RESTRICTED  
  
GPA/TN1994/3/Rev.35  
3 November  2010 
(24-2816) Page: 1/10 
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:  
THE STATE OF WORK ON ARTICLE XXII WITH RELATED TEXT  
AND DRAFT DECISIONS ILLUSTRATING POSSIBILITIES FOR  
GIVING LEGAL EFFECT TO THE REVISED AGREEMENT,  
AS AT 15 OCTOBER  2010*, ** 
NOTE BY THE SECRETARIAT  
Revision  
In the course of the informal session on text -related issues that took place on 15 October  2010, the 
Secretariat was asked to issue an updated document reflecting the state of the work on Article  XXII 
of the revised Agreement on  Government Procurement together with the related draft decisions and 
text illustrating possibilities for giving legal effect to the revised Agreement . All agreed qualifiers 
were to be retained.  
 
This note comprises the requested document . It embodies thre e elements:  
 
(1) text of Article XXII (pages 2 -6 of the attached document) . N.B.  This text reflects the 
discussion that took place during the informal session on text -related issues on 
15 October  2010 and , particularly, the updating of Parties' positions concerning 
paragraph s 7, 8, 9, and 9 bis, and the deletion of the previous paragraph 10 . 
Consequently, the previous paragraph 10 bis has been renumbered  as paragraph 10 ; 
 
(2) decision to be taken if the revised text is given effect as a new agreeme nt (page 7); 
and 
 
(3) decision, protocol and textual amendment to be adopted if the revised text is given 
effect as an amendment to the existing (1994) Agreement (pages 8-11). 
 
Elements 2 and 3 above are alternatives and reflect work in progress . They were not changed in the 
course of the session on 15 October  2010. All elements of the attached text are subject to further 
consideration by Parties with the understanding that nothing is agreed until everything is agreed.  
 
_______________  
 
 
 
* 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: negs345) w as derestricted on 8 November 2023.  GPA/TN1994/3/Rev.35  
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  TEXT OF ARTICLE XXII  
[N.B. : This Article  will need to be reconsidered in light of decisions to be taken regarding 
the giving of legal effect to the revised GPA . The Parties are still reviewing the entire 
Article and may propose additional changes to this Article.]  
 
Article  XXII  Final Provisions  
Acceptance and Entry into Force  
 
1. This Agreement shall enter into force on [ 1 January  1996]US [...] for those WTO Members 
whose agreed coverage is set out in [the]US Annexes [to]US [1 through 6 of] Appendix  I, and that 
have, by signature, accepted this Agreement on [1 5 April 1994]US [...], or have, by or on that date, 
signed this Agreement subject to ratification and have subsequently ratified this Agreement before 
[1 January  1996]US [...]. 
 
[N.B. : If the revision is given legal effect as an amendment, these changes would be 
necessary to restore the language of the original provision.]  
 
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 on 
the date of entry into force of this Agreement for those Parties . When all Parties to the 
1994 Agreement have accepted this Agreement, the 1994  Agreement shall be terminated.1 
 
3. The provisions of Articles  XVIII and XX of this Agreement shall apply to covered procurement 
that has commenced after the entry into force of thi s Agreement.2 
 
[N.B. : If the revision is given legal effect as an amendment, paragraphs 2 and 3 should be 
deleted as unnecessary. ] [If the revised Agreement is given legal effect as a new 
Agreement, this paragraph may not be needed.]  
 
Accession  
 
4. Any Me mber of the WTO may accede to this Agreement on terms to be agreed between that 
Member and the Parties, as set out in a decision of the Committee . 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 a Member acceding to it on the 30th day following 
the deposit of its instrument of accession.  
 
Reservations  
 
5. No Party may enter [a] [any] reservation in respect of any provision of t his Agreement.  
 
Domestic Legislation  
 
6. Each Party shall ensure, not later than the date of entry into force of this Agreement for it, 
the conformity of its laws, regulations and administrative procedures, and the rules, procedures and 
practices applied by its procuring entities, with the provisions of this Agreement.  
 
7. Each Party shall inform the Committee of any changes in its laws and regulations relevant to 
this Agreement and in the administration of such laws and regulations.  [Where a Party  maintains 
officially designated electronic media that provide links to its current laws and regulations relevant 
to this Agreement, and such media are listed in Appendix II, the Party may fulfil this requirement 
by informing the Co mmittee annually  of any changes  unless such changes are substantive and in 
such cases , a notification shall  be made immediately .]US,CDA ,NOR,KOR,JPN ,SGP,CT [The Parties shall have 
an opportunity to discuss the annual notification of a Party during the informal meeting of the 
Commi ttee which follows the date the notification was made.]CDA,US,JPN 
 
 
1 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  
2 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  GPA/TN1994/3/Rev.35  
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  [N.B.: The Parties are currently reflecting on this proposal, including whether there should 
be a distinction in notifications of minor and substantive changes. ] 
 
8. Each Party shall [seek to ] avoid introducing [or continuing ] discriminatory measures that 
distort open procurement.  
 
[N.B.: The US,  Israel , Korea  and Japan  support deleting "or continuing". ] 
[N.B. : The EU ; Norway ; Switzerland ; Hong Kong, China ; and Singapore support  deleting 
"seek to".]  
 
[Reciprocal Market Access Commitments  
 
8bis. Notwithstanding Article IV:1 and 2 (Non -Discrimination) of this Agreement, the Parties may 
maintain and make commitments with respect to covered procurement on the basis o f mutual 
reciprocity, including commitments made as a result of negotiations undertaken by the Parties to 
expand the scope of covered procurement and negotiations on accession to this Agreement . Such 
commitments shall be specified in a Party's annexes to A ppendix I .]US,CDA 
 
Future [Work] [Negotiations]US 
 
[9. Not later than the end of [...] from the date of entry into force of this Agreement, and 
periodically thereafter, the Parties shall undertake further negotiations, with a view to improving the 
Agreement and achieving the greatest possible extension of its coverage among all Parties on the 
basis of mutual reciprocity, taking into consideration the needs of developing countries .]EU 
 
[N.B. : If the revision is given legal effect as an amendment, in this paragraph and those 
that follow, including paragraphs 12, 13 and 14, any reference to X  years from the date 
of entry into force of this Agreement should be X  years from 1  January  1996.]  
 
[9bis. Not later than the end of [...] from the date of entry in to force of this Agreement, and 
periodically thereafter, the Parties shall undertake furth er negotiations, with a view to : 
 
(a) improving the Agreement and achieving the greatest possible extension of its coverage 
among all Parties on the basis of mutual r eciprocity, taking into consideration the needs 
of developing countries;  
 
(b) seeking to progressively reduce and eliminate discriminatory measures.]US,CDA,KOR ,JPN,CT 
 
[Coverage negotiations and future work  
 
10. 
(a) Notwithstanding Article IV:1 and 2 (Non-Discrimination) of this Agreement, the Parties 
may negotiate and make commitments on the basis of mutual reciprocity in respect of 
coverage negotiations:  
 
(i) to be undertaken by the Parties not later than the end of [...] from the date of 
entry into force of this Agreement, and periodically thereafter ; and 
 
(ii) undertaken by the Parties with any WTO Member intending to accede to this 
Agreement.  
 
(b) All coverage negotiations referred to in subparagraphs (a)(i) and (ii) shall be undertaken 
by the Part ies with a view to:  
 
(i) improve this Agreement and achieve the greatest possible extension of its 
coverage among all Parties on the basis of mutual reciprocity, taking into 
consideration the needs of developing countries;  
 
(ii) progressively reduce and el iminate discriminatory measures [and practices that 
distort open procurement and ]EU which remain on the date of entry into force of 
this Agreement.  
 GPA/TN1994/3/Rev.35  
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  (c) All discriminatory measures maintained by a Party under its Appendix I inconsistent 
with Article  IV:1 a nd 2 (Non -Discrimination) of this Agreement shall, upon completion 
of the coverage negotiations undertaken by the Parties pursuant to Article XXIV:7(b) 
and (c) of the 1994 Agreement,  be set out in a list of inconsistent measures to be 
attached to Appendix I of this Agreement . All such discriminatory measures shall be 
subject to improvements, progressive reduction and elimination at a formal session of 
the GPA Committee, at least once a year . Additionally, the review of the list shall be 
taken up by the Part ies as a part of the coverage negotiations under 
subparagraph  (a)(i).]EU,SWI 
 
[N.B. : The EU considers that the legality of country -specific derogations in view of the 
MFN requirement in Article  IV of the revised GPA is an important point.]  
[N.B. : The EU su ggests that GATS Article II could be a possible model for  Article 10 .] 
 
11. Following the conclusion of the work programme to harmonize rules of origin for goods being 
undertaken under the Agreement on Rules of Origin in Annex  1A of the WTO Agreement and 
negotiations regarding trade in services, the Parties shall take the results of that work programme 
and those negotiations into account in amending Article  IV:5, as appropriate.  
 
12. 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 consider the advantages and disadvantages of 
developing common nomenclature for goods and services and standardized notices.  
 
13. Beginning two years after entry into force o f this Agreement, the Committee shall regularly 
assess the effectiveness of the use of Articles  XVI:4 and 5.  
 
14. Not later than the end of the fifth year from the date of entry into force of this Agreement, 
the Committee shall examine the applicability of  Article  XX:2(b).  
 
Amendments  
 
15. 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 [by consensus to submit 
it for acceptance] [in accordan ce with the procedures established by the Committee], shall take 
effect for the Parties that have accepted it upon acceptance by [...] of the Parties and thereafter for 
each other Party upon acceptance by it.]3 
 
[N.B. : Some Parties favour the approach in the second sentence over paragraphs 16 and 
17. The bracketed phrases in the second sentence are alternatives.]  
 
[16. Amendments to provisions of this Agreement of a nature that would alter the rights and 
obligations of the Parties, shall take effect for th e Parties that have accepted them upon acceptance 
by [2/3] of the Parties and thereafter for each other Party upon acceptance by it . The Committee 
may decide by a [3/4] majority of the Parties that any amendment made effective under this 
paragraph is of su ch a nature that any Party that has not accepted it within a specified period shall 
be free to withdraw from this Agreement or to remain with the consent of the Committee.4 
 
17. Amendments to provisions of this Agreement of a nature that would not alter t he rights and 
obligations of the Parties shall take effect for all Parties upon acceptance by [2/3] of the 
Parties.5]EU,US 
 
Withdrawal  
 
18. Any Party may withdraw from this Agreement . The withdrawal shall take effect upon the 
expiration of 60  days from th e 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.  
 
 
3 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  
4 Negotiators' Note:  The Parties are still considering the need for and the content of this paragraph.  
5 Negotiators' Note:  The Parties are still consideri ng the need for and the content of this paragraph.  GPA/TN1994/3/Rev.35  
- 5 - 
  19. Where a Party to this Agreement ceases to be a Member of the WTO, it shall cease to b e a 
Party to this Agreement with effect on the date on which it ceases to be a Member of the WTO.  
 
Non-application of this Agreement between Particular Parties  
 
20. This Agreement shall not apply as between any two Parties where either Party, at the time it 
accepts or accedes to this Agreement, does not consent to such application.  
 
Appendices  
 
21. The Appendices to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
22. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
23. 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 Article  XIX and of each amendment pursua nt to paragraphs  16 or  17, and a 
notification of each accession thereto pursuant to paragraph  4 and of each withdrawal pursuant to 
paragraph  18. 
 
Registration  
 
24. This Agreement shall be registered in accordance with the provisions of Article  102 of the 
Charter of the United Nations.  
 
Done at [Marrakesh]US [...] this [fifteenth]US [...] day of [April one  thousand  nine hundred  and 
ninety -four]US [...] in a single copy[,]US in the English, French and Spanish languages, each text 
being authentic, except as ot herwise specified with respect to the Appendices to this Agreement.  
 
[N.B. : If the revision is given legal effect as an amendment, the original text should be 
retained.]  GPA/TN1994/3/Rev.35  
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  DECISION IF THE REVISED TEXT IS GIVEN EFFECT AS A NEW AGREEMENT  
 
[DRAFT DECISION]  
ARRANGEMENT FOR THE PERIOD OF COEXISTENCE OF THE 1994 AGREEMENT ON GOVERNMENT  
PROCUREMENT AND THE [2008] AGREEMENT ON GOVERNMENT PROCUREMENT6 
 The Committee on Government Procurement,  
 
 Noting that not all Parties to the Agreement on Government Procurement dated 15  April 1994 
(hereinafter referred to as the "1994  Agreement") may become a Party to the Agreement on 
Government Procurement done on […  2008] (hereinafter referred to as the "2008  Agreement") as 
of its date of entry into force;  
 
 Conside ring that, during the period of coexistence of the 1994 Agreement and the 
2008 Agreement, a Party to the 1994  Agreement which has become a Party to the 2008  Agreement 
should have the right to act in accordance with the provisions of the 2008  Agreement 
notwithstanding any inconsistency with the provisions of the 1994  Agreement, vis-à-vis Parties to 
the 1994  Agreement that are not Parties to the 2008  Agreement;  
 
 Considering moreover that, during that period of coexistence, a Party to the 1994  Agreement 
which  has become a Party to the 2008  Agreement should not be under a legal obligation to extend 
the benefits accorded solely under the 2008  Agreement to the Parties of the 1994  Agreement which 
have not yet become Parties to the 2008  Agreement;  
 
 Decides  as foll ows: 
 
1. A Party to the 1994  Agreement that is a Party to the 2008  Agreement may maintain or adopt 
any measure consistent with the provisions of the 2008  Agreement, notwithstanding the provisions 
of the 1994  Agreement, vis-à-vis a Party to the 1994 Agreeme nt that is not a Party to the 
2008 Agreement until the entry into force for that Party to the 2008  Agreement.  
 
2. A Party to the 1994  Agreement that is a Party to the 2008  Agreement is not under any 
obligation to accord to goods, services and suppliers of any other Party to the 1994  Agreement that 
has not yet become a Party to the 2008  Agreement the benefits accorded solely as a result of the 
commitments or other obligations assumed under the 2008  Agreement.  
 
3. The provisions of Articles  XX and XXII of the  1994 Agreement shall not apply in respect of 
measures referred to in paragraph  1. 
 
4. This Decision shall enter into force on the date of entry into force of the  2008 Agreement.  
 
 
6 Negotiators' Note:  The Parties are still considering the need for and the content of this Decision.  GPA/TN1994/3/Rev.35  
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  DECISION, PROTOCOL AND TEXTUAL AMENDMENT IF THE REVISED TEXT IS  
GIVEN EFFE CT AS AN AMENDMENT TO THE EXISTING (1994) AGREEMENT7 
 
DECISION OF THE COMMITTEE ON GOVERNMENT PROCUREMENT  
ON ADOPTION OF "THE PROTOCOL AMENDING THE  
AGREEMENT ON GOVERNMENT PROCUREMENT"  
 
[DRAFT DECISION]  
DECISION OF [DATE/MONTH/YEAR]  
 The Committee on Government Procurement,  
 
 Having regard to paragraph  9 of Article  XXIV of the WTO Agreement on Government 
Procurement done at Marrakesh on 15  April 1994 ("the 1994  Agreement");  
 
 Having undertaken  further negotiations pursuant to Article  XXIV: 7(b) [and (c)]SGP of the 
1994 Agreement and reached agreement on amendments to improve the 1994  Agreement;  
 
 Noting the consensus among the Parties to the 1994 Agreement, all of whom are participating 
in this Decision, to adopt the Protocol Amending the Ag reement on Government Procurement 
("Protocol") attached to this Decision and to submit the Protocol to their respective Governments for 
acceptance;  
 
 Considering  that not all the Parties to the 1994 Agreement may be able to conclude their 
domestic procedur es for acceptance of the Protocol by the time the Protocol has entered into force 
and that therefore, there may be a period when not all the Parties to the 1994  Agreement are Parties 
to the Protocol;  
 
 Decides  as follows:  
 
1. The Protocol Amending the Agre ement on Government Procurement ("the Protocol") attached 
to this Decision is hereby adopted.  
 
2. The Protocol shall be open for acceptance by Parties to the 1994  Agreement until 
[31 December  2008] or such later date as may be decided by the Committee.  
 
3. Pursuant to paragraph  3 of the Protocol and consistent with paragraph  9 of Article  XXIV of the 
1994 Agreement, the Protocol shall enter into force for those Parties to the 1994  Agreement that 
have deposited their respective instruments of acceptance there of, on the 30th day following such 
deposit by [...] of the Parties to the 1994  Agreement . Thereafter the protocol shall enter into force 
for each other Party to the 1994  Agreement which has deposited its instrument of acceptance 
thereof, on the 30th day fo llowing the date of such deposit.  
 
4. Consistent with the terms of the Protocol, after the date of entry into force of the Protocol, 
any WTO Member that accedes to the Agreement on Government Procurement shall be deemed to 
have acceded to the 1994  Agreemen t as amended by the Protocol.  
 
5. As between a Party to the 1994  Agreement, which is also a Party to the Protocol, and a Party 
only to the 1994  Agreement, the provisions of the 1994 Agreement shall apply.  [Meanwhile, a Party 
to the 1994  Agreement that has not yet accepted the Protocol should respect any measure taken by 
a Party which accepts the Protocol in accordance with the provisions of the 1994  Agreement as 
amended by the Protocol.]JPN 
 
[A Party to the 1994  Agreement for which the Protocol has entered into force may maintain or adopt 
any measure consistent with the provisions of the Protocol, notwithstanding the provisions of the 
1994 Agreement, vis-à-vis a Party to the 1994  Agreement for which the Protocol has not entered 
into force until the entry into force for that Party. ] [N.B. : The US suggests that Parties consider 
this paragraph as a means to address the coexistence issue.]  
 
7 Negotiators' Note:  The Parties are still considering the need for and the content of this Decision, 
Protocol and textual amendment.  GPA/TN1994/3/Rev.35  
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  [6. Any WTO Member that a ccedes to the 1994  Agreement as amended by the Protocol after the 
date of entry into force of the Protocol in pursuance to paragraph  4 above shall not be bound by the 
provisions of the 1994  Agreement vis-à-vis a Party to the 1994  Agreement which has not ye t 
accepted the Protocol.  
 
7. As between the Parties to the 1994  Agreement as amended by the Protocol, any reference to 
the "Agreement on Government Procurement" contained in the Marrakesh Agreement establishing 
the World Trade Organization means reference to the amended Agreement.]JPN GPA/TN1994/3/Rev.35  
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  PROTOCOL AMENDING THE AGREEMENT ON GOVERNMENT PROCUREMENT  
 
[DRAFT]  
 The Parties to the Agreement on Government Procurement, done at Marrakesh on 
15 April 1994, (hereinafter referred to as "the 1994  Agreement"),  
 
 Having undertaken  further negotiations pursuant to Article  XXIV:7(b) and (c) of the 
1994 Agreement;  
 
 Hereby agree  as follows:  
 
1. The Preamble and Articles  I through XXIV of the 1994  Agreement shall be deleted and 
replaced by the amended versions of those a rticles of the 1994  Agreement as set forth in the Annex 
hereto.  [N.B. : Consideration should be given as to whether "of those articles" is 
necessary.]  
 
2. This Protocol shall be open for acceptance by the Parties to the 1994  Agreement until 
[31 December  2008] or such later date as may be decided by the Committee.  
 
3. This Protocol shall enter into force for those Parties to the 1994  Agreement that have 
deposited their respective instruments of acceptance thereof, on the 30th day following such deposit 
by [.. .] of the Parties to the 1994  Agreement . Thereafter this Protocol shall enter into force for each 
other Party to the 1994  Agreement which has deposited its instrument of acceptance thereof, on the 
30th day following the date of such deposit.  
 
[3bis. As bet ween a Party to the 1994 Agreement, which is also a Party to the Protocol, and a Party 
only to the 1994  Agreement, the provisions of the 1994  Agreement shall apply . Any WTO Member 
that accedes to the 1994  Agreement as amended by the Protocol after the date  of entry into force 
of the Protocol in pursuance to paragraph  3 above shall not be bound by the provisions of the 
1994 Agreement vis-à-vis a Party to the Agreement which does not accept the Protocol.]JPN 
 
4. [Except as otherwise provided by the amended ve rsions of the Articles of the 1994  Agreement, 
no]SGP [No] Party may enter a reservation in respect of any of the provisions of this Protocol, 
including its Annex.  
 
5. This Protocol shall be deposited with the Director -General of the World Trade Organizatio n, 
who shall promptly furnish to each Party to the 1994  Agreement a certified true copy of this Protocol, 
and a notification of each acceptance thereof.  
 
6. This Protocol shall be registered in accordance with the provisions of Article  102 of the Charter 
of the United Nations.  
 
 Done at Geneva this [...] day of [...] two  thousand  and [...] in a single copy, in the English, 
French and Spanish languages, each text being authentic.  GPA/TN1994/3/Rev.35  
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  AGREEMENT ON GOVERNMENT PROCUREMENT [(1994)]SGP, AS AMENDED IN 2008  
Preamble  
 
 The Parties to this Agreement (hereinafter referred to as "the Parties"),  
 
 Recognizing  the need for an effective multilateral framework for government procurement, 
with a view to achieving greater liberalization and expansion of, and improving the framework for, 
the conduct of international trade;  
 
 Recognizing  that measures regarding government procurement should not be prepared, 
adopted or applied so as to afford protection to domestic suppliers, goods or services, or to 
discriminate among for eign 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 functioni ng of the multilateral trading system;  
 
 Recognizing  that the procedural commitments under this Agreement should be sufficiently 
flexible to accommodate the specific circumstances of each Party;  
 
 Recognizing  the need to take into account the development, financial and trade needs of 
developing countries, in particular the least developed countries;  
 
 Recognizing the importance of transparent measures regarding government procurement, of 
carrying out procurements in a transparent and impartial manner and of  avoiding conflicts of interest 
and corrupt practices, in accordance with applicable international instruments, such as the United 
Nations Convention Against Corruption;  
 
 Recognizing the importance of using, and encouraging the use of, electronic means fo r 
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 [pursuant to 
Article  XXIV:7(b) and (c) of the 1994  Agreement prior to its 2008  amendments]SGP. 
 
 Hereby agree  as follows:  
 
[INSERTION OF ARTICLES  I-XXII OF THE REVISED TEXT AND APPENDICES]  
 
__________