RESTRICTED  WORLD TRADE  
ORGANIZATION  GPA/O/EEC/3 
31 March 2008 
 
 (08-1432) 
Committee on Government Procurement Original: English 
  
 
NEGOTIATIONS ON EXTENSION OF COVERAGE AND ELIMINATION OF  
DISCRIMINATORY MEASURES AND PRACTICES PURSUANT TO 
ARTICLE XXIV:7(b) AND (c) OF THE AGREEMENT 
ON GOVERNMENT PROCUREMENT 
 
Communication from the United States
 
   The following communication, dated 28 March 2008, is being circulated at the request of the Delegation of the United States. 
 
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QUESTIONS FROM THE UNITED STATES TO THE EUROPEAN COMMUNITIES (EC) 
ON THE EC'S REVISED OFFER IN THE NEGOTIATIONS UNDER ARTICLE XXIV:7  
OF THE AGREEMENT ON GOVERNMENT PROCUREMENT 
 
  In order to facilitate review and analysis of  the EC's Revised Offer (GPA/O/EEC/2/Rev.1), 
the United States would appreciate the EC's written responses to the following questions: 
 
 
PART ONE 
 
 
Annex 1 
 1. Please describe each of the changes in the lists of covered entities in the Revised Offer for 
each member State, the reason for the change, and how  the change affects the member State's existing 
coverage.  As the United States stated duri ng the WTO Committee on Government Procurement 
informal plurilateral discussions on coverage on 20 February 2008, changes in the list of entities need 
to be made through an Article XXIV:6 notification process. 
 2. With regard to bullet 4 of Note 1 to Annex 1 of the Revised Offer:   (a) Please describe the "programs funded by EU budget"? 
 
(b) What percentage of the total EC procurement do these programs comprise? 
 3. With regard to Note 3 to Annex 1 of the Revised Offer:  
(a) What is the reason for, and significance of, the inclusion of "only non-sensitive and 
non-warlike materials"?  Is it intended to lim it the coverage set out in the List that 
follows?  If so, please describe. GPA/O/EEC/3 
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(b) Is the addition, of "or security activities"  to the description of the entities covered by 
the List intended to expand the entities to which the list applies?  If so, please 
describe. 
 
(c) A comparison of the "List of Supplies and Equipment Purchased by Ministries of 
Defence and Agencies for Defence or Secur ity Activities" in the Revised Offer and 
the "List of Supplies and Equipment Purchased by Ministries of Defence" in the existing Annex 1 shows deletions from the EC's existing coverage of specific goods 
and categories of goods for Austria and Sw eden.  Please explain the reasons for 
withdrawing the coverage of these two member States. 
 
Annex 2 
 
1. The existing Annex 2 refers to "contracti ng authorities of the regional or local public 
authorities", but the Revised Offer refers to "regiona l or local contracting authorities".  What is the 
reason for, and significance of, deleting the reference to "public authorities" in the Revised Offer?  
How does this deletion affect the EC's existing coverage?  2. The second category of entities in existing A nnex 2 is described as "bodies governed by 
public law as defined in Directive 93/37".  The Re vised Offer refers to "bodies governed by public 
law as defined by EC procurement directive".  
(a) Is Directive 93/37 no longer the relevant procurement directive?  If Directive 93/37 is 
no longer in effect, what is the relevant procurement directive? 
 
(b) Why has the EC not included a reference to a specific EC directive? 
 3. The "indicative list of contracting authorities which are bodies governed by public law" in the Revised Offer differs significantly from "the lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to are se t out in Annex I to Directive 93/37", in existing 
Annex 2. 
 
(a) For example, for Latvia, a number of entities are listed in Directive 93/37 in the EC's 
existing coverage, but in the Revised Offe r, there is only a general reference to 
"Subjects of private law which make pur chases according to 'Public Procurement 
Law'".  What is the reason for this cha nge?  How does it affect Latvia's existing 
coverage? 
 
(b) Please describe the differences between the existing coverage  under Annex 2 and 
coverage under Annex 2 in the Revised Offe r for each member State, and how the 
changes affect the member State's existing coverage. 
 
4. Please explain the reason for listing ministries for certain member States (e.g., the Netherlands) in Annex 2 of the Revised Offer, which are also listed in Annex 1.  If the purpose is to 
indicate the Annex 2 entities that are subordinate to  the ministry, what is the relationship between 
such subordinate entities in Annex 2 and coverage of such entities pursuant to Note 2 to Annex 1 of 
the Revised Offer? 
 5. With regard to bullet 5 of Note 1 to Annex 2 of the Revised Offer:   (a) Please describe the "programs funded by EU budget"?  GPA/O/EEC/3 
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(b) What percentage of the total EC procurement do these programs comprise? 
 
Annex 3 
 1. Please describe the differences between the ex isting coverage under Annex 3 and coverage 
under Annex 3 in the Revised Offer for each member State, and how the changes affect the member 
State's existing coverage.  
2. The EC's existing Annex 3 is entitled "En tities which procure in accordance with the 
provisions of this Agreement", but the Revised Offer is limited to "Utilities which procure in 
accordance with the provisions of this Agreement".  What is the purpose for changing the title of the 
Annex?  Does it reflect a change in the c overage of the Annex?  If so, please describe. 
 
3. The existing Annex 3 refers to "contracti ng entities within the meaning of Article 2 of 
Directive 93/38/EEC", while the Revised Offer refers  to "all contracting entities whose procurement is 
covered by the EC utilities directive".  
(a) Is Directive 93/38/EC no longer the releva nt directive?  If Directive 93/38/EC is no 
longer in effect, what is the relevant directive? 
 
(b) Why has the EC not included a reference to a specific EC directive? 
 4. Note 1 to Annex 3 of the Revised Offer im poses a condition for the coverage of Annex 3 
entities that is not included in the EC's existing coverage. 
 
(a) What is the rationale for the new condition and how does it affect the EC's existing 
coverage? 
 
(b) What are the criteria and basis for dete rmining when an activity is "exposed to 
competitive forces in the market concer ned"?  When and by whom is that 
determination made?  Is it made on a procurement-by-procurement basis?  Is it 
published, and if so, where? 
 5. With regard to Notes 3, 4 and 5 to Annex 3 of the Revised Offer, please describe how each 
Note affects the EC's exis ting coverage in Annex 3. 
 
6. With regard to bullet 14 of Note 6 to Annex 3 of the Revised Offer: 
  (a) Please describe the "programs funded by EU budget"?  
(b) What percentage of the total EC procurement do these programs comprise? 
 
Annex 4 
 
1. Note 2 to Annex 4 of the Revised Offer adds a new condition with respect to Annex 4 
coverage (" Except for services which entities have to pr ocure from another entity pursuant to an 
exclusive right established by a published la w, regulation or administrative provision ."). 
 
(a) What is the reason for inclusion of this condition?  Would the exclusive right be one 
that is "established" as of the date of en try into force of the commitment, or would 
this refer to an exclusive right "established" at any point in time? GPA/O/EEC/3 
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 (b) How does this condition affect the EC's existing coverage?  
Annex 6 
 1. Note 2 of Annex 6 includes "the postal sector",  but that sector is not included in the EC's 
existing General Note 6.  What is the reason fo r excluding the postal sector from coverage in the 
Revised Offer?  
 
PART TWO 
 
 1. With regard to the increas e in the threshold for goods and services for Annex 1 entities from 
the existing threshold of 130,000 SDRs to 200,000  SDRs in the Revised Offer, what compensation 
will the EC provide for this wit hdrawal of its existing coverage? 
 2. With regard to bullet 4 of Note 1 to Annex 1 of the Revised Offer, what compensation will 
the EC provide for this withdr awal of its existing coverage? 
 
3. With regard to bullet 5 of Note 1 to Annex 2 of the Revised Offer, what compensation will 
the EC provide for this withdr awal of its existing coverage? 
 4. With regard to bullet 14 of Note 6 to Anne x 3 of the Revised Offer, what compensation will 
the EC provide for this withdr awal of its existing coverage? 
 
5. With regard to bullet 2 of Note 6 to Annex 4 of the Revised Offer, what compensation will 
the EC provide for this withdr awal of its existing coverage? 
 
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