CELEX: 51987PC0341
Language: en
Date: 1987-07-27
Title: Proposal for a COUNCIL DECISION concerning the conclusion of the Protocol amending the GATT Agreement on Government Procurement (presented by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (87) 341
Vol. 1987/0192
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 concernant
l'ouverture au public des archives historiques de la Communauté économique européenne et de
la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983, p. 1) modifié en dernier
lieu par le règlement (UE) 2015/496 du Conseil du 17 mars 2015 (JO L79 du 25. 3.2015, p. 1), ce
dossier est ouvert au public. Le cas échéant, les documents classifiés présents dans ce dossier
ont été déclassifiés conformément à l'article 5 dudit règlement ou sont considérés déclassifiés
conformément aux articles 26(3) et 59(2) de la décision (UE, Euratom) 2015/444 de la
Commission du 13 mars 2015 concernant les règles de sécurité aux fins de la protection des
informations classifiées de l'Union européenne.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning
the opening to the public of the historical archives of the European Economic Community and the
European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as last amended by Council
Regulation (EU) 2015/496 of 17 March 2015 (OJ L 79, 27.3.2015, p. 1), this file is open to the
public. Where necessary, classified documents in this file have been declassified in conformity
with Article 5 of the aforementioned regulation or are considered declassified in conformity with
Articles (26.3) and 59(2) of the Commission Decision (EU, Euratom) 2015/444 of 13 March 2015
on the security rules for protecting EU classified information.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar
1983 über die Freigabe der historischen Archive der Europäischen Wirtschaftsgemeinschaft und
der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), zuletzt geändert durch die
Verordnung (EU) Nr. 2015/496 vom 17. März 2015 (ABI. L 79 vom 25.3.2015, S. 1), ist dieser Akt
der Öffentlichkeit zugänglich. Soweit erforderlich, wurden die Verschlusssachen in diesem Akt in
Übereinstimmung mit Artikel 5 der genannten Verordnung freigegeben; beziehungsweise werden
sie auf Grundlage von Artikel 26(3) und 59(2) der Entscheidung der Kommission (EU, Euratom)
2015/444 vom      13.   März 2015     über die   Sicherheitsvorschriften für den Schutz von  EU-
Verschlusssachen als herabgestuft angesehen.
 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                 COM(87 ) 341 final
                                                 Brussels , 27 July 1987
                             Proposai for a
                              COUNCIL DECISION
 concerning the conclusion of the Protocol amending the GATT Agreement
                         on Government Procurement
                      ( presented by the Commission )
                                                         «■y     J     . v
                                                                           \   - •  - 1
                                                                             • :••••;
                                                                                   •/
C0M(87 ) 341 final
 ---pagebreak---                                  EXPLANA1 ( JKY ICI iÜUANDUH
In November 1V80 , the first renegotiation of the GATT Government
Procurement Agreenient provided for under Art . IX , Paragraph 6 of that
Agreement was completed . It resulted in a number of modifications which the
Community lias accepted " ad referendum" and which needs to be ratified by
the Council and signed on the behalf of the Community .
Salient points concerned in the Protocol , dated 2nd r'ebruary 1987 , amending
the Agreement on Government Procurement are :
- the inclusion of new types of contracts such as lease ,               rental , hire
   purchase and opt. ions to buy ;
- the downward revision of the threshold under the GATT Agreement from
   19U.UUU GDK tu ! iii . UUU GUI ! ;
- the inclusion of requirements to provide additional information in the
   notices of invitât ion to tender ;
- the extension of toe periods provided for tendering in the different
   procedi ire phar.es .
- the adoption of new provisions on                 suppliers' qualification and on
   recurring contrants .
- the . pub l icat ion of information on the awards .
In order to ensure tnat these modifications are introduced into Community
 Legislation by January 1988 , the necessary procedures to amend the
Community Directives , have been pul in hand .                                        \
 ---pagebreak---                                    Council Decision
                    concerning the conclusion of the Protocol
             amending the GAIT Agreement on Government Procurement
TUE COUNCIL Ur" TUE EUKbPEAN CUI Tu UNI T 1ES ,
having regard to the Treaty establishing the European Economic Community ,
and in particular Article 113 thereof ,
  Having regard to the proposal from the Commission /
Whereas the European Economic Community and the other signatories to the
GATT Agreement on Government Procurement ( 1 ) entered into negotiations
under its /Article 1X:6 b ) with a view to improve certain provisions of the
Agreement. , .
Whereas the results of these negotiations are acceptable to the Community ,
IIAb üECiüED Ab r WLLüWS :
                                      Article 1
The Protocol amending the GAIT Agreement, on Government Procurement
is tiereuy approved on behalf of the European Economic Community .
Tire text of the Protocol is attached to this Decision .
                                      Article 2
Hie President of the Council is hereby authorised to designate the person
empowered to sign the Protocol in order to bind the Community .
Done at Brussels ,
                                                  for the Council
                                                  Hie President
( I ) U.J. L VI , 17 Daren lVdli , page 44 .
 ---pagebreak---                                  ч
                       PROTOCOL AMENDING THE
               AGREEMENT ON GOVERNMENT PROCUREMENT
     The Parties to the Agreement on Government Procurement ,
(hereinafter referred to as the "Agreement5' ),
     ACTING in accordance with Article IX ; 7 of the Agreement ,
     HEREBY AGREE to amend the Agreement as follows :
Article I
1.   Article I:l(& )
     First sentence : delete "the procurement of products" and
     replace by "any procurement of products , through such
     methods as purchase or as lease , rental or hire-purchase ,
     with or without an option to buy".
2.   Article 1:1 (b )
     (1)   Replace "SDR 150,000" in first and second sentence by
           "SDR 130,000".
     (2)   Add footnote 3 to first sentence :
             3
           " This    Agreement   shall  apply   to any   procurement
     contract for which the contract value is estimated to equal
     or exceed the threshold at the time of publication of the
     notice in accordance with Article V : 4 . "
      ( 3) Third sentence :    Redraft the language after the comma
     as follows :
           " the basis for application of this Agreement shall be
           either the actual value of similar recurring contracts
           concluded over the previous fiscal year or twelve
           months adjusted , where possible , for anticipated
           changes in quantity and value over the subsequent
           twelve months , or the estimated value of recurring
           contracts in the fiscal year or twelve months
           subsequent to the initial contract . The selection of
           the valuation method by the entity shall not be used
           with the purpo p s of circumventing the Agreement ."
      ( 4) Add the ft;..lowing after the amended third sentence :
                  " In cases of contracts for the lease , rental , or
           hire-purchase of products , the basis for calculating
           the contract value shall be :
 ---pagebreak---                                        5"
                (i)   in the case of fixed-term contracts , where their
                      term is twelve months or less , the calculation
                      should be based on the total contract value for
                      its   duration ,    or , where   their   term   exceeds
                      twelve months , its total value including the
                      estimated residual value ;
              ( ii)   in the case of contracts for an indefinite
                      period , the monthly instalment multiplied by
                      forty-eight ;
            ( iii )   if there is any doubt , the second basis of
                      calculation , namely ( ii) , is to be used .
                      In  cases where a proposed procurement specifies
                the need  for option clauses , the basis for application
                of this   Agreement shall be the total value of the
                maximum   permissible purchases , lease , rentals or
                hire-purchases , inclusive of optional purchases ;"
Article II
1.    Add new Article 11:2 :
      " 2 . With respect, to all laws , regulations , procedures and
      practices regarding government procurement covered by this
      Agreement the Parties shall ensure :
      (a)       that   their   entities     shall  not   treat    a  locally-
                established supplier less favourably than another
                locally-established supplier on the basis of degree of
                foreign affiliation or ownership ;
       (b )     that their entities shall not discriminate against
                locally-established suppliers on the basis of the
                country of. production of the good being supplied ,
                provided that the country of production is a Party to
                 the Agreement in accordance with the provisions of
                paragraph 4 of this Article ."
 2.   Renumber paragraphs 2 and 3 to become paragraphs 3 and 4 .
 Article III
 1.   Article III : 3
      Replace "purchasing" In last sentence by "procuring".
"2 .  Article 111:7
      The reference          to paragraph      13  should be     replaced by
       reference to paragraph 14 .
 ---pagebreak--- 3.   Add new Article 111:10 :
     " 10. Technical assistance referred to in paragraphs 8 and 9
     above would         include    translation    of     qualification
     documentation and fenders made by suppliers of developing
     country Parties from a GATT language designated by the
     entity , unless developed country Parties deem translation
     as burdensome , and , In that case , explanation shall be
     given to developing country Parties upon their request
     addressed either to the developed country Parties or to
     their entities ."
4.   Renumber paragraphs 10-14 to become paragraphs 11-15 .
5.   Article 111:10 ( to become Article 111:11 )
     Replace "notices about proposed purchases" in first
     sentence by "notices about proposed procurements "; and
     replace "purchased or to be purchased " in first sentence by
     "procured or to be procured".
6.   Article 111:12 ( to become Article 111:13 )
     Replace "purchase" in last sentence by "procurement".
Article IV
1.   Article IV : 1
     Replace "purchased" in first sentence by "procured".
2.   Add new Article IV : 4 :
     "4 . Procurement entities shall not seek or accept , in a
     manner which would have the effect of precluding
     competition , advice which may be used in the preparation of
     specifications for a specific procurement from a firm that
     may have a commercial interest in the procurement.”
Article V
1.   Article V:1
     The references to paragraphs " 7 " and           " 15"  should  be
     replaced by "8 " and " 16 ", respectively .
2.   Article V:2(h )
      (1)  Add new sentence at the beginning of the existing
           provision :
           "any     conditions   for   participation      in  tendering
           procedures     shall  be   limited   to  those    which  are
 ---pagebreak---           essential to ensure the firm 's capability to fulfil
           the contract in question."
    (2)    the present sentence "any conditions etc ." should
          start with a capital letter .        Semicolon at the end of
          present sentence should be replaced by period .           The
          following sentence should be added thereafter :
           "The financial , commercial and technical capacity of a
           supplier shall be judged both on the basis          of that
           supplier 's global business activity as well         as its
           activity in the territory of the procuring           entity ,
           taking due account of the legal relationship         between
           the supply organizations ; "
3.  Article V:2(c )
    Replace "purchase" in first , second and third sentence by
    "procurement " .
4.  Article V:2(d )
    Add the following words between " shall ensure that " and
    "all qualified suppliers ":
    " suppliers may apply for qualification at any time ; and
    that "
5.  Add new Article V:2(f ):
           "( f )   the Parties shall ensure that
                    ( i ) each entity and its constituent parts follow
                          a single qualification procedure , except in
                          cases of duly substantiated need for
                          different procedures ;
                  ( ii ) efforts be made to minimize differences in
                           qualification procedures between entities ;"
6.  Article V : 2(f ) ( to become Article V : 2(g) )
     Replace the words "(a ) to (e) above" by "(a) to ( f) above".
7.   Add new Article V:3 :
     "3 . Entities shall not provide to any potential supplier
     information with regard to a specific procurement in a
     manner which would have the effect of precluding
     competition . "
 8.  Renumber Article V:3-16 to become Article V:4-17 .
 ---pagebreak---                        î
9.   Article V:3 ( to become Article V:4 )
     Replace "purchase” in heading and first sentence by
     "procurement".
10 . Article V:4 (to become Article V:5)
     Replace "purchase" in first sentence of both first and
     second part of this provision by "procurement".
11 . Article V:4(a) ( to become Article V:5(a))
     Redraft as follows :
     " the nature and quantity , including any options for
     additional quantities , of the products to be supplied and ,
     if possible , an estimate of the timing when such options
     may be exercised ; in the case of recurring contracts the
     nature and quantity and , if possible , an estimate of the
     timing of the subsequent tender notices for the products to
     be procured ;"
12 . Replace period after sub-paragraph 4(g) - to become 5(g) -
     by semicolon .
13 . Add new Article V:5(h):
     "(h ) whether the entity is inviting offers for purchase ,
     lease , rental or hire-purchase , or more than one of these
     methods ."
14 . Article V:5 ( to become Article V:6 )
     Replace "purchase" in first sentence by "procurement".
15 . Artide V:6(a) ( i) ( to b scorna Artide V:7(a)(i))
     Replace "purchased" by "procured ".
16 . Article V:6(c ) ( to become Article V : ? ( c ) )
     Replace the reference to "paragraph 3" by "paragraph 4".
17 . Article V:7 ( to become Article V:8 )
      (1)  Replace "purchase" in first sentence by "procurement ".
      ( 2) Replace the reference          to     "paragraphs 2-6" by
           "paragraphs 2-7".
 »
18 . Article V;8 ( to become Article V:9 )
     Replace "purchase" in both sentences by "procurement".
 ---pagebreak--- 19 .   Article V:9(a ) ( to become Article V:10(a))
       Replace "purchase" by "procurement".
20 .   Article 7 : 9(b ) ( to become Article V:10(b ))
       Redraft as follows :
      "Consistent with the entity 's own reasonable needs , any
       delivery date shall take into account such factors as the
       complexity of the proposed procurement , the extent of
       sub-contracting anticipated , and the realistic time
       required for production , de-stocking and transport of goods
       from the points of supply ."
21 .   Artide V:10(a ) ( to become Artide V:ll(a ))
       Replace " thirty days " by "forty days" and "paragraph 3" by
       " paragraph 4 ".
22 .   Article V : 10(b ) ( to become Article V : 11(b ))
        (1)    Replace " thirty days" and "paragraph 3" in the first
               sentence by " twenty-five days " and "paragraph 4 of
               this Article ", respectively ;
        ( 2 ) Replace " thirty days " in the second sentence by "forty
               days ".
23 .   Artide V:lQ(c ) ( to become Artide V:ll(c ))
        (1)    Replace " thirty days " in the first sentence by " forty
               days ";
        (2)    Replace "paragraph 3 " and " thirty days " in the second
               sentence by " paragraph 4 of this Article " and " forty
               days ", respectively .
 24 .   Article V : iQ(d ) ( to become Article V : 1 1 ( d ) )
        Redraft as fallows :
        "( d ) The periods referred to in (a ), (b ) and ( c ) above may
        be    reduced    in  the  case   of  the   second       or subsequent
        publications dealing with contracts of a recurring nature
        within the meaning of paragraph 5 of this Article . In this
        case , the period for the receipt of tenders shall in no
        case     be   less  th&n   twenty-five   days .        The second  or
        subsequent publication should include a reference to permit
        the identification of the first publication ."
 ---pagebreak--- 25 . Add new Article V : ll(e ) :
     "(e) The periods referred to in (a), (b), (c) and ( d) above
     may be reduced where a state of urgency duly substantiated
     by the entity renders impracticable the periods in question
     but shall in no case be less than ten days from the date of
     the publication referred to in paragraph 4 of this
     Article ."
26 . Add new Article V : 11(f );
     "(f) The Parties shall ensure that their entities shall
     take due account of publication delays when setting the
     final date for receipt of tenders or of applications to be
     invited to tender ."
27 . Artide V : 12 ( to become Artide V : 13 )
     Redraft first part as follows :
     " 13 . Tender   documentation     provided   to  suppliers  shall
     contain all information necessary to permit them to submit
     responsive tenders , including information required to be
     published in the notice of proposed procurement , except for
     paragraph 5(g) of this Article , and the following ; "
28 . Article V : 14(h) ( to become Article V : 15(h))
     Add a sentence to the end of the existing provision as
follows :
     "In the limited number of cases where offset procurement
     opportunities or similar conditions are required ,          these
     requirements shall be included in the notice of proposed
     procurement and tender documentation ;"
29 . Note to Artide V:14(h) ( to Decesse Note to Artide V:15(h))
      ( 1 ) The reference in the first sentence to "paragraph
            14(h)" should be replaced by "paragraph 15(h)".
      (2)   Add a second sentence , to read ;
            "When known , these requirements shall be specified in
            the   notice    of    proposed   procurement   and  tender
            documeatat on . "
30 . Add new Article V:15(i ):
      "( i) options clauses shall not be used in a manner which
      circumvents the provisions of the Agreement ;"
 ---pagebreak---                              Il
31 . Add new Article V : 15 (J ) :
     "(j ) awards shall be made in accordance with the criteria
  •  and    essential    requirements    specified    in   the    tender
     documentation . "
32 . Article V:15 ( to become Article V:16 )
     The reference to "paragraphs 1-14" in the first sentence
     should be replaced by "paragraphs 1-15".
33 . Artide V:15(d ) ( to become Artide V:16(d))
     (1)    Replace "purchase" by "procure".
     (2)    Add  footnote 4    at  the  end    of  this  provision    as
     follows :
            "^It is the understanding that "existing equipment"
     referred to in Article V : 16(d )      includes software to the
     extent that the initial procurement of the software was
     covered by the Agreement ".
34 . Artide V:15(e ) ( t.o become Artide V:16(e ))
      ( 1 ) Replace "purchases " in first sentence by "procures ".
            In    second    sentence     replace     "purchases "     by
            "procurements" and the reference to "paragraphs 1-14"
            by "paragraphs 1-15 ".
      ( 2)  Renumber footnote 3 to become footnote 5 .
35 . Article V:16 ( to become Article V:17 )
      (1)   In second sentence ,          replace " purchasing"        by
            "procuring" and "purchased" by "procured".
      (2)   The   references    in  first   and   second   sentence    to
            "paragraph 15 " should be replaced by "paragraph 16".
Article VI
 1.   Article VI :1
      Introduce the following new paragraph 1 :
      " 1 . Entities shall publish a notice in the appropriate
      publication listed in Annex II not later than sixty days
      after the award of a contract ( s ) under Article V:15 or 16 .
 ---pagebreak---                         &
   These notices shall contain :
   ( a)  nature and quantity of products in the contract
         award ( 3 );
   (b )  name and address of the entity awarding the contract ;
   (c)   date of award ;
   (d )  name(s ) and address (es) of winning tenderer (s );
   (e )  value of winning award (s) or the highest and lowest
         offer taken into account in the award of the contract ;
   (f)   where appropriate , means of identifying the notice
         issued under Article V:4 ;
   (8)   the type of procedure used ;
   (h )  where       appropriate ,  justification    according   to
         Article V:16 for the use of such procedure ."
   "6
      It is understood that certain information on the contract
   award may not be published in cases of those contracts
   where release of such information would impede law
   enforcement or otherwise be contrary to the public interest
   or would prejudice the legitimate commercial Interest of
   particular enterprises , public or private , or might
   prejudice fair competition between suppliers ."
2. Renumber present Article VI : 1-9 to become Article VI:2-10 .
3. Artide VI : 3 ( to become Artide VI : 4 )
   Replace the period at the end of the provision by comma ,
   and add the following :
   " the value      or values   of the  tenders  and  the  name and
   address of the winning tenderer .      It is understood that the
   criteria contained in paragraph 9 of this Article are also
   applicable to the information requirements above ."
4. Artide VI : 4 ( to becerate Artide VI : 5 )
   Replace "purchasing" by "procuring".
5. Artide VI : 6 ( to become Artide VI : 7 )
   Replace "purchase" in first sentence by "procurement".
   Replace "purchasing" in second sentence by "procuring".
6. Artide VI : 9 ( to become Artide VI : 10)
   Amend first sentence as follows :
    "The Parties shall collect and provide to the Committee on
    an annual basis statistics on their procurements covered by
    this Agreement ."
 ---pagebreak--- 7.   Artide VI:9(a ) ( to become Artide VI:10(a))
     Delete the first word "global” , delete semicolon at the end
     and add the following : "on a global basis and broken down
     by entities ;"
8.   Artide VI:9(b ) ( to become Artide VI:10(b ))
     Amend as follows :
     "( b ) statistics on number and total value of contracts
     awarded above the threshold value , broken down by entitles ,
     categories      of    products   according    to    a   uniform
     classification system to be determined by the Committee ,
     and country of origin of the product ;"
9.   Artide VI:9(c ) ( to become Artide VI:10(c ))
     Amend as follows :
     "( c ) statistics , broken down by entity , and by category of
     product , on the number and total value of contracts awarded
     under each of the cases of Article V , paragraph 16 showing
     country of origin of the product ;"
10 . Add new Article VI : 10(d ):
     "( d ) statistics , broken down by entities , on the number and
     total value of contracts awarded under derogations to the
     Agreement contained in Annex I. "
Article VII
1.   Article VII : 1
     After the word " Chairman" in second sentence , add "and
     Vice-Chairman" .
2.   Article VII : 5
      The reference to "Article VI , paragraph 8" should be
      replaced by "Article VI , paragraph 9".
Article IX
Article IX : 3
      Footnote 4 should be renumbered footnote 7 .
 ---pagebreak--- Annex II
      The reference to "Article V 8 paragraph 3" in the title
should be replaced by "Article V 8 paragraph 4". The word
"Purchases" should be replaced by "Procureiaents".
Annex III
      The reference to "Article V ,      paragraph 6"   should  be
replaced by "Article V , paragraph 7".
Annex IV
      The reference to "Article VI 8 paragraph 1 ",     should be
replaced by "Article VI , paragraph 2".
      This Protocol shall be deposited with the Director-General
to the CONTRACTING PARTIES to the General Agreement on Tariffs
and Trade who shall promptly furnish to each Party to the
Agreement and to each contracting party to the General Agreement
on Tariffs and Trade a certified copy thereof and a notification
of each acceptance of the Protocol .
      This Protocol shall be open for acceptance , by signature or
otherwise , by the Parties to the Agreement , until 1 October
1987 , provided that the period during which this Protocol may be
accepted may , by a decision of the Committee on Government
Procurement , be extended beyond that date .
      Reservations may not be entered in respect of any of the
provisions of this Protocol .
      This Protocol shall enter into force on the ninetieth day
following the date of its acceptance by all Parties to the
Agreement , provided that it shall not enter into force before
1 January 1988 .
      This Protocol shall be registered in accordance with the
provisions of Article 102 of the Charter of the United Nations .
      Done at Geneva this second day of February , one thousand
nine hundred and eighty-seven in a single copy , in the English ,
French and Spanish "languages , each text being authentic .
 ---pagebreak--- Fiche d' impact de certains actes Législatifs sur Les PME et L' emploi
          1 .   OBLIGATIONS ADMINISTRATIVES DECOULANT DE L ' APPLI C ATION DE LA
                LEGISLATION POUR LES ENTREPRISES
               .   Aucune .
          2.    AVANTAGES POUR L' ENTREPRISE
                - OUIottOW
                - LESQUELLES
       I
               . Plus grande ouverture des marchés publics des signataires
                   du Code GATT .
          3.    INCONVENIENTS POUR L' ENTREPRISE
                ( coût supplémentaires )     -. as
               ~ ^ NON
               - CONSEQUENCES
                   .   Aucune .
      ! A.     EFFETS SUR L' EMPLOI
    |! 5 . V. Plutôt         positifs.
                   A - T- IL EU CONCERTATION PREALABLE AVEC LES PARTENAIRES
  I           SOCIAUX ?
  I
              - 'ЗДТ / Шх
              - AVIS DES PARTENAIRES SOCIAUX
         c.   Y A - T - IL UNE APPROCHE ALTERNATIVE MOINS CONTRAI GNANTE ^
              NON