WORLD TRADE
ORGANIZATIONWT/WGTGP/3
12 October 1999
(99-4277)
REPORT (1999) TO THE GENERAL COUNCIL
1. The Working Group on Transparency in Government Procurement was established by a
decision at the WTO Ministerial Conference held in December 1996 "to conduct a study ontransparency in government procurement practices, taking into account national policies, and, based
on this study, to develop elements for inclusion in an appropriate agreement".
2. The period covered in this report is November 1998-October 1999.  The work of the Working
Group up to November 1998 is described in the reports of the Working Group for 1997 and 1998 to
the General Council (WT/WGTGP/1 and 2).  The Working Group held formal meetings on24-25 February, 28 June and 6 October 1999 under the chairmanship of
Ambassador Ronald Saborío Soto (Costa Rica).  Reports on these meetings have been circulated in
documents WT/WGTGP/M/7-9.
1
3. At its meeting of 24-25 February 1999, the Working Group had a detailed discussion oftransparency-related provisions in existing intern ational instruments on government procurement and
national procedures and practices.  For its discussion of this item, the Working Group had before it the
informal note by the Chair, entitled "List of Issues Raised and Points Made", listing the issues that had
been raised, together with the points made on these issues, under each of the items that were discussed
by the Group at its meetings held since November 1997.  Under the relevant sections of the note,
written contributions were presented by the delegations of the European Community on methods of
procurement (Job No. 699), Norway on publication of information on national legislation and
procedures (Job No. 1067), the United States on evaluation criteria and technical specifications(Job No. 1027) and Australia on rights and responsibilities of government as a buyer, value for money
in government procurement, accountability and due process (Job No. 1043).  As an auxiliary informal
paper for the use of Members wanting to draw on it, delegations also had available to them a revision
of the informal note by the Secretariat, "List of Proposals on Items III-VII of the Checklist" reflecting
the proposals made on items III-VII in a succinct form, which identified the source of the differentproposals and summarized the written and oral comments on these proposals.  Also under this item
the representative of Venezuela introduced a non-paper on transparency in government procurement
and the fight against bribery (Job No. 481).  In response to the requests by some delegations, it was
agreed that the Secretariat would make available to delegations, upon request, the texts of the OAS
Inter-American Convention against Corruption a nd the OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions.  During the meeting, the Group also
heard general statements made by a number of delegations expressing their views regarding the
discussion in the General Council intersessional meetings of January and February 1999 on the
subject of government procurement, the Singapore mandate and the relationship between the
substance of the Group's work on transparency and the rules of the plurilateral Agreement onGovernment Procurement.
                                                     
1 WT/WGTGP/M/9 to be circulated shortlyWT/WGTGP/3
Page 2
4. At its meeting of 28 June 1999, the Working Group reverted to its discussion of
transparency-related provisions in existing intern ational instruments on government procurement and
national procedures and practices on the basis of a further revision of the informal note "List of the
Issues Raised and Points Made" which had been updated in the light of the discussion at the previous
meeting and the new papers submitted.  Under the relevant sections in the note, written contributionswere presented by the delegations of Poland on time-limits (Job No. 3777), Australia on transparency
of decisions on qualification (Job No. 1781), Canada on contract award information (Job No. 3131)
and the United States on domestic review mechanisms (WT/WGTGP/W/23).  Points made were
reflected in a revision of this document and also in a revised version of the "List of Proposals on Items
III-VII of the Checklist".  A communication from the Chairperson of the APEC Government
Procurement Experts Group containing APEC non-bi nding principles of accountability and due
process was also made available to the Group (WT/WGTGP/W/22).  In the context of the discussionunder the item on "definition and scope of government procurement", it was agreed that the
documentation of the Working Party on GATS Rules relating to the subject of concessions would be
made available to the Group (WT/WGTGP/W/25).  Moreover, interested Members were invited to
make submissions providing information on their national legislation and practices in regard to
concessions from the perspective of government procurement.
5. At its meeting on 6 October 1999, the Working Group reverted to the issues before it on the
basis of a further revision of the Chairman's informal note, "List of the Issues Raised and Points
Made" (the latest version of which is attached to this report, Job (99)/5534).  The Group also had
before it non-papers submitted by the delegations of the European Community (Job No. 4519);
Hungary, Korea and the United States (Job No. 4510);  Japan (Job (99)/5239);  and Australia(Job (99)/5803), containing draft texts of an agreement on transparency in government procurement.
The Group received a communication from the Chairperson of the APEC Government Procurement
Experts Group, forwarding the APEC non-binding principles on government procurement recently
developed by the Experts Group (WT/WGTGP/W/24).
6. The IMF, the World Bank, the United Nations represented by the United Nations Commission
for International Trade Law (UNCITRAL), UNCTAD and the ITC have observer status in the
Working Group.  During the period covered in this report, the Working Group considered requests for
observer status from OECD, SELA and OIC (the Or ganization for Islamic Conference) and agreed to
revert to these requests in light of the consultations that are being held on this matter by the Chairman
of the General Council.WT/WGTGP/3
Page 3
ATTACHMENT
JOB(99)/5534
Working Group on Transparency
in Government Procurement
24 September 1999
LIST OF THE ISSUES RAISED AND POINTS MADE
Informal Note by the Chair
Fifth Revision
1. This note attempts to set out the issues that have been raised, together with the points made on
these issues, under each of the items that were discussed by the Working Group at its meetings of3-4 November 1997, 19-20 February 1998, 22 June 1998, 8-9 October 1998 and 24-25 February and
28 June 1999.  This non-paper is without prejudice to the position of any delegation and, in particular,
to whether the Working Group would decide to include or exclude any particular aspect addressed in
it from the elements that it will develop for inclusion in an appropriate agreement.
_______________
TABLE OF CONTENTS
I. DEFINITION AND SCOPE OF GOVERNMENT PR OCUREME NT...............................4
A.  WHO IS DOING THE PROCURING ?............................................................................................5
B.  WHAT IS BEING PROCURED ?...................................................................................................6
C.  WHAT TYPES OF TRANSACTIONS ARE COVERED ?...................................................................7
D.  OTHER MATTERS RELATING TO DEFINITION AND SCOPE ........................................................9
II. PROCUREMENT METHODS ...............................................................................................9
III. PUBLICATION OF INFORMATION ON NATIONAL LEGISLATION AND
PROCE DURES ..................................................................................................................... ..13
IV. INFORMATION ON PROCUREMENT OPPORTUNITIES, TENDERING
AND QUALIFICATION PROCEDURE S ...........................................................................15
A.  PUBLICATON ........................................................................................................................18
B.  CONTENTS OF INFORMATION ................................................................................................19
C.  EVALUATION CRITERIA ........................................................................................................20
D.  CLARIFICATION AND MODIFICATIONS ..................................................................................22
E.  LANGUAGE ...........................................................................................................................22
V. TIME-P ERIO DS................................................................................................................. ....23
VI. TRANSPARENCY OF DECISION S ON QUALIFICATION...........................................24
VII. TRANSPARENCY OF DECISI ONS ON CONT RACT AW ARDS ..................................25WT/WGTGP/3
Page 4
TABLE OF CONTENTS (cont'd)
VIII. DOMESTIC REVI EW PROCE DURES...............................................................................29
IX. OTHER MATTERS RELA TED TO TRANS PARENCY ..................................................34
A.  MAINTENANCE OF RECORD OF PROCEEDINGS ......................................................................34
B.  INFORMATION TECHNOLOGY ...............................................................................................34
C.  LANGUAGE ...........................................................................................................................35
D.  FIGHT AGAINST BRIBERY AND CORRUPTION ........................................................................36
X. INFORMATION TO BE PROVIDED TO OTHER GOVERNMENTS
(NOTIFI CATIO N)................................................................................................................. .37
XI. WTO DISPUTE SETT LEMENT PROC EDURES .............................................................38
XII. TECHNICAL COOPERATION AND SPECIAL AND DIFFERENTIAL
TREATMENT FOR DEVELO PING COUNT RIES...........................................................39
I. DEFINITION AND SCOPE OF GOVERNMENT PROCUREMENT
2. It has been recalled that the mandate of the Group is confined to issues of transparency in
government procurement practices.  The view has been expressed that a distinction should be madebetween obligations on transparency and market access commitments in the area of government
procurement.  As regards national practices limiting market access, their transparency but not their
substance should be covered.  The view has also been held that rules on transparency in government
procurement should only apply on a non-discriminatory basis and obligations on transparency should
only be applicable to the extent that market access for foreign supplies and suppliers was permitted bydomestic law.  For example, procurement from local markets, to be paid in local currency, might be
distinguished from procurement from internatio nal markets, for which foreign exchange was
available.  The question has been asked whether transparency of procurement processes would be of
any interest to foreign suppliers when access was reserved to domestic suppliers. It has also been said
that the application of the rules of a transparency agreement to procurements, open only to domesticsuppliers, would be unduly burdensome.
3. Another view expressed in this connection has been that transparency disciplines should
apply to government procurement practices as broadl y as possible.  One of the purposes of developing
rules on transparency was to create national procurement systems that were not only transparent but
also perceived to be transparent;  if the scope of requirements on transparency would be limited to
open procurement markets, procurement systems would not be seen to be transparent.  It was in the
interest of all concerned, domestic as well as foreign suppliers and entities, that information on whatprocurement was open to international competition and what was not should be readily available to
all.  The view has also been expressed that the distinction that had been suggested would give rise to
an imbalance in rights and obligations since transparency obligations would apply more widely in
those Members whose procurement markets were more open to international competition;  the
distinction would also narrow the scope of a transparency agreement.  Moreover, the point has alsobeen made that, given the variety of ways by which market access was limited in national practices,
for example in the form of absolute exclusions of foreign suppliers and supplies, price preferences or
the awarding of contracts to foreign suppliers only in the absence of competitive bidding from
domestic suppliers, it would be technically difficult to identify those government practices that should
be exempted from transparency obligations.   It has also been said that, if the underlying reason for the
suggestion to limit the application of transparency disciplines to open procurement markets wasWT/WGTGP/3
Page 5
concerns about excessive burdens, these concerns should be addressed in their own right in the course
of the Group's work.
4. As regards the issue of the definition and scope of government procurement, a distinction has
been made between the definition and scope that should be used by the Working Group for working
purposes and those which might be used to govern the scope of application of the elements to bedeveloped for inclusion in an appropriate agreement.  In regard to the former aspect, a view has been
expressed that a broad approach, without preconceived limitations, should be employed, sufficiently
wide to accommodate the differing meanings and levels of detail given to the term "government
procurement" in national legislation and practices in individual Members and compatible with
innovative procurement procedures and new types of government structures.  This would enable the
Group to study the full range of issues relating to an eventual agreement on transparency in
government procurement and, as regards the latter aspect referred to above, to develop a more exactdefinition for the purposes of the scope of an eventual agreement on transparency.  Another view
expressed has been that there would be an interrelationship between the scope of a transparency
agreement and the level of detail that its elements would contain.  A transparency agreement,
incorporating simple and straightforward core principles, could have a very broad coverage.  It has
also been said that the work of the Group on th is issue would need to reflect the realities of
procurement practices in individual countries in order to guarantee an effective implementation of an
eventual agreement.   In this connection, a range of issues that would need to be taken into account has
been identified.  These are summarized below.
5. It has been suggested that a useful way of approaching these issues was to draw a distinction
between the following questions:
- Who is doing the procuring?
- What is being procured?
- What types of transactions are covered?
A. 
WHO IS DOING THE PROCURING ?
6. In regard to the first of these questions, who is doing the procuring, the following views have
been put forward:
- entities at all levels of government, including at sub-central levels of government and
enterprises owned or influenced by government, might be covered by a transparency
agreement;
- the rules of a transparency agreement should extend to procurement by entities at the
central and sub-central levels of government;
- the degree of coverage of sub-federal entities should take account of differences in
government structures;
- the rules of a transparency agreement should only extend to procurement by entities
at the central or federal government level.  It would be difficult to frame international
rules that would ensure transparency at su b-central levels in countries with complex
government structures.  In countries with federative administrative systems, theauthority of federal governments to undertake obligations on transparency in respect
of entities at the state or local levels of government equivalent to those of the central
government level might be limited by the constitution.  Another view expressed hasWT/WGTGP/3
Page 6
been that a limitation of the obligations of  a transparency agreement only to central
government level would give rise to an issue of equity among countries with different
government structures.  A further point made has been that a number of provisions in
various WTO agreements, for instance GATS Article I:3(a)(i), addressed the issue of
obligations undertaken with respect to sub-central levels of government;
- the coverage of state enterprises should depend on how they were operated.   One
view that has been expressed is that public enterprises required to run on the basis of
the same economic considerations as private enterprises should not be subject to
requirements on transparency, at least where they did not fall within the ambit of
GATT Article XVII.  Another view has been  that a distinction should be drawn
between state enterprises that operated in a competitive environment and others, even
if run on the basis of commercial considerations;
- in the light of experience, consideration might be given to extending the coverage
further, for instance to public enterprises.
7. It has also been suggested that, in defining the scope of a transparency agreement, the Group
would need to define criteria for determining when  an entity should be considered as one engaged in
government procurement for the purposes of a tr ansparency agreement.  For example, it has been
suggested that government ownership of less than 50 per cent should mean that it was excluded. It has
also been suggested that account should also be taken of national legislation which conferred on
entities the legal right to conduct government proc urement activities or gave governments the power
to exercise control over the procurement decisions of entities and enterprises.
8. Another suggestion has been that the substance of a relevant provision should determine the
scope of the application of the specific requirements in a transparency agreement.  For example,
requirements on publication of laws and procedures might be applied across the board to entities at all
levels of government.
B. WHAT IS BEING PROCURED ?
9. In regard to the question of what is being procured, the suggestion has been made that the
scope of a transparency agreement might extend to all goods and services and any combination of
goods and services.  It has been said that Article I of the plurilateral Agreement on Government
Procurement might be a useful reference in the discussion regarding this aspect of coverage.  The
view has also been expressed that the scope of a transparency agreement should extend only to the
goods sector.
10. With respect to the use of threshold values in determining the coverage of a transparency
agreement, the view has been expressed that, in principle, the coverage of a transparency agreementshould not be limited to contracts above a certain threshold level, but that certain provisions might be
more flexibly applied for smaller contracts.  Also, it would not be appropriate to exclude low-value
procurement from the requirements relating to the provision of information on national legislation or
to procedures for the qualification of suppliers on the basis of threshold values.  On the other hand,
requirements on the publication of tender notices, particularly in a foreign language, might berelatively less strict for low-value procurement.  Suggestions have also been made that transparency
obligations should only apply to procurement above certain threshold levels in order to avoid
burdensome procedures and costs related to publication of all procurement opportunities and that the
work of the Group should take account of national practices in this respect.  Minimum threshold
values could vary according to the level of government and be used for defining the scope ofapplication of the rules to entities at sub-central levels of government.  The suggestion has also been
made that thresholds might differ according to the level of development of Members.WT/WGTGP/3
Page 7
C. WHAT TYPES OF TRANSACTIONS ARE COVERED ?
11. As regards the issues relating to what types of transactions should be covered, it has been
suggested that acquisition by any contractual means, including, for example, through lease or rental,
might be covered.  Questions have been raised as to whether, and, if so, to what extent, concessions
and build-operate-transfer (BOT) contracts should be covered.  The point has also been made thatprivatization should not be covered.
12. Concerning concessions - in the sense of the grant of certain exclusive rights by a government
to a private party for a set period of time in order to produce a product or offer a service to the public
on its behalf (for example for building and operating motorways or airports) - one view expressed has
been that government consumption of certain services (for instance, contracts awarded to private
companies for the provision of cafeteria services or cleaning services in public buildings), although
sometimes referred to as concessions, should more appropriately be considered as governmentprocurement and should, therefore, be addressed in the discussion of definitions and scope of a
transparency agreement.  A further view has been that, even if not considered as government
procurement transactions per se , concessions should be addressed under the scope of a transparency
agreement to the extent that principles of transp arency should apply to the procedures used for the
award of concessions.
13. The question has been asked whether concessions were more properly treated as a matter of
investment or the supply of services on behalf of the government and, therefore, should be covered
under the scope of other relevant agreements or initiatives.  Those concessions that fell within the
definition of GATS mode three supply of services might be subject to the disciplines of GATS
Article III.  In this connection, it has also been  said that GATS Article III would not apply to
concessions that were not within the scope of GATS Article I.
14. The view has been expressed that concessions should not be included in the coverage of a
transparency agreement.  Rules which governed concessions and government procurement were
separate sets of legislation in national practice.  National legislation on government procurement did
not apply to procurement by private companies that operated concessions granted by a government.In this regard, the following comparisons betw een government procurement on the one hand and
concession-granting, awarding of BOT (build-operate-transfer) contracts and privatization on the
other have been made:
- with regard to definitions, government procurement was a procedure intended to
regulate the selection of contractors for the supply of goods, the execution of works
and the provision of services.  The granting of a concession took the form of a
unilateral act of the State giving a private party the right to manage, on its behalf,facilities, properties, public works  or resources that were under government
ownership or to offer a public service that was within the exclusive competence of a
government, for example for mining or exploitation of natural gas.  In the area of
public procurement, no such authorization was given to a private party supplying the
service.  Privatization involved a sale of a state-owned company or assets;
- with regard to legal form, government procurement was made effective through an
administrative act of the procuring entity.  Concessions and privatization were made
effective through a decree of the executive power at the level of the head of
government or State, and, in some cases, subject to authorization by the legislature;
- with regard to subject-matter, government procurement covered goods, public works
and services;  concessions covered public works or services;  and privatization
covered state corporations, property and assets;WT/WGTGP/3
Page 8
- in the case of concessions, the State regulated the operation of the services under
concessions, set and controlled the prices that were paid by the public for those
services, defined the rights of users and ensured the effectiveness and continuity of
the services provided.  In government procurement, suppliers offered bid prices based
on their own calculation of estimated costs and profits;
- concessionaires were considered as owners of the goods affected to the exploitation
of the services during the period of concessions, whereas procurement contractors did
not have ownership of the procured goods, services or works carried out;
- with regard to the methods, open, restrictive or limited tendering methods were used
in the area of government procurement.  Open, restrictive or limited tendering or
auctioning were used in the granting of concessions.  Public sale or auctioning and
liquidation of debt in return for a share of the company were the methods used inprivatization;
- as regards the application of the GPA, procurement by concessionaires listed in
Appendix I was covered but the granting  of a concession was not.  The act of
privatization was not covered but enterprises in which government control or
influence had been withdrawn through privatization could be excluded from thecoverage of the GPA;
- as regards spending of funds, concessionaires were responsible for providing the
economic resources necessary for the expenses related to the operation and
exploitation of concessions, whereas the governmental authorities disbursed the state
funds related to government procurement transactions or the execution of publicworks contracts.  Whether a service provided was a government procurement or a
concession was related to the question of who had the financial liability;
- governments did not necessarily enter into contracts with private parties in the
process of granting concessions;
- a BOT contract could be considered as a form of concession.  The distinction between
these two types of government action should be clarified;
- in general, concessions took the form of monopolies.  However, more than one
concession could be granted for the operation of a public service, for example for
different end-users, regions or types of exploitations.  Contracts for the procurement
of goods, services and works were awarded to one supplier who might use
sub-contractors to carry out parts of the contract;
- a distinction should be made between the granting of a concession or concluding a
BOT contract and transactions entered into by the concessionaires or BOT contractors
subsequent to the granting of concessions or awarding of BOT contracts;
- in some countries, only national companies were allowed to operate concessions;
15. It has been suggested that Members should provide information on national legislation and
practice as regards concessions in their countries.  A view has been expressed that the issue ofconcessions raised complex questions to which the answers were not clear as yet.  It has been said that
some concessions could be outside the scope of a government procurement.  Nevertheless, the Group
should maintain a broad approach to their coverage at this stage, pending further study of the issue.  InWT/WGTGP/3
Page 9
this connection, reference has been made to the information-gathering activities in the GATS Rules
Group.
D. OTHER MATTERS RELATING TO DEFINITON AND SCOPE
16. The issue of the exceptions that might be allowed to the basic coverage of a transparency
agreement has been raised.  One suggestion has been that there may be reason to allow the exclusionof those areas that track general exceptions in GATT 1994, such as national security exceptions.  It
has also been suggested that exceptions on development grounds might be envisaged.  The view has
been expressed that the question of permissible exem ptions was better left for discussion at a stage
when a better idea of the general definition that might be employed would be available.
17. In regard to developmental aspects, in addition to the points reflected above, the general point
has been made that the function of national laws in taking into account social and developmental
needs, for instance promotion of small and medium-sized enterprises, balanced regional developmentor technological development, should be considered in the definition of government procurement to
be employed in a transparency agreement.  In this connection, it has been said that a transparency
agreement should not include provisions setting out the objectives that should be sought through
government procurement policies.  Rather, the purpose of a transparency agreement should be to
ensure that Members provided transparency of the domestic objectives sought through the use of theirvarious government procurement policies.  On the other hand, it has been said that a Member should
not be required to provide transparency of the ob jectives sought in procurement which was open only
to domestic suppliers.  A transparency agreement should not have provisions that could limit the
scope of procurement policy objectives or decisions.
II. PROCUREMENT METHODS
18. The point has been made that, from a transparency perspective, the method of procurement
employed was less important than ensuring that it conformed with basic principles on transparency
and maximized the level of competition feasible under the particular circumstances.  The point has
also been made that the method of procurement used should not undermine the principles and
objectives of a transparency agreement to encourage open and competitive regimes.  Other viewsexpressed have been that an eventual transparency agreement should aim at transparency with regard
to the methods employed in different countries rather than seek to limit or modify those methods.
According to these views, specific circumstances governing a given procurement dictated the choice
of a particular method among alternative methods.  Rather than prescribing which method should be
the preferred method, a transparency agreement should allow procurement authorities to choose the
best method for meeting the objectives of the procurin g entity as well as in the interests of efficiency,
competition and transparency.  General principles of transparency should be developed with respect tothe choice and application of procurement methods.  Further disciplines might need to be developed
to cater for the particular circumstances of individual methods.  Whilst the methods used by WTO
Members - at least for larger value contracts - mostly seemed to be based on the principle of tendering
(open, selective, limited), they were not necessarily limited to this (e.g. purchase cards, electronic
catalogues).  In this connection, it has been said that setting forth provisions specifying the differencesinherent between various procurement methods as re gards transparency would allow more flexibility
in the use of those methods.WT/WGTGP/3
Page 10
19. The view has been expressed that the Group should consider the issue of procurement
methods from the perspective of transparency.  The Group's examination of the transparency aspects
of procurement methods could focus on the following three categories:  where information on the
procurement opportunity and selection criteria was made publicly available to all interested suppliers;
where a pre-selection of qualified suppliers was made and information was transmitted only to thosesuppliers;  and where no information was made publicly available but the procuring entity negotiated
with an individual supplier.  Such a categoriza tion, focused on transparency aspects, would avoid
getting into the details of procurement methods.  It has also been said that the method to be used in a
procurement process should be specified in advance, for instance by giving a reference to the relevant
provisions of the UNCITRAL Model Law.  On this poin t, it has also been said that such a requirement
might be too prescriptive since only a few countries had adopted the Model Law.
20. With respect to the main procurement methods used, the view has been expressed that open or
international bidding in which there was no limit to the number of potential bidders was the most
transparent method;  selective procedures were justifiable where it would not be feasible or efficient
to consider and evaluate a large number of potential bids, as long as all potential interested suppliers
were given the same opportunity to seek access to information on a procurement and seek to be
invited to bid.   Another view has been that open and selective tendering should be regarded as equally
transparent, provided selective tendering was conducted in accordance with the appropriate principles.
One view has been that, while open tendering was the most transparent method, it might not be the
most cost-effective, in particular in the case of complex procurements.  As regards the third main
procurement method, limited tendering (e.g. individual, sole-source, single-source or direct
tendering), it has been suggested that, since information opportunities and selection criteria were notmade publicly available, this method should only be used in justified and exceptional circumstances.
International instruments and national practice commonly accepted a range of circumstances and
conditions under which the use of limited tendering would be warranted.  A further point has been
that it might not be possible to provide information on procurement opportunities under each type of
tendering method.  It has been suggested that general principles of transparency regarding the choiceand application of procurement methods should be developed.  Should those procedures be deemed
inadequate, further elements on transparency could be developed to cater for the particular
circumstances of individual procurement methods.
21. Based on the written and oral proposals, the following options and alternative approaches for
addressing the issue of procurement methods have been identified.  These various options and the
comments made on them are as follows:
- Option 1.  There should be sufficient flexibility to accommodate the differing
procurement methods used in national practice, and the possibility of using methods
which are not based on tendering should also be provided for.  As such there should
be no limitation on the choice of procurement method except limitations that exist in
domestic legislation.
It has been said that the scope of option 1 was too wide and would not contribute to
the objective of improved transparency in government procurement.
- Option 2 – first alternative.  Whilst wishing to ensure flexibility and providing for the
use of methods which are not based on tendering, there should be a requirement thatthe method of procurement used should not undermine the principles and objectives
of a transparent procurement regime.
- Option 2 – second alternative.  Whilst wishing to ensure flexibility and providing for
the use of methods which are not based on tendering, there should be a requirement:(i) that the procurement method used conforms  with basic transparency principles [toWT/WGTGP/3
Page 11
be defined];  and/or (ii) that transparency is maximized at each stage of the
procurement process for the particular method used.
Views have been expressed supporting this option.  It has also been said that the aim
of the provisions of a transparency agreement should not be to determine the validityof the procurement methods chosen by entities but rather to guarantee that, when
inherently less transparent methods were used, circumstances justifying their use
should be made known to all interested part ies.  One view has been that this option
would also take into account national practices that determined the choice of
procurement methods based on threshold values.
- Option 3 – first alternative.  As for option 2, first or second alternative.  In addition,
there would be a further requirement that methods which are considered to be
inherently less transparent (e.g. single-source procurement or limited tendering)
should only be used in exceptional and justifiable cases.
Views have been expressed supporting this alternative.
- Option 3 – second alternative.  As for option 3, first alternative, but the additional
requirement would be further developed through the use of an illustrative list
(examples which could be included in such a list are given in paragraph 24 below) of
such exceptional cases.
It has been said that this approach in this alternative was flexible enough to take
account of the existing and any future procurement practices.  It also provided
safeguards against loopholes in transparency by the choice of the method used.  From
this perspective, this option should be the preferred way of dealing with the issue ofprocurement methods.  The use of methods, other than tendering, should be allowed
only in narrowly defined circumstances because of their potential for circumventing
transparency.  Other views have been expressed supporting this option.
Questions have been asked regarding the treatment of those circumstances that might
be envisaged in national legislation but not included in the illustrative list;  whether
the illustrative list would set some guide lines for justifying the use of limited
tendering or would consist of an exhaustive list of all possible exceptionalcircumstances;  and the difference in practice between the first and second
alternatives of option 3.
- Option 4.  There should be greater prescription as to the type of procurement method
which can be used.  For example, there could be a requirement that methods based onthe so-called open and selective tendering procedures are used and that limited
tendering is only used in exceptional and justifiable cases (with or without the use of
an illustrative list as suggested in option 3, second alternative).
It has been said that this approach wa s far too prescriptive regarding the types of
procurement methods that could be used and did not sufficiently take into account
diversity in the existing national practices.
22. Views have also been expressed stating that it would be premature to support any of the
options above before the principles and objectives of a transparency agreement were clearly defined.
23. The following approaches to how limited tender ing should be dealt with in a transparency
agreement have been suggested:WT/WGTGP/3
Page 12
- since the use of the method permitted procurement authorities to dispense with many
of the procedural guarantees associated with transparency, a transparency agreement
should set forth an illustrative list of the specific circumstances and conditions
justifying the use of this method;
- provisions of a transparency agreement should not impinge upon the right of
procuring entities to use this method in circumstances that dictated its use.  Spelling
out the exact circumstances and conditions justifying the use of this type of method
might go beyond the scope of a transparency agreement.  It had to be taken into
account that governments had other policy objectives apart from transparency;
- while not limiting the circumstances under which limited tendering might be allowed,
the Group should develop disciplines to be included in a transparency agreement to
ensure that, when used in appropriate circumstances, limited tendering proceduresshould be employed in a way which maximized transparency at each stage of the
procurement process;
- rather than describing in detail the circumstances justifying the use of limited
tendering, disciplines should be developed ensuring transparency in the use of this
method;
- a distinction might be made between a situation in which the purpose of using this
method was precisely to avoid transparency, e.g. for national security reasons, and
other cases where the purpose of using limited tendering was to meet needs that
might arise from special circumstances of the procurement;
- a transparency agreement should not cover procurement not open to tendering.
24. A range of circumstances which might figure in an illustrative list or define the general
circumstances under which limited tendering would be justified has been referred to.  These are:
- for reasons of extreme urgency brought about by circumstances unforeseeable by the
procurement authority (e.g. natural disasters);  such circumstances should not be
caused by the procuring entity itself, for instance as a result of its negligence;
- in the absence of responsive tenders, under tendering procedures which do not restrict
competition;
- when tenders already submitted have been collusive;
- when it is clear at the outset of a procurement that only one supplier or a limited
group of suppliers has the proprietary rights to goods or services being procured,  for
example procurements involving the protection of patents, copyrights or other
exclusive rights, or for other technical or artistic considerations;
- in commodity markets where there may be no individual suppliers since the market is
the supplier;
- in so-called "fire sales" where the procurement authority can realize exceptional
savings at a one-time event (e.g. liquidation sales);
- when a product or a service is supplied by a supplier with a monopolistic position in
the market;WT/WGTGP/3
Page 13
- when a product or a service can only be procured in a specific geographical location
or place of production;
- when a procurement is for research or experimental purposes and not for commercial
use;
- for national security reasons;- for other reasons which should be published in law or regulations.
25. Reference has also been made to the circumstances justifying the use of the limited tendering
method contained in Article XV:1(a)-(j) of the pl urilateral Agreement on Government Procurement.
26. With regard to ensuring that limited tendering, when employed, is used in a way which
maximizes transparency, the following suggestions have been made:
- a procuring entity should generally seek more than one bid if circumstances
permitted;
- a procuring entity should be required to document the specific circumstances giving
rise to the need for such limited tendering;
- public notices of contract awards should disclose the specific circumstances and
reasons for contacting a particular supplier.
III. PUBLICATION OF INFORMATION ON NATIONAL LEGISLATION AND
PROCEDURES
27. The point has been made that transparency meant ensuring that information on procurement
rules, practices and opportunities was made widely available in an easily usable form to all interested
parties (and particularly potential suppliers), as well as ensuring the right of access to that
information.  Publication of information regarding the general environment in which publicprocurement took place and interested parties were expected to operate was an essential component of
transparency.  Publication of national legislation not only provided a clear roadmap for potential
suppliers but also a check against arbitrary practices within the procurement regime.  The resulting
procedural certainty also reduced costs in the procurement cycle.
28. The point has also been made that there were two questions regarding this matter:  the scope
of the information that should be made available and in what way.
29. On the first issue, it has been said that there a ppeared to be two approaches to establishing the
scope of the information that should be made available:  a formal approach that would require, for
example, that all laws, ministerial ordinances, administrative guides or internal rules and procedures
should be published;  and an approach that would consist of determining the substance of the
information that should be made available, irrespective of the legal form.  This second approach might
be preferable since what was of importance was the substance of the information to be madeavailable.  The key substantive information that should be made available was that which defined
what rules of general application had to be follow ed in determining participation in the tender and
making the decision on the award of the tender and what remained at the discretion of the procuring
entity.  The second approach would have merit in that the objective of transparency would not be
achieved if the publications that contained the relevant laws and regulations did not cover importantaspects of national procurement practices and procedures.WT/WGTGP/3
Page 14
30. It has also been suggested that all laws, regula tions, judicial decisions, policy guidance, and
administrative and other procedures on government procurement should be published promptly or be
readily and easily accessible in a usable form to a ll interested parties, including potential foreign
suppliers and other Members.  Any changes to such laws and regulations should also be published
promptly or generally made available through an accessible source.  Concerning publication ofadministrative guidelines, it has been said that it might not be appropriate to publish information
relating to internal procedures of government agencies since their disclosure might prejudice the
position of a purchasing agency for instance in its negotiations with suppliers;  rather, the relevant
obligation should be limited to publication of administrative guides to the operation of the
procurement systems.  It has also been said that publication of regulations of each individual
procuring entity would incur burdensome administrative costs.
31. In regard to the second issue, how the inform ation should be made available, the following
points have been made:
- the important point was that information should be made publicly available, not how
it should be made available;
- a distinction should be made between publication of information and accessibility of
information.  It has been suggested that laws, regulations and measures having the
force and effect of law should be published.  Regarding judicial decisions, it has been
stated that publication requirements in an  agreement had to take into account the
different ways of developing national legislation and procedures.  For instance, in
judicial systems where laws were developed on the basis of case law, judicialdecisions could play a central role in defining national legislation and procedures;
- publishing information on judicial decisions, policy guidance and administrative
guides could be onerous.  But any judicial decisions that would have a bearing on
procurement practices and that were not customarily published should be made
accessible within the country;
- publication requirements could be met through publication in printed or electronic
media.  The choice should be left to the discretion of Members.  There should be no
mandatory provisions requiring the use of electronic media.  It has also been
suggested the two forms of publication should not be mutually exclusive.
32. The view has been expressed that publication obligations, including in the area of government
procurement, already existed in the goods area under Article X of GATT 1994 and in the services area
under Article III of the GATS.  The provisions of these two Agreements which exempted governmentprocurement from the scope of certain GATT 1994 and GATS obligations (Articles III:8(a) and
XVII:2 of GATT 1994 and Article XIII of the GATS) did not apply to these transparency provisions.
33. The suggestion has also been made that information on national legislation and procedures
should be provided at no more than cost.  It has been said that the matter of fees charged was not
within the ambit of a transparency exercise.  Govern ment entities should have the discretion to charge
fees above cost price.  However, any fees for provision of information on national legislation and
procedures should be charged on a non-discriminatory basis.
34. The point has also been made in connection with the publication of laws and regulations that
the obligation to publish should be limited to publication in a national language and should not
involve burdensome and costly translation obligations.   It has been stated that some domestic public
agencies provided information on legislation in a foreign language or a summary of specific
legislation in a WTO language.WT/WGTGP/3
Page 15
35. The suggestion has been made that interested pa rties should know either where to go to locate
this information, or who to ask.  A transparency agreement might provide for Members  to notify either
the source of this information and/or to establish and notify contact or enquir y points (which could take
the form of an Internet website), from which other Members and maybe interested suppliers could
obtain explanations about national legislation and procedures, including information on the practicalsteps involved in tendering, any preferential treatment of national suppliers and domestic review
mechanisms.  In this connection, reference was made to the provision of Article III:4 of the GATS,
and also to that of Article IV:2 of that Agreement which requires developed country Members, and to
the extent possible other Members, to establish contact points to facilitate the access of developing
countries suppliers to information.  It has been stated that the feasibility of providing contact or
enquiry points in respect of decentralized procurement systems, especially in federal States, would
have to be studied carefully.  Any obligations should be without prejudice to decentralizedprocurement systems.  In this connection, the suggestion has been made that in decentralized national
procurement systems a central office should be designated for keeping a list of the contact points at
sub-central levels.  One view in this respect has been that the establishment of enquiry points at
sub-central levels might incur burdensome administrative costs.
36. In the discussion of this item, the relevance of the overall coverage of a transparency
agreement has been recalled.  In this regard, it has been suggested that the publication obligation
should only relate to situations where access was open to foreign supplies and suppliers.  The opposite
view has also been expressed, with the argument that  it would be essential to have information on any
policies including preferences in favour of national suppliers in order to determine whether
procurement markets were open to foreign suppliers.  In respect of the term "foreign suppliers", thepoint has been made that in some national practices government procurement was used as an
instrument for the promotion of domestic supplies and suppliers and national treatment would not be
granted to those suppliers who did not have a commercial presence in the country of the procuring
entity.
37. The link between this item and that in Section X, concerning the provisions on notification of
information to other governments under an appropriate transparency agreement, has been referred to.
38. A number of comments have been made on specific proposals put forward by Members as
reflected in the note by the Secretariat entitled "List of Proposals on Items III-VII of the Checklist".
39. A non-paper synthesizing the alternative approaches that have been suggested in the Working
Group has been circulated as  Job No. 1067.
IV. INFORMATION ON PROCUREMENT OPPORTUNITIES, TENDERING AND
QUALIFICATION PROCEDURES
40. The point has been made that advance information on government procurement opportunities
enhanced the participation of potential bidders in a procurement procedure.  Broad participation of
bidders in the procuring process contributed to improved efficiency in government procurement.  In
order for the best level of participation from the market to be achieved, information about
procurement opportunities must be available in notices of invitation to tender and in tenderdocuments.
41. The point has also been made that information on procurement opportunities in notices of
invitation to tender should be sufficient to allow potential suppliers to assess their interests in
participating in the proposed procurement procedure and to seek tender documents; and that
information in tender documents should be sufficiently specific to enable suppliers to prepareresponsive bids if they participated in the procurement process.  The application of these coreWT/WGTGP/3
Page 16
principles would save efforts and resources of suppliers in preparing bids for procurements in which
they did not have sufficient interest and of procuring entities in considering unresponsive bids.
42. It has been recognized that national practices concerning the amount of detail included,
respectively, in initial tender notices and in the subsequent tender documentation, varied considerably
and that it might not be necessary to have precise minimum requirements concerning their specificcontents or to seek harmonization on this point.  It  would be sufficient for a transparency agreement to
develop elements in the form of general principles.
43. In this connection, views have been expressed suggesting that the level of detail of
information to be supplied might also vary among the different stages of tendering and procurement
methods used.  Whereas detailed information should be given under open procurement procedures,
the requirements to publish tendering information in a widely available medium under selective
tendering procedures should be flexible to enable tender documents to be sent directly to registeredsuppliers.  Information provided to prequalified suppliers could be more specific than information in
public notices available to all suppliers.  It has also been said that, notwithstanding the flexibility
regarding the amount of detail that should be provided in tender notices, certain basic types of
information should be provided under all methods for the purpose of achieving maximum
transparency whatever the method used.  Certain mi nimum standard requirements, reflecting the core
principles of transparency, should apply horizontally to all procurement methods.
44. In regard to tender documentation, it has been said that their contents should provide all
information relevant to submitting responsive bids th at was not provided in the tender notices.  They
should set forth the parameters for evaluating bids and awarding the contract, including requirements
in respect of technical specifications and any preferences granted to national supplies and suppliersand on any other assessment criteria based on socio-economic considerations.  It has also been said
that the information contained in tender documents should be comprehensive enough to lead to the
submission of bids that would enable procuring entities to compare them and to allocate their
resources efficiently.
45. The view has been expressed that rules on information on tendering opportunities in a
transparency agreement should apply on a non-discriminatory basis but only in cases where national
markets were open to foreign suppliers;  otherwise domestic procedures would be applicable.
46. Another view expressed was that provision of information on procurement opportunities was
an essential element of transparency in procur ement irrespective of the entitlement of foreign
suppliers to participate and that such prior information had benefits both from domestic and from
foreign suppliers' perspectives.  Points made regarding this view have been:
- the obligations of a transparency agreement should apply to all procurement within its
scope, whether or not suppliers had access to procurement opportunities.  The
principle of non-discriminatory access to information would need to be observed
regardless of any policies excluding foreign suppliers from access to procurement
opportunities or the existence of preferences for domestic suppliers.  The
establishment of the conditions of competition and transparency in domestic marketswas essential to achieving transparency at the international level;
- access to information on any policies, including preferences in favour of domestic
suppliers, would allow suppliers to determine whether the procurement markets were
in fact open to foreign suppliers.  From the government's perspective, transparency in
the extent to which markets were open would prevent further requests for informationfrom foreign suppliers on market access matters.  Such information would alsoWT/WGTGP/3
Page 17
benefit suppliers who would know in adva nce whether it would be worthwhile for
them to prepare tenders;
- if the obligations on transparency applied only to the extent that foreign bidders were
provided access to procurement markets, this would give rise to inequity among
Members to a transparency agreement.  The end result would be an agreement whichwould require those countries that had thei r markets fully open to foreign suppliers
and had no rules in place regarding national preference to undertake a much greater
level of obligations as regards transparency.  On the other hand, other countries that
had relatively closed markets and excluded foreign suppliers in a large number of
sectors would take on lesser obligations;
- since a transparency agreement would not prevent government procurement from
being limited to domestic suppliers, the rights of other Members would not bebreached by a Member limiting transparency obligations to government procurement
open to international competition because foreign suppliers would not have any
interest in obtaining information on a procurement that was not open to them;
- a requirement for transparency in procurement, irrespective of the openness of
markets, would result in a transposition of obligations on market access into atransparency agreement.  The arguments in favour of transparency in all procurement
would imply that all Members should be required equally to provide access to their
markets since, by keeping their markets closed, they would assume lesser obligations
on transparency.  Any country was free to undertake greater obligations on
transparency by opening its markets if it chose to do so;
- a decision to open a country's market was independent of the requirements of an
agreement on transparency.  The balance in a transparency agreement was to be found
in obligations with respect to transparency  and not in those with respect to market
access.  In undertaking obligations on transparency, countries had to take into account
their individual national practices;
- this matter was better dealt with in regard to the overall scope of an agreement
(c.f. Section I);
- participants in the Working Group should be encouraged to provide information on
their national practices in regard to the provision of information in respect of
procurement not open to international competition.
47. The question has been raised as to whether openness would depend only on general criteria
prescribed by law or whether it could depend on a case-by-case decision of the procuring authority.In this regard, the following views have been expressed:
- to the extent that procurement contracts would be decided on a case-by-case basis, it
would be the prerogative of a government authority not to open a specific
procurement contract to foreign suppliers;
- it would defeat the objective of a transparency agreement if the question of whether a
given procurement would be open to foreign suppliers were to be decided on a
case-by-case basis;
- in those countries where decisions to open procurement to foreign suppliers were
made on a case-by-case basis, such decisions could be taken, either at the onset of aWT/WGTGP/3
Page 18
tendering process or at the time of the award of a contract.  With the latter type of
case-by-case decision, it would be significantly non-transparent should a
governmental authority decide to award contracts only to domestic suppliers.
Disciplines should be developed in order to provide maximum transparency in those
situations in which the decisions were taken on a case-by-case basis.
A. PUBLICATION
48. On advance information on tender opportunities, it has been suggested that there are two key
issues: where the information can be found (publication) and content.  With regard to where the
information can be found (publication) by potential suppliers,  the following points have been made:
- procurement opportunities and procedural requirements relating to those
opportunities should be made known and be generally available to interested parties,
including the general public and other Members, through an easily accessible source;
- the source used to make information on procurement opportunities generally available
should be left to the discretion of WTO Memb ers, but its level of availability should be
proportionate to the likely level of interest in  the procurement.  In other words, where a
procurement opportunity was likely to attr act international interest, procurement
opportunities should be published through a source which potential foreign suppliers
and service providers had access to, as opposed, for example, to posting a notice in a
town hall.  It has also been stated that it would not seem necessary to have a
requirement to publish tender notices in an international publication;  rather,
interested suppliers should be expected to keep track of national publications;
- publication of tender opportunities should be made available in printed and/or in
electronic media.  Printed media could be an official gazette or a national newspaper
of wide circulation;
- electronic publication should be used where feasible and taking into account the level
of development of individual WTO Members.  The internet address of electronic
publications could be made available. It has also been stated that electronic
publication offered significant benefits in terms of both time and costs, and based on
current trends would be used increasingly in the coming years (see also
Section IX B);
- the choice should be available to each WTO Member to publish in the appropriate
media and electronic publication should be an option rather than an obligation.  This
would permit account to be taken of the divergences in the capability to make use of
electronic means of publication between WTO Members and between regions within
a WTO Member and between suppliers;
- allowances should be made for systems by which information was furnished by
private sector service providers acting on behalf of procuring entities;
- under limited tendering procedures where a procuring entity contacted the
prequalified suppliers directly, advance publication of tender notices did not seem to
be necessary;
- some Members' notices of invitation to tender and to prequalify were published also
under selective procedures;WT/WGTGP/3
Page 19
- requirements for publication of tender notices might be less strict for low-value
procurements in order to avoid burdensome administrative costs;
- publication of tender opportunities should not be limited to contracts above a certain
threshold level (see also Section I).
49. The view has been expressed that exceptions to the obligation to publish procurement
opportunities (e.g. to take account of limited tendering in the case of some national practices) should
only be permitted in exceptional and justified cases.  These circumstances should be the same as those
set out for the use of procurement methods which severely restrict competition.  Some suggestions
have been made concerning situations where public ation should not be required.  This could be the
case for purchases below threshold levels and for purchases not made through open tenderingprocedures for instance for limited tendering.  The point has been made that, in the latter instance, it
would be important that information on how to qualify for selective tendering procedures be
adequately available, and that post-contract awar d notices should be published. Another view has
been that, for transparency reasons, publication of procurement opportunities should in principle not
be limited to contracts above a certain threshold level.
B. 
CONTENTS OF INFORMATION
50. With regard to minimum requirements for the information to be published on procurement
opportunities, the point has been made that, while national practices with regard to the amount of
information to be included might differ, information on procurement opportunities in notices of
invitation to tender and tender documents notices should be sufficient to allow potential suppliers toassess their interests in participating in the propo sed procurement or in a qualification system and
enable them to prepare responsive bids or proposals for qualification.   Members should be able to
decide whether the provision of in formation on procurement opportunities or its availability to interested
parties through an accessible source should be done just  through the use of tender notices, or whether the
bulk of information should be contained in the te nder documentation or be made available by other
means.
51. The suggestion has been made that an illustrative list of the types of information that such
documents should contain should be developed to provide at least:
regarding the procuring entity:
- full contact details (the name and the address) of the procuring entity (the buying
department or agency, the location of the responsible office and the division or
branch of the department or agency);
- coordinates of a contact point or document centre from which additional information
including on technical and commercial requirements and any other relevant
information or documents may be requested and obtained, the final date for making
such requests and, if applicable, the cost of such information; unique referencenumber identifying the request in the department or agency's records;
regarding suppliers:
- any requirements relating to the supplier or service provider, for example economic
or qualification requirements;WT/WGTGP/3
Page 20
regarding the intended procurement:
- an identifiable description (nature) of the goods and/or services to be provided,
together with their quantity or an indication of their extent;
- the place of delivery, site or place of performance of the service and, if applicable, the
time-limit for delivery, completion or duration of the contract;
regarding evaluation of tenders:
- the procurement procedure envisaged to be used (open, selective, whether
negotiations are involved, etc.);
- the criteria for the award of the contract including factors other than the price that are
to be considered in the evaluation of tenders (economically most advantageous bid) in
the evaluation  of tenders;
- information on the existence of any conditions in favour of national suppliers in
awarding contracts, such as price preferences, local content requirements or any other
policies of discriminatory nature.  In this connection, it has also been said that
provision of such information would not be necessary if a description of national
preferences or discriminatory policies was already published in the Official Gazette;
- any technical specifications required;- where applicable, the location, date and time of any public briefing on the
requirements;
regarding submission, receipt and opening of tenders:
- the final date for the submission/receipt of tenders or requests to be invited to
participate in a qualification system;
- the address to which submission of tenders or requests to be invited to participate in a
qualification system must be sent;
- details of any language requirements in respect of submission of tenders;
- date and place of opening of tenders.
52. The view has been expressed that such a list might be excessively burdensome and costly, in
particular in those countries in which the number of tenders issued by government entities was high.
53. In addition, it has been suggested that entities might publish, on a voluntary basis, a summary
of information on their intended procurements at regular intervals.  The point has been made that only
those entities which could sufficiently plan their procurement activities ahead could have such
procedures.
C. 
EVALUATION CRITERIA
54. With regard to the specification of criteria for the evaluation of tenders and awarding of
contracts in public notices and/or tender documents, it has been said that all relevant evaluation
criteria should be accessible to interested suppliers, whether through publication of procurementWT/WGTGP/3
Page 21
opportunities, specifications laid down in tender documentation, or by giving references to applicable
laws and regulations.  It has been recalled that the question of whether national preferences, or other
policies underlying practices of a discriminatory nature should be part of such criteria, was not within
the scope of the work of the Group.  However, emphasis has been put on the importance of
information on such national preferences and other measures in favour of domestic supplies orsuppliers, for instance offsets, being made known in advance in the tender documents and/or tender
notices.  The point has been made that transparency in regard to the existence of preferences or other
discriminatory requirements would enable potential foreign tenderers to determine whether they had
an interest in entering a specific procurement process in spite of discriminatory national policies.
Interested suppliers would only be able to distinguish between procurement opportunities that were
reserved for domestic suppliers and those that were  open to international competition if information
on any discriminatory policies were made available to them in advance.  Provision of informationupfront on price preferences or qualification requirements favouring domestic suppliers would enable
suppliers to gauge their interest and assess the real opportunity to win a contract.  Such information
would also allow interested suppliers to make the appropriate decisions in preparing bids that would
be responsive to the conditions set out in this respect in tender documentation.  By avoiding
participation in procurement processes in which their bids would be ultimately dismissed, supplierswould save not only their own resources but also those of procuring entities.  Moreover, the clear
specification of requirements based on socio-economic considerations in the tender documentation
would facilitate the implementation of such policies by providing transparency in respect of the nature
of the socio-economic needs applicable to specific procurements.
55. One view has been that information on preferences to national supplies and suppliers need
only be included in tender notices and/or tender documents when it was not adequately provided
through laws or regulations of general application, either through setting out the relevant information
or through an explicit reference to the applicable le gislation.  It has also been said that, according to
national practice in one country, information on national preferences or other discriminatory policies
were supplied in response to requests by individual suppliers.  Another view has been that clearreferences to any national policies, including any preferences applied, should always be included in
tender notices and/or tender documents.  In this regard, the point has been made that the establishment
of links between electronically published tender documents and relevant laws and regulations would
enable suppliers to search easily for further information on any applicable discriminatory policies.
56. In regard to offsets, for instance domestic content, technology transfer, export earnings or
similar requirements, the view has been expressed that, although procurement policies in many
countries incorporated such requirements, they had the effect of distorting procurement decisions.  Itwas important to ensure that such requirements were  applied in a transparent manner.  If used at all,
they should form part of the qualification criteria rather than the criteria for evaluating tenders.
Suppliers should be informed of the offset requir ements laid out by the procurement entity at the
outset, which should define how such requirements could be met, for example certain percentage of
domestic content in total procurement or certain value of export earnings, before they participated inthe bidding.  Offset requirements that were used as part of evaluation criteria were inherently
non-transparent because this would not give suppliers a clear indication at the outset of what
requirements they would be expected to meet so that they could prepare responsive bids.
57. Another view has been that a requirement re garding offsets might go beyond transparency
matters and appeared not to be a main element of transparency.  The comment has also been madethat, rather than an element of a transparency agr eement, the provisions relating to offsets should be
seen as measures against circumventing the non-discrimination principle.  However, since a
transparency agreement would confer on Members an explicit right to use discriminatory measures,
including conditions such as local content requirements, any such anti-circumvention provisions
would not be warranted.  A paradoxical result of more stringent obligations in a transparencyWT/WGTGP/3
Page 22
agreement might be to encourage Member countries to make their procurement markets less
accessible rather than be obliged to comply with obligations that might be too strict.
58. The point has been made that technical specifications were an important element of
evaluation criteria.  Only those bids that met the technical specifications included in the tender
documentation were considered as responsive bids.  The role of technical specifications inprocurement processes would become even more si gnificant in future with increasingly complex
procurements.  Technical specifications should avoid specifying one technology over others and
should not be developed in such a way as to require the use of technology only available to a limited
number of suppliers.  Another view in this connect ion has been that in certain circumstances, for
example advanced medical technology used in hospital s, entities should be allowed to specify their
preferred type of technology in order to fulfil the objectives of a given procurement, provided that this
was done in advance in notices of invitation to tender.  Further views have been expressed that atransparency agreement should have provisions encouraging the use of performance-based
specifications over those that were design-based;  and wherever possible, basing technical
specifications on existing internationally agreed or other relevant standards.  Comments have been
made questioning the relevance of the requirements to use performance-based specifications to
transparency.  It has also been said that any changes in technical specifications should be made knownto all interested suppliers.
59. It has also been said that any changes in evaluation criteria during the course of the
procurement should be communicated to all interested suppliers, or in the case of selective or limited
tendering, to all suppliers participating in the procurement process.
D. 
CLARIFICATION AND MODIFICATIONS
60. With respect to clarifications of tender documents given by procuring entities to potential
suppliers, it has been stated that any questions raised by interested suppliers should be responded to in
good faith by the procuring entity.  Any information provided in response to requests for clarification
from one supplier should be transmitted simultaneously to all other suppliers participating in the
procurement process.  Another view has been that it would be impracticable to provide the responsesto requests for information from suppliers that were received at different contact points disseminated
around the country to all other suppliers participating in the procurement process.  This might only be
feasible in the case of high value procurements, for example in the context of projects financed under
the World Bank loans, in which the number of participants were usually limited.
61. It has also been said that all potential suppliers or all participants in selective tendering should
be informed of any changes to information contained in tender notices and tender documents,
including those regarding evaluation criteria and technical specifications.  Another view has been thatsuch information should be made available to intere sted parties through an accessible source.  In this
connection, it has also been said that a transparency agreement should clearly specify that all those
suppliers who had originally ordered tender documents or had indicated an interest in the procurement
opportunity should have any additional information transmitted to them through the same means as
the one used for providing the original information.
E. 
LANGUAGE
62. The suggestion has been made that requirements concerning publication of notices of
invitation to tender should be limited to publication in an official national language.  The translation
of the whole publication into a WTO language could become too burdensome.  Another suggestion
has been that, where possible, tender notices should be published in a WTO language.  It has alsobeen suggested that procuring authorities should have the discretion to decide whether translation ofWT/WGTGP/3
Page 23
tender notices should be limited to those tendering opportunities that might be of interest to
international suppliers.
63. It has been suggested that, in addition to the publication of the whole information in the
official national language of the WTO Member conc erned, consideration might be given to whether a
summary of the main elements of the information in  an invitation to tender might also be published in
one of the official WTO languages.  Such a summary might contain the following elements:
- the name and address of the procuring entity;
- the nature (subject-matter) of the contract;- the time-limits for submission of tender or application to be invited to tender;
- the address from where further information can be obtained.
64. It has also been suggested that there could be a limited requirement for giving a summary of
tender notices in one of the WTO official languages allowing, for example, the exemption of tender
notices for small-value procurements which might be of limited interest to international suppliers.One view has been that providing a summary of every tender notice would incur undue administrative
costs (see also Section IX C).
65. A number of comments have been made on specific proposals put forward by Members as
reflected in the note by the Secretariat entitled "List of Proposals on Items III-VII of the Checklist".
V. TIME-PERIODS
66. In regard to minimum time-periods to be available to potential suppliers to fulfil the
requirements of the different stages of the procurement process, the point has been made that
time-periods in existing international instruments and national practice varied significantly.  A
transparency agreement should not be overly prescriptive in this respect.  Any provisions on
time-limits should be accepted only as recommendations.  A Member government or procuring entityshould retain the discretion for the establishment of appropriate time-limits on a case-by-case basis
and in the light of the responses from the market.  On the other hand, it has been said that time-limits
should be specified in national legislation in order to avoid any subjective actions by entities in this
respect.  National legislation could set out a number of criteria relating to time-limits that would
define the parameters of discretion that entities could have in this respect.  This would provide
procuring entities with the flexibility for using shorter time-limits under certain circumstances, for
instance during the actual tendering procedures, if a prior tender notice with all the relevantinformation had been issued.  The suggestion has been made that, rather than establishing specific
minimum time-periods in a transparency agreement, the Group might agree on a general principle, as
in the UNCITRAL Model Law or in Article XI:1 of the GPA.
1
67. It has been said that sufficient time should be allowed for the preparation, submission and
receipt of responsive bids to individual procurement opportunities.  Any time-limits which are setshould not undermine the principles and objectives of a transparency agreement.  They should be
                                                     
1 Article XI.1(a) of the GPA reads as follows:
"Any prescribed time-limit shall be adequate to allow suppliers of other Parties as well as domestic
suppliers to prepare and submit tenders before the closing of the tendering procedures.  In determining anysuch time-limit, entities shall, consistent with their own reasonable needs, take into account such factors as
the complexity of the intended procurement, the extent of subcontracting anticipated and the normal time fortransmitting tenders by mail from foreign as well as domestic points."WT/WGTGP/3
Page 24
determined with due consideration to the particular circumstances of the procurement (including the
likely level of interest), type of procurement method used and the capacity of the market to act on the
information in tender notices, as well as the complexity of the procurement.  In this connection it has
also been said that a balance should be found in setting any requirements on time-limits; with longer
time-periods, procuring entities might resort to limited tendering procedures more frequently.  Thepoint in this connection has been that Members should not be required to set time-periods to suit
foreign suppliers, who should be treated on a national treatment and MFN basis.  A further point has
been made that  time-periods should be sufficiently long to give both foreign and domestic suppliers a
meaningful opportunity to avail themselves of the relevant information and to submit responsive bids.
It has further been said that a  proposed requirement to provide adequate time-limits might be biased
towards allowing suppliers including foreign suppliers to prepare and submit bids.  The term
"reasonable" should be used to provide, for instan ce, for emergency situations in which it might not be
possible to provide for adequate or sufficient time-limits. Moreover, it has been said that there should
be non-discrimination between potential suppliers with respect to the application of time-limits.
Another view has been that the time-periods allowed for the preparation and submission of tenders
should be the same for all qualified suppliers provided they had access to procurement opportunity.  It
has further been said that any changes in the time- periods should be made known to all suppliers or
the relevant information be made generally accessible from an available source.
68. A number of comments have been made on specific proposals put forward by Members as
reflected in the note by the Secretariat entitled "List of Proposals on Items III-VII of the Checklist".
VI. TRANSPARENCY OF DECISIONS ON QUALIFICATION
69. The point has been made that registration and qualification systems had a useful role in the
procurement process provided that they were run in a fully transparent manner.  The qualification
procedures enabled purchasing entities to assess potential suppliers' capacities for meeting their
requirements and also expedited the tender review process by reducing costs to purchasers and
suppliers.  It has also been said that qualification procedures facilitated the achievement of the overall
government policy objectives of the community or the industry.  The transparency of criteria forqualification should reinforce the objective of an open, transparent, efficient and equitable selection
process;  ensure uniform provision of information to potential suppliers;  and encourage the receipt of
sufficient information from suppliers.  The key principle of transparency as regards this issue was that
decisions on registration and qualification of suppliers should be taken only on the basis of criteria
that had been identified early in the process and predisclosed to suppliers sufficiently in advance.
Any changes in qualification requirements should be made known to all interested suppliers.
Qualification decisions should be taken in a manner that would build a two-way confidence betweenthe procuring entity and the market including potential suppliers.
70. The point has been made that prequalification systems should not be exclusive: new suppliers
meeting the qualification criteria in time to participat e in a tender should be given the same (or, in one
view, at least a reasonable) opportunity to be included on a qualification list as had been enjoyed by
those already qualified.
71. Moreover, a distinction has been made between qualification systems which potentially could
cover a number of different procurements and qualification on a procurement-by-procurement basis.
It has also been noted that the issue of qualification of suppliers could play a greater role in the
procurement of services than in the procurement of goods.
72. It has been said that the qualification of suppliers should be undertaken well in advance of the
tendering process involved in order to ensure the efficiency and fairness of the government
procurement process.  It has further been said that the criteria for qualification could include such
factors as:  technical capability;  client satisfaction;  financial capacity;  contracting and partneringWT/WGTGP/3
Page 25
issues;  quality control;  performance requirements relating to occupational health and safety;
compliance with an associated code of practice for potential suppliers;  human resource management
(including skill formation);  compliance with domestic legislative requirements;  and commitment to
continuous improvement.  On the other hand, views have been expressed stating that there should be
sufficient flexibility to allow for the development of appropriate qualification criteria for differenttypes of procurement and sectors.  The point has been made that the establishment of any harmonized
qualification criteria at the multilateral level would not be feasible and was outside the ambit of the
Group's work.  The prescription of any binding criteria or an illustrative listing of criteria for
qualification in an agreement did not have any bearing on the work on transparency.
73. It has further been said that qualification decisions should be made by expert bodies
constituted for that purpose within procuring entities.  The basis for selecting members for such
bodies and the way in which the decision-making process was conducted should be publicly availableto all potential suppliers.  On the other hand, it has been said that the setting up of an expert body on
qualifications was a matter within the purview of national authorities.  Another issue with respect to
transparency to which attention has been drawn is the situation in which a supplier who had applied
under the predisclosed qualification criteria had received no decision on its application.  All applicants
should be informed of the qualification decision in advance of the call for tenders.
74. The point has been made that, once the qualification criteria were set out in invitations to
prequalify or tender documents, they should be applied in a non-discriminatory way as regards
transparency.  Prequalification criteria should be made known to all potential suppliers in a non-
discriminatory way.   This would not prevent preferential elements in favour of domestic supplies or
suppliers from other countries being built into the criteria themselves.
75. The point has also been made that transparency in qualification procedures involved matters
of due process.  Suppliers should have the right to challenge qualification decisions if the rules of the
system had not been followed.  The view has also b een expressed that application of the principles of
objectivity and non-discrimination to prequalification criteria extended beyond the concept of
transparency.  There could be non-discrimination as regards transparency notwithstandingdiscrimination in favour of national suppliers pursuant to preferences or other domestic sourcing
requirements.  It has been said that all decisions relating to qualification should be notified to all
interested parties.  It has also been said that, under certain tendering methods, it was not possible to
overturn decisions on qualification even if certain other suppliers could be considered to be qualified
in terms of the published criteria.
76. A number of comments have been made on specific proposals put forward by Members as
reflected in the note by the Secretariat entitled "List of Proposals on Items III-VII of the Checklist".
VII. TRANSPARENCY OF DECISIONS ON CONTRACT AWARDS
77. The point has been made that an essential feature of transparency in decision-making on the
award of procurement contracts was that such decisions be taken strictly on the basis of the evaluation
criteria (including in relation to technical specifi cations) which had been set forth in advance in the
tender documents and in accordance with the info rmation provided on how those criteria would be
applied.  Furthermore, in order to ensure that decisions were seen to be taken in this way, criteria
should be set out in such a way as to ensure as objective an application as possible.  The view has also
been expressed that a transparency agreement would not, as a general rule, set out what those criteria
should be.  The point has been made that allowance would need to be made for cases where, for
reasons of force majeure , for example in the case of the lifting or imposition of an embargo, the
criteria set out in tender documents could not be strictly adhered to.WT/WGTGP/3
Page 26
78. Concerning the receipt and opening of tenders, the view has been expressed that, while it may
not be necessary to require public opening of tenders to ensure transparency, procuring entities should
have procedures in place to ensure the regularity and impartiality of the procurement process and that
there was no opportunity to manipulate the specific elements of tenders or to provide a particular
tenderer with information on other tenders.  In this respect, the view has been expressed that thedetails of the procedures on how tenders received by procuring entities should be handled were not
within the ambit of the Group's work.  Another vi ew has been that further consideration should be
given to whether it would be sufficient to embody these concepts in general principles or whether
more specific requirements should be envisaged.
79. With respect to ex post  information on contract awards, the point has been made that the right
to such information was a crucial element of transparency in the area of government procurement.
The procurement procedures might provide for some form of public announcement of the contractawards and also give tenderers the opportunity to be debriefed, for example on written request from
an unsuccessful tenderer.  A  public announcement on contracts awarded was also of interest to
industry generally (as potential future bidders) and to other governments which would want to see the
transparency agreement working in practice.  One ap proach suggested to this matter has been that the
provision of ex post  information was particularly important in cases where certain information had not
been provided ex ante.  It has also been said that decisions on contract awards need not include the
types of information that had been included in the relevant notices of invitation to tender, provided
that a reference was made linking the ex post  information to the earlier information.
80. As to the purpose of ex post  information, it has been said that contract award information
provided unsuccessful tenderers and other Members with the opportunity to ensure that they had beentreated equitably according to the specific requiremen ts and the assurance that criteria set forth in the
tender documentation and the applicable national rules and procedures had indeed been properly
followed in the procurement proceedings; this type  of information also provided unsuccessful bidders
with the opportunity to improve their future bids.
81. Based on the written and oral proposals, a number of options and alternative approaches for
addressing the issue of the provision of information on contract awards have been identified.  These
various options and the comments made on them are as follows:
- Option 1.  As provided in national legislation.  There would be no requirement to
make contract award information available, except that which existed in domestic
legislation.
It has been said that national practices would determine whether ex post  information
on contract awards should be given through prompt publication of contract awardnotices or directly by writing to individual tenderers; unsuccessful bidders should be
informed but it would be burdensome and costly to publish this information or
otherwise make it publicly available.
It has also been said that the existing practice in some countries was to send a
standard regret letter to unsuccessful bidders and to give the reasons for rejectingtheir offers only where possible.
Other views have been expressed questioning whether this option would meet
adequately the objectives sought by a transparency agreement.  An obligation to
provide ex post  information should be considered  as a powerful incentive to awarding
authorities to abide by the rules and procedures in national legislation.WT/WGTGP/3
Page 27
- Option 2.  There would be an option for individual Members to determine whether to
provide debriefs to unsuccessful tenderers or to publish contract award information.
The mechanism chosen should be made known to interested parties.  A provision
should be included safeguarding the confidentiality of information on contract awards
or debriefings, the release of which would prejudice the legitimate commercialinterests (whether general public or private).
A view expressed has been that debriefing should be a complementary measure rather
than a substitute for public availability of the contract award information.  Another
view expressed has been that it would be time-consuming and burdensome to inform
unsuccessful bidders individually of the outcome of their bids.
It has also been said that, with a view to striking a balance between the need for rules
on transparency and the administrative burden of providing ex post  information, the
information to be provided in contract award notices should be less detailed than that
provided through briefings.
With regard to protecting the confidentiality of tenders, it has been said that the
obligation to provide new information related to tenders, such as the name of thewinning supplier, the value of the contract and any technical details, need not
undermine the confidentiality of information.  Entities could brief unsuccessful
tenderers without necessarily releasing confidential information supplied by
successful bidders.  Another view has been that requirements on debriefing of
unsuccessful tenderers would not be useful since most tender information wascommercially sensitive and could not be disclosed without the consent of the tenderer
concerned.  Another point made has been th at a starting point for consideration of the
confidentiality of information could be the provisions of other WTO agreements on
the matter.
Other views have been expressed stating that debriefing of all unsuccessful tenderers
on the reasons why they had not obtained an award was unnecessary.
- Option 2(a).  Information provided would be in line with the principles and
objectives of a transparent procurement regime and provided within a fixed
time-frame (which may be different between countries).
Views have been expressed supporting this sub-option.
- Option 2(b).  Information would be based on an illustrative list
2 and provided
within a fixed time-frame.
                                                     
2 The following specific elements for contract awar d notices have been suggested:  the procuring
entity,  the location of the responsible office, division or branch of the department or agency and its address;description of the supplies including the department or ag ency for which they are required, if different from the
above, and in enough detail to identify their nature, quantity and any period that may be applicable;  a uniquereference number identifying the contract, purchase or agreement in the department or agency's records and the
date of the purchase or agreement;  the value of the winning bid or the total liability of the contract at the date of
entering into the contract;  or where it is not possible to predict accurately the total liability with precisionbecause of the basis of the contract, for example cost escal ation, labour and materials, or schedule of rates, the
total estimated value or liability;  the value of the lowest and the highest bid, the type of procurement methodused, the name of the winning supplier(s), their postal address and the date of the award should be published.Where a panel contract has been made, details of all suppliers should be notified.  However, if this is
impractical, a contact address within the agency should be published for persons seeking further information;
and relevant product and service code.WT/WGTGP/3
Page 28
- Option 2(c).  Unsuccessful bidders should be informed of the outcome of
their bids and debriefed, when they themselves requested it, as to why their
bid had been rejected and/or the winning bid had been chosen.  Information
given to unsuccessful tenderers on where their bids were deficient and whythey were not selected would provide them with the assurance that they had
been treated fairly and equitably in accordance with the requirements and
criteria of the tender documentation and that proper procedures and rules had
been followed and would indicate where a bid was deficient and why it had
not been selected.  This was an important guarantee of transparency,
particularly in circumstances where limited information on the contract
awarded was provided.  Moreover, it has been said that debriefings had aneducational role.  Debriefings allowed unsuccessful tenderers to assess their
bids against the winning bid and to be informed about the shortcomings of
their bids.
- Option 3.  Publish contract award information.  There would be a requirement to
publish contract award information within a fixed time-frame, with the provisions for
making the mechanism known and confidentiality included in Option 2.
Views have been expressed supporting this option.
- Option 3(a).  Information included in a list (see footnote 2) would be
provided.
A view has been expressed supporting this sub-option.
Another view has been expressed questioning the need for a prescriptive
listing of the type of information that contract award notices should contain.
The provision of this type of information would be outside the scope of a
transparency agreement.  The point has also been made that any illustrative
list to be annexed to a transparency agreement should be non-binding.  The
Group would need to consider whether laying down general principles would
be sufficient in this respect or whether the minimum types of information thatshould be given on contract award notices should be set out in a transparency
agreement.
- Option 3(b).  There would be a requirement to provide the information based
on the list (see footnote 2) and, where the contract was awarded using a
method considered to be inherently less transparent (e.g. single-sourceprocurement or limited tendering), to explain why this method was used and,
where applicable, to explain why the information was not given at the start of
the procurement process.
A view has been expressed supporting this sub-option.
Another comment has been that ex post  information on contract awards
should be given regardless of the procurement method used.
On the other hand, it has been said that the provisions suggested in this
sub-option were not within the ambit of a transparency agreement.WT/WGTGP/3
Page 29
82. A comment with respect to the operation of ex post  information has been that ex post
information on contract awards should be given regardless of the procurement method used.
83. It has been noted that a number of other WTO agreements, for example the Agreement on
Customs Valuation and the Agreement on Preshipment Inspection, included requirements on the
provision of ex post  information to economic agents.  The link between the provision of ex post
information and item VII on review and item VIII(a) on maintenance of records of procurement
proceedings has been referred to.
84. A number of comments have been made on specific proposals put forward by Members as
reflected in the note by the Secretariat entitled "List of Proposals on Items III-VII of the Checklist".
VIII.  DOMESTIC REVIEW PROCEDURES
85. The view has been expressed that it was not su fficient for rules to be introduced to ensure
transparency in government procurement practices; there must also be a domestic review mechanismto introduce accountability into the process and to ensure that the rules were respected by everyone
involved in a procurement process.  The availability of an avenue for review of procurement
processes was a key element of transparency.  The mechanism for review of complaints by suppliers
or a bid challenge system guaranteed due process and public accountability throughout a procurement
process and enabled the process to be seen as transparent.  The existence of a review mechanismmight make public procurement authorities more awar e of the need to ensure the consistency of the
procedures used in a particular procurement with the applicable laws and regulations.  The view has
also been expressed that a well-defined and transparent bid challenge mechanism added to the
transparency of any decision-making process, ensured that procurement decisions were reviewed
openly and increased confidence in the effective functioning of the overall procurement system.  Ithas also been said that a bid challenge system would be a last resort that occurred when, despite good
and transparent processes and best endeavours, a potential supplier alleged that the procedures had not
been applied correctly and a breach had occurred.
86. It has been suggested that precedents for review or appeal mechanisms could be found in a
number of WTO agreements, for example the Agreements on Countervailing Measures and Anti-Dumping Practices, Customs Valuation, Import Licensing, Rules of Origin, Preshipment Inspection
and TRIPS.  Additionally, paragraph 3(b) of Article X of the GATT 1994 on publication and
administration of trade regulations provided for "judicial, arbitral or administrative tribunals or
procedures for the purpose, inter alia , of the prompt review and correction of administrative action
relating to customs matters" to ensure that complaints or appeals could be resolved under the
jurisdiction of individual WTO Members pursuant to national laws.  Other views expressed in this
connection have been that issues involved in procurement practices could not be compared with theissues that might constitute the grounds for the review provisions in other WTO agreements.  It might
not be feasible to transpose the provisions rega rding review mechanisms in other WTO agreements
into a transparency agreement since the scope of the rules under those agreements went beyond
simple transparency obligations.
87. Reference has also been made to the element of due process in the APEC non-binding
principles on transparency in government procurement.
3  It has been said that, in the APEC context,
the existence of a domestic bid challenge mechanism was viewed as an important element of a
transparent procurement system.  On the other hand, it has also been said that the substance of the
APEC non-binding principles went  beyond transparency matters.
                                                     
3 Circulated in document WT/WGTGP/W/11WT/WGTGP/3
Page 30
88. Moreover, the view has been expressed that governments should ensure that scrutiny
mechanisms were independent, appropriate to their circumstances, scope, topic and objectives,
including "internal" scrutiny of actions or decisions of a procurement official or area within a
government organization by another official or area of that organization, for instance, an organization
investigating a complaint by an aggrieved supplier; scrutiny by other "external" governmentorganizations, which may or may not be indepe ndent of government influence, such as an
ombudsman, government audit organization;  or representatives of an elected assembly;  or scrutiny
by judiciary, non-government bodies or bodi es independent of government influence.
89. It has also been suggested that elements of a future transparency agreement should include the
establishment of domestic legal mechanisms, whether administrative or judicial, available to any
national or foreign person in order to challenge government procurement procedures flawed by
bribery.
90. It has been stated that any obligation to provide for review procedures in a transparency
agreement should only concern actions within the scope of that agreement, not the substance of
preferential measures relating to market access in government procurement.  While it might often be
difficult to dissociate transparency aspects of government procurement from other aspects, the
mandate of the Group should guide its work on this matter as on others.
91. The point has been made that a domestic review mechanism could be achieved through a
variety of means.  It has been noted that administrative or judicial review procedures in the interest of
assuring due process and public accountability were common to most national regimes, which in
consequence already contained the main features that might be applicable to domestic review
procedures in a transparency agreement.  The view has been expressed that any obligation to providefor domestic review procedures in a transparency agreement should take into account such national
practices and procedures;  no attempts should be made to develop special review mechanisms where
appropriate domestic administrative or judicial procedures already existed.  The view has also been
expressed that a transparency agreement should not have provisions requesting Members to adapt
their domestic systems to certain prescribed criteria and the existing national systems should be fullyrespected.   The Group should guard against developing overly prescriptive provisions on the specific
characteristics that national systems must have.  Any provisions should be flexible enough to allow
Members to design their domestic review mechanisms in accordance with their national legislation
and to rely on administrative or judicial review mechanisms that were appropriate to their national
legal systems.  They could be in the form of an exhortation to Members of a transparency agreement
or a best endeavours obligation to provide for domestic review mechanisms.  The choice of review
procedure should be left to individual Members provided the review mechanism itself was transparentand provided a guarantee of independence.  In this connection, the suggestion has been made that, as a
first step, Members should provide information on whether their domestic administrative or judicial
review systems addressed government procurement-related matters and, if so, under what conditions.
92. The point has also been made that domestic revi ew procedures could be used to review either
the consistency of the procurement practices or an individual procurement process with the domesticlaws or regulations in force or the consistency of the procurement practices with the rules of a
transparency agreement.  Review of complaints or other dispute settlement mechanisms were often
initiated after the contract had been awarded, making it impossible to overturn a procurement
decision, cancel a contract and start the procurement process all over again.  A mechanism established
under the terms of a transparency agreement might be  limited to reviewing the consistency of the laws
and whether they should be amended or removed.  While WTO dispute settlement was available to
resolve differences between WTO Members relating to the implementation of WTO obligations,
domestic review mechanisms were established with the purpose of addressing complaints by suppliers
under the domestic jurisdiction of a particular country.  Under a WTO enforcement system,
complaints should only relate to the complian ce of Members with their obligations under aWT/WGTGP/3
Page 31
transparency agreement whereas domestic reviews mostly concerned specific award decisions.  The
WTO review procedures should not give rise to situations in which the procurement decisions of
government authorities could be overturned.
93. The view has been expressed that the issue of review went beyond that of transparency and
therefore the mandate of the Working Group.  It has been said that domestic administrative or judicialreview mechanisms were in place in national systems for the purpose of public accountability at the
domestic level, a matter not within the ambit of a transparency agreement.  Concerns have been
expressed that review provisions in a transparency agreement might be used as a means by certain
vocal private parties to create complications in the domestic political arena;  and additional review
procedures might increase the number of challenges and give rise to unnecessary costs.  Since the
purpose of domestic procedures in many countries was to review whether procurement had been made
in accordance with domestic law and procedures, the scope of which went further than the obligationsthat might be agreed in a transparency agreement, it might not be feasible to limit the application of
review procedures to specific transparency obligations in a WTO agreement on transparency.  It has
been suggested that transparency requirements in respect of review procedures, under the scope of a
transparency agreement, should be limited to the prov ision of information to suppliers in regard to the
domestic national review mechanisms and procedures.
94. The view has also been expressed that a review should be available to all potential suppliers
including suppliers from other WTO Members.  Another view has been that a review should be
available to all suppliers who were involved in the procurement process.  In this connection, the
question has been asked whether foreign interested parties could file complaints against domestic
governmental authorities under existing national administrative and judicial mechanisms or whetherthere would be need for special procedures under a transparency agreement to guarantee the
receivability of complaints by foreign suppliers.
95. While some delegations have indicated that they had not yet formulated their views on the
specifics of a review mechanism, attention has been drawn to the following features of review
mechanisms that might be studied by the Working Group:
- encouraging suppliers, in the first instance,  to take up the matter directly with the
procuring entity for an early resolution.  Agencies might have procedures in place to
handle complaints directly;
- in some cases, the mediation or good offices of an independent authority might be
sought;
- if the matter was not resolved mutually, provisions enabling suppliers to bring an
action against the procuring entity before a judicial or administrative authority orother independent body;  the point has been made that review provisions should allow
flexibility to Member governments to choose whether to designate judicial or
administrative bodies or both;
- review provisions should require that review bodies be impartial and independent of
the procurement process itself.  The point has also been made that Article X:3(b) ofGATT 1994 provided some guidance in this regard;
- account should be taken of such principles as objective legality, ex officio action and
material delegation in the review procedures;WT/WGTGP/3
Page 32
- in addition to procedures based on formal complaints, initiation of review procedures
by competent public authorities on an ex officio basis or national mechanisms for
monitoring procurement proceedings;
- the review procedure should result in a published and reasoned conclusion that should
be notified to interested suppliers in writing;
- review procedures should be published in a medium that is publicly available.
96. As regards the approach to be taken on the matter of domestic review in a transparency
agreement,  it has been said that an agreement should include a simple and flexible provision that
could accommodate different Members' existing independent administrative or judicial tribunals and
review procedures.  Such a provision should en sure that there were transparent, timely and
independent decisions on complaints or appeals relating to the transparency of procuring entities'
actions and procedures.  The scope of review of this provision under WTO procedures should belimited to actions relating to the implementation, through domestic laws and procedures, of the
requirements of the transparency agreement.
97. The view has been expressed that procurement decisions were different from many other
administrative decisions, in that review or dispute settlement mechanisms often had to function after
the contract had been awarded.  A review provision should ensure that claims from interestedsuppliers could be heard and decided upon in a manner that did not prejudice their interests in the
procurements in question.  Such guarantees could be available through rapid decisions on challenges
or through suspension of the procurement process while claims were pending.  In this regard, the
point has been made that suspension of a procur ement process upon a challenge by a supplier could
hold up the whole procurement process until a decision had been reached concerning the challenge.Since this could be detrimental to the public interest and create difficulties in cases of urgent
procurements, most national review procedures and the provisions of the GPA provided for
exceptions enabling, in circumstances so warranting, public interest considerations to override the
interest in suspending a procurement process.  In cases in which the procurement process might be
suspended, there could therefore be provisions in a transparency agreement for continuing nonethelesswith the award of procurement in the public interest.
98. In connection with remedies that might be provided under review provisions, the following
views have been expressed:
- most national review systems already provided remedies for suppliers whose rights
had been denied under the applicable laws and regulations;
- review provisions should provide for adequate remedies that would protect the
interests of suppliers and would deter procurement entities from engaging in futureactions that would be inconsistent with the provisions of an eventual agreement on
transparency;
- remedies should include the possibility of corrections including altering the
inconsistent procurement process, re-tendering for the procurement or awarding
damages to cover legitimate claims;
- an independent review should review compla ints about tendering procedures in order
to determine possible damages or administrative responsibility;
- account should be taken of the fact that review systems might provide for remedies
which could include compensation only after administrative or judicial proceduresWT/WGTGP/3
Page 33
had determined that an injury or an econom ic loss had flowed from the inconsistency
of a procurement process with the applicable legislation.
99. Another view expressed on remedies has been that a transparency agreement should not
specify them for the following reasons:
- provisions requiring adequate remedies would fall outside the scope of the work on
transparency.  It would be sufficient to have provisions requiring the establishment of
a review procedure without specifying the remedies that should be available;
- obligations on remedies might have counter-productive repercussions on the
procurement practices of governmental authorities; to the extent that procuring
authorities would be liable to remedies, they might have a tendency to restrict access
to foreign suppliers in order to minimize any such risks.
100. It has also been suggested that a transparency agreement should require procurement entities
to maintain written records of the procurement process in order to ensure that review bodies had an
adequate factual basis for review (see Section IX A).  As another possible means of review
mechanism, provision of ex post information to unsuccessful suppliers and debriefing by procuring
authorities have also been mentioned (see also Section VII).
101. As regards the content of a domestic review provision in a transparency agreement, the
following text has been suggested:  "Members shal l maintain judicial, arbitral or administrative
tribunals or procedures for the purpose of the prompt review and correction of procurement actions
that may be inconsistent with the requirements of this Agreement, as implemented in Members' laws.
Such tribunals or procedures shall be independent of the agencies responsible for procurements
covered under this Agreement and shall provide for rapid decisions that, as appropriate, can affect themodification or reversal of any inconsistent actions."  The following comments have been made
concerning this text:
- other types of remedial actions such as imposition of fines or banning suppliers from
participating in future procurements for a given period of time, could be envisaged;
- the word "correction" should be deleted in the first sentence.  Existing administrative
procedures were used for dealing with requests for the revision of formal or material
errors;
- the phrase "as implemented in Members' laws" at the end of the first sentence
required clarification;
- the last phrase in the second sentence after the words "as appropriate" should be
replaced by the phrase "can provide appropriate relief in accordance with national law
or practice";
- the text suggested above was more complicated than the approach taken to this issue
in other WTO agreements.
102. The question has been asked how a review, modification or reversal of inconsistent
procurement actions could be envisaged in the context of an agreement on transparency in
government procurement.  In this connection, it has been said that, while sometimes impractical orinappropriate, for example when contracts had alre ady been awarded or the public interest dictated
otherwise, corrective actions were often feasible.  For instance, upon a complaint lodged by a
supplier, a procuring entity that had not published a notice of procurement opportunity at the outset ofWT/WGTGP/3
Page 34
a procurement process could be asked to do so, or a procuring entity that had provided certain tender
information to one supplier could be asked to provide the same information to all interested suppliers.
IX. OTHER MATTERS RELATED TO TRANSPARENCY
A. MAINTENANCE OF RECORD OF PROCEEDINGS
103. The view has been expressed that openness and transparency, through appropriate public
access to information for external scrutiny, are essential elements of accountability.  Government
procurement records and information and mechanisms  for collecting, assessing and scrutinizing those
records and that information, should enable effec tive external scrutiny.  Information recorded on
authorizations, procurement systems, actions and decisions should be sufficient to justify decisions
taken in the procurement process and to demonstrate that procurement activity was consistent with
government requirements.
104. The view has also been expressed that procuring authorities should maintain a proper record
of decisions and actions taken during the procurement process and the reasons for them.  The
maintenance of a record of procurement proceedings and the availability of non-confidential
information contained in it to interested parties was one of the principal mechanisms for ensuring
adherence to agreed rules and was of particular importance in the functioning of an administrative or
judicial review process.  Such records provided the basis for an audit trail and supported anyevaluation of the procurement
4 and thus introduced an element of accountability into the process.  It
has also been said that maintenance of records for a pre-established minimum length of time was also
essential in order to enable bribery to be proved in legal proceedings.  With regard to the length of
time that records of proceedings should be maintaine d, it has been said that the requirements in this
respect could be linked to the time provided to domestic suppliers in domestic legislation to challengea procurement decision and to seek a review of a procurement process.  It might not be necessary to
keep a record of proceedings beyond that period.  Another view in this connection has been that a
transparency agreement should not have provisions stating explicitly in what form and for how long
records should be maintained by entities.  It has also been suggested that information should be
provided on the national practices of those Members in which procuring entities were required tomaintain records of procurement proceedings.
105. The question has been asked whether record maintenance should be treated as a separate
element providing an additional guarantee of transparency or whether this item would be sufficiently
addressed under other elements.
106. By way of general comments under this Section, a view has been expressed that prescription
of stringent rules on transparency and review could be counter-productive to market access.  Having
no obligations on market access in the area of government procurement, national governments wouldhave the tendency to close their procurement market s to foreign suppliers in order not to run the risk
of breaching these rules on transparency.
B. 
INFORMATION TECHNOLOGY
107. It has been suggested that the work of the Group in developing a transparency agreement
should take full account of innovative government procurement practices.  Information technology
                                                     
4 The following details of the matters that should be documented have been suggested:  approval to
make the procurement;  the selection criteria upon which evaluation and selection decisions will be based;discussions with potential bidders before bids close;  details of clarification of bids during evaluations;  reasonsfor variations to a tender;  steps to provide all bidders with an equal opportunity to revise their bids;  agreements
reached during negotiations;  authorization and signing of a contract;  details of debriefings;  reasons for varying
a contract;  and records of contractor performance.WT/WGTGP/3
Page 35
was already being rapidly adopted by procurement communities and offered tremendous opportunities
to level the playing field by increasing access to information at low cost to all suppliers.  To the
greatest extent possible, a transparency agreement should encourage the use of information
technology tools  to disseminate information on procurement opportunities and contracts awarded as
an alternative to more traditional methods of communication (see also Section IV above).  The viewhas also been expressed that, for the time being, procuring entities should be able to continue to
maintain paper-based tendering procedures.
108. On the other hand, it has been suggested that, because of the lack of uniformity among
countries' stages of development in this area, any requirements for the use of information technology
in government procurement should be optional and that the use of information technology tools
should not undermine the basic transparency principle of guaranteeing access to information for all,
including small and medium-sized suppliers and suppliers from countries less advanced in the use ofinformation technology.  A balance should be found whereby a transparency agreement would not
constitute an unnecessary barrier to progress in the area of information technology and would
accommodate the increasing use of information technology in government procurement in Members,
while ensuring that the use of information tec hnology would not result in discrimination against
countries which did not have a competitive edge in this area.  Electronic tendering using Internet-based systems facilitated access of suppliers worldwide with a minimum requirement of equipment
and technological know-how and was the most efficient way of ensuring non-discriminatory access to
tender information.
109. It has been said that one of the issues that had to be dealt with in electronic procurement
concerned procedures for opening tenders when they were submitted electronically.  It has been notedthat there was scope for international cooperation in the area of information technology, for example
in developing electronic databases or maintaining lists of qualified suppliers.
5  The point has also been
made that procuring entities should be allowed to charge for electronic access to information and
tender documentation and other tendering procedures, in particular if the information was supplied by
a private service provider.  It has also been said that the Group would need to consider at a later stagewhether it would be appropriate to cover such specific matters as information technology in a
transparency agreement.  In this connection, it has been noted that information technology was an area
where there was scope for technical cooperation (see Section XII).
C. 
LANGUAGE
110. It has been said that information on national practices showed that documents and other
information relating to tendering proceedings were generally provided in the official language(s) of
the country of the procuring entity.  As a rule, documents and other information relating toprocurement procedures and individual procurements should be allowed to be provided to potential
suppliers and service providers in an official language of the country of the procuring entity.  In
general, potential suppliers wishing to do business in another country would have the necessary
language facilities available to them;  there should not be a specific requirement to provide such
information in a WTO language.  Nevertheless, procuring entities could be encouraged to provideinformation, where possible, in a WTO language where a particular procurement opportunity was
likely to attract international interest (see also Section IV).
                                                     
5 It has been mentioned that the APEC Group of Experts in Government Procurement has established a
Home Page with linkages to existing databases on government procurement in member economies
(www.apecsec.org.sg/govtproc/gphome.html).WT/WGTGP/3
Page 36
D. FIGHT AGAINST BRIBERY AND CORRUPTION
111. It has been said that all governments were committed to combatting corruption and were
engaged in efforts towards diminishing and, ultimately, eliminating bribery.  Bribery in government
procurement processes was currently a source of serious concern to the international community.  It
involved, not only political considerations such as legal insecurity, good governance and ethicalproblems, but also considerations of an economic nature such as efficiency of resource management,
the negative impact of bribery on investment and the ensuing distortions of national competitive
conditions.
112. The view has been held that there was an important relationship between transparency in
government procurement and reducing the incidence of bribery and corruption in government
procurement practices.  Because governments had recognized the importance of this matter, the
Working Group had been given the mandate by Members to develop elements relating to transparencyin this area.  Attention has been drawn to international instruments aimed at fighting corruption and
bribery established by a number of international fora, including the OAS and the OECD.  The point
has been made that, while such initiatives had been useful in attacking the problem from various
angles, so far there had not been any studies, negotiations or agreements on the relationship between
the fight against bribery and transparency in government procurement in a specific and systematicmanner.  The view has also been expressed that transparency, by itself, was not enough and therefore
needed to be supplemented by specific appropriate action and measures related, among others, to
bribery of public officials, transnational bribery, tax deductibility of bribes paid to foreign officials,
retention of records of procurement proceedings, establishment of bid challenge systems, lifting of
banking secrecy, mutual legal assistance and technical and financial cooperation.
113. Views have been expressed that an agreement on transparency in government procurement
would be an important and effective contribution to reducing the incidence of bribery and corruption
in procurement practices as well as to the broader efforts to fight bribery.  There was a real need to
address bribery in all its forms provided that any possible measures genuinely fell within the scope of
the WTO activities.  It has also been said that th e outcome of the work in other international fora as
well as in the Working Group could bring about systemic changes that would reduce opportunities for
corruption.  The task of the Working Group was to improve transparency by creating a rules-based
environment and the procedures that were necessary for that purpose.  As a secondary goal, the fight
against bribery and corruption could be achieved through increased transparency in government
procurement procedures.  The work in several WTO bodies that was aimed at achieving systemic
improvements and a rules-based environment in trade matters had already made a meaningful
contribution to advancing the fight against corruption.  It has been suggested that, with the aim ofcreating the necessary safeguards against corruption in this area, the Group should focus on those
aspects which most easily lent themselves to abuse in the area of government procurement.  For
instance, consideration should be given to requirements in regard to the retention of government
procurement records for a pre-established minimum period and establishment of domestic
administrative or judicial actions available to any national or foreign person in order to challengegovernment procurement procedures flawed by bribery.  Such measures were common elements of
international instruments on government procurement as well as of national legislation (see
Sections IX A and VIII, respectively, above).  A future agreement on transparency in government
procurement should include such measures.
114. Views have been expressed questioning the appropriateness of expanding the scope of the
work of the Working Group to the matters of bribery and corruption.  Although its effects were often
very severe in government procurement, corruption was far from being strictly confined to this area of
economic activity.  While transparency in government procurement would contribute to the fight
against corruption and bribery, the issue itself was not within the mandate of the Group and was also
outside the ambit of the WTO.  The objective of the fight against corruption and bribery should not beWT/WGTGP/3
Page 37
stated explicitly in an agreement on transparency in government procurement.  Members should deal
with such issues through their own national legislation concerning this area.
115. Other views in this connection have been that the work of the Working Group should not be
overloaded with too many issues that, while important, might be dealt with more appropriately in
other fora.  Establishing a link between the issues of trade and corruption in the WTO might giveMembers the possibility of justifying trade measures or sanctions on grounds of alleged corrupt
practices in other Member countries.
X. INFORMATION TO BE PROVIDED TO OTHER GOVERNMENTS
(NOTIFICATION)
116. The view has been expressed that it was somewhat premature to discuss in detail this aspect,
which might be better taken up once a clearer notion of the nature of a transparency agreement had
been generated.  Nonetheless, a number of issues ha ve been raised relating to the possible notification
arrangements under a transparency agreement and other mechanisms by which information can be
exchanged between Member governments.
117. While some views expressed have put emphasis on the importance of adequate information
on relevant national legislation and any amendments thereof being notified to other Members of a
transparency agreement, other views have drawn at tention to difficulties that would have to be
addressed in this connection.  It has been suggested that the notification of all national laws,
regulations and administrative guidelines, including those of sub-central and other levels of
government covered, might prove to be unduly burdensome.  This would particularly be the case if
they all had to be notified in a WTO language.  An additional concern that has been expressed was
that it was doubtful that Members would be ready to share confidential information.  A number ofpossible ways of overcoming these difficulties have been put forward:
- Members might be expected to notify their basic law on government procurement, but
not each and every law and regulation;
- an approach of employing a checklist of points, or questionnaire, to elicit basic
information on how the national laws and regulations of each Member responded tothe requirements of a transparency agreement might be employed;
- each Member might be required to respond to requests from any other Member for
specific information on its laws, regulations, procedures and practices regarding
transparency in government procurement.  Contact points might be established by
each Member for this purpose.  In this connection, reference has been made to the
discussion on this point reflected in item III of this note;
- greater use of electronic databases might be made for providing information on
procurement procedures at sub-central levels;
- the government of an unsuccessful tenderer might be entitled to seek information on
the contract award in question from the government whose entity conducted the
procurement.  This could be a vehicle for forestalling disputes.  The view has also
been expressed that the information sought should relate to how the commitments ontransparency had been complied with in the contract award process.  Another view
was that the provision of such post-contract award information might not be
necessary in an agreement on transparency, since it would not extend to matters of
market access;WT/WGTGP/3
Page 38
- enhanced use could be made of existing WTO transparency mechanisms, including
the Trade Policy Review Mechanism;
- the question has been raised as to whether the existing provisions of Article X of
GATT 1994 and Article III of the GATS were sufficient for the purposes of a
transparency agreement on government procurement or whether additional rulesshould be provided for.  Should there be, for example, a requirement to specify where
the relevant laws were published?  In this regard, the view has been expressed that the
provisions of the GATT 1994 and GATS that had been referred to would not be
adequate for the purposes of notification in an eventual transparency agreement.
118. It has also been suggested that Members might provide information identifying government
departments, agencies and enterprises subject to the rules in a transparency agreement.  The point has
been made that this could be done through notification of a positive list of such entities or throughnotification of a negative list of those entities not su bject to the agreement.  It has been suggested that
the latter approach might have the advantage of avoiding the problem of frequent changes in lists
resulting from changes of a formal nature, such as the renaming or restructuring of departments.  The
issue of the most appropriate technique for the presentation of the coverage of entities would depend
on the outcome of discussions on the scope of the agreement, in particular which type of entities werecovered.  It has also been said that it was premature to consider the form in which the coverage of
entities should be presented.
119. On statistical reporting, the following points have been made:
- such provisions should not be included in a transparency agreement;
- there should not be an obligation, but governments might be invited to provide what
information they have available, for example on the size of their procurement market;
- the issue should be put aside for the time being.
120. The view has been expressed that any requirements relating to the provision to other
Members of information on and explanation of national procurement rules and procedures should
apply only to the extent that such rules and procedures were within the scope of a transparencyagreement.  Requirements on the provision of information and explanations should be limited to those
relating to transparency matters, and not otherwise relate to market access questions.
XI. WTO DISPUTE SETTLEMENT PROCEDURES
121. With regard to dispute settlement between governments, the general view has been that it
would be premature to consider the applicability of provisions on dispute settlement before the
elements of a transparency agreement had been more clearly identified.  However, the view has also
been expressed that any commitments on transparency  should be subject to the DSU in the same way
as the existing clauses on transparency in any other WTO agreement.  Another view has been that it
was questionable that the dispute settlement system could apply, with significant results, to
obligations on transparency in the absence of co mmitments with respect to market access.  For
example, it has been asked whether any decision resulting from a dispute regarding the provision of
transparency in a government procurement process could apply retroactively.  A view has also beenexpressed in this connection that the Group's mandate was to discuss the elements of an appropriate
agreement on transparency which could be in the form of guidelines or a code;  only an agreement
with binding obligations should be subject to WTO dispute settlement procedures.  It would be
sufficient to invoke Article X of GATT 1994 in dispute cases involving a violation of obligations onWT/WGTGP/3
Page 39
transparency.  The creation of a linkage between a transparency agreement and the WTO dispute
settlement procedures was not warranted.
122. Regarding the relationship between domestic review procedures and the WTO dispute
settlement mechanism, it was said that a distinction should be made between domestic review
mechanisms which involved responding to complaints by suppliers against procuring authoritiesunder the law of a country and dispute settlement procedures between governments under the law and
procedures of the WTO.  The legal criteria for domestic reviews and WTO dispute settlement were
different.  In the case of domestic procedures, a review related to the consistency of a procurement
process with the domestic laws and regulations, whereas in the case of WTO dispute settlement the
grounds for a dispute were an alleged breach of the commitments under a WTO agreement.  The view
has been expressed that the possibility for foreig n suppliers to have recourse to effective and
independent domestic review procedures, as a first avenue for resolving complaints, would minimizethe likelihood that such complaints might eventually  rise to the level of a government-to-government
dispute.
123. In regard to the way in which national review procedures and the WTO dispute settlement
procedures might interact, it has been suggested th at the Group might wish to examine the approach to
this matter adopted in the Agreement on Implementation of Article VI of GATT 1994.  Another viewexpressed was that there should be no particular relationship between a domestic review process and
government-to-government dispute settlement.  WT O dispute settlement procedures should apply to
issues relating to the consistency of laws of general application with the rules of a transparency
agreement and should not be invoked with regard to decisions resulting from national review
procedures concerning a particular procurement.   The view has also been expressed that national
practices would not allow the WTO dispute settlement process to override a specific procurement
decision taken by a national judicial body.  In this connection, a further view has been that a
transparency agreement could have provisions setting minimum standards regarding the legal
framework for domestic review procedures.  The objective of WTO dispute settlement procedures
would be to enforce the effective implementation of such provisions.  WTO dispute settlementprocedures should only apply in respect of obligations of governments in their capacity as regulators.
Any procurement decision taken by them, including contract award decisions, in their capacity as
purchasing entities should not be subject to WTO dispute settlement procedures.  Any complaint in
this respect should be addressed under domestic review procedures.  The question has been asked
whether there had ever been a case in the history of GATT/WTO where dispute settlement procedures
had been invoked based on allegations of breach of the rules on transparency.  A comment has been
made stating that challenges of individual award decisions under the provisions of a transparencyagreement were unlikely.  However, Members should be able to invoke dispute settlement procedures
with the objective of achieving improved transparency, if a purchasing entity had breached the rules
of a transparency agreement, for instance if it had persisted in not publishing notices of procurement
opportunities.  It has also been said that provisions should reflect the principle of exhaustion of
domestic judicial review mechanisms before recourse to WTO dispute settlement procedures.Moreover, the point has been made that recourse to WTO dispute settlement procedures, being a
prerogative of governments, could not be initia ted by suppliers who might challenge procurement
procedures of government entities.
XII. TECHNICAL COOPERATION AND SPECIAL AND DIFFERENTIAL
TREATMENT FOR DEVELOPING COUNTRIES
124. The point has been made that technical cooperation was important for ensuring the successful
implementation of a future transparency agreement.  It could also play an important role in helping
Members to develop domestic procurement regimes and in taking practical steps to enhance
transparency of procurement policies and practices.  The view has been expressed that, in discussing a
framework for technical cooperation, inspiration might be drawn from the language of Article 67 ofWT/WGTGP/3
Page 40
the Agreement on TRIPS.  This required developed country Members to make available technical and
financial cooperation, on mutually agreed terms, in response to requests from developing country
Members.  It also listed specific areas where such cooperation should be provided, including
assistance in the preparation of laws and regulations and support regarding the establishment of
domestic offices and agencies, including the training of personnel.  Technical cooperation plans couldbe drawn up identifying the needs of individual developing and least-developed countries in meeting
their obligations under a transparency agreement and targeting technical cooperation activities to
specific purposes, for instance for the establishment of contact points.  The view has been expressed
that the provisions on technical cooperation should match the specific requirements in a transparency
agreement; compliance with the rules of a transpar ency agreement might require changes in national
legislation and procedures and the building up of new institutions in individual countries.  The
following types of areas in which technical cooperation would be beneficial have been suggested:
regarding development of national legislation and procedures:
- legal advice and assistance in drawing up national legislation;- administrative and policy option analysis and guidance;- drawing up procedures on publication;- establishment and implementation of bid challenge systems;
- taking practical steps to make procurement more user-friendly by developing standard
forms for tender notices and fill-in-the-blank bid forms, as well as developing a
common procurement vocabulary;
regarding training:
- training for those who have to implement,  use or enforce new legislation, procedures
and/or practices, training the judiciary, a nd training local traine rs who would continue
training programmes in, for example,  business schools or colleges of public
administration in the beneficiary country;
- exchange of officers;
- training of purchasers and suppliers;
regarding institution building:
- administrative cooperation to enhance institution building and the exchange of
information;
regarding access to information by suppliers:
- workshops, seminars and the production of user guides, including the development of
Internet websites, search engines and databases, to help provide information aboutopportunities to do business with governments at home and abroad, and to facilitate
access to that information;  in particular, such assistance could benefit small and
medium-sized enterprises, by increasing their confidence and effectiveness in
successfully entering procurement markets at home and abroad;WT/WGTGP/3
Page 41
regarding use of information technology:
- the development of information technology tools which could be used to disseminate
information about procurement opportunities and practices, and/or to establish full
electronic tendering, as well as to facilitate the collection of relevant economic dataand statistics;
- the provision of office, information technology and/or other equipment necessary for
the implementation and enforcement of legislation, procedures and/or practices.
125. The view has been expressed that the practices under the TRIPS Agreement might also be
useful in assessing and monitoring assistance on an ongoing basis, while avoiding the creation ofadditional bureaucratic structures and red tape.  The point has also been made that the issue of
technical cooperation should be discussed not only in terms of ensuring compliance of developing
countries with the requirements of a future agreement, but also in terms of the practical steps that
could be taken to enhance transparency in developed as well as developing countries.
126. It has also been suggested that requirements similar to the provisions of Article 66.2 of the
Agreement on TRIPS might be included in an agreement on transparency.  Developed country
Members might be required to provide incentives to en terprises and institutions in their territories for
the purpose of promoting and encouraging technology transfer to developing country suppliers in
order to enable them to participate in bidding for public contracts in developed countries.  In
comparison with Article 67 of that Agreement, under which technical cooperation depended on themutually agreed terms and conditions between developed and developing country Members, technical
cooperation under Article 66.2 was provided unilaterally and at the initiative of developed countries.
Technical cooperation could be useful in achieving the objective of economic efficiency in
government procurement.  For instance, providing information to developing countries as to what
governments usually procure and information as to  worldwide sources would be relevant in this
regard.
127. The point has been made that the technical cooperation activities of international
intergovernmental organizations and fora, including international financial institutions and regional
development banks, in the field of government procurement could contribute to transparency and the
implementation of a transparency agreement.  It has been suggested that consideration should be
given to developing a framework under a transp arency agreement for rationalizing the various
activities in this area at the bilateral, regional and multilateral levels.  In this respect, it has beensuggested that the Secretariat would prepare a background paper containing information on technical
cooperation programmes of international and regional intergovernmental organizations related to
government procurement, so as to enable the Group to have as complete a picture as possible of the
availability of technical cooperation in this area.
6
128. It has been suggested that potential recipien t and donor countries should be encouraged to
share their views on particular needs and the available forms of technical cooperation in the area of
government procurement.  It has also been suggested that special attention should be paid to the
problems of institution building, in particular in least developed countries.  The Chair invited
Members to provide information in writing to the Working Group on their needs and on the technical
cooperation already available.
                                                     
6 The information communicated from UNCITRAL, OECD, the World Bank, the Asian Development
Bank, the African Development Bank, IMF, the APEC Government Procurement Experts Group, the European
Bank for Reconstruction and Development, ITC and UNDP on their respective technical cooperation activities
in the area of government procurement has been circulated in documents WT/WGTGP/W/20 and Addenda 1-8.WT/WGTGP/3
Page 42
129. With regard to special and differential treatment for developing countries, the view has been
expressed that this issue might be addressed once the elements of an eventual agreement were more
clearly defined.  In this connection, it has been said that the substantive provisions of a transparency
agreement should reflect in particular the special circumstances in developing country Members.  The
formulation of the provisions of a transparency agreement should not be too ambitious in order toenable all Members to adhere to an eventual ag reement without the need for lengthy transitional
periods.
130. The suggestion has also been made that transitional periods in respect of developing countries
might be provided.  On the other hand, it has been said that provisions on transitional periods would
not be sufficient for special and differential treatment of developing countries.  In the light of the
divergence among individual Members' practices in this area, any meaningful special and differential
provisions should require developing countries to comply with the provisions in a transparencyagreement, only to the extent that they were capable  of undertaking the relevant obligations.  Certain
objective criteria should be developed for this purpose.
__________