 RESTRICTED  
  
GPA/TN1994/2/Rev.8  
 
23 March 2001  
(24-2725) Page: 1/158 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994   
 
  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT*,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of 30 January 2001, it was agreed that the note by the Secretariat, reflecting 
the discussion on the article -by-article examination of the Agreement at the informal meetings held 
from February 1999 to September 2000 (Job No. 8278), would be updated.  Accordingly, the present 
note reflects the proposals and comments made at the 30 January 2001 meeting and t he exchange 
of questions and answers between the delegation of the United States and other delegations 
regarding the United States' proposals in documents  GPA/W/112  and GPA/W/113 . 
 
In considering the proposals by the United States on Articles VII, IX, X, XI, XV, XI II and XVIII, 
delegations might wish to take into account the re organization of the Articles of the Agreement 
suggested in documents  GPA/W/113  and GPA/W/112 . 
 
 
  
 
* English only . 
** Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023) ), this document (informal document symbol: negs 43) was derestricted on 8 November 2023.  GPA/TN1994/2/Rev.8  
 
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  Table of Contents  
ARTICLE I – SCOPE AND COVERAGE  ................................ ................................ ....................  3 
ARTICLE II – VALUATION OF CONTRACTS  ................................ ................................ ............  8 
ARTICLE III – NATIONAL TREATMENT AND NON -DISCRIMINATION  ................................ .........  12 
ARTICLE IV – RULES OF ORIGIN  ................................ ................................ ........................  17 
ARTICLE V – SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  ..............  18 
ARTICLE VI – TECHNICAL SPECIFICATIONS  ................................ ................................ .........  29 
ARTICLE VII – TENDERING PROCEDURES  ................................ ................................ ............  40 
ARTICLE VIII – QUALIFICATION OF SUPPLIERS  ................................ ................................ .... 47 
ARTICLE IX – INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  .................  57 
ARTICLE X – SELECTION PROCEDURES  ................................ ................................ ...............  71 
ARTICLE XI – TIME-LIMITS FOR TE NDERING AND DELIVERY  ................................ ..................  74 
ARTICLE XII – TENDER DOCUMENTATION  ................................ ................................ ...........  88 
ARTICLE XIII – SUBMISSION, RECEIPT AND OPENING OF TENDERS AND AWARDING OF 
CONTRACTS  ................................ ................................ ................................ ....................  91 
ARTICLE XIV – NEGOTIATION  ................................ ................................ ............................  99 
ARTICLE XV – LIMITED TENDERING  ................................ ................................ ..................  101 
ARTICLE XVI – OFFSETS  ................................ ................................ ................................ . 111 
ARTICLE XVII – TRANSPARENCY  ................................ ................................ ......................  112 
ARTICLE XVIII – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  ..........  115 
ARTICLE XIX – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  .............  122 
ARTICLE XX – CHALLENGE PROCEDURES  ................................ ................................ ..........  128 
ARTICLE XXI – INSTITUTIONS  ................................ ................................ .........................  137 
ARTICLE XXII – CONSULTATIONS AND DISPUTE SETTLEMENT  ................................ .............  138 
ARTICLE XXIII – EXCEPTIONS TO THE AGREEMENT  ................................ ............................  141 
ARTICLE XXIV – FINAL PROVISIONS  ................................ ................................ .................  142 
ATTACHMENT 1 – OUTLINE OF A POS SIBLE FUTURE STRUCTURE FOR THE GPA  ......................  155 
ATTACHMENT 2 – ISSUES RAISED AND POINTS MDE IN THE INFORM AL CONSULTATIONS 
REGARDING THE SIMPLIFICATION AND IMPROVEMENT OF THE APPENDICES TO THE  
AGREEMENT  ................................ ................................ ................................ ..................  157 
 
 
  GPA/TN1994/2/Rev.8  
 
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  ARTICLE I – SCOPE AND COVERAGE  
Article I:1  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. This Agreement applies to any law, 
regulation, procedure or practice regarding any 
procurement by entities covered by this 
Agreement, as specified in Appendix I.1 
 
1 For each Party, Appendix I is divided into 
five Annexes:  
- Annex 1 contains central government 
entities.  
- Annex 2 contains sub -central 
government entities.  
- Annex 3 contains all other entities that 
procure in accordance with the 
provisions of this Agreement.  
- Annex 4 specifies services, whether 
listed positively or negatively, covered 
by this Agreement.  
- Annex 5 specifies covered construction 
services.  
Relevant thresholds are specified in each Party's 
Annexes . 1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement falling within the scope of 
Article III, paragraph  8 of the GATT and 
Article  XIII, paragraph  1 of GATS by 
entities covered by this Agreement, as 
specified i n Appendix  I. 
[EC – GPA/W/87 ] 
 
1. This Agreement applies to any law, 
regulation, procedure or practice regarding 
any procurement by entities covered by this 
Agreement, as specified in Appendix I, 
except procurements with a view to 
commercial resale or with a view  to use in 
the production of goods or supply of 
services for commercial sale.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• A reference to the current definitions in GATT and GATS is necessary to ensure that the 
inclusion of a definition of "government procurement" in the GPA does not lead to a situation 
in which government procurement is not covered by any WTO rules.   
• In terms of covered procurement, it is necessary to avoid the possibility of their being any 
gaps between what is covered by GATT Article III:8 and GATS Article XIII and what is covered 
under the GPA.  [EC; US] 
• What are the potential gaps between the GPA on the one hand and the GATT and GATS on 
the other?  [Switzerland]  
• Consideration should be given to whether the curre nt definitions in the GATT and the GATS 
are adequate or whether a further definition of "government procurement" should be 
developed  in the Agreement.  [US] 
• If a definition of "government procurement" is to be developed, such a definition should be 
included  in a multilateral instrument otherwise, there is a risk that there will be two definitions 
of government procurement, one in the exceptions to the GATT and one in the GPA.  [EC] 
• There is a risk that if "government procurement" is defined, the scope and cov erage of the 
current GPA offers could be expanded or, at least, that impression could be conveyed.  [EC] 
• Is it necessary to cover procurement excluded from the GATT and the GATS?  [Canada]  
• What is covered in the GPA Annexes is within the framework of general  exceptions to the GATT 
and GATS, otherwise there would be no point in coverage under the GPA.  [EC] 
• Provisions that are unclear could potentially lead to disputes.  There could be benefits in 
clarifying the existing text where there is uncertainty about its application.  [US] GPA/TN1994/2/Rev.8  
 
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  • Including a definition in the GPA would be useful to non -Parties who may be considering 
accession in terms of understanding what the major commitments would be.  [US] 
• This Article should contain a definition of the te rm "government procurement" which focuses 
on the status of the end -users rather than the purchasing agent.  [Hong Kong, China] Some 
specific suggestions with respect to this comment should be provided.  [US; Canada]  
Regarding the EC proposal:  
• The proposed mo dification is intended to avoid misunderstandings with regard to the meaning 
of public procurement without actually defining the term.  This modification is not intended to 
have the effect of precluding existing derogations, for instance, reciprocity -based derogations, 
under the current Agreement.  [EC in response to clarification sought from Japan and 
Hong Kong, China]  
• Would the elimination of the footnote listing the Annexes in Appendix I and its replacement 
by the words "as specified in Appendix I", imply a different structure for Appendix I?  [Canada]  
• In the case of GATS, the "scope" is defined in terms of an exclusion.  It might be more 
appropriate to substitute the proposed wording "procurement falling within the scope" with 
"as described in …".  [Hong Kong , China;  EC] GPA/TN1994/2/Rev.8  
 
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  Article I:2  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. This Agreement applies to procurement by 
any contractual means, including through such 
methods as purchase or as lease, rental or hire 
purchase, with or without an option to buy, 
including any combination of products and 
services.   
 
Comments  
 
• A reference to forms of procurement under new phenomena (partnerships between private 
and public sectors, multiplication of "Build Operate Transfer " (BOT) operations, joint ventures) 
should be included in this paragraph with an exact definitions of these terms given in the text 
of the Agreement or in footnotes.  [Korea]  
• By way of clarification of the existing coverage of this paragraph, the list of "a ny contractual 
means" should include a reference to BOT -type contracts and similar types of contracts by 
which governments conduct procurement.  [US] 
• Would the inclusion of a reference to BOT -type contracts have implications for a proposed 
definition of pro curement in Article I:1?  [US] 
• To what extent are tendering procedures used for BOT and concessions reflected in the GPA? 
[Switzerland]  
• To what extent should public procurement contracts that are based upon public/private 
partnerships be covered by the GPA?  [Japan]  
• The note by the Secretariat on "Concessions and BOT Contracts" (JOB(00)/5657) points out 
that there may be a relationship between BOT -type contracts and the definition of government 
procurement in the GATT and the GATS.  [US] 
• It is necessary to look at the significance of the term "commercial sale" in the definition in 
GATT Article III:8.  The term "commercial" is intended to narrow the exception to the definition 
of government procurement.  GPA/TN1994/2/Rev.8  
 
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  Article I:3, 4  
 
Scope and Coverage  
 
AGREEME NT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Where entities, in the context of 
procurement covered under this Agreement, 
require enterprises not included in Appendix I to 
award contracts in accordance with particular 
requirements, Article  III shall apply mutatis 
mutandis  to such requirements.  
  
4. This Agreement applies to any 
procurement contract of a value of not less than 
the relevant threshold specified in Appendix I.  
 4. Without prejudice to Article  XXIII, 
this Agreement applies to any procurement 
contract:  
(a) of central government entities of a 
value of not less than  
- 130,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for  
public works  
(b) of sub -central government entities 
of a value of n ot less than  
- 200,000 SDR for contracts for 
supply of and services  
- 5,000,000 SDR for contracts for 
public works  
(c) of entities according to Appendix  I, 
Annex 3 of a value of not less than  
- 400,000 SDR for contracts for  
supply of product s and services  
- 5,000,000 SDR for contracts  for 
public works  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With regard to the harmonized thresholds:  
 
• It would be premature to amend the approach in the existing text without consideration of the 
broader range of issues that are involved with respect to coverage and elimination of 
discriminatory provisions.  [Canada]  
• Harmonization of thresholds should not be stipulated in the Agreement.  It would be 
inappropriate to include harmonized thresholds in the main body of the Agreement in view of 
the balance of commitments in Appendix I between Parties in relation to the coverage of 
entities, goods and services as well as thresholds.  [Japan;  Korea ] Nevertheless, the 
introduction of common thresholds in the text of the Agreement may be acceptable at a later 
stage in the light of the outcome of the work regarding the elimination of discriminatory 
measures.  [Korea]  
• While harmonization of thresholds furthers the Committee's aim to streamline the Agreement 
and may enhance the clarity of the Agreement, it does affect the balance of concessions 
contained in the Appendices and cannot be dealt with simply through amendments to the text.  
[US] 
• The adoption of common thresholds should not inhibit Members' ability to tailor their offers to 
maintain a balance of in terests.  [Canada]  GPA/TN1994/2/Rev.8  
 
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  • Common thresholds would make the Agreement more readable and understandable by third 
parties.  [EC] 
• Although there may be a link between thresholds and coverage, there is not necessarily a 
clear effect on the balance of offers that have be en negotiated because offers relate more to 
the entities that are covered and not necessarily to the thresholds.  [EC] 
• The adoption of common thresholds is consistent with attempts to expand coverage of the 
Agreement in the future and to make the Agreement more user -friendly.  [EC] 
• "Public works" is merely another way of naming "construction services".  There is no 
substantive difference between the terms used in the proposal.  [EC in response to clarification 
sought by Japan and Canada]  
 
 
  GPA/TN1994/2/Rev.8  
 
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  ARTICLE II – VALUATION OF CONTRACTS  
Article II:1, 2, 3  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The following provisions shall apply in 
determining the value of contracts2 for purposes 
of implementing this Agreement.  
 
2 This Agreement shall apply to any 
procurement contract for which the contract 
value is estimated to equal or exceed the 
threshold at the time of publication of the notice 
in accordance with Article IX.   
 
 
 
 
2 This Agreement shall apply to any 
procurement contract for which the 
contract value is estimated to equal or 
exceed the threshold at the time of the 
publication of the notice in accordance with 
Article  IX or at the time of first contact with 
the supplier  in the case of limited tendering.  
[Japan]  
 
 
Comments  
 
• The language of footnote 2 should be aligned with that of Article I:4 on threshold values.  
• What is meant by the term "first contact" and what is the rationale for the approach proposed 
by Japan in the case of limited tendering?  [Canada]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Valuation shall take into account all forms 
of remuneration, including any premiums, fees, 
commissions and interest receivable.  
 2. Valuation shal l take into account all 
forms of remuneration, including any 
premiums, fees, commissions and interest 
to be paid.  
[Chinese Taipei – Job No. 3193]  
 
3. The selection of the valuation method by 
the entity shall not be used, nor shall any 
procurement requirement be divided, with the 
intention of avoiding the application of this 
Agreement.  
  
 GPA/TN1994/2/Rev.8  
 
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  Article II:4  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. If an individual requirement for a 
procurement results in the award of more than 
one contract, or in contracts being awarded in 
separate parts, the basis for valuation shall be 
either:  
  
(a) the actual value of similar recurring 
contracts concluded over the previous 
fiscal year or 12 month s adjusted, 
where possible, for anticipated changes 
in quantity and value over the 
subsequent 12 months;  or 
  
(b) the estimated value of recurring 
contracts in the fiscal year or 
12 months subsequent to the initial 
contract.   
 
Comment  
 
• What is meant by the reference to a 12 months period?  If the final value of a contract which 
runs for more than one year, for example, a road maintenance contract, is unknown until the 
works have been completed, should the basis of coverage be the estimated value for one y ear 
or the value for the full period of the contract?  Should the contract be broken down into 
one-year periods because of the reference to 12 months in subparagraphs (a) and (b)?  
[Hong  Kong, China]  
 GPA/TN1994/2/Rev.8  
 
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  Article II  
 
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph  
 
For contracts of an indefinite value, or for 
contracts involving the award of a contract 
to multiple suppliers or service providers, 
the basis for valuation shall be either:  
 
(a) the max imum total estimated value 
of the procurement that could be 
awarded under the contract;  or 
 
(b) [where the total estimated value is 
not stated, [Singapore – 
Job No. 5271]] the estimated 
value of the contract shall 
automatically be considered to be 
above th e threshold values 
provided for in the national 
annexes to the GPA for the 
purposes of coverage under the 
Agreement.  
[US – Job No. 2795]  
 
 
 
Comments  
 
• How would the proposed provision apply to low -value contracts, for example those entered 
into by small local authorities?  Under such contracts, even over a period of several years, the 
threshold values stipulated in the Agreement may not be exceeded.  [Norway, Canada]  
• In order to provide certainty on the application of the Agreement in cases of low -value 
contracts, the concept of maximum total estimated value in subparagraph  (a) could be 
elaborated.  It might be possible to make a determination that the maximum total estimated 
value of small -value contracts would not exceed the GPA thresholds.  [US] 
• The total estimated value of a contract is not necessarily published.  [Canada]  
• In order to ensure consistency with the current wording of the Agreement and in light of the 
fact that a contract will not actually exist at the time when the valuation takes place, except 
in the case of limited tendering, the term "procurements" rather than "contracts" should be 
used.  [Canada]  
• The timing of the conclusion of a contract may vary during the procurement process according 
to different national legal systems.  Accordingly,  the terminology adopted with regard to 
formulation of rules on the valuation of framework contracts and similar arrangements should 
avoid prescribing whether a contract should be concluded at the first or the second stage of 
the procurement process.  [EC] 
• How would the existing paragraphs 4, 5 and 6 and the proposal for a new paragraph fit 
together and would there be a need for further amendments in light of the discussion on 
framework agreements.  [Canada;  Hong Kong, China]  
• If the proposal is intended to be  an addition to the existing text, all of the qualifications 
contained in the chapeau to the proposed paragraph might not be necessary.  [Canada]GPA/TN1994/2/Rev.8  
 
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  Article II:5, 6  
Valuation of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. In cases of contracts for the lease, rental 
or hire purchase of products or services, or in the 
case of contracts which do not specify a total 
price, the basis for valuation shall be:  
  
(a) in the case of fixed -term contracts, 
where thei r term is 12  months or less, 
the total contract value for their 
duration, or, where their term exceeds 
12 months, their total value including 
the estimated residual value;  
 (a) in the case of fixed -term contracts, 
where their term is 12 months or 
less, the  total or estimated total 
contract value for their duration, 
or, where their term exceeds 
12 months, their total or estimated 
total value;  
[Chinese Taipei – Job No. 3193]  
 
(b) in the case of contracts for an indefinite 
period, the monthly instalment 
multiplied by 48.  
 (b) in the case of contracts for an 
indefinite period, the monthly 
instalment or estimated value of 
monthly procurement multiplied by 
48. 
[Chinese Taipei – Job No. 3193]  
 
If there is any doubt, the second basis for 
valuation,  namely (b), is to be used.  
  
6. In cases where an intended procurement 
specifies the need for option clauses, the basis 
for valuation shall be the total value of the 
maximum permissible procurement, inclusive of 
optional purchases.  
  
 
 GPA/TN1994/2/Rev.8  
 
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  ARTICLE III – NATIONAL TREATMENT AND NON -DISCRIMINATION  
Article III  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article III  
 
National Treatment and Non -discrimination  
 Article III  
 
Principal Obligations  
 
 new paragraph  
 
Each Party shall ensure that the 
procurement of its covered entities takes 
place in a transparent, reasonable and 
non-discriminatory manner, treating any 
supplier of any Party equally, and ensuring 
the principle of open and effective 
competition.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The thrust of the proposed obligations appear to be inconsistent with the contents of 
Appendix  I. Would the proposed provision still allow for the reciprocity provisions in Annex 1?  
The existing provisions of Article III should be fully implemented before introducing new 
obligations.  [Hong Kong, China]  
• It is important to include a reference to the principle of "open and effective competition" in 
the Agreement even though this principle is not refl ected in all the Annexes to the Agreement.  
The principle of "open and effective competition" is not a new concept but, rather, is implicit 
in the GPA.  The fact that there are many such exceptions contained in the Annexes makes it 
necessary to spell out the  basic objectives of the Agreement.  The proposal makes it clear that, 
unless there is an explicit exception, the general principles of transparency and open 
competition should be applied.  [EC] 
• The principle of "open and effective competition" needs to be a pplied broadly rather than in a 
selective way to avoid undermining principles underlying the agreement such as the principle 
of non -discrimination and to avoid a contrario  interpretations.  [EC] 
• Selectively citing the principle of non -discrimination in othe r provisions of the Agreement 
might create interpretation difficulties.  [US] 
• The principle of "open and effective competition" should be applied in a general manner.  [US] 
• The reciprocity provisions would not be affected as implied by the wording "treating any 
supplier of any Party equally".  [EC] 
• The rationale behind the reference to the general principles of "open and effective competition" 
is that market forces are working and that suppliers can openly compete.  [EC in response to 
clarification sought by Ja pan; the US;  Canada;  and Hong Kong, China]  
• The consistency of term "open and effective competition" with the use of selective and limited 
tendering procedures should also be clarified.  Would any adjustments need to be made in 
other specific provisions of the Agreement?  [US] 
• Article XV is an exception to the general principle of open and effective competition.  There 
may be other exceptions to the operation of the principle.  [EC] GPA/TN1994/2/Rev.8  
 
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  • Perhaps the words "Except otherwise provided for in the Agreement ," should be added to the 
beginning of the EC proposal to take account of the exceptions to the general principle of open 
and effective competition.  [Chinese Taipei]  
• The terms "reasonable", "non -discriminatory" and "open competition" are not intended to be  
precise rules.  Rather, they are general principles that should influence the application of the 
provisions of the GPA.  The meaning of these terms will vary depending upon the procedures 
to which they are applied.  [EC in response to a question from Canada requesting clarification 
of the term "reasonable"]  
• It may be useful to clearly state the principles that underlie the Agreement.  This would, for 
instance, help address issues such as non -discrimination in the context of framework 
contracts.  The proposal me rely increases the visibility of the core principles of the Agreement.  
[EC in response to  a question from Canada]  
 GPA/TN1994/2/Rev.8  
 
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  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall provide immediately and 
unconditionally to the products, services and 
suppliers of other Parties offering products or 
services of the Parties, treatment no less 
favourable than:  
  
(a) that accorded to domestic products, 
services and suppliers;  and 
  
(b) that accorded to products, services and 
suppliers of any other Party.  
  
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
  
(a) that its entities shall not treat a 
locally -established supplier less 
favourably than another 
locally -established supplier on the basis 
of degree of foreign affiliation or 
ownership;  and 
  
(b) that its entities shall not discriminate 
against locally -established suppliers on 
the basis of the country of production 
of the good or service being supplied, 
provided that the country of production 
is a Party to the Agreement in 
accordance with the provisions of 
Article  IV. 
  
 
Comments  
 
• Further clarification is needed in relation to the meaning of the term "foreign affiliation or 
ownership" in paragraph 2(a).  [Hong Kong, China;  US] This term seems to apply both to 
Parties and non -Parties to the Agreement.  The consistency of the scope of this provision with 
that of paragraph 1 should be reviewed.  [Hong Kong, China]  
• There may be scope for inclusion of a provision on denial of bene fits to non -parties similar to 
that contained in Article 11 of the NAFTA Agreement.  [US] More detail is required in this 
respect.  [EC] 
• GATS Article XXVII deals with the denial of benefits in relation to services.  [Secretariat]  
• Given that the GPA is a pluri lateral agreement, it is implicit that a non -signatory cannot avail 
itself of its benefits under the GPA.  [Singapore]  
• It is necessary to consider whether, because of the plurilateral nature of the GPA, it is 
necessary to adopt a different approach from, fo r example, the GATS.  [US] GPA/TN1994/2/Rev.8  
 
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  • It could be useful to clarify Members' obligations under the Agreement in relation to benefits 
to be accorded to non -Parties.  Article 11 of the NAFTA Agreement merely clarifies parties' 
rights.  [US] 
 
 GPA/TN1994/2/Rev.8  
 
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  Article III:3  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The provisions of paragraphs 1 and 2 shall 
not apply to customs duties and charges of any 
kind imposed on or in connection with 
importation, th e method of levying such duties 
and charges, other import regulations and 
formalities, and measures affecting trade in 
services other than laws, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  3. This Artic le shall not apply to customs 
duties and charges of any kind imposed on 
or in connection with importation, the 
method of levying such duties and charges, 
other import regulations and formalities, 
and measures affecting trade in services 
other than laws, re gulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 new paragraph 4  
 
4. [For procurements awarded to more 
than one supplier][Where contracts are 
awarded to more than one supplier under 
the same procurement [Hong Kong, 
China]], Parties shall ensure that each 
awardee [winning tenderer [Hong Kong, 
China]] is provided a fair opportunity to be 
considered for each transaction under the 
procurement on a non -discriminatory basis.  
[US - Job No. 2795]  
 
 
Comments  
 
• The term "transaction" in the proposed new paragraph (4) should be clarified.  [Hong Kong, 
China]  
• The US proposal appears to create a separate non -discrimination obligation for one type of 
procurement or contract and for certain steps in the procu rement process.  The existing 
paragraphs  1 and 2 may be sufficient to ensure non -discrimination for all procurement covered 
by the GPA.  [Canada]  
 GPA/TN1994/2/Rev.8  
 
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  ARTICLE IV – RULES OF ORIGIN  
Article IV:1, 2  
 
Rules of Origin  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party shall not apply rules of origin to 
products or services imported or supplied for 
purposes of government procurement covered 
by this Agreement from other Parties, which are 
different from the rules of origin applied  in the 
normal course of trade and at the time of the 
transaction in question to imports or supplies of 
the same products or services from the same 
Parties.  
  
2. Following the conclusion of the work 
programme for the harmonization of rules of 
origin for g oods to be undertaken under the 
Agreement on Rules of Origin in Annex 1A of the 
Agreement Establishing the World Trade 
Organization (hereinafter referred to as "WTO 
Agreement") and negotiations regarding trade in 
services, Parties shall take the results of  that 
work programme and those negotiations into 
account in amending paragraph  1 as 
appropriate.  
  
 
Comment  
 
• The issue of rules of origin of services should be taken up in the discussion concerning the 
extension of the Agreement to services.  
 GPA/TN1994/2/Rev.8  
 
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  ARTICLE V – SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES  
Article V  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article V  
 
Special and Differential Treatment for  
Developing Countries  
 Article V  
 
Developing Countries  
 new paragraph  
 
Upon accession to the Agreement, a 
developing country shall enjoy all the 
benefits of the Agreement.  
It shall be obliged to comply with the 
obligations under this Agreement:  
- at central government level X years 
after accession  
- at sub -central government level  Y 
years after accession  
- as far as entities under Appendix  I, 
Annex 3 are concerned Z years 
after accession . 
[EC – GPA/W/87 ] 
 
 
Comments  
 
Regarding the EC proposal:  
 
• The EC proposal represents a new approach , which attempts to facilitate the entry of 
developing countries into the GPA by simplifying and making less technical what is currently 
a complicated set of provisions.  [EC] 
• The proposed amendment may go beyond the aim of simplification of the existing provisions.  
[Japan]  
• A possible effect of the proposed amendment in particular, the reference to transitional 
periods, could be that developing countries are deterred from joinin g the Agreement.  [Korea;  
Hong Kong, China]  
• The provisions of the existing Article are complicated and the Article hasn't served its intended 
purpose.  The current text of Article V is more likely to deter developing countries from joining 
the Agreement.  [EC] 
• The reference to compliance with "the obligations under this Agreement" might mean that an 
acceding country would be required to cover all sub -central entities at a certain point in time.  
[US] It should mean that only the negotiated coverage would come i nto effect at that point in 
time. [US; EC] 
• Transitional periods are a simply way of accommodating developing country concerns as far 
as possible without putting the logic of the Agreement at risk.  The provisions on developing 
countries should not lead to the creation of two or three types of Members in the long term.  
At the end of the day, all Parties to the GPA should be full Parties and should have similar 
levels of obligations, taking into account their circumstances.  [EC] 
 GPA/TN1994/2/Rev.8  
 
- 19 - 
 
  • Would the same transitional p eriod apply to all developing countries regardless of their specific 
circumstances?  Providing a generic transitional period for central or sub -central government 
coverage for every developing country Party might not be appropriate.  [US] 
 
• How long should th e transitional periods be?  [US] 
 
• Would the Annex 2 and Annex 3 commitments be negotiated and finalized prior to accession 
of a developing country or would the implementation of those commitments would simply be 
delayed? [US] 
 
• Obligations in relation to cen tral government entities of developing countries that join the GPA 
would start from the date of accession.  However, in the case of sub -central entities as well as 
entities under Annex 3, there is a link to the provisions on "financial, trade and developmen t" 
objectives of those countries, which are currently presented in paragraphs (a), (b), (c) and 
(d) of Article V:1.  [Switzerland]  
 GPA/TN1994/2/Rev.8  
 
- 20 - 
 
  Article V:1  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Objectives  
 Article ZZI  
 
Treatment for non -parties developing and  
least-developed countries  
 
1. Parties shall, in the implementation and 
administration of this Agreement, through the 
provisions set out in this Article, duly take into 
account the development, financial and trade 
needs of developing countries, in particular 
least-developed countries, in their need to:  
 ZZI:1.  Parties shall, in the implementation 
and administration of this Agreement, duly take 
into account the development, financial and 
trade needs of developing countries, in particular 
least-developed countries.  
[Switzerland – Job No. 1274]  
(a) safeguard their balance -of-payments 
position and ensure a level of reserves 
adequate for the implementati on of 
programmes of economic 
development;  
  
(b) promote the establishment or 
development of domestic industries 
including the development of 
small -scale and cottage industries in 
rural or backward areas ; and economic 
development of other sectors of the 
economy;  
  
(c) support industrial units so long as they 
are wholly or substantially dependent 
on government procurement;  and 
  
(d) encourage their economic development 
through regional or global 
arrangements among developing 
countries presented to the Ministerial 
Conference of the World Trade 
Organization (hereinafter referred to as 
the "WTO") and not disapproved by it.  
  
 
  GPA/TN1994/2/Rev.8  
 
- 21 - 
 
  Article V:2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Consistently with the provisions of this 
Agreement, each Party shall, in the preparation 
and application of laws, regulations and 
procedures affecting government procurement, 
facilitate increased imports from developing 
countries ,  ZZI:2.  Consistently with the provisions of 
this Agreement, each Party shall, in the 
preparation and application of laws, regulations 
and procedures affecting public procurement 
facilitate access to information on tendering 
opportunities for developing a nd least -developed 
countries.  
[Switzerland – Job No. 1274]  
 
bearing in mind the special problems of least -
developed countries and of those countries at 
low stages of economic development.  ZZI:3.  Bearing in mind the economic 
development needs of developing  and least -
developed countries, the Parties shall facilitate 
increased imports for products representing 
particular export interests to these countries.  
[Switzerland – Job No. 1274]  
 
Comments  
 
• Switzerland proposes to re -organize and streamline the content of Article V and add elements 
relevant to accession by developing and least -developed countries to the Agreement on 
Government Procurement.  [Switzerland – Job No. 1274]  
 
• In addition, Switzerland proposes to move these five new articles (presently Article V of the 
Agreement on Government Procurement) near the end of the Agreement as it is already the 
case in several other WTO Agreements for provisions referring to developing and least -
developed countries.  [Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.8  
 
- 22 - 
 
  Article V:3 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Coverage  
  
3. With a view to ensuring that developing 
countries are able to adhere to this Agreement 
on terms consistent with their development, 
financial and trade needs, the objectives listed in 
paragraph  1 shall be duly taken into account in 
the course of negotiations with respect to the 
procurement of developing countries to be 
covered by the provisions of thi s Agreement.  
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procuring products and services of export 
interest to developing countries.  
 ZZII:3.   In the course of accession 
negotiations, due account shall be taken of the 
development, financial and trade situation of 
acceding countries.  
[Switzerland – Job No. 1274]  
 
Comment  
 
• With regard to the issue of granting developing countries non -reciprocal access to  
procurement markets of Parties, should there be flexibility in offers of coverage by prospective 
Parties  or should there be special provisions associated with the evaluation of offers under 
individual procurements by Parties ? [Canada]  
  GPA/TN1994/2/Rev.8  
 
- 23 - 
 
  Article  V 
 
Special  and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article ZZII  
 
Accession by developing and least -developed 
countries  
 
 1. Parties shall encourage countries acceding 
to the WTO as well as non -Parties developing and 
least-developed countries to accede to the 
Agreement on Government Procurement (GPA) 
and establish competitive public procurement 
regimes based on transparency, non -
discrimination and national treatment.  
 
2. Upon accessio n to the Agreement, an 
acceding country shall enjoy all the benefits of 
the Agreement on the basis of reciprocity.  
 
3. In the course of accession negotiations, 
due account shall be taken of the development, 
financial and trade situation of acceding 
countries.  
 
4. An acceding country shall adapt its 
national legislation on public procurement to 
make it compatible with this Agreement with, if 
necessary, transitional periods and review 
provisions linked with economic development.  
 
5. An acceding country  shall submit to the 
Agreement its central level government entities 
upon accession for goods and services under 
Appendix I, Annex 1.  
 
6. An acceding country shall submit to the 
Agreement its sub -central level government 
entities for goods and services und er Appendix I, 
Annex 2, and its entities covered under 
Appendix  I, Annex 3 for goods and services with, 
if necessary, transitional periods and review 
provisions linked with economic development.  
 
7. Mutually acceptable temporary exclusions 
from the rules o n national treatment with respect 
to certain entities, products or services that are 
included in the coverage lists of an acceding 
country can be negotiated in particular 
circumstances linked with economic 
development.  
[Switzerland – Job No. 1274]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 24 - 
 
  Article V:4  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Agreed Exclusions  
  
4. A developing country may negotiate with 
other participants in negotiations under this 
Agreement mutually acceptable exclusions from 
the rules on national treatment with respect to 
certain entities, products or services that are 
included in its coverage lists, having regard to 
the particular circumstances of each case.  In 
such negotiations, the considerations mentioned 
in subparagraphs  1(a) through 1(c) shall be duly 
taken into account.   
 
A developing country participating in regional or 
global arrangements among developing 
countries referred to in subparagraph  1(d) may 
also negotiate exclusi ons to its lists, having 
regard to the particular circumstances of each 
case, taking into account, inter alia, the 
provisions on government procurement provided 
for in the regional or global arrangements 
concerned and, in particular, products or 
services w hich may be subject to common 
industrial development programmes.  
 ZZII:7.  Mutually acceptable temporary 
exclusions from the rules on national treatment 
with respect to certain entities, products or 
services that are included in the coverage lists of 
an acceding country can be negotiated in 
particular circumstances linked with economic 
development.  
[Switzerland – Job No. 1274]  
 
Comments  
 
• Further flexibility should be provided in the evaluation of offers from developing countries with 
respect to non -discriminatory treatment and in the application of the procedural provisions.  
[Job No. 5074]  GPA/TN1994/2/Rev.8  
 
- 25 - 
 
  Article V:5, 6, 7, 8 
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
5. After entry into force of this Agreement, a 
developing country Party may modify its 
coverage lists in accordance with the provisions 
for modification of such lists contained in 
paragraph  6 of Article  XXIV, having regard to its 
development, financial and trade needs, or may 
request the Committee on Government 
Procurement (hereinafter referred to as "the 
Committee") to grant exclusions from the rules 
on national treatment for certain entities, 
products or services that are included in its 
coverage lists, having regard to the particular 
circumstances of each case and taking duly into 
account the provisions of subparagraphs  1(a) 
through 1(c).  After entry into force of this 
Agreement, a developing country Party may also 
request the Committee to grant exclusions for 
certain entities, products or services that are 
included in its coverage lists in the light of its 
participation in regional or global arrangements 
among developing countries, having regard to 
the particular circumstances of each case and 
taking duly into account the provisions of 
subparagraph  1(d). Each request to the 
Committee by a developing country Party 
relating to modification of a list shall be 
accompanied by documentation relevant to the 
request or by such information as may be 
necessary for consideration of the matter.  
  
Article ZZIII  
 
Temporary exemptions to coverage for 
developing and least -developed countries 
Parties and further negotiations  
 
ZZIII:1.  In accordance with paragraph 6 of 
article XXIV, a developing or least -developed 
country Party may modify its coverage lists or 
may request the Committee on Government 
Procurement to grant tempora ry exemptions 
from the rules on national treatment for certain 
entities, products or services that are included in 
its coverage lists, having regard to the particular 
circumstances of each case and taking duly into 
account its development, financial and tr ade 
situation.  
[Switzerland – Job No. 1274]  
6 Paragraphs 4 and 5 shall apply mutatis 
mutandis  to developing countries acceding to 
this Agreement after its entry into force.  
  
7. Such agreed exclusions as mentioned in 
paragraphs 4, 5 and 6 shall be subject to review 
in accordance with the provisions of 
paragraph  14 below.  
 ZZIII:2.  Temporary exemptions shall be 
temporary, reviewed every two years, subject to 
compensations negotiations with other Parties 
and eliminated with the re -establishment of the  
previous situation.  
[Switzerland – Job No. 1274]  
Technical Assistance for Developing Country 
Parties  
 Article ZZIV  
 
Technical assistance and information centres  
 
8. Each developed country Party shall, upon 
request, provide all technical assistance which it 
may deem appropriate to developing country 
Parties in resolving their problems in the field of 
government procurement.  
 ZZIV:1.  Each Member shall, upon request, 
provide all technical assistance which it may 
deem appropriate to acceding Parties and upon 
request to Parties which demonstrate need for 
capacity building.  
[Switzerland – Job No. 1274]  GPA/TN1994/2/Rev.8  
 
- 26 - 
 
  Article V:9, 10, 11  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. This assistance, which shall be provided on 
the basis of non -discrimination among 
developing country Parties, shall relate, 
inter alia, to: 
 ZZIV:2.  Technical assistance shall relate, 
inter alia, to:  
 
- the solution of particular technical 
problems relating to publications of tender and 
award notices, tender procedures, tender 
documentation, award procedures, remedy 
systems;  
 
- training of local purchasing entities.  
 
[Switzerland – Job No. 1274]  
- the solution of partic ular technical 
problems relating to the award of a specific 
contract;  and 
  
- any other problem which the Party making 
the request and another Party agree to 
deal with in the context of this assistance.  
  
10. Technical assistance referred to in 
paragraphs  8 and 9 would include translation of 
qualification documentation and tenders made 
by suppliers of developing country Parties into an 
official language of the WTO designated by the 
entity, unless developed country Parties deem 
translation to be b urdensome, and in that case 
explanation shall be given to developing country 
Parties upon their request addressed either to 
the developed country Parties or to their entities.  
  
 
Comment  
 
• The provisions on technical cooperation should be extended to take account of the needs of 
developing countries to adjust to new developments in the application of information 
technology to government procurement.  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Information Centres  
  
11. Developed country Parties shall establish, 
individually or jointly, information centres to 
respond to reasonable requests from developing 
country Parties for information relating to, 
inter alia, laws, regulations, procedures and 
practices regarding governm ent procurement, 
notices about intended procurements which have 
been published, addresses of the entities 
covered by this Agreement, and the nature and 
volume of products or services procured or to be 
procured, including available information about 
future tenders.  The Committee may also set up 
an information centre.  
 ZZIV:3.  Developed country Parties shall 
establish, individually or jointly, information 
centres to respond to reasonable requests from 
all Parties for information relating to, inter alia, 
laws, regulations, procedures and practices 
regarding government procurement, notices 
about intended procurements which have been 
published, addresses of the entities covered by 
this Agreement, and the nature and volume of 
products or services procured or to be  procured, 
including available information about future 
tenders.  The Committee may also set up an 
information centre.  
[Switzerland – Job No. 1274]  GPA/TN1994/2/Rev.8  
 
- 27 - 
 
  Article V:12, 13  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Special Treatment for Least -Developed 
Countries  
  
12. Having regard to paragraph 6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28 November 1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), special treatment shall be 
granted to least -developed country Parties and 
to the suppliers in those Parties with respect to 
products or services originat ing in those Parties, 
in the context of any general or specific 
measures in favour of developing country 
Parties.  
 ZZII:7.  Mutually acceptable temporary 
exclusions from the rules on national treatment 
with respect to certain entities, products or 
services that are included in the coverage lists of 
an acceding country can be negotiated in 
particular circumstances linked with economic 
development.  
[Switzerland – Job No. 1274]  
A Party may also grant the benefits of this 
Agreement to suppliers in least-developed 
countries which are not Parties, with respect to 
products or services originating in those 
countries.  
 ZZI:4.  Having regard to paragraph 6 of the 
Decision of the CONTRACTING PARTIES to 
GATT  1947 of 28 November 1979 on Differential 
and More Favourable Treatment, Reciprocity and 
Fuller Participation of Developing Countries 
(BISD 26S/203 -205), a Party may grant the 
benefits of this Agreement to suppliers in least -
developed countries, with respect to products or 
services originating in those cou ntries.  
[Switzerland – Job No. 1274]  
 
13. Each developed country Party shall, upon 
request, provide assistance which it may deem 
appropriate to potential tenderers in 
least-developed countries in submitting their 
tenders and selecting the products or serv ices 
which are likely to be of interest to its entities as 
well as to suppliers in least -developed countries, 
and likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended  
procurement.  
 ZZI:5.  Each developed country Party shall, 
upon request, provide assistance which it may 
deem appropriate to potential tenderers in least -
developed countries in submitting their tenders 
and selecting the products or services which are 
likely to be of interest to its entities as well as to 
suppliers in least -developed countries, and 
likewise assist them to comply with technical 
regulations and standards relating to products or 
services which are the subject of the intended 
procurement.  
[Switze rland – Job No. 1274]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 28 - 
 
  Article V:14, 15  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Review  
 Article ZZV  
 
Review  
 
14. The Committee shall review annually the 
operation and effectiveness of this Article and, 
after each three years of its operation on the 
basis of reports to be submitted by Parties, shall 
carry out a major review in order to evaluate its 
effects.  As part of the three -yearly reviews and 
with a vie w to achieving the maximum 
implementation of the provisions of this 
Agreement, including in particular Article  III, and 
having regard to the development, financial and 
trade situation of the developing countries 
concerned, the Committee shall examine 
wheth er exclusions provided for in accordance 
with the provisions of paragraphs  4 through 6 of 
this Article shall be modified or extended.  
 ZZV:1.  The Committee shall review on a 
two-year basis the operation and effectiveness of 
Articles ZZI to ZZIV and, after each four years of 
its operation on the basis of reports to be 
submitted by Parties, shall carry out a major 
review in order to evaluate its effects. As part of 
the four -year reviews and with a view to 
achieving the maximum implementation of the 
provisions  of this Agreement, including in 
particular Article III, and having regard to the 
development, financial and trade situation of the 
developing countries concerned, the Committee 
shall examine whether exclusions provided for in 
accordance with the provision s of Articles ZZII 
and ZZIII shall be modified or extended.  
[Switzerland – Job No. 1274]  
 
15. In the course of further rounds of 
negotiations in accordance with the provisions of 
paragraph  7 of Article  XXIV, each developing 
country Party shall give consid eration to the 
possibility of enlarging its coverage lists, having 
regard to its economic, financial and trade 
situation.  
 ZZIII:3.  In the course of further negotiations 
in accordance with paragraph 7 of Article XXIV, 
each developing and least -developed co untry 
Party shall give consideration to the possibility of 
enlarging its coverage lists, having regard to its 
development, financial and trade situation.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.8  
 
- 29 - 
 
  ARTICLE VI – TECHNICAL SPECIFICATIONS  
Article VI:1  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Technical specifications laying down the 
characteristics of the products or services to be 
procured, such as quality, performance, safety 
and dimensions, symbols, termin ology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformity assessment 
procedures prescribed by procuring entities, 
shall not be prepared, adopted or applied with a 
view to, or with the  effect of, creating 
unnecessary obstacles to international trade.  
 1. Technical specifications laying down 
the characteristics of the products or 
services to be procured, such as quality, 
performance, safety and dimensions, 
symbols, terminology, packaging , marking 
and labelling, or the processes and methods 
for their production and requirements 
relating to conformity assessment 
procedures prescribed by procuring 
entities, shall ensure the principle of open 
and effective competition and shall not be 
prepare d, adopted or applied with a view to, 
or with the effect of, creating unnecessary 
obstacles to international trade.  
[EC – Job No. 5716]  
 
 
Comments  
 
Paragraph 1 of the EC proposal:  
 
• The EC proposal is based upon the principles that are already in Article VI of the Agreement 
and does not introduce new concepts.  [EC; Singapore]  
• The principle of open and effective competition has been retained in relation to the selection 
of technical specifications.  [EC] 
• Would the implementation of the principle of " open and effective competition" lead to disputes 
in terms of deciding whether a particular specification ensures open and effective competition 
compared to another specification?  [US] 
• The reference to the principle of "open and effective competition" does not mean that entities 
always have to opt for the specification that allow for the most pro -competitive solution in all 
cases without taking into account the entity's requirements.  If there are different alternatives 
that equally meet those requirements, it is useful to send a signal that the solution that is 
more pro -competitive should be selected.  An entity does not have to take the most open and 
pro-competitive solution if that solution does not meet the entity's needs.  [EC in response to 
Hong Kong, Chin a and the US]  
• It is unclear what the additional test of requiring "open and effective competition" would 
accomplish, what it would mean in practice and whether it would facilitate solution -oriented 
procurement.  [Canada]  
• Does the notion of "open and effecti ve competition" really add anything to Article VI:1?  
Creation of obstacles to trade would affect open and effective competition of Parties who are 
affected by those obstacles.  [Switzerland]  
• The reference to the concept of "open and effective competition" m akes more explicit 
something that is already implicit in the Agreement.  The challenge is to how to make the 
provision effective without unnecessarily restricting the freedom of the Parties.  [EC] 
 GPA/TN1994/2/Rev.8  
 
- 30 - 
 
  • Is the word "unnecessary" needed in relation to "obstacles t o international trade".  If open 
competition is sought to be achieved, any obstacle is unnecessary.  [Switzerland]  
• The distinction between "essential requirements", that is, the basic objectives of a 
procurement, and items that are ancillary should be integrated into the Agreement.  If 
suppliers are required to comply with every detail contained in a technical specification, this 
could be considered to be a barrier to trade in most cases.  [EC] GPA/TN1994/2/Rev.8  
 
- 31 - 
 
  Article VI:2  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Technical specifications prescribed by 
procuring entities shall, where appropriate:  
 
(a) be in terms of performance rather than 
design or descriptive characteristics;  
and 
 
(b) be based on internation al standards, 
where such exist;  otherwise, on 
national technical regulations3, 
recognized national standards4, or 
building codes.  
 
3 For the purpose of this Agreement, a 
technical regulation is a document which lays 
down characteristics of a product or a s ervice or 
their related processes and production 
methods, including the applicable administrative 
provisions, with which compliance is 
mandatory.  It may also include or deal 
exclusively with terminology, symbols, 
packaging, marking or labeling requirements  as 
they apply to a product, service, process or 
production method.  
4 For the purpose of this Agreement, a 
standard is a document approved by a 
recognized body, that provides, for common 
and repeated use, rules, guidelines or 
characteristics for products o r services or 
related processes and production methods, with 
which compliance is not mandatory.  It may also 
include or deal exclusively with terminology, 
symbols, packaging, marking or labeling 
requirements as they apply to a product, 
service, process or p roduction method.  2. Technical specifications prescribed by 
procuring entities shall:  
 
(a) be in terms of performance rather 
than design or descriptive 
characteristics;  and 
 
(b) be based on international 
standards, where such exist;  
otherwise, on technical 
regulations3, recognized national 
standards4, or building codes.  
 
3 For the purpose of this Agreement, 
a technical regulation is a document which 
lays down characteristics of a product or a 
service or their related processes and 
production method s, including the 
applicable administrative provisions, with 
which compliance is mandatory.  It may 
also include or deal exclusively with 
terminology, symbols, packaging, marking 
or labeling requirements as they apply to a 
product, service, process or produc tion 
method.  
4 For the purpose of this Agreement, 
a standard is a document approved by a 
recognized body, that provides, for 
common and repeated use, rules, 
guidelines or characteristics for products 
or services or related processes and 
production methods,  with which 
compliance is not mandatory.  It may also 
include or deal exclusively with 
terminology, symbols, packaging, marking 
or labeling requirements as they apply to a 
product, service, process or production 
method.  
[EC – Job No. 5716]  
 
3.(a)  Each Party  shall ensure that, 
wherever appropriate, any 
technical specification prescribed 
by its entities is specified in terms 
of performance requirements for 
the product or service being 
procured rather than design or 
descriptive characteristics.  
[US – Job No. 1462] 
 
 
  GPA/TN1994/2/Rev.8  
 
- 32 - 
 
  Comments  
• The EC proposal refers to technical specifications in terms of performance standards and 
international standards and this is a warranty for the competitive use of specifications.  Any 
departure from those standards should be fully justified.  However, since an overly formalistic 
approach could also be restrictive and impose an unnecessary burden on entities, technical 
specifications that are not fully compatible with all the details of international standards that 
nevertheless meet t he "essential requirements" of the procuring entity should also be 
considered in the tendering process.  Such an approach strikes a fair balance between the need 
to facilitate competition and the need to allow for innovative solutions while preserving what 
has been achieved in the field of international standardisation.  [EC] 
• The proposal tries to clarify the meaning of what is meant by the term "where appropriate" in 
the current text.  The proposal allows some flexibility for procuring entities when setting u p 
technical specifications while ensuring compliance with the non -discrimination principle.  
[Japan]  
 
• The words "where appropriate" in the chapeau paragraph are too flexible and have been 
deleted in order to clarify what is meant by the exception.  [EC] 
 
• Further consideration of the meaning of "appropriate" is required.  Deletion of the words 
"where appropriate" may raise the question of burden of proof in terms of what is and what 
is not appropriate.  Should flexibility be restricted further by defining more c learly what 
situations are "appropriate" and which are not?  [US] 
 
• The current text of the Agreement promoting the use of performance -based specifications 
where possible, provides scope for procuring organisations to seek innovation solutions.  
Performance s pecifications that focus on the purpose or outcomes sought by government could 
be sufficiently broad to permit suppliers to propose innovative solutions. It is unclear that any 
change to the Article is needed to achieve that objective.  [Canada]  
 
• The diffic ulty is how to make sure that the provision that is already in the Agreement on the 
promotion of performance -based standards is implemented.  [EC] 
 
• "Technical specifications" are not the same thing as "technical standards".  The former is the 
complete definition of the entity's requirements that are needed for the procurement.  In the 
majority of procurements, especially high dollar value procurements that are covered by the 
GPA, purpose -built specifications would be relevant rather than choosin g amongst different 
standards off -the-shelf although those could be used for parts of a technical specification.  
However, it would be rare that there would be something off -the-shelf for everything 
associated with a covered procurement.  On that basis, when  the requirements for 
procurement are being defined, it is a question of whether those requirements are defined on 
the basis of the performance that is needed for that particular requirement rather than pulling 
out some sort of defined requirement for a pa rticular product.  [Canada]  
 
• The EC does not associate "technical specifications" with "technical standards".  In its view, 
technical specifications could be achieved in different ways and one possibility is that an 
existing standard could be used for the wh ole of a technical specification.  In most cases, the 
Party would define technical specification for its own purposes and this is precisely the 
objective of having a reference to performance -based standards.  This Article exists because 
Parties recognize tha t, because of inertia or tradition, when a Party uses traditional solutions 
there is a risk that that might block innovative solutions and might also block suppliers from 
other Parties.  The basis for the solution is already in the provision which answers a  real 
problem.  The challenge is how to make the provision effective without unnecessarily restricting 
the freedom of the entities.  [EC] 
 
• Unlike the EC proposal, the US proposal excludes references to mandatory regulations and 
building codes as it is unclea r whether it is necessary to state that a procurement has to be 
consistent with mandatory requirements.  [US] GPA/TN1994/2/Rev.8  
 
- 33 - 
 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Each Party shall ensure that its 
entities do not prepare, adopt or apply any 
technical specification with the purpose or 
the effect of creating unnecessary 
obstacles to trade.  
[US – Job No. 1462]  
 
 2.(a)  In establishing the technical 
specifications for each product or 
service being procu red, each Party 
shall ensure that its entities specify, 
whenever available and applicable to 
that Party, an existing domestic or 
international consensus 
standardfootnote, except where the use 
of a consensus standard would fail to 
meet the entity's programm e 
requirements or would impose more 
burdens than the use of a 
government -unique standard.  
 
footnote  A consensus standard is a 
standard adopted by an independent 
domestic or international standards body, 
where the decision to adopt that standard 
is characte rized by the absence of 
sustained opposition to substantial issues 
by any important part of the concerned 
interests and by a process that involves 
seeking to take into account the views of all 
parties concerned and to reconcile any 
conflicting arguments.  
[US – Job No. 1462]  
 
 2.(b)  Each Party shall ensure that, 
whenever there is an existing 
consensus standard for a product or 
service being procured and an entity 
specifies a government -unique 
standard, such entity shall maintain 
an official record explaining why the 
existing consensus standard would 
fail to meet the entity's programme 
requirements or would impos e more 
burdens than the use of a 
government -unique standard.  
[US – Job No. 1462]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 34 - 
 
  Comments  
 
• The meaning of the term "unnecessary obstacl es to international trade" should be clarified.  
[Job No. 5074]  
• It is important that technical specifications are developed in a way that ensures, to the extent 
possible, that they focus on the end -needs of the procuring entity rather than use 
designed -based specifications which would limit competition.  [US] 
With respect to international standards:  
 
• Reference to international standards may place excessive restrictions on procuring entities' 
exercise of discretion in formulating specifications to suit their needs.  [US] There is still 
considerable ambiguity associated with what constitutes an "international standard" and the 
procedures according to which those standards are set.  [Korea;  US] The objections that have 
been raised rega rding the definition of "international standards" also apply in relation to the 
current provisions.  [EC] 
• Clarification or elaboration is needed as to what is meant by "international standards" to avoid 
different interpretations among Members.  [Japan]  
• The r eference to international standards is contained in the original text.  The intention is to 
get a clearer view as to what is already contained in the Agreement.  [EC] 
• The issue of international standards is currently being discussed in the context of the tri ennial 
review of the TBT Agreement.  [EC; Canada]  Also, the GPA Committee should not duplicate 
the work being undertaken in the TBT Committee.  [EC; US] 
• Given that the GPA currently provides for a hierarchy with international standards taking 
precedence over  national standards, what is the rationale for treating all standards as having 
equal footing, as appears to be the case under the US proposal?  [Canada]  
• If a standard is developed in an appropriate way, whether international or domestic, it should 
be consi dered to be a legitimate standard and, therefore, there is not a need to establish a 
hierarchy amongst standards.  [US] 
• Subparagraph (b) of the Agreement should make reference to voluntary compliance with 
market -based standards instead of international stan dards.  [US] 
• The proposal should be clarified whether an implication of a requirement on procuring entities 
to accept specifications that comply with international standards would be the delegation of 
the certification process to an independent expert.  [Japan]  
With respect to consensus standards:  
 
• The concept of consensus standard was introduced as an attempt to ensure that a standard 
is not used or given a special status under the Agreement if it has not been adopted through 
a process that is transparen t and that takes into account the views of all parties.  The proposal 
addresses the process for development of such standards rather than specifying the type of 
body that would be involved in developing the standards.  [US in response to a request for 
furthe r clarification from the EC]  
• Disagreements can arise as to what is an appropriate standard and whether or not a standard 
is an international standard.  There are situations where the use of standards that are described 
as being international could be used t o restrict competition in inappropriate ways.  The concept 
of consensus standards ensures that standards are developed through an open and 
transparent process and enable all Parties to participate in the setting of standards.  [US] 
• How long would a consensus  standard be considered a consensus standard?  For example, if a 
consensus exists at the time of the development of a standard but a long time elapses without 
review, would the consensus be considered to continue to exist?  [Canada]  GPA/TN1994/2/Rev.8  
 
- 35 - 
 
  • A standard could not be c onsidered to be a consensus standard if only domestic interests 
participate in the development of the standard.  The US expects that the process of 
development of a domestic consensus standard by, for example, a domestic standard setting 
body, would be open  to participation by suppliers from other Parties or other standard setting 
bodies.  The term "domestic" refers to the location or the status of the body but not necessarily 
the process.  [US in response to a question by Canada]  
• Should the body that develops  the consensus standard be independent of government?  Would 
a standard be a consensus standard only if it is developed in a manner that produces a result 
independent of government?  [Canada]  
• A consensus standard does not necessarily need to be a non -governm ental standard.  A 
governmental standard -setting body could set standards in an open and transparent process 
and those standards could be considered to be consensus standards.  The US proposal related 
more to the process of setting standard.  [US] 
• The concept  of consensus standards will complicate the debate in the GPA and TBT contexts.  
There should not be two sets of characterisations of standards in an area that is already very 
complicated.  Since international standards are already being used in the WTO, ref erence to 
them should not be changed unless there are good reasons for doing so.  [EC] 
• The issue of international standards is currently being discussed in the context of the triennial 
review of the TBT Agreement.  [Canada ] Also, the GPA Committee should not  duplicate the 
work being undertaken in the TBT Committee.  [EC; US] 
• The proposed paragraph 2(a) of the US proposal allows an entity to use an existing consensus 
standard regardless of whether or not it conflicts with another consensus standard.  
Paragraph  2(b) would only apply when an entity has available to it one or more consensus 
standards and, nevertheless, chooses to use a government -unique standard.  [US] 
• National standards may directly conflict with those in another country.  The existing 
formulation of this Article allows the procuring entity to choose between conflicting national 
standards.  [Singapore]  
• It is important to refer to use technical specifications that have been agreed by the largest 
possible number of potential users and buyer s. The use of traditional techniques for 
standardization may not be sufficient or optimal in some cases.  Accordingly, some flexibility 
has to be provided.  [EC] 
• A standard should be openly and fairly developed with input from any interested Party.  
[Canada]  
 
  GPA/TN1994/2/Rev.8  
 
- 36 - 
 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would 
not apply when the entity may objectively 
demonstrate that this would be ineffective 
or inappropriate for the fulfilment of the 
legitimate objectives pursued.  Procuring 
entities relying on this exception shall 
maintain an official record explaining why 
these conditions apply.  
[EC – Job No. 5716]  
 
 
Comments  
 
• The proposed paragraph 3 makes it clear that when the requirements in paragraph 2 of the 
proposal are departed from, an entity should be prepared to provide an objective justification 
for such a departure.  [EC] 
• Would this requirement raise the burden of proof on procuring entities  in relation to use of the 
exception and, if so, what would the implications of that be?  [US; Hong Kong, China]  
• The priority accorded to performance -based standards and international standards is already 
contained in the GPA.  The EC proposal attempts to clarify what that means in practice.  An 
exemption mechanism is not being proposed where entities have to first ask for permission.  
However, it is necessary to impose a minimum requirement in the Agreement to entities who 
consider it necessary t o depart from the relevant principles to provide an objective 
explanation.  [EC] 
• Should records of why a particular available standard was not used in relation to every single 
procurement decision be kept or would it be possible to keep records of the decis ion taken as 
a general matter, that a particular standard would not meet an entity's needs?  Would it be 
possible to record that once and not have the administrative burden of going through that 
process every time a procurement decision is made?  [US] 
• If the  explanation given in the broader decision applies to a specific procurement, then there 
is not a significant difference between having a record of the broad decision and having records 
of decisions that are made every time a procurement is made.  [EC] 
• Repeated references to record -keeping in other Articles of the Agreement could call into 
question its interpretation in this Article.  [Canada]  
• The requirement on record -keeping is the midway between the current situation which is 
flexible and the compulsory us e of a certain specification which might be counterproductive in 
some cases.  [EC] 
 
  GPA/TN1994/2/Rev.8  
 
- 37 - 
 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. In all the cases procuring entities 
shall consider bids which do not comply 
with the provisions of the technical 
specifications but do demonstrably meet 
the essential requirements thereof and are 
fit for the purpose intended.  The reference 
to the technical specifications in the tender 
documents must include wor ds such as "or 
equivalent".  
[EC – Job No. 5716]  
 
 
Comments  
 
• The EC proposal attempts to introduce the notion of flexibility.  Technical specifications, either 
when defined in terms of performance standards or defined in terms of international 
standards, should not be absolute requirements but rather a benchmark against which 
solutions have to be measured.  [EC; Japan]  
• Bids that fulfil the "essential requirements" of international standards should be considered 
equally with other bids.  Further, b ids that are based on international standards should be 
considered even when technical specifications are formulated as performance requirements, 
provided that the bids fully address the essential requirements of the specifications.  [EC] 
• What would be the implications of proving that a bid meets the "essential requirements"?  [US] 
• The reference to "essential requirements" is a reference to core objectives underlying technical 
specifications irrespective of whether they were based on an international standard or a 
domestic standard.  This principle achieves a balance between providing competitive conditions 
and allowing the procuring entity to achieve its objectives.  The burden of proof involved would 
only require the supplier to show that  its solution can work.  [EC] 
• If a tenderer would like to offer an alternative solution, that is, a solution that does not meet 
the requirements of the tender documents, or is not in conformity with the tender documents, 
the supplier should request the proc urement entity to revise the documents.  If the 
procurement entity does not accept such a suggestion, then the supplier should use the 
challenge procedure mechanism to ask for a revision to the tender documents instead of 
submitting a proposal or offer that  is not in conformity with the tender documents.  
[Chinese  Taipei]  
• There is a concern that the tender documents should be clear and legally certain.  It would be 
unacceptable to allow a party to submit any offer, regardless of what is contained in the 
techni cal specification.  Any solution has to fulfil the essential needs of the entity but there is 
also the possibility for new suppliers to submit alternative proposal that perhaps the 
contracting entity is not accustomed to or aware of.  Such flexibility preser ves legal certainty 
and allows for new opportunities within the framework of the Agreement.  [EC] 
• Is Article VI the appropriate location for the consideration of the issues related to the 
evaluation of bids?  Is the proposal consistent with the existing provisions in the Agreement 
relating to the evaluation of bids?  [Canada]  The proposed paragraph could be placed in 
another part of the Agreement as long as an agreement on the substance can be reached.  
However, since this Article deals with techni cal specifications as does the proposed paragraph, 
this is probably the appropriate place for its inclusion.  [EC] GPA/TN1994/2/Rev.8  
 
- 38 - 
 
  Article VI:3  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. There shall be no requirement or reference 
to a particular trademark or trade name, patent, 
design or type, specific origin, producer or 
supplier, unless there is no sufficiently precise or 
intelligible way of describing the procurement 
requirements and provided that words such as 
"or equivalent" are included in the tender 
documentation.  
 5. There shall be no requirement or 
reference to a particular trademark or trade 
name, patent, design or type, specific 
origin, producer or supplier, unless there is 
no sufficiently precise or intellig ible way of 
describing the procurement requirements 
and provided that words such as "or 
equivalent" are included in the tender 
documentation.  
[EC – Job No. 5716]  
 
 3.(b)  Each Party shall ensure that the 
technical specifications prescribed by 
its entities do not require or refer to a 
particular trademark or tradename, 
patent, design or type, specific origin 
or producer or supplier unless there is 
no sufficiently precise or intelligible 
way of otherwise describing the 
procurement requirements and 
provided that, in such cases, words 
such as "or equivalent" are included 
in the tender documentation.  
[US – Job No. 1462]  
 
 
Comments  
 
• The words "or equivalent" seem to suggest that a government can authorize the manufacture 
of a product of a similar design as the one specified.  Would the words "or equivalent" have 
any implications under intellectual property law?  [Hong Kong, China]  
• The notion of "equivalence" is already contained in the existing paragraph 3 of Article VI and 
is aimed at ensuring that when contracting entities refer to a particular trademark in technical 
specifications because there is no other practical way of defining what is being sought, they 
should foresee the possibility of providing an opportunity to alternatives that do not infr inge 
intellectual property rights but, nevertheless, provide the same kind of solution to the  needs 
of the contracting entity.  [EC] 
• The words "or equivalent" deal with a real practical problem, are necessary and should be 
retained.  Whereas theoretically, there may be a perception that there is an intellectual 
property problem, it is not a problem in practice.  [US] 
 
 GPA/TN1994/2/Rev.8  
 
- 39 - 
 
  Article VI:4  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may be 
used in the preparation of specifications for a 
specific procurement from a firm that may have 
a commercial interest in the procurement.  6. Entities shall not seek or accept, in a 
manner which would have the effect of 
precluding competition, advice which may 
be used in the preparation of specifications 
for a specific procurement from a person 
that may have a commercial interest in the 
procurement.  
[EC – Job No. 5716]  
 
 4. Each Party shall ensure that its 
entities do not seek or accept, in a manner 
that would have the effect of precluding 
competition, advice that may be used in the 
preparation or adoption of any technical 
specification for a specific procurement 
from a person that may have a commercial 
interest in that procurement.  
[US – Job No. 1462]  
 
 
Comment s 
 
• In relation to the EC proposal, which replaces the word "firm" by "person", it would be very 
difficult and sometimes not practicall y feasible to identify a person as the person who actually 
provides advice on technical specifications.  [Hong Kong, China]  
• The location of Article VI should be changed in order to reflect the close association of the 
provisions on technical specifications with those on tender documentation.  [Job No. 5074]  
 GPA/TN1994/2/Rev.8  
 
- 40 - 
 
  ARTICLE VII – TENDERING PROCEDURES  
Article VII:1  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article A  
 
General Provisions Relating to Tendering 
Procedures  
 
A.1. The Parties shall ensure that their 
procuring entities, in conducting 
procurement subject to this Agreement, use 
tendering procedures that are in 
accordance with the provisions of 
Article  [B] (open tendering and qualified 
open tendering), Article [C] (Selective 
Tendering) or Article [E] (Limited 
Tendering).  
[US – GPA/W/113 ] 
 
Article VII  
 
Tendering Procedures  
 Article VII  
 
Methods of Procurement  
1. Each Party shall ensure that the tendering 
procedures of its entities are applied in  a 
non-discriminatory manner and are consistent 
with the provisions contained in Articles  VII 
through XVI.  
 1. Each Party shall ensure that the 
tendering procedures of its entities are 
applied in a non -discriminatory manner and 
are consistent with the provisions 
contained in Articles VII through XVI.  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• General comments by Hong Kong, China ( Nos. 1 and 2), Japan ( No. 1) and Korea ( No. 1) 
regarding the United States' proposal in GPA/W/113  relating to the definition and use  of 
tendering procedures are contained in Job No. 5595.  
• Because Article VII and all other provisions of the Agreement are subject to Article III, the 
repetition of the non -discriminatory rule in Article VII:1 does not appear to be necessary.  
Selective repe tition of this rule may in fact raise unintended interpretative questions.  
[US; Canada]  
• The new category created – qualified open tendering – is equivalent to selective tendering.  
What the US refers to as selective tendering is not possible under the GPA because it allows 
a procedure under which suppliers would not have a continuous opportunity for qualification.  
The EC is not persuaded that it is justifiable to offer the possibility of allowing closed lists of 
qualified suppliers under the GPA.  [EC] 
• The categories of "open tendering" and "qualified open tendering" correspond to the existing 
categories of open tendering and selective tendering, as currently defined in the Agreement.  
The US proposal attempts to combine disciplines of the Agreement relati ng to procedural 
transparency and apply them in the same way to procedures that are currently defined as 
open and selective tendering since there does not appear to be very substantial differences in 
the existing Agreement as between the procedure for open  and selective tendering.  Further, 
the distinction between open and selective tendering in the Agreement is not particularly clear 
since in almost every case, including open tendering, there is some form of qualification 
required.  The US proposal adds anot her category called "selective tendering" which is not GPA/TN1994/2/Rev.8  
 
- 41 - 
 
  currently allowed for under the GPA because it permits suppliers to have a continuous 
opportunity to apply for qualification.  That type of procedure is used frequently by non -parties.  
It is possible to  consider disciplines that would apply to that type of procedure that would 
ensure that the objectives of the Agreement are achieved.  The US proposal attempts to 
establish basic disciplines that apply to a range of different types of procedure.  [US] 
AGREE MENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 A.2. The Parties shall ensure that their 
procuring entities use open tendering or 
qualified open tendering procedures to 
conduct procurement subject to this 
Agreement, except:  
 
 (a) where selective tendering 
procedures are appropriate 
because most potential suppliers 
of the goods or services being 
procured may have difficulty 
meeting government requirements 
which are unusual or more 
demanding than the requirements 
of typical private sector buyers, 
and the efficient conduct of the 
procurement requires that 
competition be limited to a closed 
list of suppliers whose 
qualifications have been 
established in advance;  or 
 
 (b) in the specific circumstances 
identified in Article [E] of this 
Agreement for the use of limited 
tendering.  
[US – GPA/W/113 ] 
 
 
Comment s 
 
• A comment by Hong Kong, China regarding A.2(a) of the United States' proposal ( No. 11) and 
the response by the United States are contained in Job No. 5595.  
• A question by Korea ( No. 3) on the nature of "difficulty" referred to in subparagraph (a) above 
and the response of the United States are contained in Job No. 5595.  
Comment  
 
• The provi sions on tendering procedures should be reviewed to accommodate the use of 
two-stage tendering and electronic catalogues.  [Job No. 5074]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 42 - 
 
  Article VII:2  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall not provide to any supplier 
information with regard to a specific 
procurement in a manner which would have the 
effect of precluding competition.  
 2. Entities shall not provide to any 
supplier information with regard to a 
specific procurement in a manner which 
would have the effect of negatively 
affecting competition.  
[Singapore – Job No. 3772]  
 
 General Provisions for the Dissemination 
of Information Relating to Specific  
Tendering Procedures  
 
 6. Procuring entities shall not provide to 
any supplier information with regard to a 
specific procurement in a manner which 
would have the effect of precluding 
competition.  
[US – GPA/W/113 ] 
 
 
Comment s 
 
• The reference to "negatively affecting competition" in paragraph 2 of the Singaporean proposal 
is a useful concept.  [EC] 
 
• Should information with regard to a specific procurement be provided to all suppliers 
participating in a tender or only to those suppliers who have reached a certain stage in the 
procurement process?  [EC] 
 
 GPA/TN1994/2/Rev.8  
 
- 43 - 
 
  Article VII:3  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. For the purposes of this Agreement:  
 3. For the purposes of this Agreement:  
(a) Open tendering procedures are 
those procedures under which all 
interested suppliers may submit a 
tender.  
 (a) Open tenders are those which 
are posted in a medium which is 
[in the public domain] [readily 
available to both local and 
foreign suppliers], and which all 
interested suppliers may submit 
a tender.  
[Singapore – Job No. 3772]  
 
 Definitions  
 
B.1. For the purposes of this Agreement:  
 
(a) "open tendering" procedures 
are those procedures in which 
the procuring entity permits all 
interested suppliers to 
participate in a procurement 
competition;  and 
 
(b) "qualified open tendering" 
procedures are those 
procedures in which the 
procuring entity:  
 
(1) requires each supplier to 
be qualified before such 
supplier may participate in 
the tendering process;  
and 
 
(2) permits interested 
suppliers to apply for 
qualific ation while the 
tendering process is under 
way.  
[US – GPA/W/113 ] 
 
 
Comments  
• The phrase "in the public domain" in the proposal by Singapore is not necessary.  [Korea]  
 
• Questions and comments by the European Community ( Nos. 2 and 3);  Hong Kong, China 
(Nos.  18-19); and Japan ( No. 3) regarding qualified open tendering and the difference 
between this procedure and selective tendering procedure and the responses by the United 
States are contained in document Job No. 5595.  Switzerland also made a similar comment on 
this point.  
 
• How sho uld the term "qualified" be understood?  [Switzerland]  
 
• Qualification process could be simple or complex covering a range of procurement situations.  
[US] 
 GPA/TN1994/2/Rev.8  
 
- 44 - 
 
  • A comment by Hong Kong, China regarding the nomenclature used in the United States' 
proposal for diffe rent procedures ( No. 10) and the response by the United States are contained 
in document  Job No. 5595.  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Selective tendering procedures are 
those procedures under which, 
consistent with paragraph 3 of 
Article  X and other relevant 
provisions of this Agreement, those 
suppliers invited to do so by the 
entity may submit a tender.  
 (b) Selective tenders are those 
which, consistent with 
paragraph  3 of Article X and 
other relevan t provisions of this 
Agreement, selected suppliers 
are invited to do so by the 
entity, and the information on 
the tender is not posted in a 
medium which is [in the public 
domain] [readily available to 
both local and foreign 
suppliers].  
[Singapore – Job No. 3772]  
 
 
Comment  
• It may not be appropriate to define the procedure in terms of the medium through which 
information on selective tendering opportunities is provided.  In most cases, notices of 
selective tendering are published in the same way as for open tendering procedures.  For 
transparency purposes, requirements for publication of notices of invitation to tender should 
also apply to selective tendering procedures.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 45 - 
 
  Article VII  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article C  
 
Procedures for Selective Tendering  
 
 1. For the purposes of this Agreement, 
"selective tendering" procedures are those 
procedures in which a procuring entity:  
 
(a) requires each supplier to be 
included on a closed list of 
qualified suppliers before such 
supplier may participate in the 
tendering process;  and 
 
(b) does not provide an opportunity 
for interested suppliers to apply 
for inclusion on the relevant 
closed list of qualified suppliers 
while the tenderin g process is 
under way.  
[US – GPA/W/113 ] 
 
 
Comments  
• A question by the European Community ( No. 4) regarding the provision on "closed list" and 
its relationship to GPA Article VIII:(a) and (e) and the response by the United States are 
contained in document Job No. 5595.  
 
• Comments and questions by Hong Kong, China ( No. 26) and Japan ( No. 5) regarding a new 
definition of selective tendering in the above proposal and the United States' responses are 
contained in Job No. 5595.  
 
• Selective tendering procedures are used frequently by non -parties.  GPA/TN1994/2/Rev.8  
 
- 46 - 
 
  Article VII  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) Limited tendering procedures are 
those procedures where the entity 
contacts suppliers individually, only 
under the conditions specified in 
Article  XV. 
 (c) Limited tenders are those where 
the entity contacts suppliers 
individually, only under the 
conditions specified in 
Article  XV. 
[Singapore – Job No. 3772]  
 
 Article E(1)  
 
Definition  
 
 1. For the purposes of this Agreement, 
"limited tendering procedures" are 
procedures in which a procuring entity 
invites tenders only from a supplier or 
suppliers that the entity identifies through 
an internal, non -competitive selection 
process.  
[US – GPA/W/113 ] 
 
Comment  
 
• A comment by Hong Kong, China ( No. 30) regarding the above proposal and the United States' 
response are contained in Job No. 5595.  
  GPA/TN1994/2/Rev.8  
 
- 47 - 
 
  ARTICLE VIII – QUALIFICATION OF SUPPLIERS  
Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Article VIII  
 
Qualification of Suppliers  
 Article VIII  
 
Qualification and Pre -qualification of 
Suppliers  
 In the process of qualifying suppliers, 
entities shall not discriminate among suppliers of 
other Parties or between domestic suppliers and 
suppliers of other Parties.  Qualification 
procedures shall be consistent with the 
following:  
 1. Entities maintaining permanent lists 
of qualified suppliers shall not discriminate 
among suppliers of other Parties or 
between domestic suppliers and suppliers 
of other Parties.  Qualification procedures 
shall be consistent with the following:  
(a) any conditions for participation in 
tendering procedures shall be 
published in adequate time to 
enable interested suppliers to 
initiate and, to the extent that it is 
compatible with efficient operation 
of the procurement process, 
complete the qualification 
procedures;  
 (a) any supplier may apply for 
qualification at any ti me; and all 
qualified suppliers so 
requesting are included in the 
lists within a reasonably short 
time;  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• Support the approach in the above proposal.  [US; EC] 
 
• Clarification of the phrase "reasonably short time" is required.  [Hong Kong, China]  
• To what extent should warranties be introduced into the system to avoid the closing of 
qualification systems to newcomers?  This could be a critical point in adapting the GPA to new 
electronic procurement methods.  How should the  new means offered by electronic systems to 
increase opportunities and to increase transparency be taken into account?  [EC] 
 
 GPA/TN1994/2/Rev.8  
 
- 48 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Each Party shall ensure that any 
conditions for participation in a tendering 
process used by its procuring entities are 
limited to those which are essential to 
ensure a potential supplier's ability to fulfil 
the requirements and technical 
specifications of the contra ct in question.  
[US – Job No. 6048]  
 
(b) any conditions for participation in 
tendering procedures shall be 
limited to those which are essential 
to ensure the firm's capability to 
fulfil the contract in question.  
 (b) if registration as a permanent 
qualified supplier is a 
pre-requisite for participation in 
an intended procurement, and a 
supplier not yet qualified 
requests to participate in the 
intended procurement, the 
[entity shall promptly start 
procedures for qualification] 
[supplier sha ll not be denied the 
opportunity to participate 
simply on the basis that the 
supplier is not on the entity's 
permanent list of qualified 
suppliers];  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• With respect to Article VIII:(b) of the Agreement, ways should be f ound to reduce 
administrative burdens on suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  [Korea]  
 
• It is preferable to separate the rules regarding permanent lists of qualified supp liers and those 
regarding qualification for an individual procurement.  This approach is reflected in 
paragraphs  1 to 3 of the Singaporean proposal.  [Hong Kong, China]  
• Is an overall reorganisation of this provision as proposed by the US necessary?  It is dif ficult 
to differentiate between the new proposals and what is already contained in the Agreement.  
[EC] 
 GPA/TN1994/2/Rev.8  
 
- 49 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Any conditions for participation 
required from suppliers, including 
financial guarantees, technical 
qualifications and information 
necessary for establishing the 
financial, commercial and technical 
capacity of suppliers, as well as the 
verification of qualifications, shall b e 
no less favourable to suppliers of 
other Parties than to domestic 
suppliers and shall not discriminate 
among suppliers of other Parties.  
 
 The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's  global business activity as 
well as of its activity in the territory 
of the procuring entity, taking due 
account of the legal relationship 
between the supply organizations;  
 (a) Each Party shall ensure that its 
procuring entities evaluate he 
financial, commercial and 
technical capabilities of a 
supplier on the basis of that 
supplier's global business 
activities, and do not impose the 
condition that, in order for a 
supplier to participate in a 
procurement process, the 
supplier has previously be en 
awarded one or more contracts 
by an entity of that Party of that 
the supplier has prior work 
experience in the territory of 
that Party.  
[US – Job No. 6048]  
 GPA/TN1994/2/Rev.8  
 
- 50 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(c) the process of, and the time 
required for, qualifying suppliers 
shall not be used in order to keep 
suppliers of other Parties off a 
suppliers' list or from being 
considered for a particular intended 
procurement.  
  
 Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet 
the conditions for participation in a 
particular intended procurement.  
 2. Procuring entities shall recognize as 
qualified suppliers such domesti c suppliers 
or suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  Entities shall base 
their qualification decisions solely on the 
conditions for participation that have been 
specified in advance in no tices or tender 
documentation.  
[US – Job No. 6048]  
 
 Suppliers requesting to participate 
in a particular intended 
procurement who may not yet be 
qualified shall also be considered, 
provided there is sufficient time to 
complete the qualification 
procedure ; 
 3. When a supplier that is not yet 
qualified requests to participate in a 
qualified open tendering process, the 
procuring entity shall promptly start the 
qualification procedure.  The entity shall 
consider such supplier for the relevant 
procurement, prov ided there is sufficient 
time to complete the qualification 
procedure.  
[US – Job No. 6048]  
 
 4. When, after publication of a notice of 
the opportunity to apply for inclusion on a 
closed list of suppliers, a supplier that is not 
yet qualified requests to be included on that 
list, the procuring entity shall promptly 
start the qualification procedure.  The entity 
shall consider such supplier for subsequent 
procurements open to suppliers on that list, 
provided there is sufficient time to 
complete t he qualification procedure.  
[US – Job No. 6048]  
 
 
Comments  
 
• Do Parties have the same understanding of what is meant by a "permanent list"?  [Singapore]  
• Who is expected to take the initiative to respond to a tender?  Is the tender an open invitation 
and inte rested suppliers take the initiative as to whether or not to respond to a tender?  
Alternatively, does the procuring entity make the decision to invite particular suppliers and 
not others?  [Singapore]  
With respect to the new US proposal on Article VIII: 
 
• Article VIII currently requires that a qualification process should be open, including cases when 
a permanent list of suppliers is created under Article IX.  There should be an opportunity for GPA/TN1994/2/Rev.8  
 
- 51 - 
 
  suppliers at all times to request qualification and if there is sufficient time during the tendering 
process, to qualify and participate in the procurement process.  That principle should continue 
to apply in cases of open and selective tendering as currently defined in the Agreement.  
Parag raph 4 of the US proposal provides that if closed list of pre -qualified suppliers are used, 
that principle will not apply.  [US] 
 
• Careful examination of the US proposal to create a fourth type of procedure – qualified open 
tendering – is needed, since it ap pears to correspond with what is currently referred to as 
selective tendering under the GPA.  This means that what is referred to as "selective tendering" 
under the US proposal is not currently possible under the GPA.  [EC] 
 
• Is it practically possible to qua lify new suppliers while the tendering process is under way?  
Suppliers who fail to abide by time -limits would have another opportunity to qualify, which 
seems unfair.  If all suppliers have equal opportunity to participate, the practicality of including 
new suppliers in an ongoing qualification would be a secondary issue.  There would be a rolling 
deadline so that suppliers can qualify at any time.  [Singapore]  
 
• Is the distinguishing feature between the two types of qualification procedures proposed by 
the US - qualified open tendering and qualification of suppliers for closed lists – that, in the 
case of qualified open tendering, the qualification deadline is made known?  [Singapore]  
 
• If the US proposal were followed, selective tendering would be considered ope n tendering and 
would, therefore, receive favourable treatment.  The key point justifying giving that treatment 
to selective tendering is the fact of having the theoretical possibility of qualifying while the 
tendering process is ongoing.  Unless there is a very simple qualification system, in most cases, 
it will be impossible for a supplier to first qualify and secondly, to submit a tender within the 
given deadlines.  In those circumstances, is it still appropriate to switch the emphasis in the 
way proposed b y the US?  [EC] 
 
• More information is required in relation to the kind of situations that would be covered by the 
new category of closed lists of qualified suppliers to determine whether offering this possibility 
under the GPA is justifiable.  [EC] 
 
• At some p oint in a qualification process for a particular procurement, an entity may establish 
a time -limit beyond which it will no longer accept applications.  Both under the GPA and the 
US proposal, there should be an opportunity for interested supplies who are no t qualified to 
apply for qualification during the procurement process.  However, at some point in time, the 
entity might state that it is no longer practical to receive applications.  [US] 
 
• The selective tendering method covers two types of procedures.  One t ype is for a specific 
procurement such as construction of highways for which interested suppliers submit 
qualification documents within the time -limit set out in the qualification documents.  If the 
qualification documents cannot be submitted within the tim e-limit or the document submitted 
is not in conformity with the tender documentation, the qualification application would be 
rejected.  The other type is the establishment of permanent lists of qualified suppliers, which 
allows suppliers to apply for qualification at any time.  Any modification to Article VIII should 
take into account the difference between these two types of methods of selective tendering.  
[Chinese  Taipei]  
 
• Conceptually, there are at least two different types of selective tendering met hods envisaged 
under the GPA.  However, rather than having different procedures to address the various types 
of methods, it is preferable to have one set of provisions that relates to all types and that 
ensure that the objectives of the Agreement are achiev ed. [US] 
 
• What are the linkages between qualified open tendering and the present Article IX:3 which 
covers planned procurement or notice for qualification systems as an invitation to participate 
in a tender?  [Switzerland]  
• The proposal is not intended to pr eclude the use of planned procurement notices.  The US 
proposal attempts to introduce principles that apply to all procedures in a way that achieves 
the objectives of the existing Article IX.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 52 - 
 
  • The key factor in making the link between the four categories of tendering procedures referred 
to in the US proposal could be the notice of planned procurement.  If qualification systems are 
to be made more open and transparent, such a notice could play an important role.  [EC] 
 
• The use of closed lists is un likely to occur very often.  Elaboration is required in relation to their 
use and the relationship with what is currently at entities' disposal in relation to, for example, 
utilities.  [Switzerland]  
• The proposed addition of a new category called "qualified o pen tendering" might not work in 
practice.  [Japan]  
 
 GPA/TN1994/2/Rev.8  
 
- 53 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) any supplier having requested 
to become a qualified supplier 
shall be advised by the entities 
concerned of the decision in this 
regard.  Qualified suppliers 
included on permanent lists by 
entities shall also be notified of 
the termination of any such lists 
or of their removal from them;  
[Singapore – Job No. 3772]  
 
(d) entities maintaining permanent lists 
of qualified suppliers shall ensure 
that suppliers may apply for 
qualification at any time;  and that 
all qualified suppliers so requesting 
are included in the lists within a 
reasonably short time;  
 (d) each Party shall ensure that:  
 
(i) each entity and its 
constituent parts follow a 
single qualification 
procedure, except in cases 
of duly substantiated need 
for a different procedure, 
and 
 
(ii) efforts be made to 
minimize differences in 
qualification procedures 
between ent ities;  
[Singapore – Job No. 3772]  
 
(e) if, after publication of the notice 
under paragraph 1 of Article  IX, a 
supplier not yet qualified requests to 
participate in an intended 
procurement, the entity shall 
promptly start procedures for 
qualification;  
  
(f) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of 
the decision in this regard.  
 5. A procuring entity shall promptly 
advise any supplier that requests to become 
a qualified supplier of its decisi on as to 
whether that supplier is qualified.  
[US – Job No. 6048]  
 
 Qualified suppliers included on 
permanent lists by entities shall also 
be notified of the termination of any 
such lists or of their removal from 
them;  
 6. If a procuring entity rejects a 
supplier's application to qualify or ceases to 
recognize a supplier as qualified, the entity 
shall, on request of the supplier, promptly 
provide the supplier with a written 
explanation of the reasons for its decision.  
[US – Job No. 6048]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 54 - 
 
  Comments  
 
• It would be difficult to comply with subparagraph (d)(ii) of the Singapore proposal given the 
differences in scope and nature of procurement undertaken by different entities.  [Hong Kong, 
China]  
• A question by Korea ( No. 2) regarding the absence of GPA Article VIII:(e) in the United States' 
proposal in GPA/W/113  and the United States' response are contained in Job No. 5595.  GPA/TN1994/2/Rev.8  
 
- 55 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(g) each Party shall ensure that:  
  
(i) each entity and its 
constituent parts follow a 
single qualification 
procedure, except in cases of 
duly substantiated need for a 
different procedure;  and 
  
(ii) efforts be made to minimize 
differences in qualification 
procedures between entities.  
  
(h) nothing in subparagraphs (a) 
through (g) shall preclude the 
exclusion of any supplier on grounds 
such as bankruptcy or false 
declarations, provided that such an 
action is consistent with the national 
treatment and non -discrimination 
provisions of this Agreement.  
 [1](b)  Nothing in this Article shall preclude 
the exclusion of a supplier on 
grounds such as bankruptcy or false 
declarations.  
[US – Job No. 6048]  
 (e) nothing in subparagraphs (a) 
through (d) shall preclude the 
exclusion of any supplier on 
grounds such as bankruptcy or 
false declarations, provided that 
such an action is consistent with 
the national treatment and 
non-discrimination provisions of 
this Agreement.  
[Singapore – Job No. 3772]  
 
 2. The process of, and the time required 
for, qualifying suppliers to permanent lists 
maintained by the entity shall not be used 
in order to keep suppliers of other Parties 
off a suppliers' list or from being considered 
for a particular intended procurement.  
Entities shall recognize as qualified 
suppliers such domestic suppliers or 
suppliers of other Parties who meet the 
conditions for participation in a particular 
intended procurement.  [Suppliers 
requesting to  participate in a particular 
intended procurement who may not yet be 
qualified shall also be considered, provided 
there is sufficient time to complete the 
qualification procedure.]  
[Singapore – Job No. 3772]  
 
Comment  
 
• Alternatively, paragraph 1(b) above c an be expanded to cover the point in paragraph 2 of the 
Singapore proposal.  [Singapore – Job No. 3772]  GPA/TN1994/2/Rev.8  
 
- 56 - 
 
   
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Entities wishing to pre -qualify suppliers for 
participation in an individual intended 
procurement shall in addition to the other 
provisions in this Agreement, ensure that their 
procedures are consistent with the following:  
 (a) the invitation to be considered for 
pre-qualification shall be published in 
adequate time to enable interested 
suppliers to submit proper 
documentation;  
 
 (b) [any conditions] [the criteria] for 
pre-qualification shall be limited to 
those which are essential to ensure 
the firm's capability to fulfil the 
contract in question.  Any conditions 
for participation required from 
suppliers, including financial 
guarantees, technical qualifications 
and information necessary for 
establishing the financial, commercial 
and technical capacity of suppliers, as 
well as the verification of 
qualific ations, shall be no less 
favourable to suppliers of other 
Parties than to domestic suppliers and 
shall not discriminate among 
[against] suppliers of other Parties.  
The financial, commercial and 
technical capacity of a supplier shall 
be judged on the basis both of that 
supplier's global business activity as 
well as of its activity in the territory of 
the procuring entity, taking due 
account of the legal relationship 
between the [supply organizations] 
[business units of the supplier in 
different territories].  
[Singapore – Job No. 3772]  
 
 
Comments  
 
• The reference to "other provisions in this Agreement" in subparagraph 3 of the Singaporean 
proposal should be made more specific or it should be deleted as it appears to be unnecessary.  
[Hong Kong, China]  
 
• The existing wording of Article VIII(a) is preferred to the proposed wording in 
subparagraph  3(a). [Hong Kong, China]  
 
• Subparagraph 3(b) of the proposal is, in principle, desirable, particularly in relation to SMEs, 
since it purports to reduce administrative b urdens on suppliers.  However, more details of the 
proposal are required.  [Hong Kong, China]  
 
• The last sentence of paragraph 3(b) of the Singaporean proposal should be deleted given that 
it is difficult to assess a suppliers' global business and legal relat ionship between business 
units that are located in different territories.  [Hong Kong, China]  GPA/TN1994/2/Rev.8  
 
- 57 - 
 
  ARTICLE IX – INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  
Article IX:1  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERN MENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. In accordance with paragraphs  2 and 3, 
entities shall publish an invitation to participate 
for all cases of intended procurement, except as 
otherwise provided for in Article  XV (limited 
tendering).  The notice shall be published in the 
appropriate publication listed in Appendix  II. 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provid ed 
for in Article XV (limited tendering).  The 
notice shall be published through means 
which offer the widest possible and 
non-discriminatory access to interested 
suppliers and service providers from all 
Parties to this Agreement;  these means 
shall be acces sible [free of charge [ delete 
Singapore – Job No. 5271]] through a 
single point of access.  
Each Party shall notify to the other Parties 
this single point of access.  [Entities shall 
not charge for access to invitations to 
participate [Singapore – Job No. 5271]]  
[EC – GPA/W/87 ; Singapore – Job 
No. 5271]  
 
 
Comments  
 
• The proposal aims at eliminating several undefined terms that are used in the current 
Agreement to refer to tender notices issued by different types of entities and in different types 
of circumsta nces. In effect, the proposal combines the requirements for Annex 1, 2 and 3 
entities into one set of requirements for tender notices relating to open tendering 
opportunities.  [EC] 
 
• The application of the same type of obligation to entities at all three levels could result in 
increasing the level of obligations for Annex 2 and 3 entities regarding the publication of 
invitations to tender.  [Chinese Taipei]  
 
With regard to the proposed requirement that procurement notices should be provided "free of 
charge":  
 
• This proposal raises concerns.  [Hong Kong, China ] Would there be a benefit by shifting the 
costs of publication from suppliers to taxpayers?  [Canada]  
 
• The intent of the additional wording by Singapore is to explicitly state what is provided free o f 
charge, as opposed to a blanket free of charge formulation.  The telephone line, the computer, 
the Internet Service Provider fees are not free of charge.  The current subparagraph 6(g) of 
Article  IX also refers to "the amount and terms of payment of any sum payable for the tender 
documentation".  Hence, it would be better to explicitly state what is provided free of charge.  
[Singapore – Job No. 5271]  
 
• The principle of "reasonableness" might be relevant in this respect to ensure that barriers are 
not create d through the imposition of excessive costs.  Any charge that is imposed should be 
non-discriminatory and closely linked to the actual cost of providing the information.  Fees 
charged for access to information should not be regarded as a source of revenue.  [EC; US] 
 GPA/TN1994/2/Rev.8  
 
- 58 - 
 
  With regard to single point of access:  
 
• The establishment of "a single point of access" to electronic publications of tender notices 
under the GPA, as suggested by Korea, is technically feasible.  However, it is questionable 
whether the benefits wo uld be worth the significant cost and undue burden associated with 
introducing this system for Parties with decentralized systems and for developing countries.  
[US] 
 
• Korea has a central procurement system from which all relevant information on government 
procurement can be obtained.  A single contact point does not mean that masses of information 
need to be accumulated.  Rather, that point would merely connect interested Parties to the 
right point.  [Korea]  
 
• Information should be as easily accessible as possib le provided that providing such access 
does not impose unnecessary burdens on Parties.  Having all the information available at a 
single point of access may not be practically possible and could defeat the aim of transparency 
since it could be very difficul t to filter through all the information provided at the point.  [US] 
 
• It would be ideal to have a single Internet address where all relevant information could be 
obtained.  However, this could be difficult to arrange in cases where procurement systems are 
highly decentralized.  [EC] 
 
• The term "widest possible access" has been used to avoid referring to the Internet in 
recognition of the fact that other technological advance may emerge which also promote 
transparency.  [EC] 
 
• The reference to the term "widest possible access" suggests that the publication of 
procurement notices must be published through the use of information technology.  The use 
of information technology should be optional.  [Japan;  Korea]  
 
• The intention underlying the proposed text is n ot to make the use of information technology 
mandatory.  Traditional means of publication can also be used provided that they are easily 
accessible.  The EC proposal is intended to encourage the use of information technology as far 
as is possible and to faci litate its use.  [EC] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV (limited tendering).  The 
notice shall be published in the appropriate 
publication listed in Appendix II.  Such 
appropriate publication may be electronic 
or paper.  
[Canada – Job No. 3483]  
 
 1. In accordance with paragraphs 2 and 
3, entities shall publish an invitation to 
participate for all cases of intended 
procurement, except as otherwise provided 
for in Article XV.  The notice shall be 
published in the appropriate publication or 
website listed in Appendix II.  
[Chinese Taipei – Job No. 3193]  
 
  GPA/TN1994/2/Rev.8  
 
- 59 - 
 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 B.2. Procuring entities using open 
tendering and qualified open tendering 
procedures shall publish a notice of 
intended procurement for each contract to 
be awarded.  The notice shall be published 
in the appropriate publication listed in 
Appendix II.  Such publications shall be in 
an electronic or paper media which is 
widely dissem inated and readily accessible 
to the general public.  
[US – GPA/W/113 ] 
 
 E.2. When a procuring entity uses a 
limited tendering procedure, it may choose 
not to publish or distribute a notice of 
intended procurement prior to the award of 
the procurement contract.  
[US – GPA/W/113 ] 
 
 
Comments  
• A comment by Japan ( No. 4) supporting the United States' proposal in B.2. and the response 
by the United States are contained in Job No. 5595.  
 
• A question by Hong Kong, China ( No. 21) regarding the term "widely disseminated" in the 
above proposal and the response by the United St ates are contained in Job No. 5595.  GPA/TN1994/2/Rev.8  
 
- 60 - 
 
  Article IX:2, 3, 4  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The invitation to participate may take the 
form of a notice of proposed procurement, as 
provided for in paragraph  6. 
 2. The invitation to participate may take 
the form of a notice of intended 
procurement, as provided for in 
paragraph  6. 
[Chinese Taipei – Job No. 3193]  
 
 
Comment  
 
• This paragraph should specify clearly that Annex 1 entities had an obligation to publish a 
notice containing the types of information as provided for in paragraph 6.  The present use of 
the word "may" might be interpreted to suggest otherwise . [Job No. 5074]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Entities in Annexes 2 and 3 may use a 
notice of planned procurement, as provided for 
in paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9, as an invitation to participate.  
 3. Entities may use a notice of intended 
procurement, as provided for in 
paragraph  7, or a notice regarding a 
qualification system, as provided for in 
paragraph 9 as an invitation to participate.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Entities at all levels of government should be able to use all methods of invitation to tender.  
[Job No. 5074]  
 
• The use of notices regarding qualification systems as invitations to participate should be 
clarified . [Job No. 5074]  
 
• The application of the requirements for publication of tender notices for Annex 3 entities could 
be burdensome.  [Japan]  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Entities which use a notice of planned 
procurement as an invitation to participate shall 
subsequently invite all suppliers who have 
expressed an interest to confirm their interest on 
the basis of information which shall include at 
least the information referred to in paragraph  6. 
  
 
 
 
 
 
 
  GPA/TN1994/2/Rev.8  
 
- 61 - 
 
  Article IX:5, 6  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Entities which use a notice regarding a 
qualification system as an invitation to 
participate shall provide, subject to the 
considerations referred to in paragraph 4 of 
Article  XVIII and in a timely manner, information 
which allows all those who have expressed an 
interest to have a meaningful opportunity to 
assess their interest in participating in the 
procurement.  This information  shall include the 
information contained in the notices referred to 
in paragraphs 6 and 8, to the extent such 
information is available.  Information provided to 
one interested supplier shall be provided in a 
non-discriminatory manner to the other 
interested  suppliers.  
  
6. Each notice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 B.3. Procuring entities shall include the 
following information in each notice of 
intended procurement:  
 (a) the nature and quantity, 
including any options for further 
procurement and, if possible, an 
estimate of the timing when such 
options may be exercised;  in the 
case of recurring contracts the 
nature and quantity and, if 
possible, an estimate of the 
timing of the subsequent  tender 
notices for the products or 
services to be procured;  
  (a) a description of the intended 
procurement, including the 
nature and quantity of the 
goods or services to be 
procured;  
 (b) whether the procedure is open or 
selective or will involve 
negotiation;  
  (c) the procurement method that 
will be used and whether it 
will involve negotiations;  
[United States – GPA/W/113 ] 
 
 (c) any date for starting delivery or 
completion of delivery of goods 
or services;   
 
  GPA/TN1994/2/Rev.8  
 
- 62 - 
 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) the address and final date for 
submitting an application to be 
invited to tender or for qualifying 
for the suppliers' lists, or for 
receiving tenders, as well as the 
language or languages in which 
they must be submitted;  
  (d) the time -limits set for the 
submission of tenders and, if 
qualified open tendering 
procedures are used, the 
time-limits for the 
submission of applications to 
qualify for participation in 
the intended procurement;  
 
 (e) the address of the entity 
awarding the contract and 
providing any information 
necessary for obtaining 
specifications and other 
documents;  
  (b) the name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain 
all relevant documents 
relating to the contract;  
 (f) any economic and technical 
requirements, financial 
guarantees and information 
required from suppliers;  
  
 (g) the amount and terms of 
payme nt of any sum payable for 
the tender documentation;  and 
  (e) the amount and terms of 
payment of any sum payable 
for the tender 
documentation;  
 
  (f) an indication that the 
procurement is covered by 
the Agreement;  
[US – GPA/W/113 ] 
 
 (h) whether the entity is inviting 
offers for purchase, lease, rental 
or hire purchase, or more than 
one of these methods.  
  
 
Comments  
 
• Article IX:6 should be modified to require procuring entities to include the means by which 
bids may be submitted/the means of communication to be used (e.g. mail, electronic means, 
telex, telegram or facsimile) in tender notices.  [Canada, Job No.3481]  
 
• A question by the European Community ( No. 9) regarding the absence of a reference to 
economic and technica l requirements, financial guarantees and information required from 
suppliers in Article IX:6(f) in the United States' proposal and the response by the United States 
are contained in Job No. 5595.  
 
• A comment by Hong Kong, China ( No. 20) regarding the absenc e of a language requirement 
in the United States' proposal and the response by the United States are contained in 
Job No. 5595.  
 
• A comment by Hong Kong, China ( No. 22) regarding point (d) in the United States' proposal 
and the response by the United States  are contained in Job No. 5595.  
 GPA/TN1994/2/Rev.8  
 
- 63 - 
 
  • A comment by Korea ( No. 4) regarding the absence of certain information requirements in 
GPA Article IX:6(a), (c), (f) and (h) in the United States' proposal and the response of the 
United States are contained in Job No. 5595. 
 GPA/TN1994/2/Rev.8  
 
- 64 - 
 
  Article IX:7, 8  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Each notice of planned procurement 
referred to in paragraph 3 shall contain as much 
of the information referred to in paragraph  6 as 
is available.  It shall in any case include the 
information referred to in paragraph 8 and:  
  
 (a) a statement that interested 
suppliers should express their 
interest in the procurement to 
the entity;  
  
 (b) a contact point with the entity 
from which further information 
may be obtained.  
  
8. For each case of intended procurement, 
the entity shall publish a summary notice in one 
of the official languages of the WTO.  The notice 
shall contain at least the following information:  
 8. For each case of intended 
procurement, the entity shall publish a 
summary notice in one of the official 
languages of the WTO.  The notice shall 
contain at least the following information:  
 
 (a) the subject matter of the 
contract;  
  (a) the subject -matter of the 
contract, including the 
relevant CPV code;  
 
 (b) the time -limits set for the 
submission of tenders or an 
application to be invited to 
tender ; and 
  (b) the time -limits set for the 
submission of tenders or an 
application to be invited to 
tender;  and 
 
 (c) the addresses from which 
documents relating to the 
contracts may be requested.  
  (c) the addresses from which 
documents relating to the 
contracts may be requested.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• The provisions of Article IX:8 should follow the provisions of Article XI:1 on publication of an 
invitation to participate.  [Job No.5074]  
 
• A question by the European Community ( No. 8) regarding the absence of a provision on the 
publication of a summary notice in the United States' proposal and the response by the United 
States are contained in Job No. 5595.  
 
With regard to the reference to the relevant CPV code:  
 
• Reference to a natio nal classification code should suffice as long as it is transparent.  There 
should be no requirements in the Agreement regarding the use of CPV codes.  [US] 
 
• The reference to CPV code should be deleted.  [Singapore;  US] Many projects contain a mixture 
of CPV codes.  In some projects, CPV code may not be available or applicable.  Alignment to 
CPV codes would impose an unnecessary administrative burden and may not make much 
difference to the suppliers/tenderers.  [US; Singapor e] 
 GPA/TN1994/2/Rev.8  
 
- 65 - 
 
  • Alternatively, the words "if applicable" should be added at the end of subparagraph 8(a).  
[Singapore – Job No. 5271]  
 
• A variety of classification systems are used by Parties for various purposes.  The practicality of 
establishing a common classification  system applicable among the GPA Parties for all purposes 
is questionable.  [Canada]  
 
• While the establishment of a common classification system might be necessary, further 
consideration of the impact on existing systems is required.  [Singapore]  
 
• The aim und erlying the proposal is to come up with a system that is as transparent and 
efficient as possible.  This cannot be achieved unless there is a common classification system.  
A common classification system will help suppliers to understand what a procuring ent ity 
wishes to purchase and will also facilitate the collection of accurate statistical data.  [EC] 
 
• The CPV code is more comprehensive than the Harmonized System of classification of goods.  
It covers the whole gamut of government purchases of goods and services.  [EC in reply to 
clarification sought by Switzerland]  
 GPA/TN1994/2/Rev.8  
 
- 66 - 
 
  Article IX:9  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
9. In the case of selective tendering 
procedures, entities maintaining permanent lists 
of qualified suppliers shall publish annually in one 
of the publications listed in Appendix  III a notice 
of the following:  
 Article C  
4. For as long as a procuring entity 
maintains a closed list of qualified  
suppliers, such entity shall publish a notice 
of the opportunity for interested suppliers 
to apply for inclusion on that list, in 
accordance with the requirements of 
paragraph 3 above, at least once each year.  
 
 3. At least 60 days before establishing a 
closed list of qualified suppliers for the 
purposes of conducting a selective 
tendering procedure, procuring entities 
shall publish, in one of the publications 
listed in Appendix II, a notice of the 
opportunity for interested suppliers to 
apply for inclusi on in that list.  Such notice 
shall contain the following information:  
 
 (a) the enumeration of the lists 
maintained, including their 
headings, in relation to the 
products or services or 
categories of products or 
services to be procured through 
the lists; 
  
 (b) the conditions to be fulfilled by 
suppliers with a view to their 
inscription on those lists and the 
methods according to which 
each of those conditions will be 
verified by the entity concerned;  
and 
  (b) the conditions to be fulfilled 
by suppliers in order to be 
included on that list;  
 
 (c) the period of validity of the lists, 
and the formalities for their 
renewal.   (c) the period of validity of the 
list; and 
 
  (b) provide additional 
information in a timely 
manner which allows all 
those who have expressed an 
interest to have a meaningful 
opportunity to assess their 
interest in participating in 
the procurement.  This 
information shall include the 
information contained in the 
notices referred to in 
paragraph 2, to the extent 
available.  
[United States – GPA/W /113 ] 
 
 
 
  GPA/TN1994/2/Rev.8  
 
- 67 - 
 
  Comments  
 
• A comment by Hong Kong, China ( No. 27) regarding the above proposal and the United States' 
response are contained in Job No. 5595.  A comment by Japan ( No. 7) regarding 
paragraph  C.3. of the above proposal and the United States' response are contained in Job 
No. 5595.  
 
• A comment by Korea ( No. 5) regarding the absence of GPA Article IX:9(a) and the United 
States' response are contained in Job No. 5595.  
 
• A question by the European Community ( No. 7) regarding paragraphs C.2. to 5 of the United 
States' proposal and their relationship to GPA Article IX:9 and the response by the United 
States are contained in Job No. 5595.  GPA/TN1994/2/Rev.8  
 
- 68 - 
 
  Article IX:10  
 
Invitation to Participate Regarding Intended Procurement  
 
AGRE EMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
When such a notice is used as an invitation to 
participate in accordance with paragraph 3, the 
notice shall, in addition, include the following 
information:  
  
 (d) the nature of the products or 
services concerned;  
  (a) a description, in as much 
detail as is available, of the 
goods or services to be 
procured from suppliers 
included on that list;  
 
 (e) a statement that the notice 
constitutes an invitation to 
participate.  
  (d) a statement that the notice 
constitutes a notice of the 
opportunity to apply for 
qualification to be included 
on the list.  
[US – GPA/W/113 ] 
 
However, when the duration of the qualification 
system is three years or less, and if the duration 
of the system is made clear in the notice and it 
is also made clear that further notices will not be 
published, it shall be sufficient to publish the 
notice once only, at the beginning of the system.  
Such a system shall not be used in a manner 
which circumvents the provisions o f this 
Agreement.  
  
10. If, after publication of an invitation to 
participate in any case of intended procurement, 
but before the time set for opening or receipt of 
tenders as specified in the notices or the tender 
documentation, it becomes necessary to a mend 
or re-issue the notice, the amendment or the 
re-issued notice shall be given the same 
circulation as the original documents upon which 
the amendment is based.  Any significant 
information given to one supplier with respect to 
a particular intended proc urement shall be given 
simultaneously to all other suppliers concerned 
in adequate time to permit the suppliers to 
consider such information and to respond to it.  
 Article A  
7. If it becomes necessary to amend 
information provided to suppliers during 
the procurement process, procuring 
entities shall provide the amended 
information:  
 
 (a) to all of the suppliers that are 
participating at the time the 
information is amended;  and 
 
 (b) in adequate time to allow 
such suppliers to modify and 
resubmit their initial tenders, 
as appropriate.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• Questions by the European Community ( No. 6) and Hong Kong, China ( Nos. 15-17) regarding 
A.7. of the United States' proposal and its relationship to GPA Article IX:10 and the responses 
by the United States are contained in Job No. 5595.  
 
• Article A.7(a) and (b) of the US proposal suggest that procuring entities need to provide 
amended information to all participating suppliers.  In cases of procurement conducted over 
the Internet, the procuring entity will not know which suppliers download or view the tender 
documentation and, in many instances, many procuring entities wi ll publish the amendment GPA/TN1994/2/Rev.8  
 
- 69 - 
 
  in the same medium.  The onus should be on the supplier to look at amended information.  
Perhaps an additional paragraph should be added stating that making the amended 
information publicly available is sufficient.  [Singapore]  
 
• What would be the position under the US proposal when, at some point in the process when 
only a few potential suppliers remain, there is a change in the published conditions, some of 
which could be substantial and could affect those suppliers that have already been 
disqualified?  [EC] 
 
• It is important to consider what the situation would be if there is a two -stage competition and 
a change in information occurs that affects the criteria on which the initial competition was 
based.  In cases where information is chan ged during the second stage of the process, perhaps 
it would not be reasonable or necessary to share it or disseminate it to all the suppliers that 
initially expressed an interest in the procurement.  [US] 
 
  GPA/TN1994/2/Rev.8  
 
- 70 - 
 
  Article IX:11  
 
Invitation to Participate Regardi ng Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
11. Entities shall make clear, in the notices 
referred to in this Article or in the publication in 
which the notices appear, that the procurement 
is covered by the Agreement.  
 Article C  
5. Procuring entities maintaining such 
closed lists shall, on request, provide 
additional information in a timely manner 
which allows all suppliers who have 
expressed an interest to have a meaningful 
opportunity to assess their in terest and, if 
they choose, apply for inclusion on a closed 
list of qualified suppliers.  This information 
shall include the information contained in 
the notices referred to in Article B:3 of this 
Agreement to the extent available.  
[US – GPA/W/113 ] 
 
 GPA/TN1994/2/Rev.8  
 
- 71 - 
 
  ARTICLE X – SELECTION PROCEDURES  
Article X:1, 2, 3  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. To ensure optimum effective international 
competition under selective tendering 
procedures, entities shall, for each intended 
procurement, invite tenders from the maximum 
number of domestic suppliers and suppliers of 
other Parties, consistent with the efficient 
operation of the procurement system.  They shall 
select the suppliers to participate in the 
procedure in a fair and non -discriminatory 
manner.  
  
2. Entities maintaining permanent lists of 
qualified suppliers may select suppliers to be 
invited to tender from among those listed.  Any 
selection shall allow for equitable opportunities 
for suppliers on th e lists.  
 Article C  
 
Notification of Procurement Opportunities 
Under Selective Tendering Procedures  
 
2. Procuring entities using selective 
tendering procedures shall distribute a 
notice of each intended procurement to 
each of the suppliers on the entity's closed 
list of qualified suppliers for that 
procurement.  Such entities may choose, 
when they deem it appropriate, not to 
publish such notice in one of the 
publications listed in Appendix II  
[US – GPA/W/113 ] 
 
3. Suppliers requesting to participate in a 
particular intended procurement shall be 
permitted to submit a tender and be considered, 
provided, in the case of those not yet qualified, 
there is sufficient time to comple te the 
qualification procedure under Articles  VIII and 
IX. The number of additional suppliers permitted 
to participate shall be limited only by the efficient 
operation of the procurement system.  
 Article A (repeated)  
 
1.(b)  "qualified open tendering" 
proce dures are those procedures in 
which the procuring entity:  
 … 
 
 (2) permits interested suppliers 
to apply for qualification 
while the tendering process 
is under way.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• For the purposes of simplifying the Agreement, paragraphs 1 and 2 should be deleted.  [US in 
response to Switzerland]  
 
• Paragraph C.2. regarding notices of "intended procurement" covers notices of "proposed 
procurement" and notices "regardi ng qualification systems".  [US in response to Switzerland]  
 
• A question by the European Community ( No. 5) regarding C.2. of the United States' proposal 
and its relationship to GPA Article IX:1 and the response by the United States are contained 
in Job  No. 5595. GPA/TN1994/2/Rev.8  
 
- 72 - 
 
  • The provision regarding the limitation of additional tenderers permitted to participate is not 
essential.  As part of their normal decision -making process, entities have the ability to take 
that type of decision.  [US] 
 
• A comment by Japan ( No. 6) regarding paragraph C.2. of the United States' proposal and the 
responses are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.8  
 
- 73 - 
 
  Article X:4  
 
Selection Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Requests to participate in selective 
tendering procedures may be submitted by telex, 
telegram or facsimile.  
 4. Requests to participate in selective 
tendering procedures may be submitted by 
telex, telegram or facsimile, electronic 
means, including email.  [Canada – Job 
No. 3481]  
 
4. Requests to participate in selective 
tendering procedures may be submitted in 
writing including electronic means . The 
term "writing" as used in this Agreement is 
to be understood to include any worded or 
numbered expression which can be read, 
reproduced, a nd later communicated, and 
includes electronically transmitted and 
stored information . "Electronic means" 
means using electronic equipment for the 
processing (including digital compression) 
and storage of data, and entirely using 
transmission, conveyance a nd reception by 
wire, by radio, by optical means or by other 
electromagnetic means.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
• In Article X, a provision stating that the means of communication to be used can be specified 
by the procuring entity (e.g. mail, electronic means, te lex, telegram or facsimile) should also 
be added.  [Canada – Job No. 3481]  
 
• Should the above definition of the term "writing" apply across -the-board in the Agreement or 
only to the provisions on selective tendering?  [US] 
 GPA/TN1994/2/Rev.8  
 
- 74 - 
 
  ARTICLE XI – TIME -LIMITS FOR TENDERING AND DELIVERY  
Article XI:1  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
General  General  
1. (a) 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 any such 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 for transmitting 
tenders by mail from foreign as 
well as domestic points.  
 1. (a) Any prescribed time -limit 
shall be adequate to allow 
suppliers of other P arties as 
well as domestic suppliers to 
prepare and submit tenders 
before the closing of the 
tendering procedures.  In 
determining any such 
time-limit, entities shall, 
consistent with their own 
reasonable needs, take into 
account such factors as the 
complex ity of the [intended] 
procurement, the extent of 
subcontracting anticipated 
and the normal time for 
transmitting tenders [by 
mail - delete [Canada]] [in 
writing] from foreign as well 
as domestic points.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 3. Except in the exceptional 
circumstances identified in Article [D:1(d)] 
and Article [E:4(g)] of this Agreement, any 
prescribed time -periods for the tendering 
process shall be adequate to allow 
participating suppliers of all Parties to this 
Agreement to prepare and submit 
responsive tenders.1 
 
1 In determining the adequacy of such 
time-periods, entities should, consistent 
with their own reasonable needs, take into 
account such factors as the complexity of 
the intended procurem ent, the extent of 
subcontracting anticipated and the normal 
time for transmitting tenders from foreign 
as well as domestic points.  
[US – GPA/W/113 ] 
 
 4. Procuring entities shall apply the 
same time -periods for all suppliers.  
[US – GPA/W/113 ] 
 
 
Comments  
• A comment by Japan regarding the footnote to paragraph A.3. of the United States' proposal 
(No. 2) and the response thereto is contained in Job No. 5595.  
 
• As one alternative, all of the deadlines identified in this Article could be removed.  [Canada – 
Job No. 3481]  GPA/TN1994/2/Rev.8  
 
- 75 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Each Party shall ensure that its 
entities shall take due account of 
publication delays when setting 
the final date f or receipt of 
tenders or of applications to be 
invited to tender.  
  (b) Each Party shall ensure that 
its entities shall take due 
account of publication delays 
when setting the final date 
for receipt of tenders or of 
applications to be invited to 
tender.  
[EC – GPA/W/87 ; Singapore Job No. 3772]  
 
 A.5. If, as a result of a need to amend 
information provided to suppliers during 
the procurement process, a procuring 
entity must extend the time -period for the 
tendering procedures, such entity shall 
permit all participating suppliers to submit 
final tenders in accordance with a common 
deadline.  
[US – GPA/W/113 ] 
 
 
Comments  
• A comment by Hong Kong, China regarding A.5. of the United States' proposal and its 
relationship to Article XVIV:4(d) ( No. 14) and the response by the United States are contained 
in Job No. 5595.  
 
• Regarding A.5 of the US proposal requiring the procuring entity to extend the time -period, is 
it intended that this requirement will only apply to changes in information that are per tinent 
to suppliers making a bid or is it intended to extend to information that has no material impact 
on suppliers submitting bids?  [Singapore]  
 
• The time -period does not need to be extended in all cases where there are changes in 
information.  However, th ere are some cases where, as a result of changes in information, it 
may be necessary to extend the time -period to allow suppliers to respond to the change in 
information and provide meaningful responses.  The US proposal attempts to maintain the 
principle t hat if an entity decides to change the initially published time -period, the change 
must be the same for all interested suppliers.  [US] GPA/TN1994/2/Rev.8  
 
- 76 - 
 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Deadlines  
 Deadlines  
2. Except in so far as provided in 
paragraph  3: 
 2. Except insofar as provided in 
paragraph 3,  
 
(a) in open procedures, the period for 
the receipt of tenders shall not be 
less than 40 days from the date of 
publication referred to in 
paragraph  1 of Article  IX; 
 (a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 40 days from 
the date of publication referred 
to in paragraph 1 of Article IX;  
[Singapore – Job No. 3772]  
 
 2. Except insofar as provided in 
paragraphs 3 and 4,  
 
(a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 30 days from 
the date of publication;  
[EC – GPA/W/87 ] 
 
 2. (a) in open procedures, the period 
for the receipt of tenders shall 
not be less than 28 days from 
the date of publication referred 
to in paragraph 1 of Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Careful consideration should be given to any reduction of the current time -limits.  [Korea]  
 
• The suppliers of products, the prices of which are subject to frequent changes, question the 
rational for the extended time -periods in the Agreement.  [Singapore]  
 
• Further discussion is required in  relation the reduction of time -limits 
when  electronic  procurement means are used.  [EC] 
 
  GPA/TN1994/2/Rev.8  
 
- 77 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Time -Periods for Suppliers' Responses to 
Notifications Under Open Tendering and 
Qualified Open Tendering Procedures  
  
B.4. Except as provided for in Article [D] of 
this Agreement:  
 
  (a) A procuring entity using open 
tendering or qualified open 
tendering procedures shall 
provide no  less than 40 
calendar days between the 
date on which a notice of 
intended procurement is 
published and the date on 
which the tendering 
procedures relating to that 
notice are closed.  
[US – GPA/W/113 ] 
 
 
Comment  
 
• A comment by Hong Kong, China ( No. 28) regarding the above proposal and the United States' 
response are contained in Job No. 5595.  
  GPA/TN1994/2/Rev.8  
 
- 78 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED M ODIFICATIONS  
 (b) in selective procedures not 
involving the use of a permanent 
list of qualified suppliers, the 
period for submitting an 
application to be invited to 
tender shall not be less than 25 
days from the date of publication 
referred to in paragraph  1 of 
Article  IX; the period for receipt 
of tenders shall in no case be less 
than 40  days from the date of 
issuance of the invitation to 
tender;  
  (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to 
be invited to tender shall not 
be less than 25  days from the 
date of publication referred 
to in paragraph  1 of 
Article  IX; the period for 
receipt of tenders shall in no 
case be less than 40 days 
from t he date of issuance of 
the invitation to tender;  
[Singapore – Job No. 3772]  
 
  (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to 
be invited to tender shall not 
be less than 15 days from the 
date of publication ; the period 
for receipt of tenders shall in 
no case be less than 30 days 
from the date of issuance of 
the invitation to tender;  
[EC – GPA/W/87 ] 
 
 
 
 GPA/TN1994/2/Rev.8  
 
- 79 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (b) in selective procedures not 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
submitting an application to 
be invited to tender shall not 
be less than 14 da ys from the 
date of publication referred to 
in paragraph  1 of Article IX;  
the period for receipt of 
tenders shall in no case be 
less than 28 days from the 
date of issuance of the 
invitation to tender;  
[Chinese Taipei – Job No. 3193]  
 
  (b) A procuring entity using 
qualified open tendering 
procedures shall provide no 
less than 25 calendar days, 
beginning on the date on 
which the notice of intended 
procurement is published, for 
interested suppliers to submit 
their applications for 
qualification.  
[US – GPA/W/113 ] 
 
 
 
Comments  
• Comments by Hong Kong, China ( No. 23-25) regarding the above proposal by the United 
States and the responses by the United States are contained in Job No. 5595.  
 
• What is the relationship between 40 days in B.4.(a) and 25 days in B.4.(b) of the United 
States' proposal in GPA/W/113 ? [Switzerland]  
 
• There could be two separate notices for invitation to tender and for application to qualify, 
providing 40 days and 25 days, re spectively.  Alternatively, notices of invitation to tender could 
indicate that potential suppliers have 25 days to apply for qualification . [US] 
 
• It is doubtful that suppliers can submit application for complex procurements within 25 days.  
[Korea;  Switzerland].  
 
 
  GPA/TN1994/2/Rev.8  
 
- 80 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) in selective procedures involving 
the use of a permanent list of 
qualified suppliers, the period for 
receipt of tenders shall not be 
less than 40 days from the date 
of the initial issuance of 
invitations to tender, whether or 
not the date of initial issuance of 
invitations to tender coincides 
with the date of the publication 
referred to in paragraph  1 of 
Article  IX. 
  (c) in selective procedures 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
receipt of tenders shall not 
be less than 40 [30] days 
from the date of the initial 
issuance of invitations to 
tender, whether or not the  
date of initial issuance of 
invitations to tender 
coincides with the date of the 
publication [referred to in 
paragraph 1 of Article IX].  
[Singapore – Job No. 3772;  EC – 
GPA/W/87 ] 
 
  (c) in selective procedures 
involving the use of a 
permanent list of qualified 
suppliers, the period for 
receipt of tenders shall not 
be less than 28 days from the 
date of the initial issuance of 
invitations to tender, 
whether or not the date of 
initial issuance of invitations 
to tender coincides with the 
date of the public ation 
referred to in paragraph 1 of 
Article IX.  
[Chinese Taipei – Job No. 3193]  
 
 Article C  
 
Time -Periods for Suppliers' Responses to 
Notifications Under Selective Tendering 
Procedures  
 
 6. Except as provided for in Article [D] of 
this Agreement, procuring entities using 
selective tendering procedures shall 
provide no less than 40 calendar days 
between the date on which a notice of 
intended procurement is distributed to 
participating suppliers and the date on 
which the tendering procedur es relating to 
that notice is closed.  
[US – GPA/W/113 ] 
 
 
Comment  
 
• Whether or not the time -periods in the situations described in D.1. are to be applied on a 
cumulative basis, they should not be shorter than 10 days.  [US]   GPA/TN1994/2/Rev.8  
 
- 81 - 
 
  Article XI:3  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The periods referred to in paragraph 2 
may be reduced in the circumstances set out 
below:  
 3. The periods referred to in paragraph 2 
may be reduced in the circumstances set 
out below:  
 
 (a) if a separate notice has been 
published 40 days and not more 
than 12 months in advance and 
the notice contains at least:  
  (a) if a separate notice has been 
published 40 days and not 
more than 12 months in 
advance and the notice 
contains at least:  
 
 (i) as much of the 
information referred to 
in paragraph 6 of 
Article  IX as is available;  
  (i) as much of the 
information referred 
to in paragraph 6 of 
Article IX as is 
available;  
 
 (ii) the information referred 
to in paragraph 8 of 
Article  IX; 
  (ii) the information 
referred to in 
paragraph 8 of 
Article  IX; 
 
 (iii) a statement that 
interested suppliers 
should express their 
interest in the 
procurement to the 
entity;  and 
  (iii) a statement that 
interested suppliers 
should express their 
interest in the 
procurement to the 
entity;  and 
 
 (iv) a contact point with the 
entity from which further 
information may be 
obtained,  
 
 the 40 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to enable 
responsive tendering, which, as 
a general rule, shall not be less 
than 24 days, but in any case not 
less than 10 days;  
  (iv) a contact point with 
the entity from which 
further information 
may be obtained, the 
40-day limit for 
receipt of tenders may 
be replaced by a 
period sufficiently 
long to enable 
responsive tendering, 
which, as a general 
rule, shall not be less 
than 24  days, but in 
any case not less than 
10 days;  
[Singapore – Job No. 3772]  
 GPA/TN1994/2/Rev.8  
 
- 82 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article D  
 
Provisions for Shorter Time -Periods in 
Open Tendering, Qualified Open Tendering 
and Selective Tendering Procedures  
 
 1. Under the following circumstances, 
procuring entities may replace the 
time-periods referred to in Articles B:4 and 
C:6 with a period which is sufficiently long 
to enable suppliers to submit responsive 
tenders, but which in no case shall be less 
than 10 calendar days from the date on 
which the notice of intended procurement 
is published:  
 
  (a) if a separate notice has been 
published at least 40 
calendar days and not more 
than 12 months in advance, 
and the notice contains:  a 
description of the 
subject -matter of the 
procurement ; the time -limits 
for the submission of tenders 
or, when appropriate, 
applications for qualification;  
and the address from which 
documents relating to the 
procurement may be 
requested;  
[US – GPA/W/113 ] 
 
 
 
 GPA/TN1994/2/Rev.8  
 
- 83 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The periods referred to in 
paragraph  2 may be reduced in the 
circumstances set out below:  
 
  (a) if a separate notice has been 
published 28 days and not 
more than 12 months in 
advance and the notice 
contains at least:  
 
  (i) as much of the 
information referred 
to in paragraph 6 of 
Article IX as is 
available;  
  (ii) the information 
referred to in 
paragraph 8 of 
Article  IX; 
 
  (iv) a contact point with 
the entity from which 
further information 
may be obtained;  
 
  the 28 -day limit for receipt of 
tenders may be replaced by a 
period sufficiently long to 
enable responsive tendering, 
which as a general  rule, shall 
not be less than 14 days, but 
in any case not less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
• Article XI:3 could be modified to provide for a minimum bid period of 10 days for procurement 
of commodities and commercial, off -the-shelf goods (and possibly other sufficiently 
well-defined categories of goods or services).  [Canada – Job No. 3481]  
 
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim to simplify and im prove the Agreement.  [Hong Kong, China]  
 
• Article XI:3 could be modified so that when electronic tendering is used, all periods referred 
to in Article  XI:2 may be reduced to a minimum of 20 days.  [Canada – Job No. 3481]  
 
• Article XI:3 could be modified so th at when electronic tendering and electronic bid receipt are 
used, second -stage periods referred to in Article XI:2(b) and (c) may be reduced to a minimum 
of 12 and 5  days respectively.  [Canada – Job No. 3481]  GPA/TN1994/2/Rev.8  
 
- 84 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature within the meaning of 
paragraph 6 of Article  IX, the 
40-day limit for recei pt of 
tenders may be reduced to not 
less than 24 days;  
  (b) in the case of the second or 
subsequent publications 
dealing with contracts of a 
recurring nature within the 
meaning of paragraph 6 of 
Article IX, the 40 -day 
[30-day [EC]] limit for 
receipt of tenders may be 
reduced to [not less than 
24 days][24 days [EC]];  
[Singapore – Job No. 3772 ; E C – 
GPA/W/87 ] 
 
  (b) in the case of the second or 
subsequent publications 
dealing with contracts of a 
recurring nature within the 
meaning of paragraph  6(a) 
of Article IX, the 28 -day limit 
for receipt of tenders may be 
reduced to not less than 
14 days;  
[Chinese Taipei – Job No. 3193]  
 
  (b) in the case of the second or 
subsequent publications 
dealing with contracts of a 
recurring nature;  
 
  (c) in the case of procurement of 
commercial goods and 
services which are sold or 
offered for sale to and 
customarily purchased and 
used by non -governmental 
buyers for non -governmental 
purposes, except that a 
procuring entity shall not 
reduce time -periods for this 
reason if the entity uses 
qualified open tendering 
procedures or selective 
tendering procedures;  and 
[US – GPA/W/113 ] 
 GPA/TN1994/2/Rev.8  
 
- 85 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) where a state of urgency duly 
substantiated by the entity 
renders impracticable the 
periods in question, the periods 
specified in paragraph  2 may be 
reduced but shall in no case be 
less than 10  days from the date 
of the publication referred to in 
paragraph  1 of Article  IX; or 
  (c) where a state of urgency duly 
substantiated by the entity 
renders impracticable the 
period s in question, the 
periods specified in 
paragraph 2 may be reduced 
but shall in no case be less 
than 10 days from the date of 
the publication referred to in 
paragraph 1 of Article IX;  or 
[Singapore – Job No. 3772]  
 
  (d) when, for duly substantiated 
reasons of extreme urgency 
brought about by events 
unforeseeable by the entity, 
the adherence to the 
time-periods referred to in 
Articles  B:4 and C:6 would 
result in serious injury to the 
entity or the relevant Party;  
however, concerns relati ng 
to the amount of funds 
available to an entity within a 
particular period of time shall 
not be considered to be a 
reason of extreme urgency 
for these purposes.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• Unlike the current provisions in the Agreement, the EC proposal does  not provide for the 
reduction of time -periods in urgent cases.  [Japan]  
 
• The proposal appears to limit the reduction of time limits only to contracts of a recurrent 
nature.  [Hong Kong, China]  
 
• Further attention must be given to the effect on the ability to  reduce time limits in cases where 
a prior notification has been made.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 86 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities listed 
in Annexes  2 and 3, be fixed by 
mutual agreement between the 
entity and the selected suppliers.  
In the absence of agreement, 
the entity may fix periods which 
shall be sufficiently long to 
enable respo nsive tendering and 
shall in any case not be less than 
10 days.  
  (d) the period referred to in 
paragraph  2(c) may, for 
procurements by entities 
listed in Annexes 2 and 3, be 
fixed by mutual agreement 
between the entity and the 
selected suppliers.  In the 
absence of agreement, the 
entity may fix periods which 
shall be sufficiently long to 
enable responsive tendering 
and shall in any case not be 
less than 10 days.  
[Singapore – Job No. 3772]  
 
  (d) the period referred to in 
paragraph  2(c) may be fixed 
by mutual agreement 
between the entity and the 
selected suppliers.  In the 
absence of agreement, the 
entity may fix periods which 
shall be sufficiently long to 
enable responsive tendering 
and shall in any case not be 
less than 10  days;  
[Chinese Taipei – Job No. 3193]  
 
  (e) in the case where the 
procuring entity procures 
off-the-shelf products or 
services, the period referred 
to in paragraph 2(c) may be 
reduced to 15  days.  
[EC – GPA/W/87 ] 
 
  (e) where the subject -matter of 
a procurement is an 
off-the-shelf product or 
service, or agricultural or 
mineral product, the period 
shall not be less than 
10 days;  
[Chinese Taipei – Job No. 3193]  
 
  (f) where an electronic tender 
documentation is available 
from a website indicated in 
the notice of paragraph  6 of 
Article IX, the period may be 
further reduced by 5  days.  
[Chinese Taipei – Job No. 3193]  
 
 GPA/TN1994/2/Rev.8  
 
- 87 - 
 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 D.2. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Articles [B], [C] and [D] of 
this Agreement in an electronic media listed 
in Appendix II, the entity may reduce the 
time-periods provided for in this Agreement 
by up to five cal endar days.  The use of this 
provision, however, shall in no case result 
in the reduction of those time -periods to 
less than 10  calendar days from the date on 
which the notice of intended procurement 
is published.  
[US – GPA/W/113 ] 
 
4. Consistent with the entity's own 
reasonable needs, any delivery date shall take 
into account such factors as the complexity of 
the intended procurement, the extent of 
subcontracting anticipated and the realistic time 
required for production, de -stocking and 
transport of goods  from the points of supply or 
for supply of services.  
 4. In cases where the procuring entity 
offers simultaneously free and direct access 
via the single point of access referred to in 
Article IX to the complete call for tenders 
including all annexes both the deadlines of 
30 and 15 days may be further reduced by 
5 days.  
[EC – GPA/W/87 ] 
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which i s [in the public domain] 
[readily available to both local and foreign 
suppliers] its overall policy on the 
time-limits for intended procurement to be 
followed by its entities.  
 
 Clause (b)  
 
 Consistent with the provisions in 
Article  XX, entities shall provide for rapid 
and immediate measures to addres s 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 
Comments  
• Comments from Hong Kong, China ( No. 29) and Japan ( No. 8) regarding proposal D.2. by the 
United States on reduced time -periods and the United States' responses are contained in 
Job No. 5595.  
 
• Even with the recent advances in electronic tendering, submission of complex tenders through 
electronic media might not always be feasible.  [US] GPA/TN1994/2/Rev.8  
 
- 88 - 
 
  ARTICLE XII – TENDER DOCUMENTATION  
Article XII:1, 2  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. If, in tendering procedures, an entity 
allows tenders to be submitted in several 
languages, one of those languages shall be one 
of the official languages of the WTO.  
  
 
Comment  
 
• This Article should contain references to the use of information technology in communications 
between the purchasing authority and tenderers.  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Tender documentation provided to 
suppliers shall contain all information necessary 
to permit them to submit responsive tenders, 
including information required to be published in 
the notice of intended procurement, except for 
paragraph 6(g ) of Article  IX, and the following:  
  
 (a) the address of the entity to 
which tenders should be sent;  
  
 (b) the address where requests for 
supplementary information 
should be sent;  
  
 (c) the language or languages in 
which tenders and tendering 
documents must be submitted;  
  
 (d) the closing date and time for 
receipt of tenders and the length 
of time during which any tender 
should be open for acceptance;  
  
 (e) the persons authorized to be 
present at the opening of 
tenders and the date, time and 
place of this opening;  
  
 GPA/TN1994/2/Rev.8  
 
- 89 - 
 
  Article XII  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (f) any economic and technical 
requirement, financial 
guarantees and information or 
documents required from 
suppliers;  
  
 (g) a complete description of the 
products or services required or 
of any requirements including 
technical specifications, 
conformity certification to be 
fulfilled, necessary plans, 
drawings and instructional 
materials;  
  
 (h) the criteria for awarding the 
contract, including any factors 
other than price that are to be 
considered in the evaluation of 
tenders and the cost elements to 
be included in evaluating tender 
prices, such as transport, 
insurance and insp ection costs, 
and in the case of products or 
services of other Parties, 
customs duties and other import 
charges, taxes and currency of 
payment;  
  
 (i) the terms of payment;  
  
 (j) any other terms or conditions;  
  
 (k) in accordance with Article XVII 
the terms and conditions, if any, 
under which tenders from 
countries not Parties to this 
Agreement, but which apply the 
procedures of that Article, will be 
entertained.  
  
 GPA/TN1994/2/Rev.8  
 
- 90 - 
 
  Article XII:3  
 
Tender Documentation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Forwarding of Tender Documentation by the 
Entities  
  
3. (a) In open procedures, entities 
shall forward the tender 
documentation at the request of 
any supplier participating in the 
procedure, and shall reply 
promptly to any reasonable 
request for explanations relating 
thereto.  
  
 (b) In selective procedures, entities 
shall forward the tender 
documentation at the request of 
any supplier requesting to 
participate, and shall reply 
promptly to any reasonable 
request for explanations relating 
thereto.  
  
 (c) Entities shall reply promptly to 
any reasonable request for 
relevant information submitted 
by a supplier participating in the 
tendering procedure, on 
condition that such information 
does not give that supplier an 
advantage over its competitors 
in the procedure for the award of 
the contract.  
  
 GPA/TN1994/2/Rev.8  
 
- 91 - 
 
  ARTICLE XIII – SUBMISSION, RECEIPT AND OPENING OF TENDERS  
AND AWARDING OF CONTRACTS  
Article XIII:1  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The submission, receipt and opening of 
tenders and awarding of contracts shall be 
consistent with the following:  1. The submission, receipt and opening 
of tenders and awarding of contracts shall 
be consistent with the following:  
 
 (a) tenders shall normally be 
submitted in writing directly or 
by mail.  If tenders by telex, 
telegram or facsimile are 
permitt ed, the tender made 
thereby must include all the 
information necessary for the 
evaluation of the tender, in 
particular the definitive price 
proposed by the tenderer and a 
statement that the tenderer 
agrees to all the terms, 
conditions and provisions of the  
invitation to tender.  The tender 
must be confirmed promptly by 
letter or by the despatch of a 
signed copy of the telex, 
telegram or facsimile.  Tenders 
presented by telephone shall not 
be permitted.  The content of the 
telex, telegram or facsimile shall 
prevail where there is a 
difference or conflict between 
that content and any 
documentation received after 
the time -limit;  and  (a) tenders shall be submitted in 
writing;  
[EC – GPA/W/87 ] 
 
 (a) tenders shall normally be 
submitted in writing.  If 
tenders by telex, telegram or 
facsimile or electronic means 
are permitted, the tender 
made thereby must include 
all the information necessary 
for the evaluation of the 
tender, in particular the 
definitive price proposed by 
the tenderer and a statement 
that the tender er agrees to 
all the terms, conditions and 
provisions of the invitation to 
tender.  Tenders presented by 
telephone shall not be 
permitted.  The content of the 
telex, telegram or facsimile 
shall prevail where there is a 
difference or conflict 
between that con tent and 
any documentation received 
after the time -limit;  and 
[Canada - Job No. 3481 – Alternative 1]  
 
  (a) tenders shall normally be 
submitted in writing, directly 
or by mail.  Tenders must 
include all the information 
necessary for the evaluation 
of the tender, however 
submitted.  A procuring entity 
may require that the tender 
be confirmed promptly by 
letter or by the despatch of a 
signed copy of the telex, 
telegram or facsimile or 
electronic document.  
[Canada - Job No. 3481 – Alternative 2]  
 
Comment  
 
• There should be flexibility to submit and receive tenders either in paper or electronic form.  
The revised provisions should allow the discontinuation of the use of paper format in 
submission of tenders.  [US]   GPA/TN1994/2/Rev.8  
 
- 92 - 
 
  Article XIII  
 
Submiss ion, Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) tenders shall normally be 
submitted in writing directly 
or by mail.  If tenders by 
telex, telegram, facsimile or 
electronic transmission are 
permitted, the tender made 
thereby must include all the 
information necessary for 
the evaluation of the tender.  
The tender must be 
confirmed promptly by letter 
or by the despatch of a 
signed copy of the telex, 
telegram, facsimil e or 
electronic transmission, if 
required.  Tenders presented 
by telephone shall not be 
permitted.  Unless otherwise 
specified in the tender 
documentation, the content 
of the telex, telegram, 
facsimile or electronic 
transmission shall prevail 
where there is a difference or 
conflict between that content 
and any documentation 
received after the time -limit;  
and 
[Chinese Taipei – Job No. 3193]  
 
Comments  
 
• In order to define the term "writing" to include electronically formatted writings, the following 
definition could be incorporated into the Agreement:  "The term 'writing' as used in this 
Agreement is to be understood to include any worded or numbered expression which can be 
read, reproduced, and later communicated, and include electronically transmitte d and stored 
information".  [US – Job No. 3842]  
 
• Parties need to agree whether electronic communications can be considered to be "in writing"?  
[Japan]  
 
• The expression "in writing" could include the use of electronic means to the extent that the 
rest of the rules of the Agreement are respected.  Paper bids should be kept as a warranty of 
transparency and equal treatment.  [EC] 
 
• There are two aspects to the phrase "in writing".  One is the physical aspect.  The meaning of 
"in writing" has changed over time.  Now th at an electronic medium has been invented, the 
reference to "writing" could mean electronic writing.  The other aspect is the legal aspect.  In 
most cases, tenders are firm undertakings to carry out a contract.  For the purposes of the 
GPA, the more important  aspect is the second aspect.  [Singapore]  
 
• A provision should be added to indicate that the means for submitting tenders may be specified 
by the procuring entity, provided the requirement to use such means shall not reduce access 
by foreign and domestic su ppliers.  [Canada – Job No. 3481]  
 GPA/TN1994/2/Rev.8  
 
- 93 - 
 
  • The proposals do not make it clear who is responsible and to what extent, for the accuracy of 
data in tender documents and ensuring the protection of confidentiality of tender information.  
There should be limits on the bur den imposed upon procuring entities as regards the protection 
of the confidentiality of data transmitted electronically.  [Japan]  
 
• What is the rationale for the elimination of the phrase "in particular the definitive 
price…invitation to tender" in the second sentence of the proposal for Article XVIII:1(a) by 
Chinese Taipei?  [Korea]  
 
• Questions and comments by the European Community ( No. 11) and Hong Kong, China 
(No. 13) regarding the elimination of GPA Article XIII:1(a) in the United States' proposal and  
the responses by the United States are contained in Job No. 5595.  
 
• Since some Parties are already using electronic procurement, a consensus is needed to the 
effect that electronic procurement procedures are not inconsistent with the basic objective of 
the GPA, that is, non -discrimination and transparency of procurement.  [Japan]  
 
• Even though the EC has put forward proposals favouring the submission of bids by electronic 
means, this does not mean that the current wording does not allow for the use of such me ans. 
[EC] 
 GPA/TN1994/2/Rev.8  
 
- 94 - 
 
  Article XIII:2  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (b) integrity of data and 
confidentiality of tenders 
must be preserved . Tenders 
shall not be opened until after 
the deadline set by the 
contracting entity for receipt 
of tenders;  
 
  (c) whatever means of 
communication or exchange 
of information chosen they 
shall not cause a 
discrimination and be 
consistent with the principles 
laid down in Article 3 hereof;  
and 
 
 (b) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of tenders 
and the awarding of the contract 
shall not be permitted to give rise 
to any discrim inatory practice.  
  (d) the opportunities that may be 
given to tenderers to correct 
unintentional errors of form 
between the opening of 
tenders and the awarding of 
the contract shall not be 
permitted to give rise to any 
discriminatory practice.  
[EC – GPA/W/87 ] 
 
 Receipt of Tenders  
 
3. When procuring entities provide 
suppliers with opportunities to correct 
unintentional errors of form between the 
opening of tenders and the awarding of the 
contract, they shall provide the same 
opportunities to all participating suppliers.  
[US – GPA/W/112 ] 
 
Receipt of Tenders  
  
2. A supplier shall not be penalized if a tender 
is received in the office designated in the tender 
documentation after the time specified because 
of delay due solely to mishandling on the part of 
the entity.  Tenders may also be considered in 
other exceptional circumstances if the 
procedures of the entity concerned so provide.  
 2. Procuring entities shall not penalize 
any supplier whose tender is received after 
the time specified for receiving te nders if 
the delay is caused solely by the entity.  
[US – GPA/W/112 ] 
 
 
 
Comment  
• Comments by Hong Kong, China ( Nos. 3 and 4) regarding the above paragraphs 2 and 3 in 
the United States' proposal and the responses by the United States are contained in Job 
No. 5595.  
  GPA/TN1994/2/Rev.8  
 
- 95 - 
 
  Article XIII:3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVER NMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Opening of Tenders  
  
3. All tenders solicited under open or 
selective procedures by entities shall be received 
and opened under procedures and conditions 
guaranteeing the regularity of the openings.  The 
receipt and opening of tenders shall also be 
consistent with the national treatment and 
non-discrimination provisions of this Agreement.  
Information on the opening of tenders shall 
remain with the entity concerned at the disposal 
of the gover nment authorities responsible for the 
entity in order that it may be used if required 
under the procedures of Articles  XVIII, XIX, 
XX and XXII.  
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impar tiality of 
the procurement process.  
[US – GPA/W/112 ] 
 
 GPA/TN1994/2/Rev.8  
 
- 96 - 
 
  Article XIII:4  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Award of Contracts  
 Awarding of Contracts  
4. (a) To be considered for award, a 
tender must, at the time of 
opening, conform to the 
essential requirements of the 
notices or tender documentation 
and be from a supplier which 
complies with the conditions for 
participation.  If an entity has 
received a tender abnormally 
lower than other tenders 
submitted, it may enquire with 
the tenderer to ensure that it can 
comply with the conditions of 
participation and be capable of 
fulfilling the terms of the 
contract.  
 1. To be considered for award, a te nder 
must, at the time of opening, conform to the 
essential requirements of the notices or 
tender documentation and be from a 
supplier which complies with the conditions 
for participation, including any specified 
time-periods.  Parties shall ensure that 
entities base contract award decisions 
solely on the requirements and evaluation 
criteria that have been specified in the 
notices or tender documentation provided 
in advance to all participating suppliers.  
[US – GPA/W/112 ] 
 
2. Procuring entities shall award each 
contract to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose tender 
is either the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the requirements 
and evaluation cri teria set forth in the 
notices or tender documentation.  
[US – GPA/W/112 ] 
  (b) Unless in the public interest an 
entity decides not to issue the 
contract, the entity shall make 
the award to the tenderer who 
has been determined to be fully 
capable of undertaking the 
contract and whose tender, 
whether for domestic products 
or services, or products or 
services of other Parties, is 
either the lowest tender or the 
tender which in terms of the 
specific evaluation criteria set 
forth in the notices or tender 
documentation is determined to 
be the most advantageous.  
 
 
Comments  
 
• Comments and questions by the European Community ( No. 12); Hong Kong, China ( No. 5); 
and Japan ( No. 11) regarding the absence of a mechanism to deal with the issue of 
"abnormally low offers" in the United States' proposal and the responses by the United States 
are contained in Job  No. 5595.  
 
• The reference to "specific evaluation criteria" in this subparagraph should be clarified in the 
light of the relevant terms in Art icle VIII:(b).  
 
• A clarification sought by Japan ( No. 12) regarding any recent experiences of the suppliers in 
the United States that might have been at the basis of the proposals by the United States on 
awarding of contracts and the United States' response  are contained in Job No. 5595.  
 
• A question by Korea ( No. 7) regarding paragraph 2 above and the United States' response are 
contained in Job No. 5595.  
 
• For the purpose of simplifying the Agreement, the following test should apply in connection 
with the el imination of the last sentence of Article XIII:4(a).  If there is anything in the GPA/TN1994/2/Rev.8  
 
- 97 - 
 
  Agreement that calls into question the right of the entity to enquire abnormally low tenders, 
it may be necessary to state such a right.  Otherwise, the sentence should be elim inated.  [US] 
 
• The Agreement should have the essential requirements.  For the rest, the entities should be 
allowed to use their own judgement for meeting the objectives of the Agreement in the most 
efficient way.  [Switzerland]  
 
• Regarding the proposed deletio n of the current provision on abnormally low offers, would it 
still be possible for the contracting entity to make the necessary checks and investigations?  It 
would be preferable to have an explicit provision unless that provision has been abused.  
However,  there is no evidence that that has been the case.  [EC] 
  GPA/TN1994/2/Rev.8  
 
- 98 - 
 
  Article XIII:5  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) Awards shall be made in accordance 
with the criteria and essential 
requirements specified in the tender 
documentation.  
  
Option Clauses  
  
5. Option clauses shall not be used in a 
manner which circumvents the provisions of the 
Agreement.  
  
 3. Procuring entities shall not cancel a 
procurement process, or terminate or 
modify awarded contracts in a manner 
which circumvents the objectives and 
requirements of the Agreement.  
[US – GPA/W/112 ] 
 
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agre ement in 
the light of developments in the use of 
electronic tendering with a view to 
developing criteria for discontinuation of 
paper -based tenders, such as the 
experience of the entity in conducting 
electronic tendering and the readiness of 
potential supp liers of a particular 
procurement to use electronic tendering, if 
appropriate.  
[Hong Kong, China – Job No. 3436]  
 
 
Comment  
• A question by Korea ( No. 8) regarding any recent experiences of the suppliers in the United 
States that might have been at the basis of the proposals by the United States in paragraph  3 
and the United States' response are contained in Job No. 5595.  
 
• A clarification sought by Hong Kong, China ( No. 7) regarding paragraph 3 of the United States' 
proposal and the United States respons e is contained in Job No. 5595.  
 
• What is the rationale for paragraph 3 of the United States' proposal in GPA/W/112 ? [Canada]  
 
• In a number of major procurement situations, the suppliers have experienced that entities 
have cancelled the award procedures at the la st moment.  There can be an impression among 
the suppliers that the entities had taken their decision relating to the technical merits of the 
tenders and that the cancellation of the procedures close to the award decision was for some 
other reasons which mi ght be contrary to the objectives of the Agreement.  [US] GPA/TN1994/2/Rev.8  
 
- 99 - 
 
  ARTICLE XIV – NEGOTIATION  
Article XIV:1, 2, 3, 4  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Party may provide for entities to conduct 
negotiations:  
  
 (a) in the context of procurements in 
which they have indicated such 
intent, namely in the notice 
referred to in paragraph 2 of 
Article IX (the invitation to 
suppliers to participate in the 
procedure for the proposed 
procurement);  or 
  
 (b) when it appears from evaluation 
that no one tender is obviously 
the most advantageous in terms 
of the specific evaluation criteria 
set forth in the notices or tender 
documentation.  
  
2. Negotiations shall primarily be used to 
identify the strengths a nd weaknesses in 
tenders.  
  
3. Entities shall treat tenders in confidence.  
In particular, they shall not provide information 
intended to assist particular participants to bring 
their tenders up to the level of other participants.  
  
4. Entities shall not, in the course of 
negotiations, discriminate between different 
suppliers.  In particular, they shall ensure that:  
  
 (a) any elimination of participants is 
carried out in accordance with 
the criteria set forth in the 
notices and tender 
documentation;  
  
 (b) all modifications to the criteria 
and to the technical 
requirements are transmitted in 
writing to all remaining 
participants in the negotiations;  
 Article A  
 
7. If it becomes necessary to amend 
information provided to suppliers during 
the procurement process, procuring 
entities shall provide the amended 
information:  
 
  (a) to all of the suppliers that are 
participating at the time the 
information is amended;  and 
 [US – GPA/W/113 ] 
 
  GPA/TN1994/2/Rev.8  
 
- 100 - 
 
  Article XIV  
 
Negotiation  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) all remaining participants are 
afforded an opportunity to 
submit new or amended 
submissions on the basis of the 
revised requirements;  and 
  
 (d) when negotiations are 
concluded, all participants 
remaining in the negotiations 
shall be permitted to submit final 
tenders in accordance with a 
common deadline.  
  (b) in adequate time to allow 
such suppliers to modify and 
re-submit their initial 
tenders, as appropriate.  
[US – GPA/W/113 ] 
 
Comments  
 
• Some of the provisions of this Article can be found in the proposal in document GPA/W/113 . 
It may not be necessary to identify a separate framework given that negotiations can be a 
part of other procurement procedures.  It would be sufficient to apply the basic principles in 
the Agreement to negotiations.  This Article should be removed from the Agreement.  [US] 
 
• There should be certain parameters in this respect, given the role that negotiations often play 
in the tendering process . [EC] 
 
• This Article could be combined with Articles  VII and  X on tendering procedures.  [US] 
 
• The principle contain ed in Article XIV:(b) is similar to the US proposal regarding the 
transmission of information on modifications to criteria and technical requirements to the 
remaining participants in the bidding process.  The principle can apply more broadly than 
merely to negotiating procedures.  [US] GPA/TN1994/2/Rev.8  
 
- 101 - 
 
  ARTICLE XV – LIMITED TENDERING  
Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article E  
 
Limited Tendering  
 
 Provisions on the Use of Limited Tendering 
Procedures  
 E.2. When a procuring entity uses a 
limited tendering procedures, it may choose 
not to publish or distribute a notice of 
intended procurement prior to the award of 
the procurement contract.  
[US – GPA/W/113 ] 
 
1. The provisions of Articles  VII through XIV 
governing open and selective tendering 
procedures need not apply in the following 
conditions, provided that limited tendering is not 
used with a view to avoiding maximum possible 
competition or in a mann er which would 
constitute a means of discrimination among 
suppliers of other Parties or protection to 
domestic producers or suppliers:  
 E.3. Procuring entities shall not use 
limited tendering procedures for the 
purpose of avoiding competition among 
supplie rs or in a manner that constitutes a 
means of discrimination between suppliers 
of the other Parties or protection of 
domestic suppliers.  
[US – GPA/W/113 ] 
 
  Notwithstanding any of the provisions 
of Article E.4., below, entities shall not use 
limited tendering because of a lack of 
advance planning by the requiring activity 
or concerns relating to the amount of funds 
available to an entity within a particular 
period of time.  
[US – GPA/W/113 ] 
 
 E.4. Procuring entities may use limited 
tendering procedures in the following 
circumstances and subject to the following 
conditions, as applicable:  
 
 
Comments  
 
• Comments by Hong Kong, China regarding paragraph E.3. of the United States' proposal 
(Nos.  31-32) and the responses thereto are contained in Job No. 5595.  
 
• Limited tendering is a significant exception to the general principle underlying the GPA and 
therefore, caution shoul d be exercised in considering the extension of situations in which 
limited tendering may be used.  [EC] 
 
• While the stipulation in the GPA of situations in which limited tendering may be used, promotes 
transparency, efficiency is also an important considerat ion and it is necessary to maintain a 
balance between the two factors.  The US proposal may promote transparency but it may 
decrease efficiency.  [Korea]  
 GPA/TN1994/2/Rev.8  
 
- 102 - 
 
  • Regarding the proposed deletion of the exception in relation to collusive tendering, there may 
be cases  of collusive tendering in particular markets and, therefore, procuring entities should 
have instruments to react in those situations.  [EC] 
 
• Normally, the absence of competition in cases of collusive tendering should not necessarily 
lead to the restriction  of competition by the entity.  If collusive tendering occurs, suppliers 
should be excluded.  Further consideration of tendering procedures is needed in markets where 
it is difficult to introduce or maintain competition.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 103 - 
 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) in the absence of tenders in 
response to an open or selective 
tender, or when the tenders 
submitted have been collusive, 
or not in conformity with the 
essential requirement s in the 
tender, or from suppliers who do 
not comply with the conditions 
for participation provided for in 
accordance with this Agreement, 
on condition, however, that the 
requirements of the initial tender 
are not substantially modified in 
the contract as awarded;   (a) in the absence of tenders 
that conform to the essential 
requirements in the tender 
documentation provided in a 
prior open, qualified open, or 
selective tendering 
procedure, on condition that 
the requirements of the 
initial procurement are not  
substantially modified in the 
contract as awarded;  
[US – GPA/W/113 ] 
 
  (b) in the absence of tenders 
from suppliers which meet 
qualification requirements 
established for a prior open 
qualified or selective 
tendering procedure;  
[US – GPA/W/113 ] 
 
 (b) when, for works of art or for 
reasons connected with 
protection of exclusive rights, 
such as patents or copyrights, or 
in the absence of competition for 
technical reasons, the products 
or services can be supplied only 
by a particular supplier a nd no 
reasonable alternative or 
substitute exists;  
  (c) where, for works of art, or for 
reasons connected with the 
protection of exclusive 
rights, such as patents, 
copyrights or proprietary 
information or where there is 
an absence of competition for 
technical reasons, the goods 
or services can be supplied 
only by a particular supplier 
and no reasonable 
alternative or substitute 
exists;  
[US – GPA/W/113 ] 
  (b) when, for works of art or for 
reasons connected with 
protection of exclusive 
right s, such as patents or 
copyrights, or in the absence 
of competition for technical 
reasons, the products or 
services can be supplied only 
by a particular supplier or 
group of suppliers and no 
reasonable alternative or 
substitute exists;  
[Hong Kong, China – Job No. 1333]  
 
Comment  
 
• With respect to paragraph (b) of the US proposal, would it be appropriate to allow limited 
tendering or should there just be an extension of the qualification period?  [EC] GPA/TN1994/2/Rev.8  
 
- 104 - 
 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (c) in so far as is strictly necessary 
when, for reasons of extreme 
urgency brought about by 
events unforeseeable by the 
entity, the products or services 
could not be obtained in time by 
means of open or selective 
tendering procedures;  
  (g) insofar as is strictly 
necessary where, for reasons 
of extreme urgency brought 
about by events 
unforeseeable by the entity, 
the goods or services could 
not be obtained in time by 
means of open or selective 
tendering procedures and 
the use of such procedures 
would result in serious injury 
to the entity, the entity's 
programme responsibilities, 
or the responsible Party;  
[US – GPA/W/113 ] 
 
 (d) for additional deliveries by the 
original supplier which are 
intended ei ther as parts 
replacement for existing 
supplies, or installations, or as 
the extension of existing 
supplies, services, or 
installations where a change of 
supplier would compel the entity 
to procure equipment or services 
not meeting requirements of 
intercha ngeability with already 
existing equipment or services5; 
 (d) for additional deliveries by 
the original supplier that are 
intended either as 
replacement parts, 
extensions, or continuing 
services for existing 
equipment, software, 
services or installations, 
where a change of supplier 
would compel the entity to 
procure products or services 
not meeting requirements of 
interchangeability with 
existing equipment, 
software, services, or 
installations;  
[US – GPA/W/113 ] 
 GPA/TN1994/2/Rev.8  
 
- 105 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (e) when an entity procures 
prototypes or a first product or 
service which are developed at 
its request in the course of, and 
for, a particular contract for 
research, experiment, study or 
original development.  When 
such contracts have been 
fulfilled, subsequent 
procurements of products or 
services s hall be subject to 
Articles  VII through XIV6; 
 
5It is the understanding that "existing 
equipment" includes software to the extent that 
the initial procurement of the software was 
covered by the Agreement.  
 
6Original development of a first product or 
service may include limited production or supply 
in order to incorporate the results of field testing 
and to demonstrate that the product or service 
is suitable for production or supply in quantity to 
acceptable quality standards.  It does not extend 
to qua ntity production or supply to establish 
commercial viability or to recover research and 
development costs.   
 
Comments  
 
• Comments by Hong Kong, China regarding paragraph E.4. and 4(d) and (g) of the United 
States' proposal ( Nos. 34-36) and the responses the reto are contained in Job No. 5595.  
 
• Questions by the European Community ( No. 10); Japan ( No. 9); and Korea ( No. 6) regarding 
the proposed changes to the conditions under Article XV in the United States' proposal and 
the responses by the United States are contained in Job No. 5595.  
 GPA/TN1994/2/Rev.8  
 
- 106 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (f) when additio nal construction 
services which were not included 
in the initial contract but which 
were within the objectives of the 
original tender documentation 
have, through unforeseeable 
circumstances, become 
necessary to complete the 
construction services described 
therein, and the entity needs to 
award contracts for the 
additional construction services 
to the contractor carrying out 
the construction services 
concerned since the separation 
of the additional construction 
services from the initial contract 
would be dif ficult for technical or 
economic reasons and cause 
significant inconvenience to the 
entity.  However, the total value 
of contracts awarded for the 
additional construction services 
may not exceed 50 % of the 
amount of the main contract;  
  
 (g) for new construction services 
consisting of the repetition of 
similar construction services 
which conform to a basic project 
for which an initial contract was 
awarded in accordance with 
Articles  VII through XIV and for 
which the entity has indicated in 
the notice of intended 
procurement concerning the 
initial construction service, that 
limited tendering procedures 
might be used in awarding 
contracts for such new 
construction services;  
  
 
Comment  
 
• Regarding the proposed deletion of the exception relating to additio nal construction services, 
clarification is necessary as to whether such cases are covered by other exceptions such as 
the additional delivery of goods or services.  [EC] GPA/TN1994/2/Rev.8  
 
- 107 - 
 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (h) for products purchased on a 
commodity market;  
  
 (i) for purchases made under 
exceptionally advantageous 
conditions which only arise in the 
very short term.  This provision is 
intended to cover unusual 
disposals by firms which are not 
normally suppliers, or disposal of 
assets of businesses in 
liquidation or receivership.  It is 
not intended to cover routine 
purchases from regular 
suppliers;  
  (e) for goods purchased on a 
commodity market;  
[US – GPA/W/113 ] 
 
Comment  
 
• The Agreemen t's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of paragraphs (h) and (i).  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (j) in the case of contracts awarded 
to the winner of a design contest 
provided that the contest has 
been organized in a manner 
which is consistent with the 
principles of this Agreement, 
notably as regards the 
publication, in the sense of 
Article  IX, of an invitation to 
suitably qualified suppliers,  to 
participate in such a contest 
which shall be judged by an 
independent jury with a view to 
design contracts being awarded 
to the winners.  
  
 GPA/TN1994/2/Rev.8  
 
- 108 - 
 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 new paragraph (k)  
 
 (k) for additional purchases of 
human life -preserving or 
life-saving products that 
require extensive user 
training or experience or trial 
for safety reasons.  
[Hong Kong, China – Job No. 1333)  
 
 
 (f) where an entity needs to 
procure consulting services 
regarding matters of a 
confidential nature, the 
disclosure of which could 
reasonably be expected to 
compromise government 
confidences, cause economic 
disruption or similarly be 
contrary to the public 
interest.  
[US – GPA/W/113 ] 
 
 
Comments  
 
• The new proposed paragraph (k) is aimed at fairly restricted circumstances.  [Hong Kong, 
China]  
 
• The issues that have been raised in this context as warranting an addition to Article XV relate 
primarily to issues of quality control and the technical appropr iateness of products.  It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to selective 
tendering which could involve qualification requirements including performance records and 
technical specifications establish ing high quality standards and would be much more 
transparent and competitive.  [US] 
 
• This proposal must be carefully considered since the use of limited tendering must be strictly 
limited.  [EC] 
 
• The proposed paragraph (k) is quite similar to the existing Article XV:1(d) in that both 
provisions refer to "additional purchases".  [Singapore ] Article XV:1(d) could/might be 
modified to meet the concerns raised by Hong Kong, China.  [Switzerland;  United States]  
 
• Singling out a particular sector or set of issues in the new paragraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of additional deliveries.  
[Switzerland]  
 
• The existing subparagraph 1(d) may not be wide enough to cover what is proposed to be 
covered by the proposed paragraph (k).  Also, in relation to the former paragraph, it is unclear 
what is meant by "interchangeability" and "compulsion".  [Hong Kong, China]  
 
• The concerns of Hong Kong, China could be met by formulating appropriate conditions in 
tende r documents.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 109 - 
 
  • A question by Japan ( No. 10) regarding the relationship between paragraph (f) of the United 
States' proposal and GPA Article XXIII and the response of the United States are contained in 
Job No. 5595.  
 
  GPA/TN1994/2/Rev.8  
 
- 110 - 
 
  Article XV:2  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Entities shall prepare a report in writing on 
each contract awarded under the provisions of 
paragraph  1. Each report shall contain the name 
of the procuring entity, value and kind of goods 
or services procured, country of origin, and a 
statement of the conditions in this Article which 
prevailed.  This report shall remain with the 
entities concerned at the disposal of the 
government authorities responsible for the entity 
in order that it  may be used if required under the 
procedures of Articles  XVIII, XIX, XX and XXII.  
 5. Procuring entities shall prepare a 
report in writing on each contract awarded 
under paragraph  4. Each such report shall 
include the name of the procuring entity, 
the val ue and kind of goods or services 
procured, and a statement indicating the 
circumstances and conditions described in 
paragraph 4 that justified the use of limited 
tendering.  Entities shall retain each such 
report for a minimum of three years.  
[US – GPA/W/113 ] 
 GPA/TN1994/2/Rev.8  
 
- 111 - 
 
  ARTICLE XVI – OFFSETS  
Article XVI:1, 2  
 
Offsets  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall not, in the qualification and 
selection of suppliers, products or services, or in 
the evaluation of tenders and award of contracts, 
impose, seek or consider offsets.7 
 
7Offsets in government procurement are 
measures used to encourage local development 
or improve the balance -of-payments accounts by 
means of domestic content, licensing of 
technology, inves tment requirements, 
counter -trade or similar requirements.  
  
2. Nevertheless, having regard to general 
policy considerations, including those relating to 
development, a developing country may at the 
time of accession negotiate conditions for the use 
of of fsets, such as requirements for the 
incorporation of domestic content.  Such 
requirements shall be used only for qualification 
to participate in the procurement process and 
not as criteria for awarding contracts.  Conditions 
shall be objective, clearly defin ed and 
non-discriminatory.  They shall be set forth in the 
country's Appendix I and may include precise 
limitations on the imposition of offsets in any 
contract subject to this Agreement.  The 
existence of such conditions shall be notified to 
the Committee a nd included in the notice of 
intended procurement and other documentation.  
  
 GPA/TN1994/2/Rev.8  
 
- 112 - 
 
  ARTICLE XVII – TRANSPARENCY  
Article XVII:1  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall encourage entities to 
indicate the terms and conditions, including any 
deviations from competitive tendering 
procedures or access to challenge procedures, 
under which tenders will be entertained from 
suppliers situated in countries not Parties to this 
Agreement but which, with a view to creating 
transparency in their own contract awards, 
nevertheless:  
 1. Each Party shall encourage entities to 
indicate the terms and conditions, including 
any deviations from competitive tendering 
procedures or access to challenge 
procedures, unde r which tenders will be 
entertained from suppliers situated in 
countries not Parties to this Agreement but 
which, with a view to creating transparency 
in their own contract awards, nevertheless:  
 
 (a) specify their contracts in 
accordance with Article  VI 
(technical specifications);  
  (a) specify their contracts in 
accordance with Article VI 
(technical specifications);  
 
 (b) publish the procurement notices 
referred to in Article  IX, 
including, in the version of the 
notice referred to in paragraph  8 
of Article  IX (summary of the 
notice of intended procurement) 
which is published in an official 
language of the WTO, an 
indication of the terms and 
conditions under which tenders 
shall be entertained from 
suppliers situated in countries 
Parties  to this Agreement;  
  (b) publish the procurement 
notices referred to in Article 
IX, including, in the version of 
the notice referred to in 
paragraph 8 of Article IX 
(summary of the notice of 
intended procurement) which 
is published in an official 
language  of the WTO, an 
indication of the terms and 
conditions under which 
tenders shall be entertained 
from suppliers situated in 
countries Parties to this 
Agreement;  
 
 (c) are willing to ensure that their 
procurement regulations shall 
not normally change during  a 
procurement and, in the event 
that such change proves 
unavoidable, to ensure the 
availability of a satisfactory 
means of redress.  
  (c) are willing to ensure that their 
procurement regulations shall 
not normally change during a 
procurement and, in the e vent 
that such change proves 
unavoidable, to ensure the 
availability of a satisfactory 
means of redress.  
 
 GPA/TN1994/2/Rev.8  
 
- 113 - 
 
  Article XVII:2  
 
Transparency  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Governments not Parties to the Agreement 
which comply with the conditions specified in 
paragraphs 1(a) through 1(c), shall be entitled if 
they so inform the Parties to participate in the 
Committee as observers.  
 2. Each Party shall encourage entities to 
publish their technical specifications on the 
Internet through a single point of access 
accessible free of charge [The amount and 
terms of payment of any sum payable for 
the download of such technical 
specifications shall be reasonable, and shall 
be indicated in the notice of int ended 
procurement, as provided for under 
Article  IX, paragraph 6(g) [Sing – Job 
No. 5271]].  Where such publication is 
provided, contracting entities shall be 
encouraged to mention the address of the 
single point of access in the tender notice.  
[EC – GPA/W/87 ] 
  
 
Comments  
 
• Given the aim to streamline the Agreement and encouraging broader participation, the 
proposed provision on the use of the Internet may not be appropriate.  [US] 
 
• A further question is whether technical specifications remain unchanged from procu rement to 
procurement.  There may be a risk that, in effect, a separate library is created that might 
duplicate what is already in the bid documents.  [Canada]  
 
• A single point of entrance may not be workable or necessary.  It may be easier to have 
information at a single point of entry on how to access information throughout a given system.  
However, it may not be practical to have too much detailed information at the single point of 
entry.  The difficulties may be particularly pronounced in the case of Members with 
decentralized procurement systems.  [US] 
 
• Technology offers possibilities that are not always fully exploited.  There could be Internet 
pages with links.  A stronger commitment is required to use the various possibilities of 
electronic procure ment to allow businesses to easily access at least information as to where 
further information can be obtained.  [EC] 
 
In relation to the charging of fees:  
 
• This proposal appears to negate the current paragraph 6(g) of Article IX which refers to "the 
amount  and terms of payment of any sum payable for the tender documentation".  Parties 
should be given the flexibility to impose a reasonable charge, even for technical specifications 
and tender documents which are downloaded from the Internet.  [Job No. 5074]  
 
• Some form of charges may be necessary to ensure that documents are not downloaded 
indiscriminately.  Taxpayers should not have to subsidise access for the benefit of suppliers.  
[Singapore;  Canada]  
 
• The costs associated with providing documents and technical specifications via the Internet 
might be far less than the costs associated with providing the documents by mail.  Providing 
documents free of charge will increase transparency and, in particular, will benefit small and 
medium enterprises seeking opportunities in procurement markets.  [EC] 
 
• The fee charged should be strictly linked to actual cost incurred in the provision of information.  
[EC] 
 GPA/TN1994/2/Rev.8  
 
- 114 - 
 
  • Paragraph 2 should be deleted or amended as suggested after deleting the words "accessible 
free of charge" in the first sentence.  [Singapore – Job No. 5271]  
 GPA/TN1994/2/Rev.8  
 
- 115 - 
 
  ARTICLE XVIII – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF ENTITIES  
Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Entities shall publish a notice in the 
appropriate publication listed in Appendix II not 
later than 72 days after the award of each 
contract under Articles  XIII through XV.  These 
notices shall contain:  
 1. Entities shall publish a notice in the 
appropriate publication listed in 
Appendix  II not later than 72 days after the 
award of each contract under Articles XIII 
through XV.  These notices shall contain at 
least:  
 
 2. Not later than 90 calendar days after 
the award of a procurement covered by this 
Agreement, the responsible procuring 
entity shall publish a notice in the 
appropriate publication designated in 
Appendix II of this Agreement which 
includes at least the following information 
about that contract:  
[US – GPA/W/112 ] 
 
 1. Having awarded a contract, entities 
shall:  
 
 (a) Publish, for at least 120 days, 
information on contract 
awards, including:  
[Canada – Job No. 3484]  
 
 (a) the nature and quantity of 
products or services in the 
contract award;  
  (a) the nature and quantity of 
products or services in the 
contract award [by referring 
to the relevant CPV code, if 
applicable[Singapore – 
Job No. 5271]];  
[EC – GPA/W/87 ] 
 
  (b) a description of the goods or 
services procured;  
[US – GPA/W/112 ] 
 
 (iii) a description of the 
nature and quantity of 
the goods or services 
included in the 
contract;  
[Canada –Job No. 3484]  
 
 (b) the name and address of the 
entity awarding the contract;  
  (b) the name and address of the 
entity awarding the contract;  
[EC – GPA/W/87 ] 
 
 
 GPA/TN1994/2/Rev.8  
 
- 116 - 
 
  Comments  
 
• The period of 90 days for publication of contract award information might be too long for 
certain suppliers, for instance for bid challenge purposes.  [Singapore]  
 
• Publication of information on contract award for at least 120 days is intended to deal with the 
situation of electronic -based publishing, for instance on an Internet site.  It would be useful to 
have parameters with respect to the minimum time the information should be made accessible 
to suppliers through electronic media.  The wording could be changed so as not to give the 
impression that the information should be published each day for 120 days . [Canada]  
 
• There is a link between the United States' proposal in GPA/W/112  and the proposal of th e 
European Community for using publication of contract award information as an alternative to 
statistical reporting.  If the proposal by the European Community were to be pursued, the 
time-periods for publication of notices would need to be longer.  [Canada]  
 GPA/TN1994/2/Rev.8  
 
- 117 - 
 
  Article XVIII  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) the name of the procuring 
entity;  
[US – GPA/W/112 ] 
 
 (iv) the name and contact 
location of the 
procuring entity;  
[Canada – Job No. 3484]  
 
 (c) the date of award;  
  (c) the date of award;  
[EC – GPA/W/87 ] 
 
 (d) the name and address of winning 
tenderer;  
  (d) the name and address of 
winning tenderer;  
[EC – GPA/W/87 ] 
 
  (c) the name of the winning 
tenderer;  
[US – GPA/W/112 ] 
 
 (i) the name and address 
of the winning 
supplier;  
[Canada – Job No. 3484]  
 
 
Comment  
 
• A question by the European Community ( No. 13) regarding the limitation of the publication of 
information to the value of the winning award only in the United States' proposal and the 
response by the United States are contained in Job No. 5595.  
 
  GPA/TN1994/2/Rev.8  
 
- 118 - 
 
  Article XVIII  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (e) the value of the winning award or 
the highest and lowest offer taken 
into account in the award of the 
contract;  
  (e) the value of the winning 
award o r the highest and 
lowest offer taken into 
account in the award of the 
contract;  
[EC – GPA/W/87 ] 
 
  (d) the value of the winning 
award;  and 
[US – GPA/W/112 ] 
 
 (ii) the value and date of 
the contract;  
[Canada – Job No. 3484]  
 
 
Comments  
 
• There is currently a choice given to the procuring entity to publish either the value of the 
winning award or the highest and the lowest offers made.  The US proposal 2(d) to eliminate 
that choice and make compulsory the publication of the value of the winning award would 
mean that no information may be provided when entities consider the precise value of the 
contract to be commercially sensitive information.  Would this change not lead to a reduction 
in the level of transparency achieved?  [EC] 
 
• For the purposes of transparency, the value of all tenders received should be published.  There 
are some rare instances, such as defence contracts, that are excluded from the GPA, that do 
contain sensitive information.  If open tendering procedures are used, transparency should 
apply throughout the process, until the tender award.  If, for whatever reason, open tendering 
procedures are not used, the bid value might be commerc ially sensitive and would not 
published - for example, in cases involving confidential information, R&D, or prototypes.  
[Singapore]  
 
• Article XVIII is applicable to all procedures and not only to open tendering procedures.  The 
release of the value of the wi nning bid may not be problematic in cases of open tendering 
procedures.  However, that may not be the case where selective and limited tendering 
procedures are used.  [EC] 
 
• The two options currently allowed for have their advantages and disadvantages.  If an option 
is to be removed, it is necessary to justify why one option is better than the other.  
[Switzerland]  
 
• In cases where there are oligopolistic market structures, would it be risky to have an absolute 
transparency rule regarding publication of award values?  [EC] 
 
• From the procuring entity's point of view, there is no reason why the award value should not 
be disclosed, especially since taxpayers' money is being used.  The issue is only relevant to 
suppliers.  However, suppliers' concerns are already accommodated in paragraph 4, which 
states that publication can be withheld upon request where legitimate commercial interests 
could be prejudiced.  [Singapore]  
 
• Why would some entities consider the total value of a contract to be commercially sensit ive 
information?  [US] GPA/TN1994/2/Rev.8  
 
- 119 - 
 
  Article XVIII:1  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (f) where appropriate, means of 
identifying the notice issued 
under paragraph 1 of Article  IX 
or justification according to 
Article  XV for the use of such 
procedure;  and 
  (f) where appropriate, means of 
identifying the notice issued 
under paragraph 1 of 
Article  IX or justification 
according to Article XV for the 
use of such procedure ; and 
[EC – GPA/W/87 ] 
 
 (v) and, where 
appropriate, the 
justification according 
to Article  XV. 
[Canada – Job No. 3484]  
 
 (g) the type of procedure used.  
  (g) the type of procedure used.  
[EC – GPA/W/87 ] 
 
  (e) the type of procurement 
procedure used, and in cases 
where limited tendering 
procedures are used, a 
description of the 
circumstances justifying the 
use of such procedures.  
[US – GPA/W/112 ] 
 
 1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the procurement award 
decisions and provide opportunities for 
losing bidders to obtain an explanation of 
the reasons for not being selected and the 
relative advant ages of the successful 
supplier.  
[US – GPA/W/112 ] 
 
  (b) Publish such information in 
officially designated media 
which are readily accessible 
to suppliers and other Parties 
within 72 days of contract 
award.  Officially designated 
media, listed in Appendix II, 
may be electronic or paper.  
[Canada – Job No. 3484]  
 
  (c) Provide bidders, upon 
request, with information 
regarding the reasons that 
they were not successful.  
[Canada – Job No. 3484]  
 
 GPA/TN1994/2/Rev.8  
 
- 120 - 
 
  Article XVIII:2, 3, 4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Each entity shall, on request from a 
supplier of a Party, promptly provide:  
 Announcement of Post Award Information  
 
1. Procuring entities shall promptly 
inform suppliers that have submitted 
tenders of the procurement award 
decisions and provide opportunities for 
losing bidders to obtain an explanation of 
the reasons for not being selected and the 
relative advantages of the successful 
supplier.  
[US – GPA/W/112 ] 
 
 (a) an explanation of its 
procurem ent practices and 
procedures;  
  
 (b) pertinent information concerning 
the reasons why the supplier's 
application to qualify was 
rejected, why its existing 
qualification was brought to an 
end and why it was not selected;  
and 
  
 (c) to an unsuccessful tenderer, 
pertinent information concerning 
the reasons why its tender was 
not selected and on the 
characteristics and relative 
advantages of the tender 
selected as well as the name of 
the winning tenderer.  
  
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.  
 2. Parties shall ensure that their 
procuring entities maintain and make 
available upon request by any other Party, 
records of tendering procedures relating to 
procurements subject to this Agreement.  
Procuring entities shall maintain such 
records for a period of at least three years.  
[US – GPA/W/112 ] 
 
4. However, entities may decide that certain 
information on the contract award, contained in 
paragraphs  1 and 2(c), be withheld where 
release of such information would impede law 
enforcement or otherwise be contrary to the 
public interest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or private, or might prejudice fair 
competition between suppliers.  
 3. Nothing in this Article shall be 
construed as requiring any Party and its 
procuring entities to disclose confidential 
information which would impede law 
enforcement or otherwise be contrary to 
the public interest or would prejudice t he 
legitimate commercial interest of particular 
enterprises, public or private, or might 
prejudice fair competition between 
suppliers, without formal authorization 
from the [party] [Party or supplier] 
providing the information.  
[Canada – Job No. 3484]  
 GPA/TN1994/2/Rev.8  
 
- 121 - 
 
  Comments  
 
• A provision should be added requiring procuring entities to meet the same requirements for 
retention of electronic documents as their national legislation, regulations and policies require 
for paper documents, with the proviso that electronic documents may be printed and the paper 
copies only retained.  [Canada – Job No. 3481]  
 
• This change may not be necessary.  Further, the clause does not specify the form by which 
entities are required to produce and record information.  [Hong Kong, C hina] 
 
• Parties should consider setting up a single "information centre" given that some Parties have 
decentralised procurement systems.  Accordingly, it is important to establish an information 
system that provides suppliers with a single point of access.  [Korea;  EC] 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall 
prevent Parties from withholding the 
release of information where release would 
impede law enforcement, or prejudice fair 
competition between suppliers or the 
legitimate commercial interests of 
particular suppliers, including the 
protection of their intellectual property.  
[US – GPA/W/112 ] 
 
 
Comments  
• The existing provisions in Articles XVIII:4 and XIX:2 and 4 are preferable.  [Hong Kong, China]  
 
• The basic concepts in Articles VII:2, XIV:3, XVIII:4, XIX:2 and XIX:4 are the same and do not 
differ in their application to procuring entities or Parties.  This appears to provide scope for 
consol idation and simplification, perhaps by stating the concept once in the text and 
incorporating it by reference elsewhere.  [US; Canada]  
 GPA/TN1994/2/Rev.8  
 
- 122 - 
 
  ARTICLE XIX – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF PARTIES  
Article XIX:1  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Each Party shall promptly publish any law, 
regulation, judicial decision, administrative 
ruling of general application, and any procedure 
(including standard contract clauses) regarding 
government procurement covered by this 
Agreement, in the appropriate publications listed 
in Appendix IV and in such a manner as to enable 
other Parties and suppliers to become acquainted 
with them.  Each Party  shall be prepared, upon 
request, to explain to any other Party its 
government procurement procedures.  
  
 
Comments  
 
• Is further clarification of the phrase "of general application" in paragraph 1 necessary?  [US; 
EC] 
 
• Rules of general application are rules that are not specific to a particular procurement but 
perhaps apply to only some sectors.  [EC] 
 
• The term "general application" is contained in a number of WTO agreements in the context of 
provisions that relate to notification, for example in GATT Ar ticle X and Article 63 of the TRIPS 
Agreement.  [Secretariat]  
 
• The words "detailed information" in paragraph 1 above should be replaced by "available 
information".  [Japan – No. 13, Job No. 5595]  
 
 
  GPA/TN1994/2/Rev.8  
 
- 123 - 
 
  Article XIX: 2, 3 
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. The government of an unsuccessful 
tenderer which is a Party to this Agreement may 
seek, without prejudice to the provisions under 
Article  XXII, such additional information on the 
contract award as may be necessary to ensure 
that the procurement was made fairly and 
impartially. To this end, the procuring 
government shall provide information on both 
the characteristics and relative adv antages of the 
winning tender and the contract price. Normally 
this latter information may be disclosed by the 
government of the unsuccessful tenderer 
provided it exercises this right with discretion. In 
cases where release of this information would 
prejud ice competition in future tenders, this 
information shall not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
 1. Each Party shall provide detailed 
informatio n regarding procurement by 
covered entities and their individual 
contract awards to any other Party upon 
request. This information may include such 
additional information on the award of a 
contract as may be necessary to determine 
whether the procurement w as conducted 
fairly and impartially, including information 
on the characteristics and relative 
advantage of the winning tender.  
[US – GPA/W/112 ] 
 
2. A Party may seek additional 
information on the award of a contract as 
may be necessary to determine whether the  
procurement was made fairly and 
impartially. To this end, the Party of the 
procuring entity shall provide information 
on the characteristics and relative 
advantages of the winning tender and the 
contract price.  
[Canada – Job No.  3484]  
 
3. Available infor mation concerning 
procurement by covered entities and their 
individual contract awards shall be provided, 
upon request, to any other Party.  
  
 
Comments  
 
• Comments and questions by Hong Kong, China ( No. 8) regarding the above proposal by the 
United States and the responses by the United States are contained in Job No. 5595.  
 
• A question by Korea ( No. 9) regarding the distinction between GPA Article XIX:2 and paragraph  2 
of the United States' proposal and the replies of the United States are contained in Job  No. 5595.  
 
• In relation to the reference in the Canadian proposal to the requirement that procuring entities 
provide information on the contract price, while this could be an option, it shou ld not be a rule.  
[Switzerland;  EC] 
 
• The contract price is useful information that should be readily available to the public.  The mere 
fact that entities did not always want to release that information should not prevent its release.  
[Canada]  
 
• The Canadian proposal relates to the provision of information from one party to another party, 
which is not necessarily the same as the public release of that information.  Such information is 
intended to provide an opportunity for Parties to exchange informati on in order to verify the 
appropriate implementation of the Agreement.  [US] 
 
• In those cases where the Party providing the information considered it to be confidential, 
Article  XIX:4 would apply.  [US] 
 
• In some business areas, the entity but also the winner of the contract may not want the contract 
price to be disclosed.  [Switzerland]  GPA/TN1994/2/Rev.8  
 
- 124 - 
 
  Article XIX: 4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Confidential information provide d to any 
Party which would impede law enforcement or 
otherwise be contrary to the public interest or 
would prejudice the legitimate commercial 
interest of particular enterprises, public or 
private, or might prejudice fair competition 
between suppliers shal l not be revealed without 
formal authorization from the party providing the 
information.  
  
 
 GPA/TN1994/2/Rev.8  
 
- 125 - 
 
  Article XIX:5  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
5. Each Party shall collect and provide to the 
Committee on an annual basis statistics on its 
procurements covered by this Agreement.  Such 
reports shall contain the following information 
with respect to contracts awarded by all 
procurement entities covered under this 
Agreement:  
 . 
 (a) for entities in Annex  1, statistics 
on the estimated value of 
contracts awarded, both above 
and below the threshold value, 
on a global basis and broken 
down by entities;  for entities in 
Annexes  2 and 3, statistics on 
the estimated value o f contracts 
awarded above the threshold 
value on a global basis and 
broken down by categories of 
entities;  
  
 (b) for entities in Annex  1, statistics 
on the number and total value of 
contracts awarded above the 
threshold value, broken down by 
entities and  categories of 
products and services according 
to uniform classification 
systems;  for entities in 
Annexes  2 and 3, statistics on 
the estimated value of contracts 
awarded above the threshold 
value broken down by categories 
of entities and categories of 
products and services;  
  
 (c) for entities in Annex  1, statistics, 
broken down by entity and by 
categories of products and 
services, on the number and 
total value of contracts awarded 
under each of the cases of 
Article  XV; for categories of 
entities in Annexes  2 and 3, 
statistics on the total value of 
contracts awarded above the 
threshold value under each of 
the cases of Article  XV; and 
  GPA/TN1994/2/Rev.8  
 
- 126 - 
 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) for entities in Annex  1, statistics, 
broken down by entities, on the 
number and total value of 
contracts awarded under 
derogations to the Agreement 
contained in the relevant 
Annexes;  for categories of 
entities in Annexes  2 and 3, 
statistics on the total value of 
contracts awarded under 
derogations to the Agreement 
contained in the relevant 
Annexes.  
  
To the extent that such information is available, 
each Party shall provide statistics on the country 
of origin of p roducts and services purchased by 
its entities.  With a view to ensuring that such 
statistics are comparable, the Committee shall 
provide guidance on methods to be used.  With a 
view to ensuring effective monitoring of 
procurement covered by this Agreement, the 
Committee may decide unanimously to modify 
the requirements of subparagraphs (a) through 
(d) as regards the nature and the extent of 
statistical information to be provided and the 
breakdowns and classifications to be used.  
  
 
Comments  
 
• The comments made by delegations in 1999 and 2000 and the latest revision of a note by the 
Chair presenting a draft revision of the text of Article XIX:5 were circulated in Job No. 5674 
in 1999.  Moreover, a note by the Secretariat reflecting the divergences of views among Parties 
in respect of the main elements of the Chairman's draft text has been circulated in 
January  2001 (Job No. 244).  Comments of a more general nature are set out below.  
 
• The basic question in relation to statistical reporting  requirements is the overall balance in 
terms of the benefits and costs of providing those statistics.  [US; EC] Even if not perfect, 
statistics should be collected in order to enable an assessment of the volume of public 
procurement.  Statistical reports al low implementation of the Agreement to be monitored and 
to confirm that certain expectations are being met.  [US; Switzerland]  The statistics may also 
be useful for future negotiations.  [US] Significant costs are involved both for the system and 
the entitie s. It is difficult to generate some of the information required and there is a trade -
off between the quality of the statistical information to be provided and the possibility of 
achieving it in a reasonable period of time.  To what extent it is realistic an d useful to ask for 
detailed information in view of the cost and complications involved.  [EC] 
 
• In the OECD context, an attempt has been made regarding the collection of statistics on total 
procurement by OECD Members and non -Members based on national accou nt statistics.  [EC; 
US] 
 
• In considering the addition of new elements or statistical reporting obligations, it is necessary 
to bear in mind that a number of Member countries failed to comply with their statistical 
reporting requirements.  [Japan]  
 GPA/TN1994/2/Rev.8  
 
- 127 - 
 
  • The use to  be made of statistics should guide decisions regarding the extent of details that 
statistical reporting requirements should contain.  For example, the statistics in relation to 
limited tendering has been useful in showing the number of procurement contract s that have 
been awarded to one company without open tendering.  [Switzerland]  
 
• It is necessary to consider what statistics are currently available  and whether those numbers 
could influence policy -making in ensuring that behaviour become more competitive.  
[Switzerland]  
 
• Once the entities would have IT systems in place, annual statistics could be provided in a 
timely manner.  [Switzerland]  
 
• In future, statistics could be provided on a real -time basis by all Parties, which would make 
them more useful.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 128 - 
 
  ARTICLE XX – CHALLENGE PROCEDURES  
Article XX:1  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Consultations  
 Consultations  
1. In the event of a complaint by a supplier 
that there has been a breach of this Agreement 
in the context of a procurement, each Party shall 
encourage the supplier to seek resolution of its 
complaint in consultation with the procuring 
entity.  In such instances the procuring entity 
shall accord impartial and timely consideration to 
any such complaint, in a manner that is not 
prejudicial to obtaining corrective measures 
under the challenge system.  
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement, each Party shall encourage the 
supplier and the r elevant procuring entity 
to seek resolution o f the complaint through 
consultations.  Procuring entities shall 
accord impartial and timely consideration 
to any such complaint, and shall not act in 
a manner that is prejudicial to suppliers' 
participation in o ngoing or future 
procurement activities or to suppliers' 
rights to seek corrective measures under 
the challenge system.  
[US – Job No. 6049]  
 
 1. In the event of a complaint by a 
supplier that there has been a breach of this 
Agreement in the context of a procurement, 
each Party shall encourage the supplier to 
seek solution of its complaint in 
consultation with the procuring entity . In 
such instances the procuring entity shall 
accord impartial and timely consideration 
to any such complaint, in a manner that  is 
not prejudicial to obtaining corrective 
measures under the challenge system.  Such 
encouragement may take place in particular 
through the designation of one or more 
bodies which can offer their good advice in 
trying to solve the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
With respect to the EC proposal:  
 
• The last sentence in this paragraph should be clarified.  The division of labour between the new 
challenge bodies created under paragraphs 1 and 2 of the EC's proposed amendment and the 
challenge bodies referred to in paragraph 6 of the existing agreement should be clarified.  
[Japan;  Hong Kong, China]  
 
• It is not intended that the proposed amendment would have the result of imposing a new 
authority on procuring entities.  Rather, the intent was to have a ce ntral point to address any 
problems in an unbureaucratic fashion, informally and rapidly.  It would be left to Parties to 
decide how to organize these bodies.  [EC] 
 
• The need for such prescriptive provisions is doubtful.  [Hong Kong, China]  
 
• Rather than create a completely new body, the relevant aspects of the approach proposed by 
the EC could be incorporated into the existing procedures.  [Singapore]  
 GPA/TN1994/2/Rev.8  
 
- 129 - 
 
  • The proposal is not intended to make it compulsory for Members to create new bodies.  Rather, 
the intentio n is to designate bodies that may already be in place.  This proposal was made in 
recognition of the fact that resort to a court is not an ideal solution for government 
procurement disputes.  [EC] Settling of government procurement disputes outside legal jud icial 
systems will afford increased flexibility in dispute settlement procedures.  
 
• With respect to the concept that access to consultations should not be prejudicial to rights 
under the bid challenge system, it is unclear whether it is necessary to establi sh another 
consultative procedure akin to mediation if the bid challenge system worked the way it should.  
[US] 
 
• It is unclear whether there is a need for an independent body as provided for in the EC 
proposal.  Parties should have flexibility to establish t he most appropriate review bodies for 
their particular procurement system as is currently the case under the GPA.  [Canada]  
 
With respect to the US proposal:  
 
• With respect to paragraph 1, is the reference to prejudicial behaviour appropriate given the 
sensitivity of this issue?  [Switzerland]  
 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authority  
 
 2. Each Party shall establish or 
designate at least one impartial authority, 
separate and independent from its 
procuring entities, to receive and review 
supplier challenges relating to this 
Agreement and to make appropriate 
findings and recommendations.  
[US – Job No. 6049]  
 
 
Comment s 
 
• Paragraph 2 is based upon the principle contained in Article XX:6, which sets outs the 
requirement for the establishment of an independent and impartial review authority.  Since 
that is a core obligation, it has been placed at the beginning of the Article and language has 
been added requiring that such an authority be kept separ ate from interested procuring 
entities.  This is already implicit in the text but the proposed amendment helps to clarify 
matters.  The authority can be established anew or an existing independent review authority 
can be designated as the relevant authority.  The words "separate" and "independent" have 
been added to reinforce that in order to be independent and impartial, a review body should 
be separate from the procuring entities that are being challenged.  [US] 
 
• Perhaps further consideration is required in r elation to what is an independent or separate 
body.  [EC] GPA/TN1994/2/Rev.8  
 
- 130 - 
 
  Article XX:2, 3, 4, 5, 6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Challenge  
 Challenge  
2. Each Party shall provide 
non-discriminatory, timely, transparent and 
effective procedures enabling suppliers to 
challenge alleged breaches of the Agreement 
arising in the context of procurements in which 
they have, or have had, an interest.  
 3. Each Party shall provide timely, 
effecti ve, transparent, and predictable 
procedures for interested suppliers to 
challenge alleged breaches of this 
Agreement.  All challenge procedures shall 
be specified in writing and made generally 
available.  
[US – Job No. 6049]  
 
3. Each Party shall provide its  challenge 
procedures in writing and make them generally 
available.  
  
4. Each Party shall ensure that 
documentation relating to all aspects of the 
process concerning procurements covered by 
this Agreement shall be retained for three years.  
  
5. The interested supplier may be required to 
initiate a challenge procedure and notify the 
procuring entity within specified time -limits from 
the time when the basis of the complaint is 
known or reasonably should have been known, 
but in no case within a period o f less than 10 
days.  
  
6. Challenges shall be heard by a court or by 
an impartial and independent review body with 
no interest in the outcome of the procurement 
and the members of which are secure from 
external influence during the term of 
appointment.  A review body which is not a court 
shall either be subject to judicial review or shall 
have procedures which provide that:  
 5. In the event that a challenge is 
initially reviewed by a body other than an 
authority established or designated under 
paragraph 2, each Party shall ensure that 
suppliers may appeal the initial decision to 
an impartial administrative or judicial 
authority which is separate and 
independent from the procuring entity that 
is the subject of the challenge.  
[US – Job No. 6049]  
 
 (a) partici pants can be heard before 
an opinion is given or a decision 
is reached;  
  
 (b) participants can be represented 
and accompanied;  
  
 (c) participants shall have access to 
all proceedings;  
  
 
  GPA/TN1994/2/Rev.8  
 
- 131 - 
 
  Comments  
 
• With respect to paragraph 3 of the US proposal, what is the meaning, rationale and intent of 
the word "predictable"  Does it refer to the outcome or process?  [Canada;  Switzerland]  
 
• The word "predictable" refers to procedures and not results.  The word is chosen to address 
situations where there are bid challenge procedures that may be considered to be transparent, 
timely and effective, but may not be implemented in a predictable way because of changes in 
certain elements.  Parties should be able to anticipate how to proceed.  [US] 
 
• In respons e to a question on the deletion of the second sentence of the existing paragraph 6, 
the existing paragraph 6 currently refers to authorities that are not judicial authorities.  The 
US proposal lists procedures that would apply to any authority, administrati ve or judicial.  [US 
in response to Canada]  
 GPA/TN1994/2/Rev.8  
 
- 132 - 
 
  Article XX  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Review Procedures  
 
 6. Each Party shall ensure that review 
procedures are conducted in accordance 
with the following:  
 
  (a) suppliers shall be allowed a 
sufficient period of time to 
prepare and submit 
challenges, which in no case 
shall be less than 10 days 
from the time when the basis 
of the complaint became 
known or reasonably should 
have become known to  the 
supplier;  
 
  (b) procuring entities shall 
respond in writing to the 
complaint and disclose all 
relevant documents to the 
review body;  
 
  (c) a supplier that initiates a 
complaint shall be provided 
an opportunity to respond to 
the procuring entities' report 
prior to a decision being 
taken on the complaint;  
 
  (d) decisions and opinions 
relating to supplier 
challenges shall be provided 
in a timely fashion, in 
writing, with an explanation 
of the basis for each decision;  
 
  (e) review procedures shall 
provide for correction of the 
breach of the Agreement or 
compensation for the loss or 
damages suffered, which 
may be limited to the costs 
for tender preparation or 
protest.  
[US – Job No. 6049]  
 
 
Comment  
 
• In paragraph 6 of the US proposal, t he existing provisions that apply only to non -judicial 
bodies have been simplified so that that they can apply to all review bodies, both 
administrative and judicial.  The US proposal provides additional flexibility to apply to all types 
of revie w procedures, eliminating the need for the some of the distinctions that currently exist 
in Article  XX. [US] GPA/TN1994/2/Rev.8  
 
- 133 - 
 
  • With respect to paragraph 6(d) of the US proposal, it may be appropriate to add "of the review 
body" after "decisions and opinions" in order to mak e the scope of the obligation clear.  
[Canada]   GPA/TN1994/2/Rev.8  
 
- 134 - 
 
  Article XX:7  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) proceedings can take place in 
public;  
  
 (e) opinions or decisions are given in 
writing with a statement 
describing the basis for the 
opinions or decisions;  
  
 (f) witnesses can be presented;  
  
 (g) documents are disclosed to the 
review body.  
  
7. Challenge procedures shall provide for:  
  
 (a) rapid interim measures to 
correct breaches of the 
Agreement and to preserve 
commercial opportunities.  Such 
action may result in suspension 
of the procurement process.  
However, procedures may 
provide that overriding adverse 
consequences for the interests 
concerned, including the public 
interest, may be tak en into 
account in deciding whether 
such measures should be 
applied.  In such circumstances, 
just cause for not acting shall be 
provided in writing;  
 4. Challenge procedures shall provide 
for prompt interim measures to correct 
potential breaches of the Agre ement and to 
preserve commercial opportunities, 
including the possibility of delaying a 
contract award or delaying performance of 
a contract already awarded.  
[US – Job No. 6049]  
 (b) an assessment and a possibility 
for a decision on the justification 
of the challenge;  
  
 (c) correction of the breach of the 
Agreement or compensation for 
the loss or damages suffered, 
which may be limited to costs for 
tender preparation or protest.   
 
Comment s 
 
• Paragraph 4 of t he US proposal adopts the discipline contained in Article XX:7(a) and expands 
on it.  It introduces a provision allowing for rapid or prompt interim measures to suspend a 
procurement process that is underway prior to the award of a contract but also to suspend 
work on a contract that has been awarded, which is an addition to the existing provision.  The 
addition is necessary to take account of problems that come to light late in the procurement 
process so that a supplier may have the opportunity to raise or express a complaint to the 
procuring e ntity before the entity awards the contract.  In such cases, there should be an 
opportunity for a review body to temporarily suspend work or further action under the contract 
until the case is heard.  [US] GPA/TN1994/2/Rev.8  
 
- 135 - 
 
  • Why has the clause on public interest in the existin g Article XX:7(a) been deleted from the US 
proposal?  There are circumstances where it would be important and in the public interest for 
the government to proceed with an acquisition.  [Canada]  
• Circumstances in which there may be overriding circumstances wou ld be unusual and rare.  
The use of general exceptions under Article XXIII might be sufficient to protect the public 
interests in this respect.  [US] GPA/TN1994/2/Rev.8  
 
- 136 - 
 
  Article XX:8  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. With a view to the preservation of the 
commercial and other interests involved, the 
challenge procedure shall normally be completed 
in a timely fashion.   
 9. The Parties undertake to designate or 
establish an independent body with a view 
to solve informally problems encountered 
in gaining access to contracts.  
[EC - GPA/W/87 ] 
 
Comments  
 
• Clarification is required in relation to what is meant by the new paragraph 9.  [Japan;  
Hong Kong, China]  
• An illustrative example of an independent body deali ng with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
 GPA/TN1994/2/Rev.8  
 
- 137 - 
 
  ARTICLE XXI – INSTITUTIONS  
Article XXI:1, 2  
 
Institutions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. A Committee on Government Procurement 
composed of representatives from each of the 
Parties shall be established.  This Committee shall 
elect its own Chairman and Vice -Chairman and 
shall meet as necessary but not less than once a 
year for the purpose of affording Parties the 
opportunity to consult on any matters relating to 
the operation of this Agreement or the 
furtherance of its objectives, and to carry out 
such other responsibilities as may be assigned to 
it by the Parties.  
  
2. The Committee may establish working 
parties or other subsidiary bodies which shall 
carry out such functions as may be given to them 
by the Committee.  
  
 GPA/TN1994/2/Rev.8  
 
- 138 - 
 
  ARTICLE XXII – CONSULTATIONS AND DISPUTE SETTLEMENT  
Article XXII:1, 2  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT  ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. The provisions of the Understanding on 
Rules and Procedures Governing the Settlement 
of Disputes under the WTO Agreement 
(hereinafter referred to as the "Dispute 
Settlement Understanding") shall be applicable 
except as otherwise specifically provided below.  
  
2. If any Party considers that any benefit 
accruing to it, directly or indirectly, under this 
Agreement is being nullified or impaired, or that 
the attainment of any o bjective of this 
Agreement is being impeded as the result of the 
failure of another Party or Parties to carry out its 
obligations under this Agreement, or the 
application by another Party or Parties of any 
measure, whether or not it conflicts with the 
provisions of this Agreement, it may with a view 
to reaching a mutually satisfactory resolution of 
the matter, make written representations or 
proposals to the other Party or Parties which it 
considers to be concerned.  Such action shall be 
promptly notified to  the Dispute Settlement Body 
established under the Dispute Settlement 
Understanding (hereinafter referred to as 
"DSB"), as specified below.  Any Party thus 
approached shall give sympathetic consideration 
to the representations or proposals made to it.  
  GPA/TN1994/2/Rev.8  
 
- 139 - 
 
  Article XXII:3, 4, 5  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. The DSB  shall have the authority to 
establish panels, adopt panel and Appellate Body 
reports, make recommendations or give rulings 
on the matter, maintain surveillance of 
implementation of rulings and 
recommendations, and authorize suspension of 
concessions and o ther obligations under this 
Agreement or consultations regarding remedies 
when withdrawal of measures found to be in 
contravention of the Agreement is not possible, 
provided that only Members of the WTO Party to 
this Agreement shall participate in decision s or 
actions taken by the DSB with respect to 
disputes under this Agreement.  
  
4. Panels shall have the following terms of 
reference unless the parties to the dispute agree 
otherwise within 20 days of the establishment of 
the panel:  
  
 "To examine, in the light of the relevant 
provisions of this Agreement and of 
(name of any other covered Agreement 
cited by the parties to the dispute), the 
matter referred to the DSB by (name of 
party) in document ... and to make such 
findings as will ass ist the DSB in making 
the recommendations or in giving the 
rulings provided for in this Agreement."  
  
In the case of a dispute in which provisions both 
of this Agreement and of one or more other 
Agreements listed in Appendix  1 of the Dispute 
Settlement Un derstanding are invoked by one of 
the parties to the dispute, paragraph 3 shall 
apply only to those parts of the panel report 
concerning the interpretation and application of 
this Agreement.  
  
5. Panels established by the DSB  to examine 
disputes under this Agreement shall include 
persons qualified in the area of government 
procurement.  
  
 
Comment  
 
• The language contained in paragraph 3 could be streamlined since all but the last clause are 
contained in the Dispute Settlement Understanding.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 140 - 
 
  Article XXII:6, 7  
 
Consultations  and Dispute  Settlement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Every effort shall be made to accelerate 
the proceedings to the greatest extent possible.  
Notwithstanding the provisions of paragraphs 8 
and 9 of Article 12 of the Dispute Settlement 
Understanding, the panel shall attempt to 
provide its final report to the parties to the 
dispute not later than four months, and in case 
of delay not lat er than seven months, after the 
date on which the composition and terms of 
reference of the panel are agreed.  Consequently, 
every effort shall be made to reduce also the 
periods foreseen in paragraph 1 of Article 20 and 
paragraph 4 of Article  21 of the Dis pute 
Settlement Understanding by two months.  
Moreover, notwithstanding the provisions of 
paragraph  5 of Article 21 of the Dispute 
Settlement Understanding, the panel shall 
attempt to issue its decision, in case of a 
disagreement as to the existence or cons istency 
with a covered Agreement of measures taken to 
comply with the recommendations and rulings, 
within 60 days.  
  
7. Notwithstanding paragraph  2 of Article 22 
of the Dispute Settlement Understanding, any 
dispute arising under any Agreement listed in 
Appendix  1 to the Dispute Settlement 
Understanding other than this Agreement shall 
not result in the suspension of concessions or 
other obligations under this Agreement, and any 
dispute arising under this Agreement shall not 
result in the suspension of conce ssions or other 
obligations under any other Agreement listed in 
the said Appendix  1. 
  GPA/TN1994/2/Rev.8  
 
- 141 - 
 
  ARTICLE XXIII – EXCEPTIONS TO THE AGREEMENT  
Article  XXIII:1, 2  
 
Exceptions to the Agreement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Nothing in this Agreement shall be 
construed to prevent any Party from taking any 
action or not disclosing any information which it 
considers necessary for the protection of its 
essential security interests relating to the 
procurement of arms, ammunition or war 
materials, or to procurement indispensable for 
national security or for national defence 
purposes.  
  
 
Comment  
 
• The provisions of Article  XXIII should be aligned with those in the corresponding provisions of 
GATT  1994. [Job No. 5074]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
2. Subject to the requirement that such 
measures are not applied in a manner which 
would constitute a means of arbitrary or 
unjustifiable discrimination between countries 
where the same conditions prevail or a disguised 
restriction on international trade, nothing in this 
Agreement shall be construed to prevent any 
Party from imposing or enforcing measures : 
necessary to protect public morals,  order or 
safety, human, animal or plant life or health or 
intellectual property;  or relating to the products 
or services of handicapped persons, of 
philanthropic institutions or of prison labour.  
  
 
Comment  
 
• An article containing definitions of the various terms used in the Agreement should be 
considered.  [Job No. 5074]  
 GPA/TN1994/2/Rev.8  
 
- 142 - 
 
  ARTICLE XXIV – FINAL PROVISIONS  
Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
  
 This Agreement shall enter into force on 
1 January  1996 for those governments8 whose 
agreed coverage is contained in Annexes 1 
through 5 of Appendix I of this Agreement and 
which have, by signature, accepted the 
Agreement on 1 5 April 1994 or have, by that 
date, signed the Agreement subject to 
ratification and subsequently ratified the 
Agreement before 1 January  1996. 
 
8For the purpose of this Agreement, the 
term "government" is deemed to include the 
competent authorities of the European 
Communities.  
  
2. Accession  
  
 Any government which is a Member of the 
WTO, or prior to the date of entry into force of 
the WTO Agreement which is a contracting party 
to GATT  1947, and which is not a Party to this 
Agreement may accede to this Agreement on 
terms to be agreed between that government 
and the Parties.  Accession shall take place by 
deposit with the Director -General of the WTO of 
an instrument of accession which states the 
terms so agreed.  The Agreement shall enter into 
force for an acceding government on the 30th 
day following the date of its accession to the 
Agreement.  
  GPA/TN1994/2/Rev.8  
 
- 143 - 
 
  Article  XXIV:3  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
3. Transitional Arrangements  
  
 (a) Hong Kong and Korea may delay 
application of the provisions of 
this Agreement, except 
Articles  XXI and  XXII, to a date 
not later than 1  January  1997.  
The commencement date of their 
application of the provisions, if 
prior to 1  January  1997, shall be 
notified to the Direc tor-General 
of the WTO 30 days in advance.  
  
 (b) During the period between the 
date of entry into force of this 
Agreement and the date of its 
application by Hong  Kong, the 
rights and obligations between 
Hong Kong and all other Parties 
to this Agreement which were on 
15 April 1994 Parties to the 
Agreement on Government 
Procurement done at Geneva on 
12 April 1979 as amended on 
2 February  1987 (the "1988 
Agreement") shall be governed 
by the substantive9 provisions of 
the 1988 Agreement, including 
its Annexes as modified or 
rectified, which provisions are 
incorporated herein by reference 
for that purpose and shall 
remain in force until 
31 December  1996.  
 
9All provisions of the 1988 Agreement except the 
Preamble, Article  VII and Article  IX other than  
paragraphs 5(a) and (b) and paragraph 10.  
  
 (c) Between Parties to this 
Agreement which are also 
Parties to the 1988 Agreement, 
the rights and obligations of this 
Agreement shall supersede 
those under the 1988 
Agreement.  
  
 GPA/TN1994/2/Rev.8  
 
- 144 - 
 
  Article  XXIV:4, 5  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (d) Article  XXII shall not enter into 
force until the date of entry into 
force of the WTO Agreement.  
Until such time, the provisions of 
Article  VII of the 1988 
Agreement shall apply to 
consultations and dispute 
settlement under this 
Agreement, which provisions are 
hereby incorporated in the 
Agreement by reference for that 
purpose.  These provisions shall 
be applied under the auspices of 
the Committee under this 
Agreement.  
  
 (e) Prior to the date of entry into 
force of the WTO Agreement, 
references to WTO bodies shall 
be construed as referring to the 
corresponding GATT body and 
references to the 
Director -General of the WTO and 
to the WTO Secretariat shall be 
construed as references to, 
respectively, the 
Director -General to the 
CONTRACTING PARTIES to 
GATT 1947 and to the GATT 
Secretariat.  
  
4. Reservations  
  
 Reservations may not be entered in 
respect of any of the provisions of this 
Agreement.  
  
5. National  Legislation  
  
 (a) Each government accepting or 
acceding to this Agreement shall 
ensure, not later than the date of 
entry into force of this 
Agreement for it, the conformity 
of its laws, regulations and 
administrative procedures, and 
the rules, procedures and 
practices applied by the entities 
contained in its lists annexed 
hereto, with the provisions of 
this Agreement.  
  GPA/TN1994/2/Rev.8  
 
- 145 - 
 
  Article  XXIV:6  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Each Party shall inform the 
Committee of any changes in its 
laws and regulations relevant to 
this Agreement and in the 
administration of such laws and 
regulations.  
  
6. Rectifications or Modifications  
  
 (a) Rectifications, transfers of an 
entity from one Annex to 
another or, in exceptional cases, 
other modifications relating 
to Appendices  I through IV shall 
be notified to the Committee, 
along with information as to the 
likely consequences of the 
change for th e mutually agreed 
coverage provided in this 
Agreement.  If the rectifications, 
transfers or other modifications 
are of a purely formal or minor 
nature, they shall become 
effective provided there is no 
objection within 30 days.  In 
other cases, the Chairman o f the 
Committee shall promptly 
convene a meeting of the 
Committee.  The Committee shall 
consider the proposal and any 
claim for compensatory 
adjustments, with a view to 
maintaining a balance of rights 
and obligations and a 
comparable level of mutually 
agree d coverage provided in this 
Agreement prior to such 
notification.  In the event of 
agreement not being reached, 
the matter may be pursued in 
accordance with the provisions 
contained in Article  XXII. 
  GPA/TN1994/2/Rev.8  
 
- 146 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) Where a Party wishes, in 
exercise of its rights, to withdraw 
an entity from Appendix  I on the 
grounds that government control 
or influence over it has been 
effectively eliminated, that Party 
shall notify the Committee.  Such 
modification shall become 
effective the day after the end of 
the following meeting of the 
Committee, provided that the 
meeting is no sooner than 30 
days from the date of notification 
and no objection has been made.  
In the event o f an objection, the 
matter may be pursued in 
accordance with the procedures 
on consultations and dispute 
settlement contained in 
Article  XXII. In considering the 
proposed modification to 
Appendix I and any 
consequential compensatory 
adjustment, allowance s hall be 
made for the market -opening 
effects of the removal of 
government control or influence.  
 Where a Party wishes, in exercise of 
its rights, to withdraw an entity from 
Appendix  I on the grounds that 
government control or influence 
over it has been effe ctively 
eliminated, that Party shall notify 
the Committee.  Such modification 
shall become effective the day after 
the end of the following meeting of 
the Committee, provided that the 
meeting is no sooner than 30 days 
from the date of notification and no 
objection has been made.  In the 
event of an objection, the matter 
may be pursued in accordance with 
the procedures on consultations and 
dispute settlement contained in 
Article XXII.  In considering the 
proposed modification to 
Appendix  I, it shall be deemed t hat 
government control or influence 
over the entity in question has been 
effectively eliminated if all of the 
following conditions are met:  
[Japan – Job No. 860]  
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, subparagraph  6(b) 
would need to be modified as suggested above . [Japan]  
 
• The present provisions are a carefully balanced outcome of the negotiations between Parties 
and reflect the uncertainties in market access opportunities which might be a ssociated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of government 
control or influence.  Its purpose is to ensure that any future changes to an agreed annex does 
not affect the negotiated balance.  [Job No. 5189]  
 GPA/TN1994/2/Rev.8  
 
- 147 - 
 
  Article XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) the government does 
not provide the entity 
with any special and 
exclusive right to 
operate;  
 (b) the government does 
not appoint more than 
half of the members 
of the entity's 
managing board 
which has the power 
to decide on its 
operations;  and 
 (c) the operation of the 
entity is financed by 
its business revenue, 
not by government 
subsidies or equity 
infusion.  
Unless these conditions are met, a 
compens atory adjustment may be sought 
for any remaining government control or 
influence.  
[Japan – Job No. 860]  
 
 
Comments  
 
• The proposed criteria may not be the only ones for establishing that an entity was no longer 
under government control or influence.  There might be other criteria that might be used as 
evidence of market opening effects.  [Job No. 5189]  
 
• The proposal attempts to define the conditions under which Parties would relinquish their right 
to seek consultation with other Parties about  a proposed modification for the removal of an 
entity from the Agreement's coverage.  Parties should not be denied that right.  [US] 
 
• The application of the criteria listed in Japan's proposal would facilitate consultations between 
Parties.  [Japan]  
 
• Regardin g the requirement in subparagraph (a) that the government not provide the entity 
with any special or exclusive rights, a wide variety of private companies are granted such 
rights by the government.  For instance a corner store might be authorized to sell fi shing 
licences or postage stamps.  [Job No. 5189]  
 
• It is unclear whether a company that is granted a special right to operate, for instance a bus 
company that is no more within the government sphere given a franchise to operate by the 
government on certain routes in competition with other forms of transport, would fall within 
the scope of proposed subparagraph (a).  [Hong  Kong, China]  
 
• An effect of proposed paragraph (b) would be that it would not allow consideration of 
compensatory adjustment if, for  example, an entity that was unilaterally withdrawn from 
Appendix  I still had 48  per cent  government membership on its board.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 148 - 
 
  • The requirement that the government in subparagraph (b) might not be sufficient to ensure 
that the government control or inf luence is effectively removed.  What would be an appropriate 
percentage in this respect?  [Job No. 5189]  
 
• With regard to the criteria in subparagraph (c), in some circumstances, government subsidies 
to privatized entities may still be necessary if the subsid ies are linked to lowering the cost of 
provision of basic services and where the beneficiaries are the members of the general public.  
[Korea]  
 
• The criterion in subparagraph (c) might not be appropriate in all cases.  For instance, a number 
of entities in both Annexes 1 and 3 of the United States, while operating on the basis of their 
own business revenues, continue to be considered as government agencies conducting 
government procurement.  If the entity was mainly financed by its business revenu e, some 
non-voting equity infusions by the government would not affect the degree of government 
control or influence.  [Job No. 5189]  
 
  GPA/TN1994/2/Rev.8  
 
- 149 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Where a Party wishe s, in exercise of its 
rights, to withdraw an entity from 
Appendix  I on the grounds that government 
control or influence over it has been 
effectively eliminated, that Party shall 
notify the Committee.  The elimination of 
such control or influence may be indicated 
by the transfer to the private sector of the 
actual control over the entity or by the fact 
that the entity is exclusively engaged in the 
provision of goods or services on markets 
that are subject to genuine competition.  
Such modification shall be come effective 
the day after the end of the following 
meeting of the Committee, provided that 
the meeting is no sooner than 30 days from 
the date of notification and no objection has 
been made.  In the event of an objection, the 
matter may be pursued in acc ordance with 
the procedures on consultations and 
dispute settlement contained in 
article  XXII.  In considering the proposed 
modification to Appendix I and any 
consequential compensatory adjustment, 
allowance shall be made for the market -
opening effects of t he removal of 
government control or influence.  
[EC – Job No. 443]  
 
 
Comments  
 
• Although some Parties consider that it would be useful to have more precise criteria, there are 
limits to the extent to which a price formula could be included.  [EC] 
 
• It is important to stress that what is referred to in the EC proposal is effective elimination of 
influence or control, not just formal changes in the status of an entity.  The question then 
becomes what constitutes "effective elimination of control or influence" ? In answering that 
question, there is a relationship between that issue and the issue of the definition of 
government procurement in general.  After all, if an entity is not conducting government 
procurement, Parties do not have an interest in subjecting i t to the GPA.  [United States]  
 
• Clarification is needed of the term "genuine competition"?  [US; Canada;  Hong Kong, China]  
 
• The concept of "genuine or effective competition" comes from competition law.  [EC] 
 
• The key issue of who controls the company is who is deciding the policy of the company.  [EC] 
 
• It is necessary to consider the economic aspects as well as the legal aspects of the situation.  
It is necessary to see whether the entity, apart from no longer having a legal monopoly, is 
indeed facing compe tition in the marketplace.  [EC] 
 
• What is meant by, for example, "actual transfer of control to the private sector" or "effective 
genuine competition"?  Factors relevant to privatization might be whether and how the 
government controls the decision -making of  the entity concerned or whether the government 
subsidises entities.  The judgement as to whether "genuine competition" exists or not would GPA/TN1994/2/Rev.8  
 
- 150 - 
 
  differ from country to country.  Therefore, such elements (for example, price inflation or 
market share increases) tha t would be taken into account when the Committee considers a 
privatization case, would be quite useful.  [Japan]  
 
• Market structure in which an entity operates should not be a factor for consideration  in 
determining whether the GPA disciplines should apply.  The first sentence of the proposal in 
relation to the "elimination or transfer of actual control to the private sector", is a bit too 
evident as justification for withdrawal of entities from coverage and, therefore, does not add 
any clarity to the Article  as a whole.  This Article is very important because it relates to the 
definition of government procurement and hence the coverage of the Agreement.  [Hong Kong, 
China]  
 
• In one way or another, market structure is of relevance in this context since the last p hrase 
of the current text refers to "market -opening effects".  [EC] 
 
• The issue of whether there is "effective genuine competition" could be addressed by the 
competition authority responsible for assessing the extent to which, in various sectors of the 
econo my, there is or is not competition or insufficient competition.  Further discussion is 
needed as to how to assess "genuine competition".  [Switzerland]  
 
• It was necessary to further consider whether it is possible for an entity to procure for 
governmental purposes even if it is selling in a competitive market.  If so, it would be possible 
for there to still be government control or influence over entities, even if they are selling in a 
competitive market.  [US] 
 
• It is necessary to find the right balance between using general concepts and being more 
precise.  [EC] 
 
  GPA/TN1994/2/Rev.8  
 
- 151 - 
 
  Article  XXIV:7  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations  and Future Work  
  
 (a) The Committee shall review 
annually the implementation and 
operation of this Agreement 
taking into account the 
objectives thereof.  The 
Committee shall annually inform 
the General Council of the WTO 
of developments during the 
periods covered by such reviews.  
 . 
 (b) Not later than t he end of the 
third year from the date of entry 
into force of this Agreement and 
periodically thereafter, the 
Parties thereto shall undertake 
further negotiations, with a view 
to improving this Agreement and 
achieving the greatest possible 
extension of its  coverage among 
all Parties on the basis of mutual 
reciprocity, having regard to the 
provisions of Article  V relating to 
developing countries.  
  
 (c) Parties shall seek to avoid 
introducing or prolonging 
discriminatory measures and 
practices which distort open 
procurement and shall, in the 
context of negotiations under 
subparagraph (b), seek to 
eliminate those which remain on 
the date of entry into force of 
this Agreement.   
 GPA/TN1994/2/Rev.8  
 
- 152 - 
 
  Article  XXIV:8, 9, 10  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
8. Information Technology  
  
 With a view to ensuring that the 
Agreement does not constitute an unnecessary 
obstacle to technical progress, Parties shall 
consult regularly in the Committee regarding 
developments in the use of information 
technology in government procurement and 
shall, if necessary, negotiate modifications to the 
Agreement.  These consultations shall in 
particular aim to ensure that the use of 
information technology promotes t he aims of 
open, non -discriminatory and efficient 
government procurement through transparent 
procedures, that contracts covered under the 
Agreement are clearly identified and that all 
available information relating to a particular 
contract can be identifie d. When a Party intends 
to innovate, it shall endeavour to take into 
account the views expressed by other Parties 
regarding any potential problems.  
  
9. Amendments  
  
 Parties may amend this Agreement having 
regard, inter alia, to the experience gained in its 
implementation.  Such an amendment, once the 
Parties have concurred in accordance with the 
procedures established by the Committee, shall 
not enter into force for an y Party until it has been 
accepted by such Party.  
  
10. Withdrawal  
  
 (a) Any Party may withdraw from this 
Agreement.  The withdrawal shall 
take effect upon the expiration of 60 
days from the date on which written 
notice of withdrawal is received by 
the D irector -General of the WTO.  
Any Party may upon such 
notification request an immediate 
meeting of the Committee.  
  
 
Comment  
 
• Article XXIV:8 should be revised in the light of the ongoing work on possible modifications to 
the Agreement in relation to the use of information technology.  [Job No. 5189]  GPA/TN1994/2/Rev.8  
 
- 153 - 
 
  Article  XXIV:11, 12, 13, 14  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) If a Party to this Agreement does 
not become a Member of the 
WTO within one year of the date 
of entry into force of the WTO 
Agreement or ceases to be a 
Member of the WTO, it shall 
cease to be a Party to this 
Agreement with effect from the 
same date.  
  
11. Non-application of this Agreement 
between Particular Parties  
  
 This Agreement sha ll not apply as between 
any two Parties if either of the Parties, at the 
time either accepts or accedes to this 
Agreement, does not consent to such 
application.  
  
12. Notes,  Appendices and Annexes  
  
 The Notes, Appendices and Annexes to 
this Agreement constitute an integral part 
thereof.  
  
13. Secretariat  
  
 This Agreement shall be serviced by the 
WTO Secretariat.  
  
14. Deposit  
  
 This Agreement shall be deposited with 
the Director -General of the WTO, who shall 
promptly furnish to each Party a certified true 
copy of this Agreement, of each rectification or 
modification thereto pursuant to paragraph  6 
and of each amendment thereto pursuant to 
paragraph  9, and a notification of each 
acceptance thereof or accession thereto 
pursuant to parag raphs  1 and 2 and of each 
withdrawal therefrom pursuant to paragraph  10 
of this Article.  
  GPA/TN1994/2/Rev.8  
 
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  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
  
 This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
  
 Done at Marrakesh this fifteenth day of 
April one  thousand  nine hundred  and ninety -four 
in a single copy, in the English, French and 
Spanish languages, each text being authentic, 
except as otherwise specified with respect to the 
Appendices hereto.  
  
 
 
NOTES  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The terms "country" or "countries" as used 
in this Agreement, including the Appendices, are 
to be understood to include any separate 
customs territory Party to this Agreement.  
 
 In the case of a separate customs territory 
Party to this Agreement, where an expression in 
this Agreement is qualified by the te rm 
"national", such expression shall be read as 
pertaining to that customs territory, unless 
otherwise specified.  
 
Article 1, paragraph 1  
 
 Having regard to general policy 
considerations relating to tied aid, including the 
objective of developing countries  with respect to 
the untying of such aid, this Agreement does not 
apply to procurement made in furtherance of tied 
aid to developing countries so long as it is 
practised by Parties.  
  
 
  GPA/TN1994/2/Rev.8  
 
- 155 - 
 
  ATTACHMENT 1  - OUTLINE OF A POSSIBLE FUTURE STRUCTURE FOR THE GPA  
ATTACHMENT 1  
OUTLINE OF A POSSIBLE FUTURE STRUCTURE FOR THE GPA  
("À DROIT CONSTANT")1 
 
 
 The restructuring should consist of four sequential elements:  
 
 (i) deletion of those provisions relating to the entry into force of the WTO and transitional 
periods which have now expired (such as Article XXIV.3(a), (b), (d) and (e));  
 
 (ii) grouping related together to follow general WTO practice on structure of Agreements 
and the procurement procedure more closely, as well as to facilitate ease of use;  
 
 (iii) renaming article to more closely reflect their content;  and 
 
 (iv) renumbering the articles in the new structure to make them consecutive.  
 
 A possible revised structure of the main body of the GPA (not addressing the preamble of r the 
appendices) based on these elements is set out below.  It is not intended to be exhaustive.  Neither 
does it take account of the fact that several articles may need to be either clarified or reformulated - 
for example, existing Articles XI and XII.  
 
 A. Scope an d coverage of the Agreement  
 
  Article 1  Scope and coverage (was Article I)  
 
  Article 2  Valuation of contracts (was Article II)  
 
 B. Basic Principles  
 
  Article 3  Publication of legislation (was Article XIX.1)  
  [This could also be moved to Part D]  
 
  Article 4  National treatment and MFN (was Article XIX.1)  
 
  Article 5  Rules of origin (products and services) (was Article IV)  
  [This article contains an in -built review mechanism]  
 
  Article 6  Offsets (was Article XVI)  
 
  Article 7  Access of non -parties to the Agreement (was Article XVI.1)  
 
 C. Procurement procedures  
 
  Article 8  Methods of procurement (was Article VII)  
 
  Article 9  Use of the selective tendering procedure (was Article X)  
 
  Article 10  Use of the limited tendering procedure (was Article X V) 
 
  Article 11  Qualifications requirements for suppliers (was Article VIII)  
 
  Article 12  Technical specifications (was Article VI)  
 
  Article 13  Information to bidders:  notices (was Article IX)  
 
 
1 Previously distributed in Job No. 6437, dated 5 November 1997.  GPA/TN1994/2/Rev.8  
 
- 156 - 
 
    Article 14  Information to bidders:  tender documentation (was Article II)  
 
  Article 15  Time-limits for the submission of bids... (was Article XI)  
 
  Article 16  Submission, receipt and opening of tenders (was Article XIII.1 -3 +  
  Article XXII.1)  
  [This article could be further split]  
 
  Article 1 7 Negotiation (was Article XIV)  
 
  Article 18  Award of contracts (was Article XIII.4 -5) 
 
  Article 19  Information on contracts awarded (was Article XVIII.1, 3, 4)  
 
 C.1 Bid Review  
 
  Article 20  Information obligations of Entities (was Article XVIII.2)  
 
  Article 21  Challenge procedures (was Article XX)  
 
 D. Institutional provisions  
 
 (This chapter could be divided into different chapters, for instance exceptions to the Agreement 
+ article on developing countries could be a different chapter called "Exceptio ns to the agreement").  
 
  Article 22  Information obligation of Parties (was Article XIX.2 -4): 
 
  Article 23  Exceptions to the Agreement (was Article XXIII)  
 
  Article 24  Special treatment for developing countries (was Article V)  
  [NB: This article has an in-built review mechanism]  
 
  Article 25  Statistical Reporting Requirements (was Article XIX.5)  
  [NB: This article has in -built review mechanism]  
 
  Article 26  Institutions (was Article XXI)  
 
  Article 27  Consultations and dispute settlement (was Artic le XXII)  
 
  Article 28  Final provisions (was Article XXIV and was XVII.2 on observer status)  
 
  GPA/TN1994/2/Rev.8  
 
- 157 - 
 
  ATTACHMENT 2 – ISSUES RAISED AND POINTS MDE IN THE INFORMAL CONSULTATIONS 
REGARDING THE SIMPLIFICATION AND IMPROVEMENT OF THE APPENDICES TO THE 
AGREEMENT  
ATTACH MENT 2  
ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS REGARDING THE 
SIMPLIFICATION AND IMPROVEMENT OF THE APPENDICES TO THE AGREEMENT  
 A summary of the discussion relating to the simplification of Appendices at the informal 
consultations held in 1 997 to 1999 is contained under Item A.1(i) of the Checklist of Issues Raised 
and Points Made, a note by the Secretariat, dated 7 September 1999 (Job No. 5189).  Below is an 
update of that section of the Checklist in the light of further discussions held on the issue at the 
informal consultations of 30 January 2001.  
 
______________  
 
 
A. CHOICE BETWEEN POSITIVE AND NEGATIVE LISTS  
1. It has been suggested that Appendix I to the Agreement might benefit from simplification, 
including the possibility of presenting the Annexes in the form of negative lists, starting with 
Annex  1. The Committee could define the general principles that would guide the Parties in 
determining which entities should be excluded from the coverage of the Agreement, for example for 
national security reasons.  This would also have the effect of reducing the residual exceptions and 
derogations under the General Notes to Appendix I of individual Parties.  [Job No. 5189]  
 
2. The view has been expressed that there was an obvious co nnection between the need for a 
general definition of government procurement and the discussion in relation to the Annexes.  It was 
not possible to have a standard solution for every case and scenario.  The main question was whether 
the universe of procureme nt covered under the Agreement was clearly determined or not.  If a 
positive list was being used, there was a need for a very comprehensive list.  [EC] 
 
3. The view has also been expressed that it was desirable to maintain the presentation of the 
Annexes in the  form of positive lists for the overall consistency of the Annexes.  [Job No. 5189]  The 
presentation of the Annexes to Appendix I of individual Parties in the form of detailed positive lists 
was complex but what was important was that they were clear as com pared to simply having a 
generic definition referring to entities covered by certain types of laws.  [Switzerland;  Japan]  
 
4. In this connection, the point has also been made that Parties had the obligation to ensure 
that all the entities that had been specifi ed in Appendix  I complied with the requirements under the 
Agreement effectively.  A negative list approach could raise certain difficulties for Parties in this 
respect.  [Job No. 5189]  To have entities positively listed increased their awareness of the 
Agree ment.  A comprehensive positive list also gave an indication to other Parties of what entities 
were covered in different countries and how procurement was being organized.  [Switzerland]  
 
5. It has also been said that the choice between positive and negative li sts of entities  was often 
a matter of practicality and the practicality may differ from system to system.  Therefore, the matter 
needed to be considered on a case -by-case basis . For instance in the US, there was no convenient 
way of defining coverage in a g eneric sense since if a negative list of entities was created of all the 
townships or counties that might not be subject to the Agreement, it could turn out to be a fairly 
difficult task.  [US] 
 GPA/TN1994/2/Rev.8  
 
- 158 - 
 
  6. It has also been stated that, while the Appendices in the form  of positive lists were lengthy 
when compiled into a single document for all Members, the widespread use of electronic posting in 
readily accessible form on the WTO website had provided improved transparency and access to 
information for users.  According t o this view, the loose -leaf process for the Annexes had also worked 
well. [Canada]  
 
B. ANNEX 4 ON SERVICES  
7. In relation to the coverage of services in Annex 4, one view has been that a negative list 
approach might be preferable in seeking as comprehensive c overage of services as possible, subject 
to limited negotiated exceptions whereas a positive list tended to give the impression that the 
starting -point was to assume that everything was excluded until a decision was made to cover a 
type of service.  The rea l issue was the extent of coverage.  If coverage was limited and the 
classification system was very complicated and a detailed analysis was necessary in any particular 
sector, it may not make any difference whether a positive or negative list was used.  On the other 
hand, if the ambition was to have extensive coverage of services, then a negative list approach 
would be more appropriate and, in fact, easier to implement, because it would only be necessary to 
refer to a short negative list and if the service in  question was not on that negative list, it would be 
clear that that service was covered.  A detailed analysis would not be required as was the case under 
a long positive list.  [US] 
 
8. The point has also been made that there were many questions as to what typ e of services 
were covered.  If a negative list was used for Annex 4, it would be necessary to define services.  
There was a question as to whether there was a definition of services that was sufficiently 
comprehensive that there would be no doubt that a neg ative list could be sufficiently clear.  
[Switzerland]  It has also been said in this connection that, if reference was made to a concrete 
classification of services, the use of a positive or negative list was only a matter of presentation 
because there was a clear view of what was covered and what was not covered.  [EC] 
 
9. The point has also been made that Annex  4 could be presented as a negative list only after 
the uniform extension of the coverage of the Agreement in the area of services.  [Job No. 5189]  
 
C. LINKAGES BETWEEN THE ANNEXES  
10. The view has been held that, while it might be feasible to present Annexes  1 and 2 in the 
form of negative lists, positive lists were particularly relevant to Annex 3 entities because the scope 
of public corporations or enterpr ises covered changed from country to country.  [Job No. 5189;  
Japan]  
 
11. It has been suggested that attention should be focused on the linkages between some of the 
Annexes, in particular Annexes 2 and 3 since it was not always easy to determine what was covere d 
by which Annex.  [Switzerland]  
 
D. PRESENTATION OF ANNEXES  
12. It has been stated that Annexes were not presented consistently among the Parties.  For 
example, in the case of some Parties, notes relating to Annexes 2, 3 and 4 often appeared in the 
General Notes.  For other Parties, there were similar notes that had actually been incorporated into 
the Annexes themselves.  Consideration could be given to ways in which the approaches could be 
harmonized in relation to those types of issues which could as sist non -Parties and Parties to 
anticipate where relevant notes could be found in relation to coverage in various Annexes.  [US] 
 
 
__________  