RESTRICTED  
  
GPA/TN1994/3/Rev.10  
26 July 2005 
(24-2745) 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 21 JULY 2005*,** 
CLEAN TEXT  
PREPARED BY THE SECRETARIAT  
Revision  
This note reflect s the state of the negotiations on the revision of the text of the Agreement on 
Government Procurement under Article  XXIV:7 as at the end of the meeting of the Informal Group 
of the Committee on Government Procurement held in the week of 18 July 2005. 
 
_______________  
 
 
* 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 81) was derestricted on 8 November 2023.  GPA/TN1994/3/Rev.10  
- 2 - 
  TABLE OF CONTENTS  
Article  I Definitions  ................................ ................................ .............................  3 
Article  II Scope an d Coverage  ................................ ................................ ................  5 
Article  III General Principles  ................................ ................................ ...................  8 
Article  IV Publication of Procurement Information  ................................ ......................  9 
Article  V Publication of Notices  ................................ ................................ ...............  9 
Article  VI Time-Periods  ................................ ................................ .........................  11 
Article  VII Information on Intended Procu rements  ................................ .....................  12 
Article  VIII Conditions for Participation  ................................ ................................ ...... 15 
Article  IX Negotiation  ................................ ................................ ...........................  17 
Article  X Limited Tendering  ................................ ................................ ..................  17 
Article  XI Treatment of Tenders and Contract Awards  ................................ ................  19 
[Article  XII Use of Electronic Means]EC,NOR,KOR ................................ .............................  20 
Article  XII/XIII  Transparency of Contract Award Information  ................................ ..............  21 
Article  XIII/XIV  Disclosure of Information  ................................ ................................ ........  23 
Article  XIV/XV  Developing Countries  ................................ ................................ ..............  23 
Article  XV/XVI  Exceptions to the Agreement  ................................ ................................ ... 25 
Article  XVI/XVII  Modifications and Rectifications to Coverage  ................................ ..............  25 
Article  XVII/XVIII  Domestic Review of Supplier Challenges  ................................ ....................  28 
Article  XVIII/XIX  Consultations and Dispute Settlement  ................................ .......................  29 
Article  XIX/XX  Institutions  ................................ ................................ ...........................  31 
Article  XX/XXI  Final Provisions  ................................ ................................ ......................  31 
 
 GPA/TN1994/3/Rev.10  
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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, t he 
conduct of international trade;  
 
Recognizing  that measures regarding government procurement should not be prepared, adopted or 
applied so as to afford protection to domestic suppliers, goods or services or discriminate among 
foreign suppliers, goods or services;  
 
Recognizing  that the integrity and predictability of government procurement systems are integral to 
the efficient and effective management of public resources, the performance of the Parties' 
economies, and the functioning of the multilateral tr ading system;  
 
Recognizing  that the procedural commitments under this Agreement should be sufficiently flexible 
to accommodate the specific circumstances of each Party;  
 
[Recognizing  the need to take into account the development, financial and trade needs of developing 
countries, in particular the least -developed countries;]* [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 impartial manner, avoiding conflict of 
interest and corrupt practices, in accordance with relevant international instruments ; 
 
Recognizing the importance of using, and encouraging the us e 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 government -owned works and under which, as consideration for a supplier's 
execution of a contractual arrangement , a procuring entity grants to the supplier, 
for a specified period of time, temporary ownership or a right to control and operate, 
and demand payment for the use of such works for the duration of the contract;]US 
[Market Access Issue ] 
 
(b) commercial good s and services  mean goods and services with characteristics 
similar to those of goods and services that are sold or offered for sale to, and 
customarily purchased by, non -governmental buyers for non -governmental 
purposes;  it includes goods and services wit h modifications customary in the 
commercial marketplace [as well as minor modifications not customarily available in 
 
* Unattributed brackets [ ] indicates language that Parties are still considering.  GPA/TN1994/3/Rev.10  
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  the commercial marketplace that do not significantly alter the non -governmental 
function or essential physical characteristics or change th e purpose]US,CDA; 
 
(c) construction services contract  means a contract that has as its objective the 
realization by whatever means of civil or building works[, in the sense of Division  51 
of the Provisional U.N. Central Product Classification (CPC)]JPN; [NB: The language 
of this provision needs to be re -examined. ] 
 
(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 expressi on in this Agreement is qualified by the term 
"national", such expression shall be read as pertaining to that customs territory, 
unless otherwise specified;  
 
(e) days means calendar days;  
 
(f) electronic auction  means an iterative process involving the use of electronic means 
for the presentation of new prices  [and/]EC,SWI or new values [concerning ]EC,SWI 
[for]CDA,US non-price [criteria]CDA,US [elements  of the tenders ]EC,SWI,NOR, resulting in 
an automatic [new]EC,SWI,NOR ranking of tenders [through an automatic evaluation 
method  OR following the application of mathematical formula] .EC,SWI,NOR 
 
(g) [electronic means  means using electronic equipment for the electronic processing 
(including digital compression) and storage of data that is transmitted, conveyed 
and received by Internet, by wire, by radio, by optical means or by other 
electromagnetic mean s;]EC,NOR [NB: The need for this definition will be 
determined after the related provisions are fin alized.] 
 
(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 p rocuring 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 act ion of a procuring entity relating to a covered 
procurement]EC,US,JPN,NOR,KOR,SWI; 
 
(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 
"domestic suppliers" and, along with Korea and Israel, that "technology 
transfer" expands the scope of offsets.]  GPA/TN1994/3/Rev.10  
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  (n) open tendering  means a procurement method where all interested suppliers may 
submi t 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 obtains the use of or 
acquires goods or services, or any combina tion 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;] [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 conditions for participation;  
 
(s) selective tendering  means a procurement method where only suppliers satisfying 
the conditions for participation are invited by the procuring ent ity to submit a tender;  
[NB: Japan propose s to delete this definition.]  
 
(t) services  includes construction services, unless otherwise specified;  
 
(u) standard  means a document approved by a recognized body, that provides, for 
common and repeated use, rule s, 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 a s 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 
for their production or provision;  or 
 
(ii) addresses terminolo gy, symbols, packaging, marking or labelling 
requirements, as they apply to a good or service.  
 
Article  II Scope and Coverage  
 
Application of Agreement  
 
1. This Agreement applies to any measure regarding 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 [: 
 
(i)]US,JPN as provided for in Appendix  I [and subject to any exclusions therein]CDA[; 
and GPA/TN1994/3/Rev.10  
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  (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 purchas e; lease;  rental or hire purchase, with 
or without an option to buy [and build -operate -transfer contracts and concessions 
for public works contracts]US [with or without utilization of the funds and the 
managerial or technical ability of the private sector]JPN; [Bracketed Language – 
Market Access Issue ] 
 
(c) for which the value as estimated, in accordance with paragraph  8/9, equals or 
exceeds the relevant threshold specified in [Appendix  I/paragraph  3/4], at the time 
of publication of a notice in accordance with Article  V; [Bracketed Language – 
Market Access Issue ] 
 
(d) by a procuring entity [; and 
 
(e) that is not excluded from coverage by this Agreement] .US,EC,JPN ,NOR,SWI,ISR 
 
[3. Regardless of whether a  Party classifies software as a good or a service, paragraph  2(a) 
includes software that is delivered on a carrier medium or that is delivered, accessed, or used by 
electronic means, unless a Party explicitly excludes software from its coverage.]US [Market Access 
Issue ] 
 
[3/4. 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 130,000 for contracts for supply of goods and services;  
- SDR 5,000,000 for contracts for construction services;  
 
(b) of sub -central government entities where the value is estimated to equal or exceed:  
- SDR 200,000 for contracts for supply of goods and services;  
- SDR 5,000,000 for contracts for cons truction services;  
 
(c) of entities according to Appendix  I, Annex  3 where the value is estimated to equal 
or exceed:  
- SDR 400,000 for contracts for supply of goods and services;  
- SDR 5,000,000 for contracts for construction services.]EC,NOR 
[Market Acce ss Issue ] 
 
[4/5. This Agreement does not apply to: ]US,CDA,JPN 
 
[(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 infus ions, guarantees, and 
fiscal incentives;  
 
(d) purchases funded by international grants, loans or other assistance, where the 
provision of such assistance is subject to conditions inconsistent with this 
Agreement;  
 
(e) procurement for the direct purpose of providing foreign assistance;  
 GPA/TN1994/3/Rev.10  
- 7 - 
  (f) 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 
 
(g) employme nt of government employees .]US [Market Access Issue ] 
 
5/6. For each Party, Appendix  I shall be divided into [six/seven]  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 other entities whose procurement is covered by this Agreement;  
 
[(d) Annex  4 specifies the goods covered by this Agreement; ]US,CDA,JPN,SWI 
 
(d)/(e) Annex  [4/5] specifies the services covered by this Agreement;  
 
(e)/(f) Annex  [5/6] specifies the construction services covered by this Agreement ; and 
 
(f)/(g) Annex  [6/7] sets out the General Notes applicable to the Annexes . 
 
Compliance  
 
6/7. Each Party shall [take suc h 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.  
 
7/8. 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  
 
8/9. In estimating the value of a procurement 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 with 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:  [NB: Japan is still considering the bracketed 
language.]  
 
(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 . 
 
9/10. Where an individual requirement [for a procurement]US,CDA,HKC results in [ the award of more 
than one contract, or in the award of contracts in separate parts,  the calculation of  the estimated GPA/TN1994/3/Rev.10  
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  maximum total value shall be based on]US,CDA,HKC [more than one procurement over a certain period, 
the estimated value shall be the greate r 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 
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 
 
10/11. In the case of procurement by lease, rental or hir e 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  any estimated residual value;  
 
(b) where the  contract  is for an indefinite period, t he estimated monthly instal ment 
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 procuri ng 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 services 
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 other wise in this Agreement, in a transparent GPA/TN1994/3/Rev.10  
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  and impartial manner [, using methods such as open tendering, selective tendering , and limited 
tendering ]. 
 
[Conflict of Interest  
 
3bis. A procuring entity  shall ensure that the impartiality of its procurement process may 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 [, prior to or in the course of a procurement process ].US,CDA, KOR 
 
Measures Not Specific to Procurement  
 
6. The provisions of paragraphs  1 and 2 shall not apply to customs duties and charges of an y 
kind imposed on, or in connection with, importation, the method 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 Publicati on of Procurement Information  
 
Each Party shall:  
 
(a) promptly publish any law, regulation, judicial decision, administrative ruling of 
general application, standard contract clauses that are mandated by law or 
regulation and are incorporated by reference in notices and tender documentation 
and procedure regarding covered 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 s 
 
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 t o the public.  [[For 
procuring entities in Annex  1, the]JPN,KOR,US  [The]EC,NOR,SWI notices shall be accessible  electronically  
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 charge 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 proc uring entity and obtain all relevant documents relating to the 
procurement, and their cost and terms of payment, if any;  GPA/TN1994/3/Rev.10  
- 10 - 
   
(b) a description of the procurement, including the nature and the quantity of the goods 
or services to be procured or, where the quan tity is not known, the estimated 
quantity;  
 
(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 used and whether it will involve negotiation  [or 
electronic auction ]CDA,U S,JPN,NOR [and any requirement that tenders be submitted by 
electronic means ]NOR; [NB: The EC considers that the bracketed language 
should be located in Article  XII.] 
 
(g) the address and the time -limits for the submission of tenders and, where applicable, 
any time -limits for the submission of applications to qualify for participation in the 
procurement ; 
 
(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 entity;  
 
(i) a list and brief description of any conditions for participation of suppliers[ , including 
any specific documents or certificat ions required from suppliers in connection 
therewith]EC,CDA,ISR,US,SWI,NOR[, unless such information is included in tender 
documentation  that is [publicly  and electronically]  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 criteria that will be used to select 
them and, where applicable, any limitation on the number of suppliers that will be 
permitted to tender;  and 
 
(k) an indication that the procurement is covered by this Agreement.  
 
[Summary Notice  
 
3. For each case of intended procurement, 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 qualify for participation in the procurement or 
for inclusion on a multi-use list;  
 
(c) [a list or a brief description of any cond itions for participation;]EC and 
 
[(d)]EC the addresses from which documents relating to the procurement may be 
requested. ]EC,NOR,KOR,JPN ,SWI 
 GPA/TN1994/3/Rev.10  
- 11 - 
  Notice of Planned Procurement  
 
3/4. Procuring entities are encouraged to publish as early as possible in each fiscal year a notice 
regarding each procuring entity's future procurement plans.  The notice should include the subject -
matter of the procurement and the planned date of the publication of the notice of intended 
procurement.  
 
4/5. A procuring entity in [Ann ex 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 t he 
procurement to the entity.  
 
Article  VI Time -Periods  
 
General  
 
1. A procuring entity shall , consistent with its own reasonable needs,  provide sufficient time for 
suppliers to prepare and submit  requests for participation and 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 do mestic 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.  [NB: Canada is considering the language "interested or 
participating".]  
 
Deadlines  
 
2. Except as provided for in paragraph [s]CDA 4 [and 7]CDA, 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 notice 
inviting suppliers to submit applications] .US,CDA [NB: The 25  days is linked to the reduction of 
time-periods.  In the view of the EC, the 25 -day requirement has already been linked 
through the chapeau of paragraph  4.] 
 
3. Except as provided for in paragraphs  4 [and 5/through  7], 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-period [s] [for requests for participation set out in 
paragraph  2 [and]US[or]HKC for tendering set out in paragraph  3]HKC,US to not less than 10  days 
where:  
 
(a) the procuring entity published [a separate notice, including]US,CDA,JPN a notice of 
planned procurement under Article  V:3/4 at least 40  days and not more than 
12 months in advance, and such notice contains:  
 GPA/TN1994/3/Rev.10  
- 12 - 
  (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;  
 
(iv) the address from which documents relating to the procurement may be 
obtained ; and 
 
(v) as much of the information tha t is required under Article  V:2 for the notice 
of intended procurement, as is available ; 
 
[(b) the procuring entity procures commercial goods or services;]US,CDA,JPN and 
 
(b/c) a state of urgency duly substantiated by the procuring entity renders impracticable 
the periods specified in paragraph s 2 and 3. 
 
5. A procuring entity may reduce the time -period for tendering set out in paragraph  3 by 
five days for each  one of the following circumstances:  
 
(a) the notice of intended procurement is published electronically;  
 
(b) all the 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,JPN,SW I,HKC 
 
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 tim e-periods in this Article, where a procuring entity is purchasin g 
commercial goods or services and the notice of intended procurement and the tender document ation 
are published electronically, and the tenders  may be received electronically , the entity may reduce 
the time -period  for tendering set out in paragraph  3 to no less than [ 15]EC [5]US [3]CDA days, 
provided such time is sufficient  to allow 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 tender ing may be fixed by mutual agreement between the 
procuring entity 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 includes all information 
necessary to permit suppliers to prepare and submit responsive tenders.  Unless already provided in 
the notice of intended procurement, such documentation shall include a complete description of:  
 
(a) the procurement, including the nature and the quantity of the goods or services to 
be procured or, where the quantity is not known, the  estimated quantity and any 
requirements to be fulfilled, including any technical specifications, conformity 
certification, plans, drawings or instructional materials;  
 
(b) any conditions for participation of suppliers including a list of information and 
documents that suppliers are required to submit in connection therewith;  GPA/TN1994/3/Rev.10  
- 13 - 
  (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;  
 
[(c)bis where the procuring entity will hold an electronic auction, the rules under which the 
auction will be conducted, including [identification of ] the price and non -price criteria 
on which the auction will be based;]CDA,JPN 
[NB: The European Communities disagree with the location of this 
subparagraph , and consider that it should be located in Article  XII. As to 
the substance, the European Communities consider that this provision is too 
narrow  and not accurate because:  
- it does not specify  that the "non-price criteria " must be quantifiable and 
can be expressed in figures or percentages;  
- it does not mention the mathematical formula to be used for the ranking 
of tenders when it is based on features of the economically most 
advantageous tender;  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 throughout the procurement process. ] 
 
(d) where t here will be a public opening of tenders, the date, time and place for the 
opening and, where appropriate, the persons authorized to be present;  
 
[(d)bis where the supplier may submit its tender through electronic means, all information 
necessary, including any encryption requirements, for the submission of tenders;]CDA 
and 
[NB: The EC considers subparagraph  (d)bis to be too narrow in comparison 
with Article  XII:2(c), and that the matter is best addressed in that latter 
provision . As such , subparagraph  (d)bis 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 more detail and  to cover more than 
simply the preparation and sending 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.  
- There are no checks and bala nces 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.]  
 
[(e)] any other terms or conditions, including terms of payment and any limitation on the 
means by which tenders may be submitted, e.g., paper or electronic means.  
 
2. In establishing any delivery date for the goods or services being procured, a procuring entity  
shall take into account such factors as the complexity of the procurement, the extent of 
subcontracting anticipated and the realistic time required for production, de -stocking and transport 
of goods from the points of supply or for supply of services.  
 
3. A procuring entity shall promptly:  
 
(a) provide, on request, the tender documentation to any supplier participating in the 
procurement;  and 
 GPA/TN1994/3/Rev.10  
- 14 - 
  (b) reply to any reasonable request for relevant information by a supplier participating 
in the procurement, pro vided that such information does not give that supplier an 
advantage over its competitors in the procurement.  
 
Technical Specifications  
 
4. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe 
any conformity assessm ent procedure with the purpose or the effect of creating unnecessary 
obstacles to international trade.  
 
5. In prescribing the technical specifications for the goods or services being procured, a procuring 
entity shall, where appropriate:  
 
(a) specify the t echnical 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 regulat ions, recognized national standards or 
building codes.  
 
[6. Where design or descriptive characteristics are used in the technical specification, procuring 
entities [shall]KOR,EC ,SWI,NOR,HKC [may]JPN include words such as "or equivalent" in the reference to  the 
technical specifications, and shall consider tenders that do not meet the [design or descriptive 
characteristics]HKC [specifications ] but do demonstrably meet the requirements thereof and are fit 
for the purposes intended.]KOR,EC ,SWI,NOR,HKC 
 
6/7. 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 intellig ible way of describing the procurement 
requirements and provided that, in such cases, words such as "or equivalent" are included in the 
tender documentation.  
 
7/8. A procuring entity shall not seek or accept, in a manner that would have the effect of 
precluding competition, advice that may be used in the preparation or adoption of any technical 
specification for a specific procurement from a person that may have a commercial interest in the 
procurement.  
 
[8/9. For [greater certainty ][clarity]HKC, this Article is not intended to preclude a Party from 
preparing, adopting, or applying technical specifications to promote the conservation of natural 
resources or protect the environment[ , provided that such technical specifications are consistent 
with paragra phs 4 through  7/8]JPN,EC ,CDA].JPN,EC,US,SWI,NOR ,HKC,KOR,CDA 
 
Modifications  
 
9/10. 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 participat ing 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 same 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.10  
- 15 - 
  Article  VIII Conditions for Participation  
 
General Requirements  
 
1. A procuring entity shall limit any conditions for participation in a procurement to those that 
are essential to ensure that a supplier has the legal, commercial, technical , and financial abilities to 
undertake the relevant procurement.  
 
2. In assessing whether a supplier satisfies 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 procuring entity;  
 
(b) shall base its determination on the conditions that the procuring entity has specified 
in advance in notices or tender documentati on; 
 
(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 ,JPN,SWI 
 
3. A procuring entity may exclude a supplier on grounds such as : 
 
(a) bankruptcy ; 
 
(b) false declarations ; 
 
(c) [significant [or persistent]HKC deficiencies in performance of a ny substantive 
requirement or obligation under a prior contract [, provided it is relevant to the 
subject of the procurement in question]SWI]US,CDA,HKC,JPN; 
 
(d) [final judgments ]EC,NOR,CDA,US ,JPN [conviction[s]]HKC in respect of serious crimes or 
other serious public offences;  
 
(e) [professional misconduct [or [serious]EC acts or omissions that adversely reflect upon 
the professional conduct, integrity or honesty of the supplier]HKC,EC]EC,HKC,NOR; or 
 
(f) failure to pay taxes . 
 
Selective Tendering  
 
4. A procuring entity  that intends 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 submit 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 recogni ze as qualified suppliers all domestic suppliers  and suppliers of 
other Parties that meet the conditions for participation in a particular procurement , unless the 
procuring entity  states in the notice or, where publicly available, in the tender documentatio n, any GPA/TN1994/3/Rev.10  
- 16 - 
  limitation on the number of suppliers that will be permitted to tender and the criteria for such 
limitation.  
 
6. Where the tender document ation 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 
paragr aph 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 of 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 compl ete the examination of the application [within the time period allowed 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 par ticipation shall not be 
used to exclude such suppliers from being considered for the procurement.]EC 
 
Multi-Use Lists  
[NB: Japan would move this part to follow General Requirements .] 
 
8. A procuring entity may maintain a multi -use list of suppliers, provided that it  annually 
publish es [or otherwise make s available continuously in electronic form ]US,CDA,JPN,HKC a notice inviting 
interested suppliers to apply for inclusion on the list in one of the appropriate pub lications 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 participation to be satisfied by suppliers and the methods that the 
procuring entity will use to verify a supplier's satisfaction of the conditions;  
 
(c) the name and address of the procuring entity and other information necessary to 
contact the entity and obtain all relevant documents relating to the list;  
 
(d) the 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 b e used  for procurement covered by this Agreement . 
 
[9. Notwithstanding paragraph  8, a procuring entity may publish t he 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 ,NOR 
 
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi -use list 
and shall include on the list all qualified suppliers within a reasonably short time.  
 
Uniformity of Qualification and Registration Procedures  
 
[11. Each Party sh all ensure that:  
 
(a) each procuring entity and its constituent parts follow a single qualification procedure, 
except in cases of duly substantiated need for a different procedure;  and 
 GPA/TN1994/3/Rev.10  
- 17 - 
  (b) its procuring entities make efforts to minimize differences in their qualification and 
registration procedures. ]EC,US ,KOR,SWI 
 
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 procurem ent, 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 satisfies the conditions for participation ].EC,NOR 
 
Information on Procuring Entit ies' Decisions  
 
13. A pro curing 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 recogni ze 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.  
 
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 procuring entity shall : 
 
(a) ensure that any elimination of tenderers in negotiations is carried out in accordanc e 
with the evaluation  criteria set out in the notices or tender documentation ; and 
 
(b) when negotiations are concluded , provide a common deadline for 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 discrimin ates 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]US,CDA in the following circumsta nces:  
 GPA/TN1994/3/Rev.10  
- 18 - 
  (a) provided that the requirements of the tender documentation are not substantially 
modified:  
 
(i) where no tenders were submitted or no suppliers applied to meet the 
conditions for participation;  
 
(ii) where no tenders that conform to the essential requirements of the tender 
documentation were submitted;  
 
(iii) where no suppliers satisfied the conditions for participation;  or 
 
(iv) where the tenders submitted have been collusive;  
 
(b) where the goods or services can be supplied only by a pa rticular supplier and no 
reasonable alternative or substitute goods or services exist for the following reasons:  
 
(i) the requirement is for a work of art;  
 
(ii) the protection of patents, copyrights or other exclusive rights[, or proprietary 
information]US,CDA,JPN; or [NB: The EC is wondering 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 th at are intended 
either as replacement parts, extensions, 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 
interchang eability 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 
 
(ii) due to the change of goods or services, require existing e quipment 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;  
 
(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 incorpor ate the results 
of field testing and to demonstrate that the good or service is suitable for production 
or supply in quantity to acceptable quality standards, but does not include quantity 
production or supply to establish commercial viability or to recove r research and 
development costs;  
 
(g) where additional [construction]JPN,CDA,US,KOR services which were not included in the 
initial procurement but which were within the objectives of the original tender 
documentation have, through unforeseeable circumsta nces, become necessary to 
complete the services described therein, and the entity needs to award contracts for GPA/TN1994/3/Rev.10  
- 19 - 
  the additional services to the contractor carrying out the services concerned since 
the separation of the additional services from the initial pr ocurement would be 
difficult for technical or economic reasons and cause significant inconvenience to the 
procuring entity.  However, the total value of contracts awarded for the additional 
services may not exceed 50  per cent of the amount of the main procu rement;  [NB: 
Switzerland ; Hong Kong, China;  Norway ; and the EC question why this 
should be limited to construction .] 
 
(h) for new [construction]JPN,CDA,US,KOR services consisting of the repetition of similar 
services which conform to a basic project for wh ich an initial contract was awarded 
following an open or selective procurement 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 exceptionally advantageous conditions which only arise in 
the very short term in the case of unusual disposals such as arising from liquidation, 
receivership or bankruptcy and not for routine purchases from regular suppliers;  and 
 
(j) in the case of a contract awarded to a winner of a design contest provided that:  
 
(i) the contest has been organized in a manner that is consistent with the 
principles of this Agreement, notably as regards the publication of a notice 
of intended procurement;  and 
 
(ii) the participants are judged by an independent jury with a view to a design 
contract being awarded to a winner.  
 
2. A procuring entity shall prepare a report in writing on each contract awarded under 
paragraph  1. Each such report shall include the name of the procuring entity, the value and kind of 
goods or services procured and a statement indicating the circumstances and conditions described 
in paragraph  1 that justified the use of such  procedures.  
 
Article  XI Treatment of Tenders and Contract Awards  
 
Receipt and Opening of Tenders  
 
1. A procuring entity shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process.  
 
[2. A procuring entity shall treat tenders in confidence at least until the [award of the contract ] 
[contract award decision]  [is announced]HKC [opening  of the tender] .KOR] [NB: Parties are 
examining the content of, and the need for, this paragraph.]  
3. A proc uring 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 procuring entity provides suppliers with opportun ities 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 participation.  
 GPA/TN1994/3/Rev.10  
- 20 - 
  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 evaluation 
criteria specified in the notices or t ender 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,KOR 
 
[Article  XII Use of Electronic Means]EC,NOR,KOR 
[NB: Parties are still considering this proposed Article.]  
 
[1. Covered procurement conducted, exclusively or partially, by electronic means shall be subject 
to the provisions of this Agreement.]EC,NOR,SWI,SGP [NB: Parties are considering w hethe r this 
could be addressed in Article  II:1.] 
 
[2. When conducting covered procurement electronically, a procuring entity shall:  
 
(a) ensure that the procurement is conducted in a manner that is consistent with this 
Agreement, in particular by using non-discriminatory, generally available and 
interoperable information technology products, including those related to 
authentication and encryption;  
 
(b) ensure that all information necessary to permit suppliers to prepare and submit 
responsive tenders, in cluding any authentication and encryption requirements , is 
included in the tender documentation;]EC,NOR,KOR [NB Regarding  
subpara graph s (a) and  (b): Canada considers that requirements for 
authentication and encryption relate to the receipt of tenders and s hould be 
located in Article  VII. Non-discrimination is dealt with in Article  III.] 
 
[(c) use mechanisms which clearly and unambiguously guarantee that, before  the expiry 
of the deadlines set, the integrity of data is preserved, access to tenders and reques t 
to participate is prohibited and the timing of receipt of tenders and request to 
participate is accurately established. ]EC,NOR ,KOR [NB: Canada believes this 
provision relates to the receipt and opening of tenders, and is addressed in 
Article  XI:1-4. The EC believes that this provision does not relate only to the 
receipt and opening of tenders. ] 
 
3. [Where a procuring entity conducts a covered procurement by using an electronic auction, the 
entity shall:]EC,NOR, KOR [NB: Israel is wondering whet her 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 its intention to use electronic a uctions in the notice of intended 
procurement;]EC,NOR ,KOR [NB: Japan, Canada and the United States consider 
that this provision should be located in Article  V:2.]  
 
[(b) provide [in the tender documentation]EC the basic rules under which the auction will 
be conducted, including identification of the quantifiable elements on which the GPA/TN1994/3/Rev.10  
- 21 - 
  auction will be based;]EC,NOR ,KOR [NB: Japan, Canada and the U nited States  
believe this should be located in Article  VII relating  to evaluation criteria.]  
 
[(c) provide participants, before starting the electronic auction, with:  
 
(i) the mathematical formula determining , in accordance with the criteria set in 
the tender documentation , the automatic new/re -ranking during the 
electronic auction;  and 
 
(ii) any other relevant information relating to the conduct of the electronic 
auction.]EC,NOR,KOR [NB: Canada believe s the release of the information 
on how tenders will be evaluated (relative importance of criteria, 
mathematical formula) should be at an earlier stage, i.e. , in the 
tender documents . The EC agrees about the relative importance of 
criteria but does not cons ider that it is always feasible to provide the 
mathematical formula at the moment of the release of the tender 
documentation.  The EC considers that what really matters is that 
this formula is made available to suppliers before the running of the 
auction. ] 
 
[4. A procuring entit y shall ensure that all [essential]NOR,SWI 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 ,NOR,SWI [NB: Parties are considering w hether this 
could be addressed in Article  XII/XIII :4.] 
 
Article  XII/XIII  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/XIV, a procuring entity shall, on request, 
provide an unsuccessful supplier with an explanation of the reasons that the entity did not select its 
tender  and the relative advantages of the successful supplier's tender.  
 
Publication of Award Information  
 
2. Not later than 72  days after the award of each contract covered by this Agreement, a procuring 
entity shall publish a notice in an officially designated  publication listed in Appendix  II that may be 
in an electronic or paper medium.  Where only an electronic medium is used, the information shall 
remain readily accessible for a reasonable period of time.  The notice shall include at least the 
following infor mation:  
 
(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.  
 GPA/TN1994/3/Rev.10  
- 22 - 
  Maintenance of Documentation and Reports  
 
3. Each procuring entity shall maintain documentation and reports 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 entit y 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  XII/XIII :4 as the obligation of traceabilit y 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 on its contracts covered by this 
Agreement.  Each report shall cover one year and be submitted within two  years of the end of the 
reporting period, and shall contain:  
 
(a) For Annex  1 procuring entities:  
 
(i) the number and total value, for all such entities, of contracts covered by this 
Agreement;  
 
(ii) the number and total value of all contracts covered by this Agreement 
awarded by such entities, broken down by [categories of]US,CDA goods and 
services [according to an internationally recognized uniform classification 
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 ; 
 
[(iv) the total value of contracts awarded under derogat ions 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 und er subparagraph  [(a) and]EC,US,JPN ,NOR,SWI (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 instructions necessary 
to access and use such statistics.  
 
6. Where a Party requires notices concerning awarded contracts, pursuant to paragraph  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.  
 GPA/TN1994/3/Rev.10  
- 23 - 
  Article  XIII/XIV  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, except 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 supplier 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/XVIII  [or XVIII/XIX]EC]EC,US ,HKC,JPN to release 
[confidential]CDA,JPN information [that is designated as confidential or that is by nature confidential]US 
under this Agreement where release:  
 
(a) would impede law enforcement;  
 
(b) might prejudice fair competition between supp liers; 
 
(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 ava ilable to an authority or review body 
under Article  XVII/XVIII  or a panel under Article  XVIII/XIX where it is determined 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 procedure s to ensure that its confidentiality is preserved.]EC 
 
Article  XIV/XV Developing Countries  
 
1. 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 signif icantly from country to country.  In this context, 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 th e 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 treatment 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 
developing country [, unless the developing country has scheduled transitional measures other than 
price preferences or offset s].EC,SWI,KOR]EC,NOR,SWI ,KOR,HKC 
 GPA/TN1994/3/Rev.10  
- 24 - 
  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 tha t 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 developing 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 the 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 i s higher than its permanent threshold . 
 
3/4. [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 
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 limitati ons shall be clearly identified in the 
Committee's accession 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 shal l not exceed 10 years for developing countries and 
20 years for least -developed countries.]EC,SWI,KOR 
 
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 specified 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 nec essary 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 State s 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, specific 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: GPA/TN1994/3/Rev.10  
- 25 - 
   
(a) extend the transition period for measures permitted under paragraph  [2/3] or the 
implementation period permitted under paragraph  [4/6] where a developing c ountry 
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 
implementation 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 fr om 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 developing 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 Parties 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 Article every five years.  
 
Article  XV/XVI  Exceptions to the Agreement  
 
1. Nothing in this Agreement shall be construed to prevent any Party from taking any action or 
not disclosing any informat ion 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 manner that would 
constitute a means of arbitrary or unjustifiable discrimination between Parties where the same 
conditions prevail or a disguised restriction on international trade, nothin g 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;  
 
(c) necessary to protect intellectu al property;  or 
 
(d) relating to goods or services of handicapped persons, of philanthropic institutions 
or of prison labour.  
 
[3. The Parties understand that paragraph  2(b) includes environmental measures necessary to 
protect human, animal or plant life o r 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.]JPN,KOR,CDA,US [NB: Location needs to be reconsidered.  Norway ; Hong Kong, China;  
and Switzerland propose to delete this paragraph. ] [Market Access Issue ] 
 
Article  XVI/XVII  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 mo dification (referred to generally in this Article GPA/TN1994/3/Rev.10  
- 26 - 
  as "modification") of Appendices I through 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 ex ercise of its rights on 
the grounds that government control or influence over it has been effectively 
eliminated, [including by virtue of liberalization,]EC,NOR,SWI evidence that such 
government control or influence has been effectively eliminated, includi ng 
information that addresses, as appropriate, the indicative criteria developed by the 
Committee in accordance with paragraph  14/151; or [NB: The EC believes that 
some re -drafting might be necessary.]  
 
(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 [after circulation of the notification] . The 
notification shall set out reasons 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 under paragraph  1(b), any cla im 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 abl e 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 any 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.  
 
[4bis. Arbitrators shall be drawn from the same body of persons eligible to serve as panelists under 
[the DSU]EC [Article XVIII/XIX:3(c)].US Unless the Parties participating in the arbitration otherwise 
agree, the arbitrator shall consist of three persons.]US 
 
[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 equivalent 
benefits pursuant to paragraph  [9].]ISR 
 
6. Where more than one party requests arbitration, a single arbitration shall be established 
whenever feasible . 
 
7. Any party having a substantial interest in a matter brought to arbitration and having notified 
its interest to the Committee (referred to herea fter 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:  
 
 
1 The Parties will agree upon the indicative criteria before the concl usion of the GPA review/negotiations.  GPA/TN1994/3/Rev.10  
- 27 - 
  (a) in the case of a proposed withdrawal under paragraph  1(a), whether government 
control or influence over the entity proposed to be withdrawn has been effectively 
eliminated;  and 
 
(b) in the case of any other proposed mod ification, whether the proposed modification 
would result in a level of coverage comparable to, or greater than, the level of 
mutually agreed coverage provided in the Agreement and would otherwise maintain 
the balance of rights and obligations under the Ag reement.  If the arbitrator 
determines that the level of coverage is not comparable, it shall also determine the 
appropriate level 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 Appellat e Body exclusively in respect 
of issues of law or legal interpretation developed by the arbitrator within 30  days of the circulation 
of the determination to the Committee.  The provisions of the DSU on appeal shall apply mutatis 
mutandis  to an appeal brough t under this provision.  [Third parties having participated in the 
arbitration shall have an opportunity to be heard and make written submissions to the Appellate 
Body.]EC The arbitrator's report, as modified by the Appellate Body, shall be promptly circula ted to 
the Committee.]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 withdraws 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 u nder paragraph  1(a), government 
control or influence over the entity has been effectively eliminated ; or 
 
(ii) 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 [; or 
 
(e) the modifying Party and all affected Parties agree on compensatory adjustments] .EC 
 
[13. Where an arbitrator determi nes pursuant to paragraph  8 that government control or influence 
has not been effectively eliminated, or that a proposed modification would result in a level of 
coverage lower than the level of mutually agreed coverage, 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 original arbitration will be invited to participate in such arbitration.  The 
arbitrator shall issue a reasoned determination to the Parties to the arbitration and to the Committee, 
within 60 days of the request.  
 GPA/TN1994/3/Rev.10  
- 28 - 
  14. Where the modifying Party offers compensatory adjustment, but one or  more affected Parties 
do not agree to the offer, the modifying Party may [X  days after making the offer] request the 
arbitrator to determine whether the offer would result in a level of coverage comparable to the level 
of mutually agreed coverage provided  in the Agreement.  The arbitrator shall issue a reasoned 
determination to the Parties to the arbitration and to the Committee, within 60  days of the 
request.]EC 
 
[13bis. If in the case of a proposed 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 disa greement 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 original arbitration may 
request the arbitrator to determine the l evel 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  
 
14/15. 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 determine the level of compensatory adjustment to be offer ed for 
modifications made pursuant to this provision.  
 
Article  XVII /XVIII  Domestic Review of Supplier Challenges  
 
1. Each Party shall provide timely, effective, transparent and non -discriminatory [means for a 
supplier to ] [administrative or judicial review procedure through which a supplier can]KOR challenge 
[an alleged  failure to apply]US,CDA [the conformity of a procur ement with the Party's procedures 
governing covered procurements ]US [breach of ]EC,KOR this Agreement 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.  
 
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 corrective 
measures under the [challenge system ] [administrative or judicial review procedure] .KOR 
 
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 suppl ier. 
 
4. Each Party shall establish or designate at least one impartial administrative or judicial 
authority that is independent of its procuring entities to receive and review challenge s of suppliers 
arising in the context of a covered procurement.  
 
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 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;  
 GPA/TN1994/3/Rev.10  
- 29 - 
  (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 challe nge; 
 
(c) the participants to the proceedings shall have the right to be represented and 
accompanied;  
 
(d) the participants to the proceedings shall have access to all proceedings[, subject to 
Article  XIII/XIV (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/XIV (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 su pplier'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 intere st, 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 ] [corrective action to address any failure, 
as determined by a review body, of a procuring entity  to comply with a Party's 
procedures governing covered procurement ].US 
 
Article  XVIII /XIX  Consultations and Dispute Settlement  
 
[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, direct ly 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 ,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 Disputes ( hereinafter referred to as "the 
Dispute Settlement Understanding ")]EC,JPN,NOR,CT ,US [request consultations] .CDA 
 
[3. The D ispute Settlement Understanding  applies to consultati ons 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,]US decisions GPA/TN1994/3/Rev.10  
- 30 - 
  or actions of the Dispute Settlement Body  with respect to those parts of the di spute 
concerning this Agreement; ]US[,  
 
(i) may participate in deliberations, decisions or actions of the Dispute 
Settlement Body ; and 
 
(ii) may exercise the third party rights during the consultations, panel and 
Appellate Body procedures,  
 
with respect to those parts of the di spute concerning this Agreement ;]JPN 
 
(c) [each p anel established by the D ispute Settlement Body to examine disputes under 
this Agreement sh ould include at least one  person qualified in the area of 
government procurement , unless Parties agree otherwise ; 
 
(d)]US,CDA,JPN dispute s concerning the award of a specific procurement shall be 
considered "cases  of urgency" under paragraphs  8 and 9 of Article  4 of the Disput e 
Settlement Understanding [; and 
 
(e) notwithstanding paragraph  2 of Article  22 of the Dispute Settlement Understanding, 
any dispute arising under any Agreement listed in Appendix  1 to the Dis pute 
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 obl igations under any other Agreement listed in the said 
Appendix  1]US,ISR,JPN,CDA.]US,EC 
 
[4. (a) In the communication 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, 
immedia tely after having made that communication, enter into consultations with a 
view to developing mutually acceptable compensation.  
 
(b) Any Party which has entered into such consultations may at any time request an 
arbitration to determine the level of nullif ication 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 members are available, 
or by an arbitrator, which term shall be interpreted as referring to an individual or a 
group, appointed by the Directo r-General and shall be completed within 60  days 
after the request for arbitration.  
 
(f) If no proposal for compensation has been submitted within the periods referred to 
in subparagraphs  (c) or (d), or if no agreement has been reached within 60  days 
from t he submission of the later of:  
 
(i) a proposal for mutually acceptable compensation;  or 
 
(ii) such a proposal made subsequent to an arbitration award ; GPA/TN1994/3/Rev.10  
- 31 - 
   
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 Settlem ent Body shall have the authority to authori ze consultations regarding remedies 
when withdrawal of measures found to be in contravention of the Agreement is not possible.]US 
 
Article  XIX/XX 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 matter s 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 Agreement shall be entitled to participate in the 
Committee as an observer upon submission of a written notice to the Secretariat.  Any WTO observer 
may submit a written request to the Secretariat to participate in the Committee as an observer, and 
may be accorded observer status by the Committee.  
 
Article  XX/XXI  Final Provisions  
 
Acceptance and Entry into Force  
 
1. This Agreement shal l enter force on  [ ] for those WTO Members whose agreed coverage is set 
out in Annexes  1 through  [6/7] of Appendix  I, and which have, by signature, accepted this 
Agreement on  [ ], or have, by or on that date, signed the Agreement subject to ratification an d 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.  
 
Reservations  
 
4. No Party may enter any r eservation in respect of any provisions of this Agreement.  
 GPA/TN1994/3/Rev.10  
- 32 - 
  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 t he rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
6. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of such l aws 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 among 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 measures and practices 
that distort open procurement  [and shall, in the context of negotiations, seek to eliminate those 
which remain on the date of entry into force of this Agreement] .HKC [Market Access Issue ] 
 
10. Following the conclusion of the work programme for th e harmonization of rules of origin for 
goods be ing undertaken under the Agreement on Rules of Origin in Annex  1A of the Agreement 
Establishing the World Trade Organization and negotiations regarding trade in services, the Parties 
shall take the results of that work programme and those negotiations into account in amending 
Article  [ ] as appropriate.  
 
[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 establish 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,SWI 
Amendme nts 
 
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 f or the Parties that have accepted them 
upon acceptance by two thirds of the Parties and thereafter for each other Party upon acceptance 
by it] .EC,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 t he WTO, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 
Non-application of this Agreement between Particular Parties  
 
14. This Agreement shall not apply as between any two Parties if either Party, at the time it 
accepts or a ccedes to this Agreement, does not consent to such application.  GPA/TN1994/3/Rev.10  
- 33 - 
   
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  11, and a 
notification of each accession thereto pursuant to paragraph  3 and of each withdrawal therefrom 
pursuant to paragraph  12. 
 
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.10  
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  [PROPOSED STRUCTURE AND CONTENT 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:8/9-10/11 , 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 Agreement.  
 
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 Artic le II:8/9-10/11 , 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 determines that such an entity is within the scope 
of the referenced legislation or description.]CDA GPA/TN1994/3/Rev.10  
- 35 - 
  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 A greement does not cover the procurement 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:8/9-10/11 , 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 
 
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 determines that such an entity is within the scope 
of the referenced legislation or description.]CDA 
 
Notes to Annex  3 
 
_______________  
 GPA/TN1994/3/Rev.10  
- 36 - 
  ANNEX  4 
 
Goods  
 
1. This Agreement applies to all goods procured by the entities listed in Annexes  1 through  3, 
unless otherwise specified with respect to specific procuring entities in this Agreement.  
 
_______________  
 
 
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 
Annexes  1 through  3, unless otherwise specified in this Agreement, including this Annex.  
 
2. This Ag reement 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 
 GPA/TN1994/3/Rev.10  
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  PROPOSED DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  
 
INDICATIVE CRITERIA PURSUANT TO ARTICLE  XVI/XVII :14/15 [OF THE REVISED  
GPA] [ RELATING TO  ELIMINATION  OF GOVERNMENT CONTROL  OR 
INFLUENCE  OVER AN ENTITY'S PROCUREMENT DECISIONS]HKC 
Decision of [day/month/year]  
 
[NB: The Parties are reviewing the proposed criteria , but recogni ze that further work is 
needed.  Some preliminary comments have been incorporated in the text below. ] 
 
 
 The Committee on Government Procurement,  
 
 Noting  that Article  XVI/XVII :14/15 provides that the Committee shall develop criteria  that 
may indicate the effective  elimination of government control or influence over an entity;  
 
 Hereby decides  as follows:  
 
 [A Party proposing to withdraw an entity from Appendix  I ("modifying Party"), pursuant to 
Article  XVI/XVII :1, on the grounds that government control or influence  over the entity has been 
effectively eliminated shall include in the notification evidence that such control or influence has 
been effectively eliminated, including information that addresses, as appropriate,  the following 
indicative criteria ]US,SWI,NOR,H KC [A Party shall include, as appropriate, in the notification evidence that 
addresses the effective elimination of government control or influence and that directly relates to 
the following indicative criteria]EC,KOR: 
 
[(a) whether a law, regulation, procedure, or administrative guidance governs any aspect 
of the management or operation of the entity and such measure does not apply to 
other enterprises that are engaged in the same sector or industry;  
 
(b) whether the entity has been created  by a law or regulation to perform activities in 
the furtherance of a legally mandated public purpose ;]US,NOR 
 
(a/c) whether the government holds a direct or indirect controlling interest in the entity 's 
capital and voting rights;  
 
(b/d) whether the govern ment appoints any of the entity 's managers or directors  or 
otherwise participates in the management or control of the entity ; 
 
[(e) whether the entity is accountable to the government or to the public treasury in 
respect of the profitability of the entity;]US 
 
(c/e/f) 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;  
 
(d/f/g) 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 represents 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;  
 
(e/g/h) whether the government has granted [to the entity]US special or exclusive legal or 
economic rights or benefits that may alter the competitiveness of [the]US entity 's 
goods or services in a commercial market or otherwise influence the entity 's business 
decisions;  [and]US [or]EC GPA/TN1994/3/Rev.10  
- 38 - 
  [(f) whether the entity is engaged in the provision of goods or services in commercial 
markets subject to genuine competition and  to which access is not restricted, it being 
acknowledged that government control or influence over an entity through 
shareholding, participation on the management board, financing or any other means 
may be neutralised insofar as the entity's procurement i s concerned where the entity 
is exposed to genuine competition on markets to which access is not restricted ;]EC 
 
[(f) whether the government has disposed of all of its share in the entity's capital and 
voting rights, the government has completed all the do mestic legal procedures 
necessary for the privatisation of the entity, and government's control or influence 
over appointments of managers or directors and business decisions of the entity has 
been effectively abolished, it being acknowledged that if the a foresaid all three 
conditions are satisfied, the government control or influence over the procuring 
entity can be considered effectively eliminated even if the other criteria are not 
met;]KOR 
 
[(i) whether the entity is exclusively engaged in the provision  of goods or services in 
commercial markets subject to genuine competition or whether it has mixed 
govern mental and commercial functions] .US 
 
  GPA/TN1994/3/Rev.10  
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  PROPOSED DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  
PURSUANT TO ARTICLE  XVI/XVII :14/15 OF THE REVISED GPA  
 
WORKING PROCEDURES FOR ARBITRATION UNDER ARTICLE  XVI/XVII  
Decision of [day/month/year]  
 
[NB: The Parties are reviewing the proposed procedures.  
Some preliminary comments have been incorporated in the text below. ] 
 
 
 The Committee on Government Procurement,  
 
 Noting  that Article  XVI/XVII :14/15 provides that the Committee shall develop working 
procedures for arbitrations;  
 
 Hereby adopts  the following working procedures for arbitrations under Article  XVI/XVII : 
 
Appointment of the Arbitrator  
 
[1. Arbitrators shall be drawn from the same body of persons eligible to serve as panelists under 
Article  XVIII/XIX of this Agreement.  Unless the Par ties participating in the arbitration otherwise 
agree, the arbitrator shall consist of three persons. ]EC 
 
1/2. If the Parties participating in the arbitration cannot agree on an arbitrator within 20  days after 
referring the matter to arbitration, the Direc tor-General shall appoint the arbitrator within 10  days, 
after consulting the Parties.  
 
2/3. The expression "arbitrator " shall be interpreted as referring either to an individual or a group.  
 
Procedures  
 
3/4. In its proceedings the arbitrator shall follow the relevant provisions of the Agreement.  In 
addition, the following working procedures shall apply : 
 
(a) 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.  
 
(b) 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 submits a 
confidential version of its written submission s 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.  
 
(c) Before the substantive 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.  
 
(d) At its substantive meeting with the parties, the arbitrator shall ask the 
[modifying]US,JPN ,CDA party [which has requested arbitration ]EC to present its case.  
Subsequently, and still at the same meeting, the [objecting]US,JPN,CDA party [against 
which the arbitration has been brought ]EC shall be asked to present its point of view.  
 
[(e) The arbitrator shall  invite all third parties that have notified their interest in the 
arbitration to present their views during the arbitration. ]US,EC [N.B.  Further 
consideration needs to be given regarding the details of participation by 
third parties.]  
 GPA/TN1994/3/Rev.10  
- 40 - 
  (f) The arbitrator 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.  
 
(g) The parties to the arbitration shall submit to the arbitrator a written version of their 
oral statements.  
 
(h) 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.  
 
(i) The Rules of Conduct for the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  shall apply to each person serving on an arbitral panel under 
Article  XVI/XVII  and, as specified in the Rules of Conduct  and the relevant provisions 
of the Staff Regulations, to those members of the Secretariat called upon to assist 
the arbitrator.  
 
(j) The arbitrator may seek information from any relevant source and may consult 
experts to obtain their opinion on cer tain aspects of the matter.  The arbitrator shall 
inform the parties to the arbitration of any consultations with experts.  
 
(k) Any additional procedures specific to the arbitration  shall be determined by the 
arbitrator in consultation with the parties to t he arbitration . 
 
Proposed Timetable for Arbitration  
 
4/5. 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  p]EC [modifying  P]US,JPN,CDAarty: ----------  2 weeks 
(2) [responding  p]EC [objecting  P]US,JPN,CDAarty: ----------  2 weeks  
 
[(b) Receipt of third party submissions : -------- -- 1 week]US,EC,JPN 
 
(b/c) Meeting with the parties:  ----------  1-2 weeks  
 
(c/d) Replies to questions:  ----------  1-3 weeks  
 
(d/e) Receipt of written rebuttals of the parties:  ----------  1-2 weeks  
 
(e/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 331 days 
(i.e. about 47 weeks or 11 months):  45 days to object to proposed modification;  120 days to consult;  20 days 
to choose an a rbitrator;  10 days for the Director -General to appoint an arbitrator;  10 days for parties to 
discuss, and possibly agree on, a timetable;  126 days for the arbitration (from first submission to issuance and 
circulation of report).]