and service suppliers of any other Member. 
 
Conduct of Procurement 
 17. A procuring entity shall conduct c overed procurement in a manner th at is consistent with this 
Annex, using methods such as open tenderi ng, selective tendering and limited tendering. 
Use of electronic means 
 
18. When conducting covered procurement by elect ronic means, a procuring entity shall:  
a) ensure that the procurement is conduct ed using information technology systems and 
software which are generally available and interoperable with commonly used 
information technology systems and software , including those related to authentication 
and encryption of information; and 
b) maintain mechanisms that ensure the inte grity of requests for participation and tenders, 
including establishment of the time of receipt, and the prevention of inappropriate 
access.  
 
Rules of origin  
 
19. For purposes of covered procurement, no Member  may apply rules of origin to services 
supplied by another Member that are different from th e rules of origin the Me mber applies at the same 
time in the normal course of trade to suppli es of the same services from the same Member. 
Offsets 
 
20. With regard to covered procurement, proc uring entities shall not seek, take account of, 
impose, or enforce offsets, except in the s ituation and under the conditions mentioned in 
Paragraph 12. 
T
ITLE 7:  THRESHOLDS AND V ALUATION RULES  
Thresholds 
 
21. The provisions of this Annex appl y to any procurement contract of a value of not less than the 
relevant threshold indicated in the concerne d Member’s Schedule of specific commitments on 
government procurement. 
Valuation 
 
22. In estimating the value of a procurement fo r 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 with the intention of totally 
or partially excluding it from the application of this Annex; and  S/WPGR/W/54 
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  b) include the estimated maximum total value of the procurement over its entire duration, 
whether awarded to one or mo re suppliers, taking into account  all forms of remuneration, 
including premiums, fees, commissions, interest; and where the procurement provides for the possibility of option clauses, the estimated maximum total value of the 
procurement, inclusive of optional purchases. 
 
When procurement involves the supply of incidental goods or services in addition to its main object, the valuation of the procurement includes the valuation of these incidental goods or services. 
 T
ITLE 8:  PUBLICATION OF PROCUREMENT INFORMATION  
23. Each Member shall promptly publish any law, regulation, judicial decision, administrative 
ruling of general application, standard contract clau ses that is mandated by a law or regulation and is 
incorporated by reference in notices and tender documentation and proce dure regarding covered 
procurement, and any modifications thereof, in an  officially designated electronic or paper medium 
that is widely disseminated and remains readily acces sible to the public and that is listed in its 
Schedule of specific commitments. 
TITLE 9:  PUBLICATION OF NOTICES  
Notice of intended procurement 
 
24. For each intended covered procurement, ex cept in the circumstances described in 
Paragraph 50, a procuring entity sh all publish a notice of intended procurement inviting interested 
suppliers to submit tenders or, wher e appropriate, request for participa tion. Each such notice shall be 
published in the appropriate medium referred to in  Paragraph 23, and shall be accessible during the 
entire period established for tendering for the relevant procurement. 
25. Each notice of intended procurement shall incl ude a description of the intended procurement, 
any conditions that suppliers must fulfil to participate in the procurement, the name of the entity 
issuing the notice, the address wher e suppliers may obtain all docume nts relating to the procurement, 
the time limits for submission of tenders or, wher e applicable, any time limits for the submission of 
requests to participate in the procurement, a list and brief description of any conditions for 
participation of suppliers, and the dates fo r delivery of the services to be procured. 
Notice of planned procurement 
 
26. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice 
regarding their future procurement plans. This  notice should include the subject-matter of the 
procurement and the planned date of the publi cation of the notice of intended procurement. 
27. Entities operating in the utilities sector may use a notice of planned procurement as a notice 
of intended procurement provided that it includes as much of the information in Paragraph 25 as is 
available. 
TITLE 10:  INFORMATION ON INTENDED PROCUREMENT  
Tender documentation  
 
28. Tender documentation provided to suppliers shall contain all information necessary to permit 
them to submit responsive tenders. Unless already provided in the notice of intended procurement, 
such documentation shall provide at least a comple te description of the procurement, any conditions S/WPGR/W/54 
Page 12  
 
  for participation of suppliers, all criteria to be c onsidered in the awarding of the contract, and any 
other terms or conditions, including terms and conditions of payment. 
29. Where procuring entities do not offer free dir ect access to the entire tender documents and 
any supporting documents by electronic means, procuring entities shall make promptly available the tender documentation at the request of  any supplier of another Member. 
30. Procuring entities shall promptly reply to any reasonable request for relevant information 
relating to the intended procurement,  on condition that such information does not give that supplier an 
advantage over its competitors. 
Technical specifications 
 31. In prescribing the technical specifications for the services being procured, a procuring entity 
shall, where appropriate:  
a) specify the technical specification in te rms of performance and functional requirement 
rather than design or descriptive characteristics;  
b) base the technical specification on internati onal standards, where such exists; otherwise 
on national technical regulations, recognized national standards, or building codes. 
 
32. Where design or descriptive characteristics ar e used in the technical specifications, a 
procuring entity should, where appropriate, include  words such as "or equivalent" in the tender 
documentation and consider tenders of equivalent services that demonstrably fulfil the requirements 
of the procurement. 
33. There shall be no requirement or reference to a particular trademark or trade name, patent, 
design or type, specific origin, producer or s upplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement re quirements and provided that words such as "or 
equivalent" are included in the tender documentation. 
T
ITLE 11:  CONDITIONS FOR PARTICIPATION  
General 
 
34. Any conditions for participation in procuremen t shall be non discriminatory and limited to 
conditions essential to ensure that the potential suppl ier has the capability to fulfil the requirements of 
the procurement and the ability to execute the contract in question. 
 
35. Nothing in this Annex shall preclude the ex clusion of any supplier on grounds such as 
bankruptcy or false declarations or conviction for serious crime such as participation in criminal 
organisations. 
36. Procuring entities shall recognize as qualified supp liers all suppliers w ho meet the conditions 
for participation in a particular  intended procurement. Procuring entities shall base their qualification 
decisions solely on the conditions for participation th at have been specified in  advance in the notice of 
intended procurement or in the tender documentation. 
  S/WPGR/W/54 
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  Selective tendering 
 
37. A procuring entity that intends to use selectiv e tendering shall, in the notice of intended 
procurement, invite suppliers to submit a request for participation and shall give a description of the 
intended procurement, the qualifi cation requirements, the name and the address of the procuring 
entity, and the time-limits for the submission of the request to participate. 
38. Where a supplier submits a request to participat e, and all required documents relating thereto 
within the time–limit provided for in Paragraph 46,  a procuring entity, whether or not it uses a multi-
use list, shall examine the request and may not excl ude the supplier from consideration in respect of 
the procurement on the grounds that the procuri ng entity has insufficient time to examine the 
application. 
Multi-use lists 
 
39. A procuring entity may maintain a multi-use lis t of suppliers, provided that a notice inviting 
interested suppliers to apply for inclusion on th e list is published annuall y, or made available 
continuously by electronic means in one of the a ppropriate media listed in the Schedule of specific 
commitments. 
40. The notice referred to in Paragraph 39 shall include at least a description of the services for 
which the list may be used, the cond itions for participation to be satis fied by suppliers, the name and 
address of the procuring entity, and the period of  validity of the list as well as the means for its 
renewal or termination. 
41. Procuring entities maintaining muti-use lists sh all ensure that suppliers can apply for 
qualification at any time, and that all qualified suppl iers are included in the lists within a reasonably 
short time. 
42. Entities operating in the utilities sector 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 info rmation required in Paragraph 40, as much of 
the information required in Paragraph 25 as is available and contains a statement that it 
constitutes a notice of intended procurement; 
b) the procuring entity promptly provides to s uppliers who have expressed an interest in a 
given procurement sufficient information to permit them to assess their interest in the 
procurement;  
c) a supplier having applied for inclusion in the multi-use list in accordance with paragraph 
41 shall be allowed to tender in a given procurement, only if there is sufficient time to examine whether it satisfies the conditions for participation.  
 
Information on procuring entities' decisions 
 
43. A procuring entity shall promptly advise any supplier that requests qualification of its 
decision as to whether the supplier is qualified.  Where a procuring entity rejects a supplier’s 
application to qualify or ceases to recognise a supplie r as qualified, the entity shall inform the supplier 
and, on request of the supplier, promptly provid e the supplier with a written explanation of the 
reasons for its decision. S/WPGR/W/54 
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  T
ITLE 12:  TIME PERIODS  
44. Time-limits established by the procuring entities during a procurement process shall be 
sufficiently long to enable suppliers to prepar e and submit requests for participation where 
appropriate, and responsive tenders, in  relation to the nature and complexity of the procurement, the 
extent of subcontracting anticipated, the normal ti me for transmitting tenders by mail from foreign as 
well as domestic points, and the possibility for the procuring entities to send notices or give access to 
tender documentation through electronic means. 
45. Except in so far as provided in Paragraph 47, procuring entities shall pr ovide no less than 40 
calendar days between the date on which the notice of intended procurement is published and the final 
date for the submission of tenders. 
46. Where a procuring entity requires suppliers to satisfy qualification requirements in order to 
participate in a procurement, the entity shall provi de no less than 25 calendar days between the date 
on which the notice of intended procurement is publishe d and the final date to submit their application 
to be invited to tender and no less than 40 calendar days between the date of issuance of the invitation 
to tender and the final date for submission of tenders. 
47. Under the following circumstances, procuring entities may establish a time period for 
tendering that is shorter than the periods referred to  in Paragraphs 45 and 46, provided that such time 
period is sufficiently long to enable suppliers to  prepare and submit respons ive tenders and is in no 
case less than 10 calendar days prior to the final date for the submission of tenders: 
a) where a notice of planned procurement under Paragraph 26 has been published 40 days 
and not more than 12 months in advance; 
b) in the case where the procuring entity procures commercial services, the procuring entity 
may reduce the time period referred to in Paragr aph 45 to not less than 15 days, provided 
that it publishes by electronic means, at the same time, both the notice of intended 
procurement and the tender documentation, and that tenders can be received by 
electronic means; 
c) where a state of urgency duly substantiated by the procuring entity renders impracticable 
the periods specified in Paragraphs 45 and 46. 
 
TITLE 13:  NEGOTIATION  
48. A Member may provide for its proc uring entities to conduct negotiations: 
a) in the context of procurements in which they  have indicated such intent in the notice of 
intended procurement; 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. 
 
 
   S/WPGR/W/54 
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  49. A procuring 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, provi de a common deadline for the remaining 
tenderers to submit any new or revised tenders. 
 
TITLE 14:  LIMITED TENDERING  
50. 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 Members, or that protects 
domestic suppliers, a procuring entity may use a limited tendering procedure only in the following 
circumstances and subject to the fo llowing conditions, where applicable: 
a) provided that the requirements of the tender documentation are not substantially 
modified, where no tenders were submitted or no suppliers applied to meet the 
conditions for participation, or where no tenders that conform to the essential 
requirements of the tender documentation were submitted or where no suppliers satisfied 
the conditions for participation; 
b) where the services can be supplied only by a particular supplier and no reasonable 
alternative or substitute 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; iii) due to an absence of competition for technical reasons; 
c) for additional deliveries by the original supp lier of services that were not included in the 
initial procurement where : 
i) a change of supplier for such additi onal services cannot be made for economic or 
technical reasons, such as requirements of in terchangeability or interoperability with 
existing equipment, software, services, or  installations procured under the initial 
procurement; and 
ii) such separation would cause significant inconvenience or substantial duplication of 
costs to the procuring entity; 
d) insofar as is strictly necessary where, for reasons of extreme urgency brought about by 
events unforeseeable by the procuring entity, the services could not be obtained in time 
under open or selective tendering procedures; 
e) where a procuring entity procures a prototype or a first 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 service may include limited supply 
in order to incorporate the results of field t esting and to demonstrate that the service is S/WPGR/W/54 
Page 16  
 
  suitable for supply in quantity to acceptabl e quality standards, but does not include 
quantity supply to establish commercial viability  or to recover research and development 
costs; 
f) for new services consisting of the repetition of similar services which conform to a basic 
project for which an initial contract w as awarded following an open or selective 
procurement method and for which the procur ing entity has indicated in the notice of 
intended procurement concerning the initial ser vice, that a limited procurement method 
might be used in awarding contracts for such new services;  
g) 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 th at is consistent with the principles of this 
Annex, notably as regards the publication of  a notice of intended procurement;  and 
ii) the participants are judged by an independe nt jury with a view to a design contract 
being awarded to a winner. 
 
51. Each Member shall ensure that, whenever lim ited tendering is used, th e procuring entity shall 
maintain a record or prepare a wr itten report providing specific justification for the contract awarded. 
T
ITLE 15:  TREATMENT OF TENDERS AND CONTRACT AWARD  
52. Procuring entities shall receive and open bids  from suppliers upon procedures and conditions 
guaranteeing the respect of the principles of transparency and non-discrimination. 
53. To be considered for award, a tender must, at the time of opening, conform to the essential 
requirements of the notices or tender documentation and be submitted by a supplier which complies 
with any conditions for participation. 
54. 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 th e 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 advant ageous solely on the basis of the requirements and evaluation criteria 
specified in the notices or tender documentation. In th e latter case, award criteria shall be linked to the 
subject matter of the contract in question, and ma y include amongst others, quality, price, technical 
merits, environmental characteristics, running co sts, cost-effectiveness, after-sales service and 
technical assistance and delivery period of completion. 
55. A procuring entity shall not cancel procurement or  modify awarded contracts in a manner that 
circumvents the obligations of this Annex. 
TITLE 16:  TRANSPARENCY OF PROCUREMENT INFORMATION  
56. Procuring entities shall promptly inform tendere rs of decisions regarding the award of the 
contract and, on request, in writing. Procuring en tities shall, on request, provide any eliminated 
tenderer of the reasons for the rejection of its tende r and of the characteristics and relative advantages 
of the selected tender.  
57. Procuring entities shall promptly publish after the award of the contract a notice in an 
officially designated publication that may be an electronic or paper medium. Such notice would at  S/WPGR/W/54 
 Page 17 
 
 
  least include a description of the services procured, the name and address of the procuring entity, the 
name and address of the successful tenderer, the valu e of the successful tender and the date of award. 
TITLE 17:  DOMESTIC REVIEW  
58. Each Member shall provide a timely, effective, transparent, and non-discriminatory 
administrative or judicial review procedure through which a supplier may challenge a breach of this 
Annex, arising in the context of a covered procurement, in which it has, or has had, an interest. The 
procedural rules for all  challenges shall be in writing and made generally available. 
59. In the event of a complaint  by a supplier, arising in the c ontext of covered procurement in 
which the supplier has, or has had, an interest, that there has been a breach of this Annex, each 
Member shall encourage the procuring entity and su pplier to seek resolution of  the complaint through 
consultations. The procuring entity shall accord im partial 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  corrective measures under the administrative or 
judicial review procedure. 
60. Each supplier shall be allowed a sufficient peri od 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. 
61. Each Member shall establish or designate at l east one impartial administrative or judicial 
authority that is independent of its procuring entities to receive and review a challenge of a supplier 
arising in the context of a covered procurement. 
62. Where a body other than an authority referred to  in Paragraph 61 initially reviews a challenge, 
the Member 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. 
63. A review body that is not a court shall either be subject to judicial review or shall have 
procedures which provide that: 
a) the procuring entity shall respond in writing to the 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 access to all proceedings; d) decisions or recommendations relating to supplier challenges shall be provided, in a 
timely fashion, in writing, with an expl anation of the basis for each decision or 
recommendation. 
 
64. Each Member 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 r esult in suspension of the procurement S/WPGR/W/54 
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  process. However, procedures may provide th at overriding adverse consequences for the 
interests concerned, including the public interest, may be taken into account when 
deciding whether such measures should be applie d. In such circumstances, just cause for 
not acting shall be provided in writing; and  
b) corrective action where a review body has dete rmined that there has been a breach of this 
Annex or compensation for the loss or damage s suffered, which may be limited to the 
costs for the preparation of the tender or the costs relating to the challenge. 
 
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