ORGANISATION MONDIALE  
DU COMMERCE  RESTRICTED 
GPA/O/ABW/2 
18 octobre 2011 
 
 (11-5178) 
Comité des marchés publics Original:   anglais 
  
 
NÉGOCIATIONS SUR L'EXTENSION DE LA PORTÉE DE L'ACCORD ET 
L'ÉLIMINATION DES MESURES ET PRATIQUES DISCRIMINATOIRES 
AU TITRE DE L'ARTICLE XXIV: 7 b) ET c) DE L'ACCORD 
SUR LES MARCHÉS PUBLICS 
 
Communication du Royaume des Pays-Bas pour le compte d'Aruba
 
 
Offre finale1 
  
 La communication ci-après, datée du 17 octobr e 2011, est distribuée à la demande de la 
délégation du Royaume des Pays-Bas pour le compte d'Aruba.   
_______________ 
 
                                                      
1 En anglais seulement. GPA/O/ABW/2 
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FINAL OFFER OF THE KINGDOM OF THE NETHERLANDS  
WITH RESPECT TO ARUBA 
 
MOTIVATION REGARDING THE FINAL OFFER 
 
  The Kingdom of The Netherlands with resp ect to Aruba acceded to the Agreement on 
Government Procurement on 25 October 1996.  Curren tly however, negotiations are taking place with 
regard to a new GPA and new commitments of its Parties. 
 
 In December 2006, negotiations in the context of Article XXIV:7(b) a nd (c) led to Agreement 
on and the provisional adoption of a revised Agreemen t on Government Procurement.  The text which 
was agreed upon in 2006 was subsequently re vised on 13 December 2010 (document symbol:  
GPA/W/313).  The agreed text of the revised Ag reement on Government Pr ocurement is provisional 
in that it is subject to:  (i) a legal check;  and (ii)  a mutually satisfactory outcome to the other aspect of 
the negotiations on a new Agreement on Government Procurement, namely those on an expansion of 
coverage (i.e. the lists of government entities whose procurement is opened up). 
  The negotiations on an expansi on of coverage are currently still ongoing.  In 2004 and 2005 
agreement was reached on the:  Modalities for the Negotiations on Extension of Coverage and 
Elimination of Discriminatory Measures and Practices  (documents:  GPA/79, 19 July 2004 and 
GPA/79/Add.1, 22 July 2005).  It was decided that  these negotiations were goi ng to be based on the 
revised text of the Agreement on G overnment Procurement (GPA/W/313). 
  In the context of these negotiations, the Kingdom  of the Netherlands with respect to Aruba 
made an initial offer extending the coverage of  the Agreement on Government Procurement on 
9 December 2008.  This offer substantially expanded the coverage of the GPA.  First of all, three extra 
entities were added to the list in Annex 3:  Fr eezone Aruba N.V., Aruba Post N.V., Compania di 
Aruba di Petroleo N.V. (Petrol Company).  The c overage was expanded even further by lowering the 
thresholds in Annex 1, and adding a substantial amount of extra entities in that Annex.  Services 
coverage was also extended, both in  Annex 1 and in Annex 4.  Furt hermore, the 2008 offer contained 
a complete coverage of construction services.  L astly, because several entities which were originally 
included in Annex 3 had been privatized by th e time the 2008 offer was made, it was necessary to 
withdraw them from that list.
1 
  After the above-mentioned changes in the GPA- coverage of the Kingdom of the Netherlands 
with respect to Aruba, the list of entities in Annex 3 still consisted of four entities: 
 Arubus N.V. (Public Transport Company) Freezone Aruba N.V. Aruba Post N.V. CAP N.V. (Compania di Aruba di Petroleo) 
 
 In the initial 2008 offer, the Kingdom of the Netherlands with respect to Aruba explicitly 
reserved the right to withdraw or modify its initia l offer in light of the development of the ongoing 
bilateral negotiations.  Making use of this right, the Kingdom of the Netherlands with respect to 
Aruba has now developed a final offer.  This fi nal offer adds a Goods Annex (as Annex 4) as 
prescribed in the revised text.  In this final o ffer the coverage in the Annex on Services (now 
                                                      
1 Water en Energiebedrijf N.V. (Water and Ener gy Company), Aruba Ports Authority N.V., Arubus 
N.V. (Public Transport Company) , Setar (Telecommunications Compan y), Airport Authority N.V. and 
Findacion Cas pa Communidad Arubano (Public Housing Foundation).  GPA/O/ABW/2 
 Page 3 
 
 
  Annex 5) is expanded even further.  At the same  time, all Annex 3 entities have had to be deleted 
because they have also been privatized now.  The main purpose of this document is to explain the 
reasoning behind these changes, and why this revised  offer does not infringe upon the obligation to 
extend the coverage of the Agreement on Governme nt Procurement, compared to the terms of 
accession of 1996. 
 
 Article XXIV:6(b) of the Agreement on Gove rnment Procurement describes a procedure for 
withdrawing an entity on the grounds that " government control or influence over it has been 
effectively eliminated" .  Where this criterion is met, a government has the right to withdraw an entity 
from the Annexes in Appendix I by following certain  procedures.  Furthermore, as was mentioned 
above, it was decided that the negotiations on exte nded coverage were going  to be based on the 
revised text of the Agreement on Government Proc urement (see documents:  GPA/79, 19 July 2004 
and GPA/79/Add.1, 22 July 2005 (negotiating modalities) and GPA/W/313 (revised GPA)).  The 
above-mentioned criterion (government control or in fluence) was further clarified in the revised 
version of the GPA.  Under the revised GPA, a cont racting party has the right to withdraw an entity 
from Appendix I on the grounds that " government control or influ ence over the entity's covered 
procurement has been effectively eliminated" (see Article XIX:1(a) of the revised GPA).  The 
revisions leading to the final offer of the Kingdom of  the Netherlands with regard to Aruba are based 
on these grounds.   The entities which were included in Annex 3 in the 2008 offer, have all been privatized at this 
point in time.  For public policy reasons, the Aruba n Government has decided to become the sole 
shareholder of these companies.  That does not mean, however, that it has effective control or 
influence over these companies.  Of particular importance for this discussion is that the Aruban 
Government, as a shareholder, does not have any influence or control over the procurement or tendering practices of these privatized companies.  On the contrary, according to Aruban law, 
shareholders are only able to exert an indirect  influence over the companies of which they are 
shareholder.  They can only give general instructions on their strategic policy.  It is not allowed for a 
shareholder in Aruba to give specific  instructions regarding the operations or policy of a company.  
For the withdrawn entities the control or influence of  the government is limited even further by their 
bylaws which were created when they were privatized .  First of all, these bylaws also explicitly state 
that the government, as a shareholder, is not allowed to give specific instructions (e.g. on matters such 
as procurement or tendering).  Secondly, the bylaws of these companies also specifically state that one 
of the objectives of the companies is to further re duce influence of the govern ment over the course of 
time.   Furthermore, the Kingdom of the Netherlands with respect to Aruba would like to point out 
that, in their final offer, they are extending the coverage of Annex 5 even further by also including 
telecommunication services in this Annex, as was requested by the United States.   Because of the reasons set out here, and because of the fact that the extended coverage of the 
initial offer from 2008, which was discussed above, is still included in the current final offer of the 
Kingdom of the Netherlands with respect to Aruba, the final offer does not infringe upon the 
obligation to extend the coverage of the GPA as contained in Article XXIV:7(b) and (c). 
 GPA/O/ABW/2 
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  FINAL OFFER OF THE KINGDOM OF THE NETHERLANDS  
WITH RESPECT TO ARUBA 
 
  With reference to the Decision of the Co mmittee on Government Procurement on Modalities 
for the Negotiations on Extensi on of Coverage and Elimination of Discriminatory Measures and 
Practices (GPA/79, 19 July 2004 and GPA/79/Add. 1, 22 July 2005), please find enclosed the final 
offer of the Kingdom of the Netherlands with respec t to Aruba to other Parties to the Agreement on 
Government Procurement.  
 The Kingdom of the Netherlands with respect to Aruba reserves the right to withdraw or 
modify its final offer in light of the development of the bilateral negotiations. 
  GPA/O/ABW/2 
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  ANNEX 1 
 
Central Government Entities Wh ich Procure in Accordance  
With the Provisions of the Agreement  
  
Supplies  
Threshold : SDR 100,000 
 Services  (specified in Annex 45) 
Threshold : SDR 100,000 
 Works   (specified in Annex 56) 
Threshold : SDR 4,000,000 
 
List of Entities : 
 Ministry of General Affairs (not including Veiligheids Dienst Aruba) Ministry of Justice and Education Ministry of Finance, Communication, Utilities and Energy (not including Meldpunt Ongebruikelijke 
Transacties) 
Ministry of Health and Sport 
Ministry of Integration, Infrastructure and Environment Ministry of Economic Affairs, Social Affairs and Culture Ministry of Tourism, Transportation and Labour Parliament of Aruba 
Raad van Advies 
ARA DOW Serlimar SVB AZV 
IMSAN (Instituto Medico San Nicolas) 
WIF  GPA/O/ABW/2 
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  ANNEX 2 
 
Sub-Central Government Entities Wh ich Procure in Accordance  
With the Provisions of this Agreement  
  
 Non-applicable for Aruba (Aruba does not have any Sub-central Governments).  GPA/O/ABW/2 
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  ANNEX 3 
  
All other Entities Which Procure in Accordance  
With the Provisions of this Agreement  
 
Supplies  
Threshold : SDR 400,000 
 Services  (specified in Annex 45)* 
Threshold : SDR 400,000 
 Works   (specified in Annex 56) 
Threshold : SDR 5,000,000 
 
List of Entities : 
 GPA/O/ABW/2 
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ANNEX 4 
 
Goods 
 
 
 This Agreement will apply to the procurement of all goods procured by the entities listed in 
Annexes 1 through 3, unless otherwise specified in this Agreement. 
  GPA/O/ABW/2 
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  ANNEX 45 
 
Services  
 
 
 Of the Universal List of Services, as contained in document MTN.GNS/W/120, the following 
services are included:*  
Subject        CPC Reference N  
 Legal services       861 
 Accounting, auditing and bookkeeping services   862  Taxation services      863 
 
Engineering services      8672  Computer services      841  Management consulting services    865 
 
Services related to management consulting   866  Building cleaning services     874  
Franchising       8929 
 (a) Insurance services     812, 814 (b) Banking and investment services***     Banking and securities trade     811, 813 
 
Hotel lodging services      6411  Entertainment services      9619  
Recreation park and beach services    96491 
 Sporting services      9641  Shipping (freight and passe nger transport)   72 
 
Maritime auxiliary services: cargo handling   74 
 Freight transport: agency services/freight forwarding  74  Maritime auxiliary services: storage/warehousing  74 
 
Road transport       71231, 71234, 71239 Real Estate Services      821, 822 GPA/O/ABW/2 
Page 10  
 
  Publishing/printing services     88442 
Adult/other education services     924, 929 Courier services      7512 Accounting, auditing and bookkeeping services   862 Market research and opinion polling services   864 
Advertising services 
Packaging services Hotel and similar accommodation services   641  Telecommunication services     752 
  GPA/O/ABW/2 
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ANNEX 56 
 
Construction Services  
  
List of Construction Services 
 
Construction and related engi neering services     51 
 
 
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