 RESTRICTED  
  
GPA/TN1994/2/Rev.11  
 
1 May  2002 
(24-2728) Page: 1/232 
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   
 
* 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 61) was derestricted on 8 November 2023.  
SUGGESTED DRAFTING CHANGES TO THE  1994 AGREEMENT*,** 
NOTE BY THE SECRETARIAT  
Revision  
At the informal meeting of ….. 2002, it was agreed that the note by the Secretariat on the 
article -by-article examination of the Agreement at the informal meetings held from February  1999 
to May 2001 (Job No. 5765) would be updated to reflect the discussions and proposals made at that 
meeting .  
 GPA/TN1994/2/Rev.11  
 
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  TABLE OF CONTENTS  
Page 
 
PREAMBLE  ................................ ................................ ................................ ........................  4 
DEFINITIONS  ................................ ................................ ................................ ...................  7 
ARTICLE I – SCOPE AND COVERAGE  ................................ ................................ ...............  14 
ARTICLE II – VALUATION OF CONTRACTS  ................................ ................................ ...... 22 
ARTICLE III – NATIONAL TREATMENT AND NON -DISCRIMINATION  ..............................  27 
ARTICLE IV – RULES OF ORIGIN  ................................ ................................ ....................  32 
ARTICLE V – SPECIAL AND DIFFERENTIAL TREATMENT FOR DEVELOPING  
COUNTRIES  ................................ ................................ ................................ ....................  33 
ARTICLE VI – TECHNICAL SPECIFICATIONS  ................................ ................................ ... 53 
ARTICLE VII – TENDERING PROCEDURES  ................................ ................................ ...... 65 
ARTICLE VIII – QUALIFICATION OF SUPPLIERS  ................................ ............................  71 
ARTICLE IX – INVITATION TO PARTICIPATE REGARDING INTENDED  
PROCUREMENT  ................................ ................................ ................................ ...............  86 
ARTICLE X – INVITATION TO PARTICIPATE REGARDING INTENDED  
PROCUREMENT  ................................ ................................ ................................ .............  106  
ARTICLE XI – TIME -LIMITS FOR TENDERING AND DE LIVERY  ................................ ....... 109  
ARTICLE XII – TENDER DOCUMENTATION  ................................ ................................ ... 128  
ARTICLE XIII – SUBMISSION, RECEIPT AND OPENING OF TENDERS AND  
AWARDING OF CONTRACTS  ................................ ................................ .........................  133  
ARTICLE XIV – NEGOTIATION  ................................ ................................ ......................  142  
ARTICLE XV – LIMITED TENDERING  ................................ ................................ .............  146  
ARTICLE XVI – OFFSETS  ................................ ................................ ...............................  160  
ARTICLE XVII – TRANSPARENCY  ................................ ................................ ..................  161  
ARTICLE XVIII – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF  
ENTITIES  ................................ ................................ ................................ .....................  164  
ARTICLE XIX – INFORMATION AND REVIEW AS REGARDS OBLIGATIONS OF  
PARTIES  ................................ ................................ ................................ .......................  171  
ARTICLE XX – CHALLENGE PROCEDURES  ................................ ................................ ..... 179  
ARTICLE XXI – INSTITUTIONS  ................................ ................................ .....................  190  
ARTICLE XXII – CONSULTATIONS AND DISPUTE SETTLEMENT  ................................ .... 191  
ARTICLE XXIII – EXCEPTIONS TO THE AGREEMENT  ................................ .....................  195  
ARTICLE XXIV – FINAL PROVISIONS  ................................ ................................ ...........  196  
ATTACHMENT  1  CONSOLIDATED US  PROPOSALS FOR STREAMLINING THE TEXT  
OF THE WTO AGREEMENT ON GOVERNMENT PROCUREMENT APRIL  2001  
(JOB NO.  2867)  ................................ ................................ ................................ ............  214  
ATTACHMENT 2  PROPOSAL BY SWITZERLAND ON THE REVISION OF ARTICLE V  
(JOB NO.  1274)  ................................ ................................ ................................ ............  228  
ATTACHMENT 3  ISSUES RAISED AND POINTS MADE IN INFORMAL  
CONSULTATIONS REGARDING THE SIMPLIFICATION AND IMPROVEMENT  
OF THE A PPENDICES TO THE AGREEMENT  ................................ ................................ .... 231  GPA/TN1994/2/Rev.11  
 
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  Comment  
 
• The table of contents facilitates reference to the text and is more presentable.  
[Hong  Kong,  China]  GPA/TN1994/2/Rev.11  
 
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  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Parties to this Agreement  (hereinafter 
referred to as "Parties"),  
 Parties to this Agreement (hereinafter 
referred to as "Parties"),  
 
 Recognizing  the need for an effective 
multilateral framework of rights and obligations 
with respect to laws, regulations, procedures and 
practices regarding government procurement 
with a view to achieving greater liberalization 
and expansion of world trade  and improving the 
international framework for the conduct of world 
trade;  
 Recognizing  the need for an effective 
multilateral framework of rights and 
obligations with respect to measures 
regarding government procurement, with a 
view to achieving greater l iberalization and 
expansion of world trade and improving the 
international framework for the conduct of 
world trade;  
[US – Job No. 2867]  
 
 
Comment  
 
• In the US proposal, "measures" is used instead of "laws, regulations, procedures and 
practices" . The word "measures" is too general and not defined in Article 1 . Therefore, it may 
be subject to different interpretation . The implications of the use of this term instead of the 
current terminology needs to be considered . The wording in the existing Agreement  seems 
better.  [Hong  Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Recognizing that it is desirable to provide 
transparency of laws, regulations, procedures 
and practices regarding government 
procurement;  
 Recognizing that the transparency, 
integrity and predictability of government 
procurement systems are integral to the 
efficient and effective management of 
public resources, the overall quality of 
governance, the economic performance of 
the Parties' societ ies, and the functioning of 
the multilateral trading system;  
 
 Recognizing  that the procedural 
commitments under this Agreement should 
be sufficiently flexible to accommodate the 
specific circumstances of each Party and 
limited to what is necessary to achieve the 
Parties' objectives of this Agreement;  
[US – Job No.  2867]  
 
 
Comm ent 
 
• It is not clear how "procedural commitments" would be related to "flexibility to accommodate 
the specific circumstances of each Party" ? [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
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  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Recognizing  that laws, regulations, 
procedures and practices regarding government 
procurement should not be prepared, adopted or 
applied to foreign or domestic products and 
services and to foreign or domestic suppliers so 
as to afford protection to domesti c products or 
services or domestic suppliers and should not 
discriminate among foreign products or services 
or among foreign suppliers;  
  
 Recognizing  the need to establish 
international procedures on notification, 
consultation, surveillance and dispute settlement 
with a view to ensuring a fair, prompt and 
effective enforcement of the international 
provisions on government procurement and to 
maintain th e balance of rights and obligations at 
the highest possible level;  
  
 Recognizing  the need to take into account 
the development, financial and trade needs of 
developing countries, in particular the 
least-developed countries;  
  
 Desiring , in accordance with 
paragraph  6(b) of Article IX of the Agreement on 
Government Procurement done on 
12 April 1979, as amended on 2  February  1987, 
to broaden and improve the Agreement on the 
basis of mutual reciprocity and to expand the 
coverage of the Agreemen t to include service 
contracts;  
  
 
Comments  
 
• Clarification is needed in relation to the rationale regarding the US proposal to drop the 
5th paragraph of the current preamble, which refers to special and differential treatment and 
the 6th paragraph, which refers to the need to broaden and improve the Agreement on the 
basis of mutual reciprocity.  [Canada ; EC; Israel]  
• Since one of the aims of the review is to encourage and to create a situation where developing 
countries will be more motivated to become a Party to the Agreement, the importance of 
development and the needs of developing countries is an issue that deserves recognition in 
the preambular language.  [Israel]  
• Developing countries would prefer to see concrete provisions in the  text of the Agreement 
rather than a general statement of interest or intent where it is unclear what is meant by such 
statements . It is more important to consider what the Agreement does as compared to what 
it says it does in the Preamble . It is necessary  to make sure that the preambular paragraphs 
make sense and there is not necessarily a need to carry a paragraph over to the new 
agreement just because it is contained in the existing Agreement . However, it is true that the 
fact that a paragraph in the exi sting agreement is dropped could send a signal and that fact 
should be taken into account.  [US] GPA/TN1994/2/Rev.11  
 
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  Preamble  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Desiring  to encourage acceptance of and 
accession to this Agreement by governments not 
party to it;  
 Desiring  to encourage acceptance of 
and accession to this Agreement by 
governments not party to it;  
 
 Having  undertaken  further negotiations in 
pursuance of these objectives;  
 Having undertaken  further 
negotiations in pursuance of these 
objectives;  
 
 Hereby agree  as follows:  
 Hereby agree  as follows:  
[US – Job No. 2867]  
 
 
General comments  
 
• It is doubted whether the review of the Agreement should attempt to revamp the Preamble . 
The original Preamble covers a much wider perspective and adheres more closely to the 
fundamental principles of the WTO . In particular, the language on non -discrimination is the 
cornerstone of the Agreement and should not be removed or undermined.  [Hong Kong, China ; 
EC] 
• All the issues that have been removed from the existing preamble are addressed in the text 
of the Agreement itself . To what extent is it necessary to make a general statement in the 
Preamble for every element contained in the text of the Agreement ? [US] 
 
  GPA/TN1994/2/Rev.11  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article I  
Definitions  
 
 For purposes of this Agreement:  
 
 build -operate -transfer contracts and public 
works concession contracts mean any 
contractual arrangement the primary 
purpose of which is to provide for the 
construction or rehabilitation of physical 
infrastructure, plant, buildings, facilities or 
other government -owned works and under 
which, as consi deration for a supplier's 
execution of a contract, an entity grants to 
the supplier, for a specified period of time, 
temporary ownership or a right to control 
and operate, and demand payment for  the 
use of such works for the duration of the 
contract;  
[US – Job No. 1051]  
 
 
Comments  
 
• The new proposed definition does not differ much in substantive terms from the previous 
definition of the term.  The change in language is intended to respond to suggestions that, in 
some systems, works that are constructed  under a BOT contract or public works concession 
contract are often publicly owned as soon as they exist or shortly thereafter. [US] 
 
• Regarding the reference in the US definition to "public works concession contracts, "  details 
are required as to how these concessions would operate. [Switzerland; Jordan]  Given the 
broad range of public works, does this term include contracts for the maintenance of public 
works? [Jordan]  
 
• Job 1043 seeks to clarify the various types of contractual modalities that would fall wi thin the 
definition that has been proposed. [US] 
 
• Since several GPA members use the term "public works concession contract", it seems 
appropriate to add that term to the definition of "build -operate -transfer contracts".  [ US] 
• Under a "build, operate and tr ansfer" arrangement, a supplier builds an infrastructure to be 
specifications agreed by the public agency and thereafter the supplier is to own or operate the 
infrastructure for a certain time before transferring it back . The present definition is deficien t 
in that it lacks the "build" element.  [Hong Kong, China]  
• The proposal suggests that management contracts and the sale of government shares in public 
companies are covered under the Agreement . However, neither is mentioned in the definition 
of "build -operate -transfer".  [Jordan]  
• Although Parties may not have the same understanding of what is meant by 
build-operate -transfer contracts, a simple text defining such contracts is not necessarily an 
appropriate solution . A dilemma exists in choosing bet ween having a simple, streamlined text 
and seeking to clarify the situation in a particular area.  [EC] 
Comments regarding whether a definition is necessary  
• Given the definition of BOT contracts in the US which effectively makes reference to industrial 
and commercial activity, is a detailed definition of BOT contracts necessary, particularly in 
light of the need to streamline and simplify the Agreement ? [Switzerland]  GPA/TN1994/2/Rev.11  
 
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  • Further clarification is needed as to how BOT contracts should be defined, what the term wou ld 
encompass and whether such a definition is necessary.  [Canada]  
• While there are a broad range of range of contractual arrangements and it is necessary to 
clearly understand what Parties' expectations are with respect to the GPA, the US paper seeks 
to make a first step in considering what should be included and what should be excluded from 
a definition of BOT contracts.  [US] 
• See also the Explanatory Note by the United States (Job No. 6772, page 2).  
• Among the Parties to the GPA and also outside the Agree ment, there has been a significant 
increase in the use of BOT contracts . The use of such contracts appears to be for the purpose 
of replacing traditional contractual procurement . Governments that do not have sufficient 
funds are increasingly using BOT cont racts for the same purpose as traditional methods, 
although they involve different procedures, particularly in relation to compensation of the 
contractor . If this issue is not dealt with in the Agreement, there may be more uncertainty or 
a reduction in the  effective coverage of the Agreement, particularly with respect to 
construction services.  [US] 
Comments regarding characteristics of concessions for public works and BOT contracts  
• The US proposal focuses on determining whether the primary purpose of the co ntract is the 
acquisition or use of a public work by the government . If the primary purpose of the contract 
from the point of view of the government is the acquisition of a public work, it would fall within 
the definition of a BOT contract . In some cases, the contractor that performs a construction 
service may have commercial considerations in mind and there may be incidental commercial 
activities associated with the contract, particularly when a concession is involved . However, 
any private sector contracto r that enters into a contract with the government will be doing so 
for commercial reasons . Accordingly, it is necessary to consider what the commercial activity 
is and who is undertaking that activity.  [US] 
• If the primary purpose of a contract is the acqui sition of ownership by the government after 
a certain period of time, there is a strong presumption that such a transaction should be 
considered to be government procurement, even if such acquisition involves the granting of a 
short-term concession instead  of direct payment for acquisition.  [US] 
• Public work contracts and BOT contracts are not the same, even if it is recognised that there 
are similarities . In particular, the level of economic risk that the private contract bears differs 
under the two differe nt types of contracts.  [EC] The issue of the degree of risk assumed by 
the private contractor is of interest and should be explored in more detail.  [US] 
• If the underlying purpose of a contract is not the acquisition of a public work - e.g. the granting 
of a concession to operate a commercial facility on government property or on government 
land where the government does not obtain anything through such a contract - that would not 
be considered to be a BOT contract, nor would it be considered to be governmen t procurement.  
[US] 
• There may be cases in which services contracts or concessions may involve some incidental 
improvement of public facilities . In such cases, it is necessary to focus on the primary purpose 
of a contract . If the primary purpose is the cons truction or rehabilitation of public works, it 
should be considered to be a construction services contract or a BOT contract . However, if the 
primary purpose was to grant a concession or to award a services contract and in either case 
there is some inciden tal improvement of public facilities, such incidental improvement should 
not be considered to be defining in terms of how the contract should be categorized.  [US] 
• The term "BOT" includes a large variety of contracts . Experience has indicated that some 
contracts that have been labelled as BOT contracts are actually public work contracts, 
concessions of public works or public services concessions.  [EC] GPA/TN1994/2/Rev.11  
 
- 9 - 
 
  • Concrete examples are needed to determine how the proposed definition would work, under 
what conditions BOT contracts are used, and the conditions under which the public work is 
returned to the government.  [Switzerland ; EC; US] 
• See also the communication from the United States in Job No. 6800.  
• How can BOT contracts and services contracts be distinguished?  The E xplanatory Note (Job 
No. 6772) indicates that there is an emphasis on the creation of fixed assets or public works. 
[Canada]  
 
• There are a number of features that distinguish procurement from concessions for public works 
or BOT contracts. First, the concessionaire does not receive a sum of money in exchange for 
the building works performed but, rather, receives the right to operat e the infrastructure.  
Secondly, concessions or BOT contracts may involve funds being transferred from the private 
sector to the public sector.  Thirdly, a concession or BOT contract which entails the right to 
operate infrastructure is, in substance, a tra nsfer or delegation of powers from the entity that 
would have ordinarily carried out the activity.  These differences mean that it is necessary to 
separate the concept of procurement from concessions and BOT contracts.   Further, the issue 
of coverage of c oncessions and BOT contracts relates more to the issue of the expansion of 
the coverage of the Agreement and is not merely a clarification of the existing text.  [EC] 
 
• Contracts other than concessions for public works, including procurement contracts, may 
entail a delegation of powers that entities would ordinarily possess.. [Canada]  
 
• The awarding of public works contracts usually entails delegations of power over long periods 
of time. During such periods, the private concessionaire operates the infrastruct ure in the 
place of the public authority.  [EC] 
 
• The GPA is not concerned with the content and terms of procurement contracts but rather 
with the procurement process. However, the distinctions made by the EC such as those 
relating to the allocation of risk or financing, concern more the content of procur ement of 
contracts and the allocation of risk between the government entity/buyer and the private 
sector supplier rather than the procurement process.  Contracts where the government 
essentially acquires a public construction for its own use and its own pu rposes has the 
characteristics of procurement within the expression "procurement by any contractual means " 
in the GPA. [US] 
 
• While the comments that have been made relate to the content of the contract, they are 
relevant to the process adopted by the publi c authority in choosing a private contractor. [EC] 
 
• Paragraph 11 of the Explanatory Note indicates that contracts for the management and 
operation of facilities are a form of "PPP" or public -private partnership that is separate from 
BOT.  Are contracts for  the management and operation of facilities considered to be services 
contracts within the context of the GPA?  [Canada] .   
 
• Such management and operation contracts would not be BOT contracts or construction 
services contracts.  They are management contrac ts which entail the provision of services. 
[US] 
 
Other comments  
• What would the situation when the government contracts, for example, for cafeteria services 
that are provided on government land ? [Canada ] Such contracts are services contracts and 
do not invo lve the construction of any public works, facilities etc. T herefore, they are unlikely 
to be categorised as BOT contracts.  [US] 
• In cases whether the central or local government procures land or buildings but nothing more, 
would the GPA apply ? [Japan]  
• In cases where the central or local government provides subsidies for suppliers but nothing is 
procured from suppliers, would the GPA apply ? [Japan ] It is important to avoid defining BOT GPA/TN1994/2/Rev.11  
 
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  contracts too broadly in the GPA so that it would include transactions tha t are not government 
procurement, such as subsidies.  [US] 
• See also the comments on the proposed amendments to Article I:2 on Scope and Coverage.  
• There are an increasing number of variations of BOT contracts . It is unclear whether future 
forms of BOT contra cts would be caught by the definition contained in the US proposal.  [Japan]  
• The US definition attempts to clarify the meaning of the term "BOT" in a way that ensures 
that it is not too wide.  [US] 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 international standard means a standard 
that is developed in a manner consistent 
with the decisions of the WTO Committee 
on Technical Barriers to Trade, as 
elaborated in "Decisions and 
Recommendations adopted by the 
Committee since 1 January 1995, 
"GB/TBT/1/Rev7, 28 November 2000, 
Section IX ("Decision of the Committee on 
Principles for the Development of 
International Standard, Guides and 
Recommendations with relation to 
Articles   2, 5 and Annex 3 of the 
Agreement").  
[US – Job No. 105 1] 
 
 
  GPA/TN1994/2/Rev.11  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 construction services contract means a 
contract that has as its objective the 
realization by whatever means of civil or 
building works, in the sense of Division 51 
of the Central Product Classification (CPC);  
[US – Job No. 2867]  
 
 country or countries  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 term "national", such expression shall 
be read as pertaining to that customs 
territory, unless otherwise specified;  
[US – Job No. 2867]  
 
 government  is deemed to include the 
competent authorities of the European 
Communities;  
[US – Job No. 2867]  
 
 in writing or written means any expression 
of information in words, numbers or other 
symbols, including electronic expressions, 
that can be read, reproduced, and stored;  
[US – Job No. 2867]  
 
 
Comments  
 
• The definition of "in writing" or "written" is contained in a proposed revision to the US Federal 
Acquisition Regulation (FAR), which was published in the US Federal Register on 
1 November  2000.  As of 30 March 2001, the Civilian Agency Acquisition Council  and the 
Defense Acquisition Regulations Council continue to review this regulatory proposal.  The 
United States reserves its right to modify the language of this submission, based on ongoing 
internal consultations.  [US] 
 
• We support the definition of "in writing or written" as it recognizes electronic expressions, that 
can be read, reproduced, and stored.  [Hong Kong, China]  
 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 limited tendering procedures are those 
procedures that the entity makes no public 
invitation for participation in the tendering 
exercise;  
[Hong Kong, China]  
 
 
  GPA/TN1994/2/Rev.11  
 
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  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procurement means the process by which a 
government obtains the use of or acquires 
goods or services, or any combination 
thereof, for governmental purposes and not 
with a view to commercial sale or resale, or 
use in the production or supply of goods or 
services for commercial sale or resale  
[US – Job No. 1051]  
 
 
Comments concerning a definition of government procurement  
 
• The proposed definition of procurement is based upon the Agreement 's existing definition of 
scope and definitions of government procurement contained in the GATT and the GATS.  It is 
considered us eful to define "procurement " in the GPA so that all Parties understand their specific 
commitments. [US] 
 
• There is a risk that if a definition of "government procurement" is included in the GPA, the scope 
and coverage of the current GPA offers could be expa nded or, at least, that impression could be 
conveyed to outsiders.  [EC] 
 
• Including a definition in the GPA would be useful to non -Parties who may be considering 
accession in so far as it might assist them to understand what the major commitments under 
the Agreement would be.  [US] 
 
• This Article should contain a definition of the term "government procurement" which focuses on 
the status of the end -users rather than on the purchasing agent.  [Hong Kong, China ]  Some 
specific suggestions with respect to this comment should be provided .  [US;  Canada]  
 
• The proposed US text uses four terms, seemingly interchangeably – namely, "contract", 
"procurement", "procurement contract" and "intended procurement".  "Procurement" is the 
process of procurement which results in one or more contracts bein g entered into.  Therefore,  
the term "procurement" should be used in relation to the procurement process.  In turn, 
"contract" should be used in relation to the outcome of the process of procurement.  It is unclear 
how the term "measures" fits in relation  to the other terms that have been referred to.  [Canada]  
 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 measure means any law, regulation, 
procedure, requirement, administrative 
guidance or practice  
[US – Job No. 1051]  
 
 
• The proposed definition of "measure " is deliberately intended to be broad.  [US] 
 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 procuring entity means an entity covered 
under Annexes 1, 2 and 3 of Appendix I of 
each Party;  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 13 - 
 
  Comment  
 
• If "procuring entity" is a defined term, it should be consistently used throughout the text instead 
of using the term "entity" or "entities" in the draft text.  [Hong Kong, China]  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 service s includes construction services 
contracts, unless otherwise specified;  
[US – Job No. 2867]  
 
Comments  
 
• Clarification is sought as to why it has been defined to include construction service contracts 
"unless otherwise specified."  Where should reference be made to determine whether something 
has been "specified" as per this definition?  [Japan]  
 
• Most of the Annexes already contain the definition of "services" that has been included in the 
definitions article of the US proposal.  In the interests of consolidating the Agreement and making 
it easier to understand, the definition has been included in the article on definitions that can be 
referred to in interpreting the Agreement itself and the Annexes.  [US] 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 supplier means a natural person or 
enterprise that has provided or could 
provide goods or services in response to a 
procuring entity's call for tenders;  and  
[US – Job No. 2867]  
 
 technical specification means a tendering 
requirement that lays down the 
characteristic of goods to be procured or 
their related processes and production 
methods or the characteristics of services 
to be procured or their related operating 
methods, including any applicable 
administrative provisions.  It may also 
include or deal exclusively with 
terminology, symbols, packaging, marking 
or labeling requirements as they apply to a 
good, process, or production or operating 
method.  
[US – Job No. 2867]  
 
 
General comments on a new article in the Agreement on definitions  
 
• An article containing definitions may be useful to ensure that all Parties understand the terms 
that are being used in making commitments vis-à-vis other Parties.  [US] 
 
• We have no strong view on whether to have an article on definitions or to define terms  
individually by means of footnotes or otherwise.  However it is done, the terms to be defined 
should be kept to the minimum necessary, e.g. confining to technical terms or terms having a 
meaning other than the literal one.  In this regard, we have doubts on whether "construction 
services contract", "procuring entity" and "supplier" need to be defined.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
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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.  
 
Footnote 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 neg atively, 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 in Appendix  I. 
[EC – GPA/W/87 ] 
 
 1. This Agreement applies to any law, 
regulation, procedure or practice re garding 
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  
 
• The proposed modification by the EC 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]  
• There are difficulties associated with the approach contained in the EC proposal . The 
definitions in the GATT and GATS refer resp ectively to the purchase of goods and services for 
commercial sale or use in the production of goods for sale or commercial resale . Each definition 
refers only to goods or services . However, a situation may arise when services are used in the 
production of  goods or goods are used in the production of services . It is unclear how that 
type of situation would be interpreted in the context of the GPA, which applies to both goods 
and services, unlike the GATT or the GATS . The approach of using the language of th ose 
definitions rather than referring to the individual Agreements is preferable.  [US] GPA/TN1994/2/Rev.11  
 
- 15 - 
 
  Drafting suggestion regarding the EC proposal  
 
• In the case of GATS, the "scope" is defined in terms of an exclusion . It might be more 
appropriate to substitute the prop osed wording "procurement falling within the scope" with 
"as described in …".  [Hong Kong, China]  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. This Agreement applies to any 
measure specifically governing an entity's  
procurement, by any contractual means,  
including purchase;  lease;  rental or hire 
purchase, with or without an option to buy; 
and build -operate -transfer and concessions 
for public works contracts.  
[US – Job No. 1051]  
 
 
General Comments  
 
• The proposed Article I refers to an "entity " but not to Appendix I.  "Entity " is defined in the 
proposed definitions section as an entity listed in Appendix I.  Therefore, Article I would 
effectively refer to Appendix I through the reference to "entity. "  The objective of this change 
is to simplify language through the incorporation of some concepts into the proposed 
definitions section.  [US] 
• Article I refers to "entity " whereas the definition of "procurement " refers to the term 
"government " which, in turn , is defined to mean central and local government entities.  The 
entities listed in Annex 3 of Appendix I are not government agencies and, therefore, do not 
fall within the definition of "government. " [Japan]  
• The definition of "procurement " in the proposed  definition section is a broad one that is not 
specifically related to the scope of the Agreement.   In particular, it defines procurement 
regardless of whether or not it is covered under the Agreement. [US] 
Comments on "any measure"  
 
• Paragraph 1(a) of the  US proposal seems to suggest that the scope of the Agreement should be 
both measures -based and procurement -based.  Perhaps a measures -based approach is more 
consistent with other trade obligations.  Will the Agreement apply to "measures" and to 
"procureme nt"?  The Agreement should apply to one or the other.  [Canada]  
 
• It is understood that the term "measure" includes "laws, regulations, procedures or practices" 
and that "practices" can mean almost any decision that a government takes during a 
procurement p rocess.  For example, a contract award decision would be a "practice" as well as 
a "measure" that would be governed by the GPA.  [US] 
 
• Given the explanation provided relating to the meaning of the word "measure" in the US 
proposal, it may be preferable to include a definition of that term referring to "laws, regulations, 
procedures or practices" in the proposed Article containing definiti ons since the word "measure" 
may be defined more broadly in other jurisdictions.  [Hong Kong, China]  
 
• Do some Parties consider that some "measures" that have not been included in the list currently 
contained in the GPA should not be made subject to the GPA?  [US] 
 
• What kind of "measures" does the US have in mind with respect to paragraph (a)?  In addition 
to the measures that are covered under the existing Agreement, does the US proposal seek to 
cover any additional measures?  If so, such an approach might affect the mutually agreed 
coverage under the existing Agreement. [Japan]  
 
• The word "measure" has ofte n been used in many WTO agreements.  The term "measure" is 
much broader than "law, regulation, procedure or practice".  If this term is to be used, GPA/TN1994/2/Rev.11  
 
- 16 - 
 
  clarification is needed as to whether a definition similar to the word "measure" in 
Article  XXVIII(a) of the  GATS is preferred? [Hong Kong, China]  
 
• Why is there no reference to procuring entities specified in Appendix I in paragraph 1 of its 
proposal given that there is such a reference in paragraph 2 of the US proposal?  [Japan]  
 
Comments on GATT and GATS defin itions  
 
• A reference to definitions contained in the 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.  [EC] 
• 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 betwee n the GPA on the one hand and the GATT and GATS on 
the other ? [Switzerland]  
• Consideration should be given to whether the current definitions in the GATT and the GATS 
are adequate or whether a further definition of "government procurement" should be 
develop ed 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 the GATS and the other 
in the GPA.  [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 the general exceptions to the 
GATT and GATS , otherwise there would be no point in coverage under the GPA.  [EC] 
• 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 definiti on 
of government procurement.  GPA/TN1994/2/Rev.11  
 
- 17 - 
 
  Article I  
 
Scope and Coverage  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. For each Party, Appendix I shall be 
divided into five Annexes:  
 
(a) Annex 1 specifies the central 
government entities whose 
procurement is covered by this 
Agreement;  
(b) Annex 2 specifies the 
sub-central government entities 
whose procurement is covered 
by this Agreement;  
(c) Annex 3 specifies all other 
entities whose procurement is 
covered by this Agreement;  
(d) Annex 4 specifies the services 
covered by this Agreement ; and 
(e) Annex 5 specifies the 
construction services covered by 
this Agreement.  
[US – Job No. 2867]  
 
 
Comments  
 
Paragraphs 1(a) and (b) of the US proposal are considered to be cumulative and tog ether constitute 
a definition of government procurement, paragraph (a) addressing measures and paragraph (b) 
addressing the entities that take those measures. [US] 
 GPA/TN1994/2/Rev.11  
 
- 18 - 
 
  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 
service s. (see definition of procurement under 
"definitions").  
 
 
Comments on reference to BOT contracts  
 
• 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]  
• To what extent should public procurement contracts that are based upon public/privat e 
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 unclear whether the reference to build -operate -transfer contracts in this Article is merely 
a clarification of the existing article . The proposal could be considered to be an extension of 
coverage.  [EC] 
• The existing Agreement refers t o procurement by "any contractual means" . Therefore, the 
question arises as to whether a build -operate -transfer contract constitutes a "contractual 
means" . The US considers that it does . Therefore, the next question is whether such contracts 
constitute pro curement . The US tends to the view that it does . There are many different types 
of contractual relationships that governments have with the private sector beyond 
build-operate -transfer contracts and including other types of procurement contracts . For 
example, there are a series of contracts including BOT, BOOT and BOO contracts, that are 
contractual means, some of which do not involve ownership of any property by the 
government and some of which may be very similar to licensing or other types of operat ions. 
The reference to build -operate -transfer contracts does not necessarily mean that those types 
of contractual means are considered to be procurement . The reference to BOT contracts is a 
fairly narrow range of contractual means and there is a much broad er range of government 
activities that would not be covered by that term.  [United States]  
• We have reservation on extending the coverage of the Agreement to BOT contracts because : 
we are not sure whether the contracts can be regarded as government procureme nt at the 
outset . They are a hybrid of "concessions" (whereby the government gives an exclusive right 
to an entity to operate a service) and "procurement" ; and BOT often lasts for many years and 
may involve some kind of franchise arrangement . We are wary o f the implications of this 
extension as parties may later on request further extension of the Agreement to cover other 
concessions such as franchise and licensing which are not covered by the existing GPA.  
[Hong  Kong China ; EC] 
• Why is there a need to inser t BOT as a form of contractual means ? The US explanatory note 
has not explained the rationale of inserting BOT.  [Hong Kong, China]  
• The illustrative list of contractual means contained in the current Article I:2 of the 
GPA - namely, purchase, lease, rental or hire purchase – refers to transactions of a general 
nature applicable to procurement of any types of goods or services . However, the revised GPA/TN1994/2/Rev.11  
 
- 19 - 
 
  definition of BOT contracts indicates that it now refers to particular types of works contracts . 
Is such a restr icted application possible ? [Hong Kong, China]  
• See also the US' communication on Job No. 6800 and the proposed definition of BOT in the 
proposed new article on definitions.  
• The current provision contains an illustrative list of contractual means and is not  a 
comprehensive list . Presumably, that approach has been adopted to provide clarification . 
Therefore, the question arises as to whether it is useful to further clarify the situation by 
including a reference to build -operate -transfer contracts in the exist ing illustrative list.  [US] 
• There is a grey area between what constitutes a clarification of the existing text and what 
amounts to an addition to the existing text.  [EC] 
• The issue of whether or not BOT contracts should be covered under the GPA is relevant to the 
issue of coverage and should be preceded by identification and clarification of the relevant 
issues in order to come to a common understanding as to what should be covered by the GPA.  
[EC] 
• Does the US proposal regarding BOT contracts represent a new approach to the issue of 
coverage ? [Canada ] The question posed by Canada is a broad one and does not specifically 
relate to BOT contracts but is more related to the issue of definitions and how the GPA relates 
to the WTO system as a whole.  [US] 
• It is unclear whether proposed subparagraph 1(b) is needed since it extends the definition 
contained in the GATT, which is essentially captured in proposed subparagraph (a).  [EC] 
 GPA/TN1994/2/Rev.11  
 
- 20 - 
 
  Article I:3, 4  
 
Scope and Coverage  
 
AGREEMENT 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.  
 3. Where procuring entities, in the 
context of procurement covered by this 
Agreement, require enterprises not 
included in Appendix I to award contracts 
in accordance with particular requirements, 
Article III of this Agreement shall apply 
mutatis mutandis  to such requirements.  
[US – Job No. 2867]  
 
4. This Agreement applies to any procurement 
contract of a value of not less than the relevant 
threshold specified in Appendix I.  
 4. This Agreement applies to any 
procurement contract for which the value of 
the cont ract is estimated, at the time of 
publication of the notice of intended 
procurement, in accordance with Article V 
of this Agreement, to equal or exceed the 
relevant threshold specified in Appendix  I. 
The value of a contract shall be estimated 
in accordance  with the provisions of 
paragraph 5 of this Article.  
[US – Job No. 2867]  
 
 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 not 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 ] 
 
 GPA/TN1994/2/Rev.11  
 
- 21 - 
 
  Comments on common 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]  
• Harm onization 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 d iscriminatory 
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 dea lt 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 interests.  [Canada]  
• Common thresholds would make the Agreement more readable and under standable 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 been negotiated because offers relate more to 
the entities that are covered and not ne cessarily 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.11  
 
- 22 - 
 
  ARTICLE II – VALUATION OF CONTRACTS  
Article II:1  
 
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.  
 5. In determining whether a contract is 
covered under this Agreement, procuring 
entities shall apply the following 
provisions:  
[US – Job No. 2867]  
 
 
Drafting suggestion  
 
• It is too broad to say that the provisions of paragraph 5 of the US proposal shall apply in 
determining whether a contract is covered under the Agreement . There are other elements 
which affect whether a contract is covered . It is for the purpose of determining the value of a 
contract that one should apply paragraph  5. Hence, it is suggested that the chapeau should 
be reworded as follows : "In determining the value of a contract for the purpose of ascertaining 
whether that contract is covered under this Agreement, procuring entities shall apply the 
following provisions. " [Hong Kong, China]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
Footnote 2:  
 
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 Agreeme nt 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 o f limited tendering.  [Japan]  
 
 
Comment  
 
• 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]  GPA/TN1994/2/Rev.11  
 
- 23 - 
 
  Article II:2, 3  
 
Valuation of Contracts  
 
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 shall take into account all 
forms of remuneration, including any 
premiums, fees, commissions and interest 
to be paid.  
[Chinese Taipei – Job No. 3193]  
 
 (b) In calculating the value of a 
contract, an entity shall take into 
account all forms of 
remuneration, including 
premiums, fees, commissions, 
interest, other revenue streams 
provided for under the contract 
and the value of the maximum 
permissible options provided for 
by the contract.  
[US – Job No. 2867]  
 
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.  
 (a) Procuring entities shall not 
divide an intended procurement 
into separate contracts or 
otherwise use a particular 
method for estimating  the value 
of a contract for the purpose of 
avoiding the application of this 
Agreement.  
[US – Job No. 2867]  
 
Comment  
 
• The meaning of "other revenue streams provided for under the contract" in paragraph 2(b) is 
not clear . The meanings of "intention" and "purpose" seem interchangeable and both imply a 
subjective element . Would like to ascertain from the US if there is any particular meaning to 
replace "with the intention of" with "for the purpose of".  [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 24 - 
 
  Article II:4  
 
Valua tion 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:  
 (c) Except as provided for in 
subparagraph (d) of this Paragraph, 
a procurement that is conducted in 
multiple parts, that is for an 
indefinite quantity, that may result 
in the award of contracts to more 
than one supplier, or tha t may result 
in the awarding of recurring 
contracts to a single supplier, shall 
be valued at the total estimated cost 
of the procurement over its entire 
duration.  
[US – Job No. 1051]  
 
 
Comments  
 
• It is important to incorporate provisions on valuations that relate to the many new modalities 
of procurement that are being increasingly used by the GPA Parties and have been discussed 
extensively in the Committee.  At the same time, these provisions must be as simple as 
possible, understandable, an d flexible enough to apply to a wide range of emerging 
procurement modalities.  [ US] 
• In relation to construction projects that can be regarded as one procurement but may be 
procured pursuant to more than two contracts spanning several years, it may be impo ssible 
to estimate the value of the contract at the point when the first contract is entered into . 
Accordingly, the current text contained in paragraphs 4(a) and (b) is preferable to the 
language proposed by the US.  [Japan]  
• Article II:4 of the GPA refers t o an "individual requirement" being awarded in separate parts 
whereas the US draft talks about "contracts" . It is fair to take into account the value of 
recurring contracts if an individual requirement is awarded in separate parts . However, the 
scope of th e word "contracts" in the US proposal is so wide that it can encompass contracts 
for different requirements . Why should contracts that are awarded to more than one supplier 
be valued at the total estimated value if these contracts are for different require ments or in 
relation to different subject -matters ? [Hong Kong, China]  
• What is meant by the reference in the current Agreement to a 12 months period ? If the final 
value of a contract which runs for more than one year, for example, a road maintenance 
contrac t, is unknown until the works have been completed, should the basis of coverage be 
the estimated value for one year 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 mo nths in 
subparagraphs (a) and (b) ? [Hong Kong, China]  
• 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]  
• It might be possible to make a determination that the total estimated value of small -value 
contracts would not exceed the GPA thresholds.  [US] 
• In response to a suggestion fo r further simplification of paragraph (c) [Canada] , there may 
be some situations where more detail is necessary, for example in the case of multiple award 
or framework contracts.  [US; EC] GPA/TN1994/2/Rev.11  
 
- 25 - 
 
  • The use of the word "procurement" would appear to be more appropriat e than the term 
"contract" since valuation takes place before the procurement process commences . It is 
impractical to revisit the results of the valuation exercise once the procurement process has 
been completed and contracts have been issued . 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 "contract s" should be used.  [Canada]  
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(a) the actual value of similar recurring 
contracts concluded over the 
previous fiscal year or 12 months 
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.   
 (d) Contracts for which the duration is 
not known shall be valued at the 
actual value of similar previous 
contracts awarded over the most 
recent two -year period, adjusting 
for any anticipated changes in the 
quantity and prices of the goods or 
services to be supplied.  
[US – Job No. 2867]  
 
 
Comments  
 
In relation to paragraph 5(d) of the US proposal:  
 
• There are only a limited number of circumstances when the valuation process will be 
complicated.  [Canada]  
 
• Paragraph (d) of the US proposal is unclear, appears to narrow the application of 
subparagraphs  (a) – (c).  Is such a provision necessary?  [Canada]  
 
• This valuation method is problematic if there are no "previous contracts awarded over the most 
recent two -year period", upon which their value can be taken into account.  [Hong Kong, China]  
 
• The propose d subparagraph (d) refers to similar previous contracts that have been awarded.  
Therefore, there would not necessarily be cases where valuation was based on a contract that 
was identical to the current contract.  An entity may need to identify a contract that was 
previously awarded that was similar in nature and use that as a basis for valuation.  [US] 
 
• The GPA covers a wide variety of activities.  Therefore, it is necessary to strike the right balance 
between specificity and breadth without describing val uation procedures for each and every type 
of contract covered by the Agreement.  [US] 
 
• See also the Explanatory Notes in Job No. 6772, page 3.  GPA/TN1994/2/Rev.11  
 
- 26 - 
 
  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 their 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.11  
 
- 27 - 
 
  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 reflected 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 applied 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 other 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 Japan ; 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 except ion 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.11  
 
- 28 - 
 
  • 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 merely increases the visibility of the core principles of t he Agreement.  
[EC in response to a question from Canada]  
 GPA/TN1994/2/Rev.11  
 
- 29 - 
 
  Article III:1, 2  
 
National Treatment and Non -discrimination  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article III  
Non-discrimination  
 
 Basic Principles  
 
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:  
 1. With respect to any measure 
specifically governing procurement covered 
by this Agreement, each Party shall accord 
to the goods and services of another Party 
and to the suppliers of another Party 
offering the goods or services of another 
Party, treatment no  less favorable than the 
most favorable treatment the Party accords 
to: 
 
(a) that accorded to domestic products, 
services and suppliers ; and 
 (a) its own goods, services and 
suppliers ; and 
 
(b) that accorded to products, services 
and suppliers of any other Party.  
 (b) goods, services and suppliers of 
another Party.  
 
[US – Job No. 2867]  
 
2. With respect to all laws, regulations, 
procedures and practices regarding government 
procurement covered by this Agreement, each 
Party shall ensure:  
 2. With respect to any measure 
governing procurement covered by this 
Agreement, each Party shall ensure that : 
 
(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 
 (a) its entities do not treat a locally 
established supplier less 
favorably 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. 
 (b) its entities do not discriminate 
against a locally established 
supplier on the basis that the 
goods or services offered by that 
supplier for a particular 
procurement are goods or 
services of another Party.  
[US – Job No. 1051 ] 
 
Comments  
 
• The title "National Treatment" should be retained since it is an important aspect of WTO rules.  
[Switzerland]  
• The reference to "measure" should be replaced with the reference to "laws, regulations etc.", 
which is contained in the existing text, since the la tter formulation is more comprehensive.  
[Switzerland]  
• It is not obvious that the word "measure" is narrower than the existing text, which lists specific 
measures in an exhaustive fashion . In fact, "measures" might be a broader term.  [US] GPA/TN1994/2/Rev.11  
 
- 30 - 
 
  • Clarification is s ought as to whether there were measures that have not been referred to in 
the existing text, which might be a vehicle for discrimination.  [US] 
• Clarification is sought as to the reason for and significance of the replacement of the word 
"products," which ap pears in the current text, with the word "goods," which is contained in 
proposed paragraph 1(a) ? [Switzerland]  
• In the US, the word "products" is ambiguous and often means services as well as goods.  [US] 
• What is meant by "own goods, services and suppliers" and how does that differ from the 
reference in the existing text to "domestic products, services and suppliers" ? [Switzerland]  
General 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 benefits to non -Parties similar to 
that contained in Article 11 of the NAFTA Agreement . It could be useful to clarify Members' 
obligations under the Agreement in relation to benefits to be accorded  to non -Parties.  [US] 
More detail is required in this respect.  [EC] Article 11 of the NAFTA Agreement merely clarifies 
parties' rights.  [US] 
• GATS Article XXVII deals with the denial of benefits in relation to services.  [Secretariat]  
• Given that the GPA is a  plurilateral 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 fr om, for example, the GATS.  [US] GPA/TN1994/2/Rev.11  
 
- 31 - 
 
  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, the 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 Article 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, regulations, procedures 
and practices regarding government 
procurement covered by this Agreement.  
[EC – GPA/W/87 ] 
 
 Measures Not Specific to Procurement  
 
 6. The provisions of paragraphs 1 and 2 
of this Article do 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 or formalities, and 
measures affecting trade in services other 
than measures specifically governing 
procurement covered by this Agreement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 32 - 
 
  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.  
 3. For purposes of procurement covered 
by this Agreement, no Party may apply 
rules of origi n to goods imported from 
another Party that are different from or 
inconsistent with the rules of origin the 
Party applies in the normal course of trade.  
[US – Job No. 2867]  
 
2. Following the conclusion of the work 
programme for the harmonization of rules of 
origin for goods 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  
 
• Since the negotiations on harmonization of rules of origin will take more time, the relevance 
of paragraph 2 is questionable.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 33 - 
 
  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] 
• A possible effect of the proposed amendment in particular, the reference to transitional 
periods, could be that developing countries are deterred from joining the Agreement.  [Korea ; 
Hong Kong, China]  
• The provisions of the existing Article are complicated and the Article has not 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 m ean 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 into 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.11  
 
- 34 - 
 
  • Would the same transitional period 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 the transitional periods be ? [US] 
• Would the Annex 2 and Annex 3 commitments be negotia ted 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 central government entities of developing countries that join the GPA 
would start from th e 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 development" 
objectives of those countries, which are currently presented in paragraphs  (a), (b) , (c) and 
(d) of Article V:1.  [Switzerland]  
 GPA/TN1994/2/Rev.11  
 
- 35 - 
 
  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, i n particular least -developed 
countries.  
[Switzerland – Job No. 1274]  
 
(a) safeguard their balance -of-payments 
position and ensure a level of 
reserves adequate for the 
implementation 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.  
  
 
Comments  
 
In relation to the Swiss proposal:  
 
• Paragraph ZZI of the Swiss proposal attempts to consolidate existing GPA provisions dealing 
with non -Parties, developing and least -developed countries that were previously spread 
throughout the Agreement.  [Switzerland]  
• The existing Article V:1 is lengthy and contains a number provisions that probably do not have 
as much practical relevanc e as hoped for . For example, in relation to the reference to 
balance -of-payments, it might not be easy to identify cases where Swiss procurement has an 
impact on the balance -of-payments of some developing or least -developed countries . It might 
be more appr opriate to replace the existing provisions with fewer words that refer to the 
development, financial and trade needs of developing countries.  [Switzerland]  GPA/TN1994/2/Rev.11  
 
- 36 - 
 
  • Changes that are made should be consistent with the objectives of the Agreement . They 
should also be  realistic and operational.  [US] 
• The existing Article V does not make clear how or whether it addresses non -Parties whereas 
the Swiss proposal applies specifically to non -Parties.  [US] 
• Article ZZI is applied to non -Parties in response to the fact that the existing text of Article V 
contains a few sentences that refer to non -Parties but it is difficult to clearly establish the 
position in relation to such non -Parties.  [Switzerland]  
• With regard to accessions, it is important to provide flexibility to developi ng countries as 
appropriate in order to encourage and facilitate their participation in the Agreement as 
extensively as possible . Flexibility should come in the form of market -access commitments 
and transitional periods rather than procedural flexibility . In order to enjoy the benefits of the 
Agreement, it is necessary to have transparent procedures, due process and competition etc. 
Therefore, any exceptions to those basic procedural commitments need to be considered 
carefully.  [US] 
In relation to the US Pr oposal (Job No. 1235):  
 
• The US proposal seeks to make the language used in Article V more precise and operational and 
seeks to make Article V more flexible so as to allow the specific needs of developing countries 
to be addressed, taking into account the specific circumstances or  needs of a particular country.  
The objective of the proposal is to ensure that developing countries are able to fully participate 
in and benefit from the GPA. [US] 
 
• The existing Article V contains provisions that are favourable to LDCs.   Caution should be 
exercised in the deletion of such provisions from the new GPA. [Switzerland]  
 
• The US shares the objective of responding to the needs, in particular, of LDCs and of doing 
everything possible to provide opportunities for such countries.  Existing Parties have already 
fulfilled the current GPA provisions relating to LDCs.  Therefore, it is questioned whether the 
current provision in the GPA needs to be retained or is part of a more general issue of more 
favourable treatment for LDCs. [US] 
 
• It is difficult t o establish criteria regarding how treatment should differ as between developing 
and least developed countries. [EC] 
 
• The US proposal does not deal with adaptation of existing legislation to bring it into conformity 
with the GPA.  [Switzerland]  
 GPA/TN1994/2/Rev.11  
 
- 37 - 
 
  Article V:2  
 
Special and Differential Treatment for Developing Countries  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED M ODIFICATIONS  
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 and 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  
 
In relation to the Swiss proposal:  
 
• Subparagraph 3 of Article ZZI may violate the principle of non -discrimination, which underlies 
the Agreement.  [EC] 
• The idea underlying this proposed provision is to enable potential suppliers from developing 
or least -developed countries to, for instance, h ave a much better access to tender notices and 
contracts that are going to be awarded . This will help to increase imports from such countries . 
However, the language needs to be further sharpened to ensure that there is no ambiguity 
regarding treatment that  ought to be given to non -Parties, developing and least -developed 
countries.  [Switzerland]  
 GPA/TN1994/2/Rev.11  
 
- 38 - 
 
  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 negotiation s with respect to the 
procurement of developing countries to be 
covered by the provisions of this Agreement.  
 
Developed countries, in the preparation of their 
coverage lists under the provisions of this 
Agreement, shall endeavour to include entities 
procur ing 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 e valuation of offers under 
individual procurements by Parties ? [Canada]  GPA/TN1994/2/Rev.11  
 
- 39 - 
 
  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 accession 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 
under Appendix I, Annex 2, and its entities 
covered under Appendix I, Annex 3 for 
goods and services with, if nece ssary, 
transitional periods and review provisions 
linked with economic development.  
 
 
Comments  
 
• The objective of the Article ZZII is to articulate concisely some key elements associated with 
accession and to invite developing and least developed countries to seek membership.  
[Switzerland]  
• Proposed subparagraph 4 suggests that transitional periods apply in relation to substantive 
provisions of the Agreement, rather than just coverage . The flexibility should be more in terms 
of coverage.  [EC] GPA/TN1994/2/Rev.11  
 
- 40 - 
 
  • Subpar agraph 4 of the proposal is intended to be linked to coverage . If a country needs to 
retain domestic preferences for a certain period of time because of the existence of 
development programmes, it is possible to achieve that by not listing entities involve d in such 
development programmes.  [Switzerland]  
• A number of the proposed provisions send some interesting signals but may have limited legal 
impact.  [EC] 
• It is hoped that there are some non -Parties who may consider acceding to the Agreement who 
are not necessarily developing or least -developed countries . It is unclear whether having a 
separate provision on accessions is intended in any way to address such countries since the 
title refers to accession by developing and least -developed countries . Article Z ZIII refers to 
developing or least -developed countries which seems to confirm the impression that 
Article  ZZII applies only to those types of countries.  [Canada]  
• It is proposed that the provision on accessions will be contained in the part of the Agreement  
that deals with developing and least developed countries . This part clearly will not apply to 
developed countries that wish to accede to the Agreement.  [Switzerland]  
• There are a wide range of circumstances in which developing countries find themselves and  
they have a wide range of needs and capabilities . It is necessary to consider whether it is 
possible or appropriate to develop specific provisions that apply equally to that very broad and 
diverse group of countries.  [US; Canada]  
• While it is appropriate t o acknowledge that there are circumstances where special and 
differential treatment is warranted, the specifics for special and differential treatment for 
acceding countries should be a matter of negotiation and the Agreement should not become 
too prescrip tive in this respect . Given the scope of paragraph 7, it is questioned whether the 
level of detail in paragraphs  4, 5 and 6 are necessary.  [Canada]  
• It is unclear what paragraph 2 is intended to mean and how this paragraph will work in 
conjunction with nego tiated provisions.  [Canada]  GPA/TN1994/2/Rev.11  
 
- 41 - 
 
  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 circumstan ces 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 exclusions 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 which may be 
subject to common industrial development 
programmes.  
 ZZII:7.  Mutually acceptable tempor ary 
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.  
[Switz erland – Job No. 1274]  
 
 GPA/TN1994/2/Rev.11  
 
- 42 - 
 
  Article V:5, 6, 7, 8  
 
Special and Differential Treat ment 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 t he 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 furth er 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 temporary exemptions from the rules 
on nat ional 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 trade 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  
  
 
Comments  
 
• Proposed paragraph ZZIII refers to temporary exemptions to coverage, such as those that 
can be sought during the implementation of the Agreement . It consolidates and simplifies 
elements contained in Article V:7, 14 and 15 of the existing text.  [Switzerland]  
• Paragraph ZZIV contains elements from Article V:8, 9, and 11 of the existing Agreement . The 
proposed paragraphs contains a number of additions in r elation to tender procedures and 
documentation.  [Switzerland]  GPA/TN1994/2/Rev.11  
 
- 43 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. In negotiations on accession to this 
Agreement and in the implementation and 
administration of this Agreement, the 
Parties shall take due account of developing 
countries' particular needs and 
circumstances, recognizing that such needs 
and circumstances may differ significantly 
from country to country.  In this context, 
the Parties shall give due consideration to a 
requ est by a developing country to 
incorporate within its market -access 
commitments in Appendix I of this 
Agreement a transitional measure that 
addresses its particular needs and 
circumstances in relation to:  
 (a) goods or services sectors in 
which the commerc ial viability 
of it's domestic suppliers of 
such goods and services 
depends on their 
competitiveness in the 
country's  procurement 
markets; and  
 
 (b) procurement by entities  whose 
procurements are not regulated 
by the procurement measures 
of the country's  central 
government.  
 [US – Job No. 1235]  
 
 2. For least developed countries, 
Article  III:I(a) of this Agreement 
notwithstanding, such requests for 
transitional measures may include a 
request to apply procurement price 
preferences in favour of domestic su ppliers 
in goods or services sectors identified in 
subparagraph 1(a) of this Article.  Any such 
transitional measure shall be applied for a 
limited period of time which, taking into 
account the acceding country's particular 
needs and circumstances, shall i n no case 
exceed ten years.  Where the Parties agree 
to such a transitional measure:  
 (a) all provisions of this Agreement 
except Article III:1(a) shall 
apply to procurement affected 
by such measures, and  
 
 (b) in particular, the acceding 
country shall ensure that such 
transitional measures are 
applied to all other Parties to 
this Agreement in accordance 
with Article  III:1(b) of this 
Agreement.  
 [US – Job No. 1235]  
  GPA/TN1994/2/Rev.11  
 
- 44 - 
 
  Comments  
 
In relation to paragraph 1of the US proposal : 
 
• Paragraphs 1 and 2  refer to "transitional measures. "  The intention is to ensure that in cases 
where exceptions are negotiated, there should be a transitional mechanism which allows for a 
country 's particular needs to be addressed within a particular time -frame, but that such a 
country should fully participate as soon as possible.  The paragraph describes two situations in 
which such transitional measures might be appropriate. The first, described in 
sub-paragraph  (a), is similar to the situation described  in Article V:1(c) which concerns the 
commercial viability of domestic suppliers in developing country markets. The second attempts 
to accommodate systems where there are differences in the organisation of entities. [US] 
 
• Paragraph 1 combines language from  Article V:I and 3 so that it would apply both to the 
implementation of the Agreement and to accession negotiations whereas those issues are dealt 
with separately in the existing Article. [US] 
 
• With respect to paragraph 1(a), any company 's commercial viabi lity depends upon 
competitiveness in the market. [Switzerland]  
 
• The reference to "viability " in paragraph 1(a) is intended to relate to the existence or non -
existence of a company rather than its level of commercial success.  Paragraph 1(a) is intended 
to deal with a situation where, for example, there is a rapid increase of competition in a mark et 
that might threaten to put a large proportion or all suppliers in the market out of business. [US] 
 
• With respect to paragraph 1(b), given that the GPA has been successful in stimulating open 
procurement between internal states, it might not be advisable  to allow for the creation of a 
special regime for such procurement. [Switzerland]  
 
• This aspect of the proposal is closely related to Article ZZI:6 of the Swiss proposal.  It envisages 
flexibility for entities covered by the proposal. [US] 
 
In relation to paragraph 2 of the US proposal : 
 
• Paragraph 2 of the US proposal, which relates to LDCs, is an extension of paragraph 1 and 
contains exceptions to the principle of national treatment.  The proposal states explicitly that 
Parties may consider price preferenc es in favour of developing country enterprises during 
transitional periods to address specific needs in situations where the domestic suppliers may be 
vulnerable to rapid changes in the competitive situation. Paragraph 2 also tries to make the 
relationship  between this Article and the Article of the Agreement on national treatment more 
explicit. [US] 
 
• The allowance of price preferences is not a substantial deviation from what is already envisaged 
in Article V:7.  Given the departures from commitments in the  GPA that may potentially be 
allowed under the GPA, the transitional application of price preferences may be preferable to 
other types of exceptions and may also be more transparent.. [US] 
 
• Price preferences is amongst the most transparent mechanisms with which to introduce flexibility 
into this Article. [EC] 
 
• Why is paragraph 2 limited to LDCs and not extended to developing countries?  [Switzerland; 
EC] 
 
 
  GPA/TN1994/2/Rev.11  
 
- 45 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where, in the course of accession 
negotiations, the Parties agree to a 
transitional measure provided for in 
paragraphs 1 or 2 of this Article, each Party 
shall give due consideration to the 
possibility of applying this Agreement, 
immediately upon accession, to the goods, 
services  and suppliers of the acceding 
country with respect to all procurement 
covered by Appendix I of the Agreement.  
However, taking due account of the scope 
of any transitional measures requested an 
with a view to maintaining appropriate 
reciprocal trade oppor tunities under this 
Agreement, any Party may agree with the 
acceding country to limit the scope of 
coverage of that Party's Appendix I that is 
provided to the acceding country during the 
agreed transition period.  Any such 
limitations shall be clearly iden tified in the 
Committee's relevant accession decision 
and in each Party's relevant annexes or 
notes to Appendix I.  
[US – Job No. 1235]  
 
 4. A request for a transitional measure 
provided for under paragraphs 1 or 2 of this 
Article may be made by a developi ng 
country during negotiations on accession to 
this Agreement or by a developing country 
Party after the Agreement has entered into 
force for that Party.  
[US – Job No. 1235]  
 
 5. Upon accession, a Party benefiting 
from a transitional measure provided for 
under paragraphs 1 or 2 of this Article shall 
take such steps as may be necessary, 
including notifying the Committee of any 
specific technical cooperation needs, to 
ensure that the particular needs and 
circumstances warranting the transitional  
measure are appropriately addressed 
during the agreed transition period.  
[US – Job No. 1235]  
 
  
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 req uest to Parties which 
demonstrate need for capacity building.  
[Switzerland – Job No. 1274]  
 GPA/TN1994/2/Rev.11  
 
- 46 - 
 
  Comments  
In relation to paragraph 3, 4 and 5  of the US proposal:  
 
• Paragraph 3 of the US proposal addresses the issue reflected in part by Article ZZII:2 of the 
Swiss proposal which contains a reference to reciprocal treatment.  Notwithstanding any 
transitional measures that have been agreed to, Parties should consider th e possibility of offering 
their entire existing coverage to the relevant acceding country notwithstanding any transitional 
measures that may be agreed to.  However, there should also be the possibility for appropriate 
reciprocal arrangements to maintain a balance of interests.  [US] 
 
• Paragraph 4 of the US proposal is a streamlined version of GPA Articles V:5 and 6.  [US] 
 
• Paragraph 5 of the US proposal specifically states that countries that benefit from exceptions to 
the Agreement should take steps to ensu re that their needs are being met during the transitional 
measure. This is to reflect the more general discussion that transitional measures should be 
needs -based.  [US] 
 
• While technical cooperation is important, it is unclear what technical cooperation can do in 
circumstances where the transitional measure is linked to the competitiveness of a part of an 
industry that may one day be able to become more through an increase in technological levels 
or becoming more price competitive.  [Switzerland]   
 
• The provision on technical assistance in the US proposal is a restatement of Article V:8.  [US] 
 
 GPA/TN1994/2/Rev.11  
 
- 47 - 
 
  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 particular 
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 burdensome, and in that case 
explanation shall be given to developing country 
Parties upon th eir request addressed either to the 
developed country Parties or to their entities.  
  
 6. During a developing country's 
accession process or after the entry into 
force of this Agreement for a developing 
country Party, the Parties shall give due 
consideration to any request by such a 
developing country for technical 
cooperation to address that country's 
specific needs and circumstances in 
relation to the implementation of this 
Agreement and the exercise of the rights 
under this Agreement, includin g drawing on 
the benefits of such participation.  
[US – Job No. 1235]  GPA/TN1994/2/Rev.11  
 
- 48 - 
 
  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.11  
 
- 49 - 
 
  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.  
  
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 2 8 November  1979 on 
Differential and More Favourable 
Treatment, Reciprocity and Fuller 
Participation of Dev eloping 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 
countries.  
[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 services 
which are likely to be of interest to its e ntities 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.  
[Switzerland – Job No. 1274]  
 
  GPA/TN1994/2/Rev.11  
 
- 50 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 7. Each Party shall establish an 
information centre to respond to 
reasonable requests from developing 
country Parties for information related to 
those Parties' efforts to fully enjoy the 
benefits of participation in this Agreement.  
Such information may include information 
relating to procurement plans, procedures 
or requirements with respect to 
procurement covered by this Agreement.  
[US – Job No. 1235]  
 
Comments  
 
In relation to parag raph 6 of the US proposal : 
 
• How will this paragraph be implemented given that the provision of technical assistance will take 
time and that there are many countries that would like to expedite their accession to the GPA? 
[Jordan]  
 
• The application of paragraph 6 would depend upon the particular needs of specific acceding 
countries. It is difficult to anticipate what needs might exist in order to fully participate in the 
Agreement.  [US] 
 
In relation to paragraph 7 of the US proposal:  
 
• What is the purpose of the changes to the existing Article V:11, namely: changing the reference 
to developed country Parties with "each Party; " deleting the last sentence relating to the 
establishment of an information center; and deleting the words "independently or jointly. " 
[Japan]  
 
• With respect to the establishment of an information center by Parties, a developing country 
would be just as likely to be interested in procurement opportunities in another developing 
country as procurement opportunities in a developed country. Therefore, it would be useful f or 
developing and developed countries alike to establish information centers. This might be an issue 
to be addressed in the context of the provision of technical assistance in some cases.  [US] 
 
• With respect to the establishment of an information center by the GPA Committee, this has not 
yet been created although it is an existing obligation under Article V:11 of the GPA.  If the Parties 
intend to create the center, then it should be created.  How ever, if there is no intention to do 
so, such an obligation should be removed from the Agreement. [US] 
 
 
 GPA/TN1994/2/Rev.11  
 
- 51 - 
 
  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 Developin g 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 originating in those Parties, in the 
context of any general or specific measure s in 
favour of developing country Parties.   
  
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 
countries.  
[Switzerland – Job No. 1274]  
 
13. Each developed country Party shall, upon 
request, provide assistance which it may d eem 
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 ass ist 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 w ith technical regulations and 
standards relating to products or services 
which are the subject of the intended 
procurement.  
[Switzerland – Job No. 1274]  
 
 GPA/TN1994/2/Rev.11  
 
- 52 - 
 
  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 
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 provisions of paragraphs  4 
through 6 of this Article shall be modifie d 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 f the provisions 
of this Agreement, including in particular 
Article III, and having regard to the 
development, financial and trade situa tion 
of the developing countries concerned, the 
Committee shall examine whether 
exclusions provided for in accordance with 
the provisions 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 consideration 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 country 
Party shall give consideration to the 
possibility of enlarging its coverage lists, 
having regard to its dev elopment, financial 
and trade situation.  
[Switzerland – Job No. 1274]  
 
 
Comment  
 
• The proposed paragraph ZZV deals with reviews of the provisions on special and differential 
treatment . Provisions dealing with review of the whole Agreement could be placed elsewhere 
in the Agreement.  [Switzerland]  GPA/TN1994/2/Rev.11  
 
- 53 - 
 
  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, terminology, 
packaging, marking and labelling, or the 
processes and methods for their production and 
requirements relating to conformi ty 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 
prepared, adopted or applied with a view to, 
or with the effect of, creating unnecessary 
obstacles to international trade.  
[EC – Job No. 876] 
 
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC proposal is essentially the same as the previous EC proposal, although the new proposal 
incorporates some drafting improvements.  [EC] 
 
In relation to the US Proposal (Job No. 1051):  
 
• This reference to "consensus standards " in the previous US proposal has been replaced in the 
current proposal with a reference to "international standards, " which is currently used in the 
GPA. [US] 
 
Other Comments  
 
Paragraph 1 of the EC proposal:  
 
• Is the word "unnecessary" needed in relation t o "obstacles to 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] 
 
• How will bids which do not comply with the tech nical specifications but do demonstrably meet 
the essential requirements be treated?  [Jordan]  
 
• Bids that meet the essential requirements will be treated on an equal footing with all other bids. 
The solutions that will be accepted must be indications from the inception of the tendering 
procedure.  [EC] 
 GPA/TN1994/2/Rev.11  
 
- 54 - 
 
  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 and 
functional requirements  rather than 
design or descriptive characteristics ; 
and/or 
 
(b) be based on international 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 service or their 
related processes and production methods, including 
the applica ble 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 or services 
or related processes and production methods, with 
which compliance i s 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.  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 pu rpose 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 methods, 
including the applicable administrative 
provisions, with which compliance is mandator y. 
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 f or 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. 876] 
 
 
 
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 i nternational standards that 
nevertheless meet the "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 fl exibility for procuring entities when setting up 
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 cla rify what is meant by the exception.  [EC] GPA/TN1994/2/Rev.11  
 
- 55 - 
 
  • 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 flexibi lity be restricted further by defining more clearly 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 specifications 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 difficulty 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 specificati ons would be relevant rather then choosing 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 particular 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 whole 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 Arti cle exists because 
Parties recognize that, 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 regulat ions and 
building codes as it is unclear whether it is necessary to state that a procurement has to be 
consistent with mandatory requirements.  [US] 
• The meaning of the term "unnecessary obstacles 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] 
• The EC pro posal states that specifications should be based on international standards, where 
they exist. The US had previously suggested that there should be a reference to international 
standards that are applicable to a Party. [US] 
• The implication of the hierarchy  in paragraph 2(b) of the EC proposal, and more specifically, 
the use of the words "otherwise, on " is that technical specifications would be based on 
international standards.  If such standards do not exist, then the specifications would be based 
on nation al, technical regulations and recognised national standards of building codes.  It is 
unclear whether such a hierarchy makes sense in practice since national technical regulations 
are usually mandatory and there would be an expectation that entities would base any 
specification on technical regulations that are mandatory in the system in which they are 
operating. [US] GPA/TN1994/2/Rev.11  
 
- 56 - 
 
  • The phrase "recognised national standards " may cause some difficulty because in the US, 
standards are not "recognised. " [US] 
• Standards change and evolve rapidly.   Usually, existing standards do not cover all technical 
aspects of a good that is to be purchased. The objective of the proposal is to oblige the 
procuring entity to announce at the outset of the procurement process, the details of the good 
on the basis that it will accept and assess any solution provided the quality is the same as the 
quality it is has prescribed. [EC] 
• With respect to proposed paragraph 2(a), the objective of discouraging the use of complicated 
government specifi cations - particularly, design -based specifications – is shared.  This 
paragraph should make it clear that performance standards should be used unless a 
government specification is needed.  The current language could potentially allow an to 
construe the te rm "essential requirements " narrowly and award a contract to a supplier that 
offers a product that appears to be inferior to other offered products.  There is a concern that 
contracts would not be awarded in a transparent way. [US] 
 GPA/TN1994/2/Rev.11  
 
- 57 - 
 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. 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. 2867]  
 
 3. In establishing the technical 
specifications for each good or service 
being procured, each Party shall ensure 
that its entities specify, whenever available 
and applicable to that Party, an existing 
domestic or international consensus 
standard, except where the use of a 
consensus standard would fail to meet the 
entity 's program requirements or would 
impose more burdens than the use of a 
government -unique standard.  
[US – Job No. 2867]  
 
 4. Each Party shall ensure that, wherever 
appropriate, any technical specification 
prescribed by its entities is specified in 
terms of performance requirements for the 
good or service being procured rather than 
design or descriptive characteristics.  
[US – Job No. 2867]  
 
 
Comments  
 
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 regarding the definition of "international standards" also a pply 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 reference 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 triennial 
review of the TBT Agreement.  [EC; Canada ] Also, t he 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]  GPA/TN1994/2/Rev.11  
 
- 58 - 
 
  • If a standard is developed in an appropriate way, whether international or domestic, it should 
be considered 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 standards.  [US] 
• The proposal should be clar ified 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 transparent 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 
further clarification from the EC]  
• Disag reements 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 to restrict competition in inapprop riate 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 consensu s 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]  
• A standard could not be considered to be a consensus standa rd 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 fro m 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 indepen dent 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 -governmental standard . A 
governmental sta ndard -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 compl icate 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, reference to 
them should not be chang ed unless there are good reasons for doing so.  [EC] 
• The US proposal allows an entity to use an existing consensus standard regardless of whether 
or not it conflicts with another consensus standard . The relevant provision 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 enti ty to choose between conflicting national 
standards.  [Singapore]  GPA/TN1994/2/Rev.11  
 
- 59 - 
 
  • It is important to refer to use technical specifications that have been agreed by the largest 
possible number of potential users and buyers . The use of traditional techniques for 
standardizat ion 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.11  
 
- 60 - 
 
  Article VI  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. The provisions of paragraph 2 would 
not apply when the procuring 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. 876]  
 
 
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 prac tice. 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 to 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 decision taken as 
a general matt er, 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 b roader 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 use of a certain specificatio n which might be counterproductive in 
some cases.  [EC] 
• With respect to the requirement to maintain official records, does this mean that entities are 
required to record why they use design or descriptive specifications as opposed to 
performance -based speci fications? If so, it is unclear whether this is necessary or appropriate. 
[US] 
 GPA/TN1994/2/Rev.11  
 
- 61 - 
 
  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 wo rds such as "or 
equivalent".  
[EC – Job No. 876]  
 
 
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 procurement entity to revi se 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 
technical 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 preserves 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 provisio ns 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 technical specification s as does the proposed paragraph, 
this is probably the appropriate place for its inclusion.  [EC] GPA/TN1994/2/Rev.11  
 
- 62 - 
 
  • The words "or equivalent " may cause difficulties for those that have to assess whether a bid 
is "equivalent " to another. [Japan]  
• The first sentence paragraph 4 appears to entail an evaluation process and, further, to suggest 
that the specifications or the criteria that have been p rescribed in advance could be changed 
during the evaluation process.   It is also unclear whether this paragraph is consistent with 
the requirement in another EC proposal concerning the treatment of tenders and contract 
awards that "To be considered for an  award, a tender must be in writing and must at the time 
of opening conform to the essential requirements of the notices and tender documentation. "  
[Canada]  
• The first sentence of paragraph 4 is problematic since it may be subject to a subjective 
interpret ation.  It would also result in uncertainty which, in turn, could be abused by 
unsuccessful suppliers.  [Hong Kong, China]  
• The reference to "or equivalent " is intended to address the issue of performance versus 
design -based specifications.  It is unclear w hat the equivalent of a performance -based 
specification would be since a performance -based specification would state what should be 
achieved by a particular good or service without specifically stating how.  Accordingly, an 
alternative should not be offere d in relation to performance -based specifications.. [US] 
• This Article seeks to ensure that the procuring entity keeps an open mind and considers bids 
that comply with all the "essential requirements. "  This provision does not impose upon entities 
the oblig ation to lower its requirements nor to accept designs of a lower quality.  Rather, all 
solutions must be assessed and evaluated on an equal footing.  [EC] 
 GPA/TN1994/2/Rev.11  
 
- 63 - 
 
  Article VI:3  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFI CATIONS  
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 intelligible way of 
describing the procurement requirements 
and provided that words such as "or 
equivalent" are included in the tender 
documentation.  
[EC – Job No. 876] 
 
 5. Each Party shall ensure that the 
technical specifications prescribed by its 
entities do not require or refer to a 
particular trademark or trade name, 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. 2867]  
 
 
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 th e 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 possi bility of providing an opportunity to alternatives that do not infringe 
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 prob lem, 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.11  
 
- 64 - 
 
  Article VI:4  
 
Technical Specifications  
 
AGREEMENT ON GOVERNMENT 
PROCUREMEN T (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. 876] 
 
 6. 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. 2867]  
 
 
Drafting suggestion  
 
• Suggest replacing the word "person" by "supplier" as it is already defined to include both 
natural persons or enterprises . It would be very difficult and sometimes not practically feasible 
to identify a person as the person who actually provides advice on technical specifications.  
[Hong  Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 65 - 
 
  ARTICLE V II – TENDERING PROCEDURES  
Article VII:1  
 
Tendering Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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  
 
• 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 repetition of this rule may in fact raise unintended interpretative questions.  [US; 
Canada]  
• The provisions on tendering procedures should be reviewed to accommodate the use of 
two-stage tendering and electronic catalogues.  [Singapore]  
General comments in relation to the EC Proposal (Job No. 876):  
 
• The EC proposal simplifies the provisions on tendering procedures with a view to facilitating the 
steps that an awarding entity fo llows when awarding a contract. The main changes that have 
been incorporated by the proposal concern selective and limited procurement. [EC] 
 
• The proposal refers to the term "procurement process. "  For reasons of coherence, this term 
should be used through out the text of the Agreement. [EC] The US proposal uses the term 
"procurement " throughout its text but defines "procurement " as a process.  [US] 
 
• The proposal does not attempt to alter the substance of Article VII.  Rather, it suggests changes 
to the defin itions of the three main categories of tendering procedures.  These changes are 
aimed at explaining more clearly how the procurement process works.  [EC]  
 
• The changes regarding selective procurement attempt to focus attention on the essence of the 
selecti ve tendering process.  In particular, a selective tendering process involves a 2 -stage 
process. The first stage  involves the qualification of suppliers.  The second stage involves the 
submission of tenders by the suppliers that have successfully qualified  during the first stage..  
[EC] 
 
• The definition of limited procurement should focus on the main feature of limited procurement, 
being the fact that the procuring entity contacts a supplier/s of its choice and the entity may or 
may not choose not to publish a notice. [EC] 
 
• The EC proposal appears to alter the most important terms in the GPA, that is the names given 
to different kinds of tendering procedure.  From a practical perspective, is there a need to amend 
those names?  [Hong Kong, China]  
 
• The proposal retains reference to the three m ain categories of tendering procedures.  It is useful 
to retain the three categories since this familiarises users with the categorisation and enables 
countries to choose their own procurement methods. [EC]  
 GPA/TN1994/2/Rev.11  
 
- 66 - 
 
  General comments in relation to US Proposal (Jo b No. 1051):  
 
• The proposal seeks to remove references to specific types of procedures – i.e. open, selective 
and limited tendering.  The objective of this change is based primarily on a perception that 
seems to be prevalent among non -Parties to the Agreeme nt that the GPA appears to dictate the 
kind of procedures that can be used in particular circumstances.  Accordingly, the US proposal 
seeks to establish a basic framework of rules within the GPA that will apply to all covered 
procurement, regardless of the  method of procurement used.  Parties ' entities are free to choose 
the appropriate method of procurement provided that any given procurement is within the 
framework of rules set out in the GPA. [US] 
 
• Selective tendering is useful, for example, in relation to design consulting procurements for 
public works, where it is important to select a fixed, limited number of suppliers to submit bids 
after qualification to reduce the burden on the procurement officials.  Therefore, the removal of 
a reference to selecti ve tendering is of concern.  [Japan]    
 
• It is not being suggested that the GPA should be amended to disallow the use of selective 
tendering.  However, it is not considered necessary to specifically state in the GPA that selective 
tendering is allowed.  Fur ther, it may not be appropriate or efficient to specify in the Agreement 
the various types of procurement procedures that may be allowed within the framework of the 
GPA since that could potentially lead to a reference to a long list depending upon how tend ering 
or procurement procedures are defined. [US] 
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article VII  
 
Methods of Procurement  
 1. Each Party shall ensure that the 
procurement methods of its procuring 
entities comply with the principles of 
equality of treatment, transparency and 
non-discrimination, and are consistent with 
the provisions contained in Articles IX 
through XVII.  
[EC – Job No 876]  
 
Comments  
 
• The proposal refers to "Articles IX through XVII " whereas the existing Agreement refers to 
Articles  VII through XVI.  It is questioned why this change has been made. [Switzerland].  
 
• The EC confirmed that this reflects a drafting error.  [EC] 
 
• Article VII of the EC proposal restates the principle of non -discrimination obligation. There are a 
number of other instances in the EC proposal where the principle is restated or interpreted the 
non-discrimination. This should not be necessary in a streamlined and simplified text. [Canada]   
 
• Paragraph 1 above and ot her provision contain references to the principle of non -discrimination 
to ensure that the principle applies to or is reflected in those provisions. Such references may 
not be necessary, depending upon how Article III which contains the general obligation on non -
discrimination is revised.  [EC] 
 
• EC proposed paragraphs 1, 2 dealing with treatment of tenders and contract awards and 4 
dealing with the qualification of suppliers contain various formulations of the principle on non -
discrimination.  The principle  of non -discrimination is an overriding obligation and should apply 
to all of the Articles without qualification.  [Canada]   
 
• All references to the principle of non -discrimination will be re -examined.  Specific references 
have been in cases where the principle is considered to play a more critical role. [EC]  GPA/TN1994/2/Rev.11  
 
- 67 - 
 
  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]  
 
 
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] 
• The EC proposal appears to have deleted paragraph 2 of the existing text.  That paragraph 
permits the procuring entities to provide information to prospective suppliers, provided that 
they do not do so in a manner which would have the effect of precluding competition. 
[Hong  Kong, China]  
• The EC proposal has provisionally deleted this provision.  While the provision of information 
to suppliers in way that does not harm competition is considered to be important, the provision 
should perhaps have a more general  scope and perhaps should be located in a place other 
than Article VII. [EC] 
 
 
 GPA/TN1994/2/Rev.11  
 
- 68 - 
 
  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]  
 
 2. For the purposes of this Agreement:  
 
 (a)  Open procedures are those 
procurement processes under 
which all interested suppliers 
may submit a tender.  
[EC – Job No. 876]  
 
Comments  
 
• The phrase "in the public domain" in the proposal by Singapore is not necessary.  [Korea]  
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 Art icle X and 
other relevant 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 supplier s]. 
[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.11  
 
- 69 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) Selective procurements are those 
procurement processes under 
which, in accordance with 
paragraphs 4 and 7 of Article XVI 
and other relevant provisions of 
this Agreement, only suppliers 
satisfying qualification 
requirements are invited by the 
procuring entity to submit a 
tender.  
[EC – Job No.  876]  
  
 GPA/TN1994/2/Rev.11  
 
- 70 - 
 
  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]  
 
 (c) Limited procurements are those 
procurement processes where 
the procuring entity contacts 
suppliers of its choice, only 
under the conditions specified in 
paragraph 4 of Article IX.  
[EC – Job. No. 876]  
 
 
Comment  
• The proposed inclusion of the words "of its choice " in the EC proposal is desirable. [Hong Kong, 
China]  
 GPA/TN1994/2/Rev.11  
 
- 71 - 
 
  ARTICLE VI II – 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 . Q ualification 
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:  
 
General Comments  
 
• The rules regarding qualification systems should be simplified and clarified . However, first, it 
is necessary to determine whether Parties have a common understanding of qualification 
systems.  and what is meant b y "qualification procedures" . The current GPA primarily involves 
situations involving pre -qualification - that is, situations where complex procurement is 
involved and there is a need to hav e a preview of the abilities of suppliers to determine 
whether they are able to fulfill the conditions of the contract . The pre -qualification or 
pre-selection of suppliers might cause problems and, therefore might deserve particular 
attention under the GPA . [EC] 
• The US proposal may send a signal encouraging increased use of qualification systems . 
Qualification should remain a possibility but it is necessary to strike the right balance.  [EC] 
• The US does not want to encourage the use of a qualification proced ure when it is not 
appropriate . When appropriate and necessary, qualification procedures should be available . 
However, in other cases, the unnecessary use of qualification procedures might violate the 
basic obligations underlying the Agreement . The Agreeme nt should address this concern.  [US] 
• Regarding the issue of whether there is a common understanding of what is meant by 
qualification procedures, it appears that sometimes references are made to "qualification 
procedures" whereas other times references are  made to "pre -qualification" procedures . Some 
governments refer to those two terms as if they are synonymous . However, the US 
understands "qualification" to include any requirement that establishes the ability of the 
supplier to fulfil a contract . These requirements may be very complex in some cases, such as 
for construction projects and major consulting projects, so that pre -qualification is necessary 
to ensure an efficient process . At the same time, there are often situations where qualification 
requirements may be relatively simple so that a pre -qualification is not required . Rather, 
tenderers may be required, as part of the tendering process itself, to indicate that certain 
qualification criteria have been fulfilled . There may be a range of qualif ication procedures . The 
most restrictive may involve lists of pre -qualified suppliers and the most liberal may involve 
situations where an open tendering procedure is used that requires demonstration of fulfilment 
certain "qualification" criteria in the te nder documents.  [US] 
• Qualification is a crucial part of the tendering procedure, both when it takes place separately 
from the tendering procedure and when it takes place as part of a larger procurement 
procedure . In particular, qualification may take place  simultaneously with the submission of 
tender offers or prior to the submission of offers . Some degree of detail is required in order 
to guarantee that qualification can take place without harming competition . The US proposal 
is not sufficient to guarantee  that selective procedures can take place in a non -discriminatory 
and competitive manner.  [EC] GPA/TN1994/2/Rev.11  
 
- 72 - 
 
  • The interpretation that a notice is not required in relation to selective tendering is not shared, 
although the relevant Articles are somewhat confusing . Therefo re, streamlining is necessary . 
Qualification is important . Therefore, it is necessary to have appropriate disciplines for 
qualification regardless of the point when qualification actually occurs - whether it occurs in 
one or two stages or it occurs as part  of the process of choosing between tenders in an open 
tendering situation.  [Canada]  
• The US proposal apparently does not reflect two stages that may be associated with a 
qualification procedure – namely, stage one which involves pre -qualification and stage  two 
which may involve the application of additional selective procedures such as the application 
of non -discriminatory criteria such as the financial state of the company in question and its 
technical capabilities.  [Japan]  
General comments in relation to the US Proposal (Job No. 1051):  
 
• The new US proposal attempts to clarify the scope of the application of Article VIII. The 
existing Article VIII is entitled "Qualification "  whereas it might be more appropriate to refer 
to the broader term of "conditions f or participation. "  For example, in many countries, including 
in the United States, there may be situations in which suppliers may be required to be included 
in a registry in order to participate in procurement.  The normal purpose of a registry is to 
verify certain generic qualifications such as financial and legal status.  Registration would seem 
to fall within the meaning of the term "conditions for participation. "  The new proposal repeats 
the phrase "registration, qualification or any other conditions for participation " to be as clear 
as possible.  However, the final draft may include a definition of the term "participation " as 
meaning "registration, qualification or any other conditions for participation. " [US] 
General comments in relation to the EC Proposal (Job No. 876):  
 
• Qualification may occur in the context of open, selective and limited tendering procedures.  
For example, it may occur as part of a single process of awarding a contract.  Other times 
qualification may occur separately from the con tract award process.  The EC proposal attempts 
to reorganise Article VIII to make this distinction clear.  The general rules are found in the 
first sub -paragraph and apply every time an entity has to verify that the conditions for 
participation are met by actual or potential bidders in the case of open procurement.  A 
separate sub -paragraph has been proposed to deal with the use of a permanent list of qualified 
suppliers.  A new provision has been inserted, which is based on the existing Article that deals 
with selective tendering, to to deal with the case where selective tendering entails a two -stage 
procedure.  During the first stage, qualification is verified. During the second stage, only 
qualified suppliers are allowed to submit bids. [EC] 
• With respect to two -stage selective tendering, selection should be based upon criteria that are 
known in advance through publication in the notice of intended procurement.  [EC] 
• Regarding the use of permanent lists of qualified suppliers, this list must be open at all times 
so that any interested bidder is able to request inclusion in the list at any time even in cases 
where such lists are used in connection with a particular award process.  Subsequent inclusion 
in the list should not be dependent upon whether or not th e entity has time to qualify since 
this would make it too easy for the entity to say that it had no time.  [EC] 
• The proposal maintains the possibility to use permanent lists as a closed system for Annex 3 
entities because it is believed that these entities  are different in important respects from 
Annex  1 and Annex 2 entities. [EC] 
• The EC 's proposal helps to clarify the relationship between Article VIII and X of the existing 
GPA. [US] 
 
  GPA/TN1994/2/Rev.11  
 
- 73 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (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;  1. Procuring entities shall ensure that 
any conditions for participation in a 
procurement covered by this Agreement 
are limited to those that are essential to 
ensure a p otential supplier's ability to 
execute the contract in question.  
[EC – Job No. 876]  
 
 7. Suppliers requesting to participate in 
a given intended procurement who are not 
on the permanent list of qualified suppliers 
shall be given the possibility to participate 
in the procurement by presenting the 
equivalent certifications and other means 
of proof requested from suppliers who are 
on the list,  
[EC – Job No. 876]  
 
  
Registration, Qualification and Other 
Conditions for Participation  
 
 1. Where an entity requires suppliers to 
satisfy registration or qualification  
requirements or any other conditions for 
participation in a procurement, the entity 
shall publish a notice inviting interested 
suppliers to apply for inclusion in a registry, 
qualification , or recognition of satisfaction 
of any other conditions for participation and 
shall provide no less than 15 calendar days 
prior to the final date for the submission of 
tenders for such suppliers to submit their 
applications.  This notice may be the same 
as the notice of intended procurement 
required under Article V of this Agreement 
or a separate notification relating to such 
requirements or conditions.  
[U.S. – Job No. 1051]  
 
 2.  Where, at any time within the 15 -day 
period referred to in paragraph 1 of this 
Article, a supplier that has not previously 
registered, qualified or satisfied any 
conditions for participation submits an 
application, the entity shall promptly start 
the relevant procedures and shall allow 
such supplier to participate  in the 
procurement, provided there is sufficient 
time to complete the procedures within the 
time-period established for the tendering 
process.  
[U.S. – Job. No. 1051]  GPA/TN1994/2/Rev.11  
 
- 74 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (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.   
  
 
Comment  
 
• With respect to Article VIII:(b) of the Agreement, ways should be found to reduce 
administrative burdens on suppliers, particularly SMEs, regarding the procedures for the proof 
of their technical, financial and commercial capacity.  [Korea]  
• In relation to Article VIII(b) of the Agreement, is it possible to have "blacklists" of suppliers 
and to provide for procedures that allow such lists to be passed between concerned entities.  
[Jordan]  
• The Agreement allows each Party to disqualify suppliers that may, for some reaso n (for 
example fraud) warrant the use of a blacklist . However, it seems that Jordan is suggesting 
something beyond what is curren tly available under the Agreement.  [US] 
• The criteria for selection under Article X are not covered under Article VIII(a).  The GPA should 
make clear that the Article X selection criteria is covered under Article VIII(a). [Japan]  
In relation to paragraph 7 of the EC proposal:  
 
• Paragraph 7 of the EC proposal is perhaps too ambitious in that it obliges entities to consider 
every new supplier that wants to be included in the list.  The EC proposal should be modified 
to take account of the burden imposed upon pr ocuring entities. [Japan]  
• It is important to ensure that suppliers are given the possibility to participate in a procurement 
even if they are not included in a permanent list and even if they are not registered on 
condition that they can prove that they ar e as capable and competent as those that have been 
included on the list.  This ability is particularly important in cases where registries are used. 
In the EC 's internal experience, registration should not be used as an exclusive means of 
deciding whether or not a supplier should be allowed to submit a bid.  Further, there may be 
situations where suppliers are interested in a particular contract but are not necessarily 
interested in being included in a permanent list or registry, which sometimes requires pa yment 
of sums and may entail  cumbersome processes. [EC] 
• The relationship between paragraph 7 of the EC and paragraph 4 of the EC proposal should 
be determined. [US] 
In relation to paragraphs 1 and 2 of the US proposal:  
 
• With respect to the introduction of  the new concept of a "register, " since qualification precedes 
registration, it is questioned whether reference to registration is needed and whether it helps 
to clarify. [Switzerland]  
• While registration is normally based upon a qualification process, in s ome non -GPA countries, 
the registration process appears to entail more of a simple, administrative process without 
any clear relationship to qualification.  Further, in some cases, it can constitute a serious 
barrier to trade.  Therefore, the motivation fo r including this concept was to clarify that 
registration should serve the purpose of qualification. [US] 
• The registry way in which the registry is used in the procurement process should be compatible 
with the EC proposal in paragraph 7. [EC] GPA/TN1994/2/Rev.11  
 
- 75 - 
 
  • Fifteen calen dar days for the submission of an application for qualification might be too short.  
[Switzerland; Japan]   
• While 15 days may be too short for many types of procurement, the reference to 15 days in 
paragraph 1 does not mean that there should be 15 days up u ntil the final date for the 
submission of tenders but, rather, that the entity should ensure that there is at least 15 days 
provided for suppliers to submit applications for qualification and have the applications for 
qualification processed. [US] 
• The peri od during which the 15 -day procedure runs is unclear and should be clarified. [Japan] 
CHECK  
• If, for example, a notice requesting submission of tenders states that there will be 90 days 
between the date of issue of the notice and the final date for the subm ission of tenders, the 
entity must provide at least 15 days for the submission of applications for qualification.  The 
remaining 75 days after the submission of the applications for qualification should be left open 
for the submission and processing of ten ders.  The initial period could be longer. However, the 
US proposal suggests that that period should be a minimum of 15 days.  [US] 
• The phrase "provided there is sufficient time to complete the procedure within the time -period 
established for the tendering  process " is problematic and is likely to be the subject of bid -
challenge procedures.  Perhaps the phrase should be amended to state "provided the 
procedure can be completed by the tender -closing date ". [Hong Kong, China]    
Comments in relation to paragraph 2 of the US proposal  
 
• 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 
suppliers at all times to reques t 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 . 
Paragraph 2 of the US proposal provides that if closed list of pre -qualified suppliers are used, 
that principle will not apply.  [US] 
• There may be cases where local knowledge or experience is important . The existing version 
is preferred to be kept . The phrase "provided there is sufficient time to complete the 
qualification procedure within the time -period established for the tendering process" is 
problematic . Apart from creating operational difficulties, it will likely lead to dispute and bid 
challenges because  a deadline is not set . To be fair to both procuring entities and suppliers 
and in order to be predictable as mentioned in paragraph 2 of the Preamble, it is strongly 
recommended to amend the phrase as follows : "provided the qualification procedures can be  
completed by the final date for the submission of tenders, or a later date specified by the 
procuring entity in the notice referred to in paragraph 1 of this Article. " [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] 
• Is it practically possible to qualify 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]  
• An important provision contained in th e GPA and in the US proposal, is that even in the case 
where a pre -qualification process occurs and an invitation is sent to pre -qualified suppliers to 
submit tenders, the Agreement still requires publication of the invitation notice and requires 
entities to consider the possibility of qualifying suppliers who did not pre -qualified in time.  
[US] GPA/TN1994/2/Rev.11  
 
- 76 - 
 
  • At some point 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 not qualified to 
apply for qualification during the procurement process . However, at some point in time, the 
entity might state that it is no longer practica l to receive applications.  [US] 
Comments concerning 15 -day period  
 
• In the case of construction works contracts, open tendering procedures may be used in 
conjunction with a pre -qualification procedure, including demonstration of relevant technical 
skills an d experience . In light of this, with respect to the reference to the completion of a 
15-day period in paragraph 1 of the US proposal, to which period does this refer ? Does this 
refer to the last day of the tender period or the first day on which suppliers can apply for 
qualification or neither of these ? The GPA should provide a sufficiently long period between 
the day when the supplier knows whether or not it is qualified and the day of the tender . In 
the case of contracts for construction works, suppliers want to commence detailed cost 
estimation after they have been informed that they have qualified for a particular tender . The 
current GPA provides that similar considerations apply in relation to selective tendering . 
However, the US proposal does  not include such considerations.  [Japan]  
• The US proposal seeks to create a provision (paragraph 1) that would apply to situations in 
which there is one notice of intended procurement which includes qualification requirements 
that must be satisfied . In tha t case, the qualification period would exist within the same 
time-frame as the tendering period . It is also intended to cover the situation in which there 
may be two different notices, the first of which invites interested suppliers to apply for 
qualificat ion and the subsequent notice relates to the invitation to tender . In the latter case 
where there are two separate notices, the time -period envisaged could be fulfilled before the 
tendering process begins . In other words, if 15 days were the appropriate ti me-period (as 
compared to 25 days in Article VIII(b) of the current text), that could apply to the qualification 
period and upon expiration, a notice inviting tenders could be issued . The proposal attempts 
to encompass both situations in order to make the provisions flexible enough to cover the full 
range of possibilities.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 77 - 
 
  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 be 
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;  
 2. Procuring entities shall evaluate the 
financial, commercial and technical 
capacity of a supplier on the basis of that  
supplier's global business activities, and 
shall not impose the condition that, in order 
for a supplier to participate in a 
procurement process, the supplier has 
previously been awarded one or more 
contracts by an entity of a given Party or 
that the suppl ier has prior work experience 
in the territory of a given Party  
[EC – Job No. 876].  
 
Entities shall:  
 
(a) limit any registration or 
qualification requirements, 
or other conditions for 
participation in a 
procurement, to those 
requirements or conditions 
that are essential to ensure 
that a potential supplier has 
the legal, technical and 
financial abilities to ful fill the 
requirements and technical 
specifications of the 
procurement;  
 
(b) evaluate the financial, 
commercial and technical 
abilities of a supplier on the 
basis of that supplier's global 
business activities, including 
both its activity in the 
territory of  the Party of the 
supplier, and its activity, if 
any, in the territory of the 
Party of the entity.  
 
[US – Job No. 1051]  
 
 
Comment  
 
• Many multinational enterprises, large or small, have slightly different company names in 
different regions or economies . Some are wholly owned subsidiaries, others are joint venture 
or other kinds of commercial arrangement . Unless the supplier uses exactly the same name 
in pursuing its global business, it is difficult to access or prove the supplier's global busin ess 
and legal relationship between the companies in different territories.  [Hong  Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 78 - 
 
  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.  
 8. When a procuring entity in Annex 3 
uses the notice regarding the permanent 
list of qualified suppliers as a notice of 
intended procurement, as provided in 
Article IX, paragraph 3, suppliers 
requesting to participate who are not on the 
permanent list of qualified suppliers shall 
also be considered for the procurement 
provided there i s sufficient time to 
complete the qualification procedure;  in 
this event the procuring entity shall 
promptly start procedures for qualification 
and the process of, and the time required 
for, qualifying suppliers shall not be used in 
order to keep supplier s of other Parties off 
the suppliers' list.  
[EC – Job No. 876]  
 
 
Comments  
 
• Paragraph 8 of the EC proposal it seems to be overly narrow in that  it only seems to apply when 
a particular type of notice is used.  At the very least, this provision should probably apply even 
when an entity publishes a notice regarding a permanent list  and further, notices concerning 
specific procurements.  [US]  
 
• The flexibility provided for in paragraph 8 is important in that it allows for suppliers to be 
subsequently qualified provided that sufficient time exists.  However, the paragraph should be 
amended so as to ensure that it is not more binding and strict for  an entity as compared to 
paragraph 4of the EC proposal. [Switzerland]  
 
• Paragraphs 4 and 8 are not incompatible should possibly be combined.  Paragraph 4 entails a 
situation where an additional selection is made after a first decision on qualification is m ade at 
which point the qualified suppliers are ranked. This additional selection is made on the basis of 
criteria that have been published.  [EC] 
 
• The current drafting of paragraphs 4 and 8 suggests that paragraph 8 would only apply to the 
use of permanent  lists by Annex 3 entities.  A question arises as to whether a similar requirement 
to that contained in paragraph 8 should also apply to a selection process involving, for example, 
the evaluation of qualification requirements in a ranking of suppliers. [US] CHECK  
 GPA/TN1994/2/Rev.11  
 
- 79 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 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;  
 
 4.(c)  base thei r decisions on applications 
for registration, qualification or any other 
conditions for participation solely on the 
information they have specified in advance 
in notices or tender documentation;  
 
(d)  recognize the registration, qualification 
or satisfacti on of any other conditions of 
participation of any supplier that satisfies 
the relevant  requirements or conditions; 
and 
 
(e)  allow any supplier that they have 
recognized as registered, qualified or as 
having satisfied any other conditions for 
participati on to participate in the relevant 
procurement.  
[U.S. – Job. No. 1051]  
 
4.  Procuring entities shall recognize as 
qualified suppliers all domestic suppliers 
and 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 notices or tender 
documentation.  
[EC – Job No. 876]  
 
4. Procuring entities may limit the number 
of qu alified suppliers they will invite to 
tender, provided that they select the 
maximum number of domestic suppliers 
and suppliers of other Parties, consistent 
with the efficient operation of the 
procurement process, and make the 
selection in a fair and non -discriminatory 
manner and on the basis  of the criteria 
indicated in the notice of intended 
procurement or in tender documents.  
[EC – Job No. 876]  
 
The process of, and the time required for, 
qualifying suppliers to permanent lists 
maintained by the entity sh all 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 mee t 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]  GPA/TN1994/2/Rev.11  
 
- 80 - 
 
  Comments  
 
• Who is expected to take the initiative to respond to a tender?  Is the tender an open invitation 
and interested 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]  
 
• The selective tendering method covers two types of procedures.  One type 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 time -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]  
 
• It is preferable to separate the rules regarding permanent lists of qualified suppliers and those 
regarding qualification for an individual procurement.  This approach is reflected in paragraphs  1 
to 3 of the Singapo rean proposal.  [Hong Kong, China]  
 
• With respect to the second part of the paragraph 4 of the EC proposal, procuring entities should 
have more discretion to set the maximum number of suppliers allowed to submit a bid consistent 
with the efficient operation of the procurement process as well as the non -discrimination 
principle of the GPA and on the basis of the criteria set out in the notice of intended procurement.  
This is a more realistic way of balancing efficiency with the interests of open competition than 
the current Article X:1.  [Hong  Kong, China]  
 
 GPA/TN1994/2/Rev.11  
 
- 81 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Where a notice inviting applications 
for inclusion in a registry, qualification, or 
recognition of satisfaction of any other 
conditions for participation in a 
procurement process is issued separately 
from the notice of intended procurement 
required under Article V of this Agreement, 
such notice shall be published in the same 
manner as the notice of intended 
procurement and  shall contain at least the 
following information:  
 
 (a) a description of the intended 
procurement;  
[US – Job no. 1051; EC – Job No. 876]  
 
 (b) the registration or 
qualification requirements 
and any other conditions for 
participation  
[US – Job No. 1051];  
 
 (c) The name and address of the 
procuring entity and other 
information necessary to 
contact the entity and obtain 
all relevant documents 
relating to the procurement;  
[US – Job No. 1051; EC – Job No. 876]  
 
 (d) The time limits, if any, for the 
submission of applications ; 
and 
[US – Job. No. 1051; EC – Job No. 876]  
 
 (e) an indication that the 
procurement is covered by 
this Agreement.  
[US – Job No. 1051; EC – Job No. 876]  
 
 
Comments  
 
• Do the words "separately from the notice of intended procurement " mean that the US no longer 
recognises the qualification notice as a notice of intended procurement?  Under the current GPA, 
an Annex 3 entity is able to issue a notice of qualification which may also function as a notice of 
intended procuremen t. [Switzerland]  
 
• The proposal does not deal with the separate question of whether Annex 3 entities should have 
flexibility with respect to the publication of notices. The aim of this proposal is to recognise 
various options.  The first is option is to pub lish a single notice in which both the qualification 
requirements and the tendering requirements are provided or made available through the notice. 
There second option is to have two separate notices, which is the case with which the proposal 
deals. [US] 
 GPA/TN1994/2/Rev.11  
 
- 82 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
  (a) any supplier may apply for 
qualification at any time;  
and all qualified suppliers so 
requesting are included in 
the lists within a reasonably 
short time;  
[Singapore – Job No. 3772]  
 
 Permanent list of qualified suppliers  
 
5. Procuring entities maintaining 
permanent lists of qualified suppliers shall 
ensure that suppliers may apply for 
qualification at any time;  and that all 
suppliers that so request and that meet the 
qualification requirements are included in 
the lists within a reasonably short time.  
[EC – Job. No. 876]  
 
(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 
entities;  
[Singapore – Job No. 3772]  
 
(e) if, after publication of the notice 
under parag raph 1 of Article  IX, a 
supplier not yet qualified requests to 
participate in an intended 
procurement, the entity shall 
promptly start procedures for 
qualification;  
  (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 shall not be denied 
the opportunity to 
participate simp ly on the 
basis that the supplier is not 
on the entity's permanent list 
of qualified suppliers];  
[Singapore – Job No. 3772]  
 GPA/TN1994/2/Rev.11  
 
- 83 - 
 
   
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]  
 
 
Comment  
 
• 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]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Information on Qualification Decisions  
 
(f) any supplier having requested to 
become a qualified supplier shall be 
advised by the entities concerned of 
the decision in this regard.  
 5. Entities shall not impose the condition 
that, in order for a supplier to participate in 
a procurement, the supplier has previously 
been awarded one or more contracts by an 
entity of that Party or that the supplier has 
prior work experience in the territory  of 
that Party.  
[US – Job No. 1051]  
 
6. A procuring entity shall promptly 
advise any supplier that requests 
qualification of its decision as to whether 
that supplier is qualified.  
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.11  
 
- 84 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 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;  
 Information on Entities' Decisions  
 
7. Where a supplier applies for inclusion 
in a registry, qualification, or recognition 
that it has satisfied the conditions for 
participation in a procurement, the entity 
shall promptly advise such supplier of its 
decision with respect to the application.  
[EC – Job No. 1051]  
 
8. Where an entity rejects supplier's 
application to qualify, or ceases to 
recognize a supplier as registered, qualified 
or as having satisfied the conditions for 
participation, the entity shall inform the 
supplier and, on request of the supplier, 
promptly provide the supplier with a 
written explanation of the reasons for its 
decisions.  
[US – Job No. 1051; EC – Job No 876 ] 
 
 
Comments  
 
• Consultations among the GPA Parties suggest there may not be consensus on the meaning, in 
GPA Article VIII, of the term "conditions for participation".  It may be useful to clarify how the 
provisions of that Article apply to "conditions for participation" other than qualification 
requirements, such as supplier registries.  This issue may be of particular importance to some 
countries who are in the process of acceding to the GPA or who may co nsider it in the future.  
Revision of the initial US proposed Article VIII would require technical modifications (mostly 
terminology) elsewhere in the text.  [ US] 
 
• The United States believes it may be possible to further streamline the above proposal by 
defining "conditions of participation" to include all "registration or qualification requirements or 
any other conditions for participation in a procurement" and substituting that term for the longer 
list of requirements or conditions throughout the text.  F or the time being, however, the 
formulation above may be easier for delegations to understand and evaluate.  [ US] 
 
In relation to the EC proposal:  
 
• Paragraphs 5 – 8 of the EC proposal only apply to the use of permanent lists. However, some of 
these provis ions should have more general application to all procurement covered by the GPA. 
This is particularly clear with respect to paragraph 6 of the EC proposal which addresses some 
basic transparency issues.  [US] 
 
In relation to the US proposal:  
 
• With respect to paragraph 5 of the US proposal, the question arises as to whether the details in 
that proposed paragraph are necessary since there are many conditions that could be added 
which the entity should not be able to impose upon a supplier in order for that su pplier to 
participate in a procurement such as prior work experience in the territory.   [Switzerland]  
 
• This proposal can be a useful in ensuring that the objectives of the GPA are achieved whereas a 
requirement that an entity might require any supplier that wishes to participate in a procurement 
to have had previous experience in the territory of that Party  could constitute a serious barrier 
to new entrants and an obstacle to achieving the objectives of the Agreement. The phrase "shall 
not impose the condition that a supplier has been previously awarded one or more contracts " 
does not necessarily exclude the  possibility that experience should be taken into account but 
that that should not result in automatic exclusion. [US]   
 GPA/TN1994/2/Rev.11  
 
- 85 - 
 
  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.  
 3. Nothing in this Article shall preclude 
the exclusion of any supplier on grounds 
such as bankruptcy or false declarations or 
conviction for serious criminal 
organizations.  
[EC – Job No. 876]  
 (b) Nothing in this Article shall 
preclude the exclusion of a 
supplier on grounds such as 
bankruptcy or false declarations.  
[US – Job No. 1051]  
 
 (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]  
 
Comment  
 
• The US proposal appears to omit the existing subparagraph (g), which deals with single 
qualification procedures . Clarification is sought as to why this change has been made.  [Korea]  
 GPA/TN1994/2/Rev.11  
 
- 86 - 
 
  ARTICLE I X – INVITATION TO PARTICIPATE REGARDING INTENDED PROCUREMENT  
Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article V - Publication of Notice of 
Intended Procurement  
 
1. For each contract covered by this 
Agreement, except as provided for in 
Artic le [IX of this Agreement] procuring 
entities shall publish a notice inviting 
interested suppliers to submit tenders for 
that contract.  The notice shall be published 
in the appropriate publication listed in 
Appendix II.  Such publications shall be in 
electronic or paper media which are widely 
disseminated and readily accessible to the 
general public.  
[US – Job No. 2867]  
 
Comments  
 
• A question by Hong Kong, China (No. 21) regarding the term "widely disseminated" and he 
response by the United States are contained in Job. No. 5595.  
 
• There is a tension between the aim of simplifying the Agreement and maintaining useful aspects 
of the Agreement.  Perhaps a number of items that have been eliminated in the US proposal 
should be retained. [EC]  
 
• It is important required in the US proposal is considered sufficient for a supplier to make a 
decision as to whether they are interested in the procurement and, therefore, whether to make 
a request for tender documents.  In addition, it should be possible to r ely upon the principle of 
non-discrimination requirement to ensure that information provided to one supplier is provided 
in a non -discriminatory way to all interested suppliers.  It is not necessary to list everything of 
potential interest in a notice prov ided that suppliers who are interested in participating in a 
tender procedure receive all the information that is necessary to submit a tender and they 
receive that information in a non -discriminatory way. [US] 
 
• Publication in electronic media is transitory by nature.  An important element of transparency 
is the ability to obtain information for the relevant period of time – that is, the entire period for 
which a tender is open and no merely the day that the tende r notice is issued.  How can it be 
ensured that that occurs if electronic media are used?  [Canada]  
 
• The existing Article IX identifies a number of different type of notices, leaving it unclear which 
notices should be used by particular entities.  It is ne cessary to list in the Agreement every 
type of notice that might be used or is it preferable to refer to a certain basic set of 
commitments that will apply to the various types of notices that might be used to ensure an 
adequate level of transparency? [US] 
 GPA/TN1994/2/Rev.11  
 
- 87 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article IX – Notice of intended procurement  
 
1. For each intended procurement 
covered by this Agreement, except as 
provided for in paragraph 4, procuring 
entities shall publish a notice inviting 
interested suppliers to submit tenders or, 
where appropriate, requests for 
participation.  
[EC – Job No. 876]  
 
 The notice shall be published in the 
appropriate publication listed in 
Appendix  III.  Such publications shall be in 
electronic or  paper media which offer the 
widest possible and non -discriminatory 
access to interested suppliers from all 
Parties of this Agreement and shall be 
accessible free of charge through a single 
point of access.  
[EC – Job No. 876]  
 
 
In relation to the EC propo sal (Job No. 876):  
 
• The EC proposal allows free of charge access to the notice of intended procurement.  However, 
in  Japan, the notices are published in the national gazette and this entails a cost.  To make 
access free of charge imposes a burden on the p rocuring entity.  [Japan]  
 
• The reference to "widest possible access " may be too strong.  This would mean that any notice 
that did not give the widest possible access would be contrary to this requirement and a potential 
source of dispute.  "Widest possible " implies that there is only one choice, namely that a Party 
must, f or example, publish on the Internet since any other option would not be as wide.  [US] 
 
 
 GPA/TN1994/2/Rev.11  
 
- 88 - 
 
  Article VIII  
 
Qualification of Suppliers  
 
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 
qualifications, 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 territ ories].  
[Singapore – Job No. 3772]  
 
 
Comments on the proposal by Singapore  
 
• 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 preferr ed 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 burdens on suppliers.  However, more details o f 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 relationship between business units 
that are loc ated in different territories.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 89 - 
 
  Article IX:1  
 
Invitation to Participate Regarding Intended Procurement  
 
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. 
 1. In accordance with parag raphs 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 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 accessible [free of charge  [delete 
Singapore – Job No. 5271] ] through a 
single point of access.  
Each Party shall notify to the ot her 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 circumstances . 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]  
Comments in relation 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 of 
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 fo r 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 created through the i mposition 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] 
Comment s in relation 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 would be w orth the significant cost and undue burden associated with GPA/TN1994/2/Rev.11  
 
- 90 - 
 
  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 
procuremen t 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 possible 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 difficult t o 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 not to mak e 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 facilitate it s use.  [EC] 
General comments in relation to the EC Proposal (Job No. 876):  
 
• The proposal attempts to restructure and reorganise the provisions on publication requirements 
with a view to simplify the Agreement.  The proposal includes a general, universal ob ligation to 
publish a notice of intended procurement which applies to each entity that intends to award a 
contract.  The proposal then lists the mandatory content of such a notice.  The proposal foresees 
the possibility of having a separate notice for the invitation of applications for qualification. 
Further, the proposal lists circumstances that allow the entity not to publish the notice of 
intended procurement.  The obligation to publish a summary notice has been retained since it is 
considered to be impo rtant in the interests of transparency and access to information.  Further, 
the proposal regroups the provisions concerning notices for permanent lists of qualified suppliers, 
which should only be published by entities who maintain those kinds of lists.  A n additional article 
has been proposed regarding notices of planned procurement. The possibility has been 
maintained in that Article to use the notice of planned procurement to reduce the general time 
limits that would ordinarily apply.  Annex 3 entities m ay still use notices of permanent lists and 
of planned procurement as an equivalent for a notice of intended procurement.  The peculiarities 
of these Annex 3 entities justify additional flexibility. [EC] 
 
• The proposed approach may be confusing for supplier s.  Further, it is not really clear that it is 
necessary to specify a list of different notices with  different labels or names.  Further 
simplification could be achieved by focusing on the acts that require notification and the 
appropriate timing for such notification.    [Canada]  
 
• The EC proposal might be too detailed.  Simplification may be possible, particularly in relation 
to paragraph in 2 (b) of the EC proposal.  [US] 
 
In relation to the US Proposal (Job No. 1051):  
 
• The US proposal has been revised to  make the notice provisions more flexible. [US] 
 GPA/TN1994/2/Rev.11  
 
- 91 - 
 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
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.11  
 
- 92 - 
 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Article V  
 
Publication of Notice of Intended 
Procurement  
 
 1. For each contract covered by this 
Agreement, except as provided for in 
Article  IX of this Agreement, procuring 
entities shall publish a notice inviting 
interested suppliers to submit tenders for 
that contract . The notice shall be published 
in the appropriate publication listed in 
Appendix  II. Such publications shall be in 
electronic or paper media which are widely 
disseminated and readily accessible to th e 
general public.  
[US – Job No. 2867]  
 
 
Comments  
 
• A question by Hong Kong, China ( No. 21) regarding the term "widely disseminated" and the 
response by the United States are contained in Job No. 5595.  
• There is a tension between the aim of simplifying the Agreement and maintaining useful 
aspects of the Agreement . Perhaps a number of items tha t have been eliminated in the US 
proposal should be retained.  [EC] 
• It is important to have agreement on a predictable set of core requirements that is no more 
than necessary for suppliers to make a decision as to whether or not to submit a tender in a 
given case.  [Canada]  
• The information required in the US proposal is considered to be the core necessary for notices 
because it is considered sufficient for a supplier to make a decision as to whether they are 
interested in the procurement and, therefore, wheth er to make a request for tender 
documents . In addition, it should be possible to rely upon the principle of non -discrimination 
requirement to ensure that information provided to one supplier is provided in a 
non-discriminatory way to all interested supplie rs. It is not necessary to list everything of 
potential interest in a notice provided that suppliers who are interested in participating in a 
tender procedure receive all the information that is necessary to submit a tender and they 
receive that informatio n in a non -discriminatory way.  [US] 
• Publication in electronic media is transitory by nature . An important element of transparency 
is the ability to obtain information for the relevant period of time – that is, the entire period 
for which a tender is open a nd not merely the day that the tender notice is issued . How can it 
be ensured that that occurs if electronic media are used ? [Canada]  
• The existing Article IX identifies a number of different types of notices, leaving it unclear which 
notices should be used by particular entities . Is it necessary to list in the Agreement every 
type of notice that might be used or is it preferable to refer to a certain basic set of 
commitments that will apply to the various types of notices that might be used to ensure an  
adequate level of transparency ? [US] GPA/TN1994/2/Rev.11  
 
- 93 - 
 
  Article IX:2, 3  
 
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. Procuring entities in Annex 3 may use 
a notice of planned procurement, as 
provided for in paragraph 2, as a notice of 
intended procurement provided that it 
contains in addition the statement that 
interested suppliers should e xpress their 
interest in the procurement to the 
procuring entity.  
[EC – Job No. 876]  
 
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 i nvitation 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 application of the requirements for publication of tender notices for Annex 3 entities could 
be burdensome.  [Japan]  
  GPA/TN1994/2/Rev.11  
 
- 94 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. Procuring entities in Annex 3 may 
use a notice, regarding permanent lists of 
qualified suppliers, as provided for in 
paragraph 1, as a notice of intended 
procurement.  
 
 When such a notice is used as a notice 
of intended procurement it shall, in addition 
to what is provided for in paragraph 1, 
include the following information:  
 
 (d) the nature of the products or service s 
concerned;  
 
 (e) a statement that the notice 
constitutes a notice of intended 
procurement and that no further 
notices will be published.  
[EC – Job No. 876]  
 
• While the US agrees with the substance of paragraph 3 of the EC proposal, the question arises 
as to whether it is better placed in the general provision on notices or in an article on conditions 
for participation.  [US]  
 GPA/TN1994/2/Rev.11  
 
- 95 - 
 
  Article IX:4, 5  
 
Invitation to Pa rticipate Regarding Intended Procurement  
 
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. 
 3. Each Party shall encourage its 
procuring entities to publish as early as 
possible in each fiscal year i nformation 
regarding entities ' future procurement 
plans . Such information should include the 
subject matter of the procurement and the 
planned date of the publication of the notice 
of intended procurement . W hen the 
published information is in accordance wi th 
Article VI:2(a) of this Agreement, entities 
may apply Article VI:2 for the purpose of 
establishing more flexible time periods for 
tendering of procurements covered by this 
Agreement.  
[US – Job No. 2867]  
 
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 t he 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.  
 4. Procuring entities in Annex 3 that use 
a notice regarding permanent lists of 
qualified suppliers as a notice of intended 
procurement shall pr ovide, 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 procurement.  
This information shall include the 
information contained in the notice of 
intended procurement referred to in 
Article  IX paragraph 2, 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.  
[EC – Job. No. 876]  
 
 
Comment  
 
• While Parties should encourage its procuring entities to publish their future procurement plans, 
not sure if procuring entities are ready to do so as entities may not want to commit themselves 
with their procurement plans or give false expectations to suppliers . With the deletion of 
Article  IX:3 of the GPA, entities under different Annexes are subject to the same procedures 
in making known their notice of intended procurement.  [Hong Kong, China]  
 
  GPA/TN1994/2/Rev.11  
 
- 96 - 
 
  Article IX:6  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
6. Each notice of proposed procurement, 
referred to in paragraph  2, shall contain the 
following information:  
 2. Entities shall include the following 
information in each notice of intended 
procurement:  
[US Job No. 1051; EC Job. No. 876]  
 
 (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 of the goods or 
services to be procured and, 
where applicable, the 
quantity of goods or services 
to be procured and any 
registration or qualification 
requirements or other 
conditions for participation in 
tendering for the 
procurement;  
[US Job No. 1051]  
 
 (b) whether the procedure is open or 
selective or will involve 
negotiation;   (e) whether the procurement 
method is open or selective 
and whether it will involve 
negotiation, and where, 
pursuant to Article XVI(4), an 
entity intends to limit the 
number of qualified suppliers 
invited to tender, the 
minimum and maximum 
number of suppliers that may 
be invited to tender and the 
criteria that will be used to 
select them;  
 [EC Job No. 876]  
 
 (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 procurement;  
[US Job No. 2867; EC Job No. 876]  
 
 (c) any date for starting delivery or 
completion of delivery of goods or 
services;  (c) The procurement method 
that will be used and whether 
it will involve negotiation;  
[US – Job No. 2867]  
 
Comments  
 
In relation to the US proposal:  
 
• With regard to paragraph 2(c), clarification is sought on the meaning of "procurement 
method. " [Japan]  
• The term "procurement methods" is intentionally left undefined in the US proposal since, for 
example, selective tendering procedures may be regarded as something different in the US as GPA/TN1994/2/Rev.11  
 
- 97 - 
 
  compared to in Japan . Presumably, this wo uld mean that each entity would identify in tender 
notices, the methods that apply to the relevant domestic context or system . The alternatives 
would be to either list every type of procurement method that any Party may use or to state 
that the information  provided in the tender notice need not refer to the procurement method 
to be used . However, the latter may cause problems, for example if a notice does not tell 
suppliers that pre -qualification is needed.  [US] 
In relation to the EC proposal:  
 
• With respect  to sub -paragraph (e) of the EC proposal, the maximum number of suppliers is 
sometimes difficult to determine in cases where, for example, a points system is used and this 
results in a tie.  It may be difficult choose between the tied suppliers in such cas es.  Modification 
may be necessary to the provision to take account of this situation. [Japan]  
 
• Sub-paragraph (e) may be simplified by not suggesting that there are particular types of 
tendering procedures but rather focusing on the type of information tha t should be provided in 
notices. [US] CHECK  
 
• The information referred to in sub -paragraph (e) should be included in the tender 
documentation. For example, the criteria used to select suppliers cannot be easily reduced to a 
few lines, which may be necessary given that the notices of intended procureme nt are usually 
quite short. [Switzerland; Japan]    
 
• Any selection or elimination of suppliers must be based on criteria that are very clear and 
provided in advance.  It is preferred that such information be included in the notices although it 
is acknowledg ed that this might not be feasible in all circumstances. [US] 
 
In relation to the US proposal:  
 
• The words "where applicable " have been included in paragraph (a) of the US proposal given that 
the quantity to be procured may not always be known at the time t he notice is issued, for 
example in cases involving indefinite quantity contracts or in cases involving a two -stage 
process. [US] 
 GPA/TN1994/2/Rev.11  
 
- 98 - 
 
  Article IX  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED M ODIFICATIONS  
(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, when 
appropriate, any time limits for 
the submission of applications to 
qualify for participation in the 
intended procurement and the 
dates for starting or completing 
delivery of goods and services ; 
and 
[US – Job No. 1051 ] 
 
(e) the address of the entity awarding 
the contract and providing any 
information necessary for obtaining 
specifications and other documents;  
 (f) the address and the time -limits 
set for submission of an 
application to be invited to 
tender or for qualifying for the 
suppliers' lists, or for submission 
of tenders, as well as the 
language or languages in which 
they must be submitted.  
[EC – Job No. 876]  
(f) any economic and technical 
requirements, financial guarantees 
and information required from 
suppliers;  
  
(g) the amount and terms of payment of 
any sum payable for the tender 
documentation; and  
  (g) the amount and terms of 
payment of any sum payable 
for the tender 
documentation; and  
[EC – Job No. 876]  
 
(h) whether the entity is inviting offers 
for purchase, lease, rental or hire 
purchase, or more than one of these 
methods.  
  (e) any other terms or 
conditions, including terms 
of payment,  
[US – Job No. 1051]  
 
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]  
• Article IX:6(f) of the current Agreeme nt is very useful for procurement of construction services 
not only for suppliers to obtain information and to avoid unnecessary preparations, but also 
for entities to assist them in conducting procurement procedures in an efficient manner . It is 
suggested  that the US proposal should contain an equivalent to this provision.  [Japan]  
• The US proposal should not eliminate Article IX:6(g) of the current Agreement since the 
information provided under that provision is provided as part of normal administrative 
services.  [Japan]  
  GPA/TN1994/2/Rev.11  
 
- 99 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (b) a description of the intended 
procurement including  [EC – Job 
No. 876]  
 
 -  the nature of and quantity of 
the goods or services to be 
procured and,  
  [EC – Job No. 876]  
 
  -  whether the entity is inviting 
offers for purchase, lease, 
rental or hire purchase, or 
more than one of these 
methods and,  
  [EC – Job No. 876]  
 
  -  where applicable, any 
options for further 
procurement and the related 
estimated timing when such 
options can be exercised as 
well as,  
  [EC – Job No. 876]  
 
 - for recurring contracts, the 
nature and quantity of the 
goods or services and, if 
possible, an es timate of the 
timing of subsequent notices 
of intended procurement;  
 [EC – Job No 876]  
 
  -  for framework agreements, 
the duration of the 
agreement, the estimated 
volume of purchases during 
the agreement and, if 
available, the volume and the 
expected frequency of the 
purchases;  
 [EC – Job No. 876]  
 
 (c) duration of the contract and/or any 
date for starting or completing 
delivery of goods or services;  
[EC – Job No. 876]  
 
 (d) any qualification requirements and 
other conditions for participation of 
suppliers, and any documents and 
information required from suppliers.  
[EC – Job No. 876]  
 
Comment  
 
• With respect to "framework agreements" reference is made to the work of the Committee on 
this subject and to the non -paper of the EC of 9 M arch 2000 (Job No. 1469) [EC]  
 GPA/TN1994/2/Rev.11  
 
- 100 - 
 
  • With respect to the comments made in relation to Article IX:6(f) and (g), it may not be 
necessary to include such information in notices notifying the original tender opportunity, 
although that information may need to be provided to suppliers who request tender 
documents . The essential question is : what information is necessary in a notice in order for a 
supplier to evaluate whether they have an interest in the procurement and whether they want 
to request tender documents ? It is considered that with respect to (f), it is not necessary for 
a supplier to have that information to determine whether it was interested . That information 
could be provided in tender documents . With respect to (g), any supplier that requests tender 
documents would be told what the cost of the tender documents would be.  [US] 
• There may be possibilities to simplify some of the specific information requirements that are 
suggested in the EC proposal, particularly, in paragraph in 2 (b).  [US] 
 
• The term "framework agreements " would have to be defined in the Agreement because, for 
example, that term is not used in the US system.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 101 - 
 
  Article IX:7, 8  
 
Invitation to Participate Regarding Intended Procurement  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPO SED 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:  
 1. Each Party shall encourage its 
procuring entities to publish as early as 
possible in each fiscal year information 
regarding entities' future procurement 
plans.  Such information should include the 
subject -matter of the procurement and the 
planned date of t he publication of the notice 
of intended procurement.  
[EC – Job No. 876]  
 
 (a) a statement that interested 
suppliers should express their 
interest in the procurement to the 
entity;  
 2. Procuring entities may apply 
Article  XIV, paragraph 4, for the purpose of 
establishing shorter time -periods for 
procurements covered by this Agreement, 
when the notice of planned procurement 
contains as much of the information 
referred to in paragraph 2 of Article IX as is 
available and the address from which 
document s relating to the procurement 
may be obtained.  
[EC – Job No. 876]  
 (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, procuring entities 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 
procurement;  
 
 (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, 
where applicable, of 
applications to be invited to 
tender or for qualifying for the 
supplies lists;  and  
 
 (c) the addresses from which 
documents relating to the 
contracts may be requested.   
  (c) the addresses from which 
documents relating to the 
procurement may be 
requested.  
[EC – Job No. 876 ]  
 
 
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]  
• Clarification is sought as to why the US proposal excludes the requirement for a summary 
notice in a WTO language that is currently contained in Article IX:8. [Korea]  GPA/TN1994/2/Rev.11  
 
- 102 - 
 
  • That requirement could be a significant obstacle, particularly for many non -Parties.  Further, 
as a general matter, it does not seem necessary to achieve the objectives of the Agreement.  
[US] GPA/TN1994/2/Rev.11  
 
- 103 - 
 
  Article IX:9  
 
Invitation to Participate Regarding Intended Pr ocurement  
 
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 XI – Notice regarding permanent 
lists of qualified suppliers  
 
1. Procuring entities maintaining 
permanent lists of qualified  suppliers shall 
publish annually in one of the publications 
listed in Appendix II I a notice of the 
following:  
 
(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;  
 (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 with a view to their 
inscription on those lists and the 
methods according to which 
each of those conditio ns will be 
verified by the entity concerned; 
and 
(c) the period of validity of the lists, and 
the formalities for their renewal.  
 (c) the period of validity of the lists, 
and the formalities for their 
renewal.  
[EC – Job No. 876]  
 
 2. However, when the duration of the list 
is three years or less, and if the duration of 
the list 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 
validity of the list.  Such a system shall not 
be used in a manner which circumvents the 
provisions of this Agreement.  
 
In relation to the EC proposal (Job No. 876):  
 
• It is unclear whether it is necessary to have a separate notice requirement for permanent lists. 
[US] 
 
• The EC 's proposed articles on notices of permanent lists and notices of planned procurement 
provide particular flexibility for Annex 3 entities.  It is unclear whether that type of flexibility is 
necessary.  [US]  
 GPA/TN1994/2/Rev.11  
 
- 104 - 
 
  Article IX:10, 11  
 
Invitation to Participate Re garding Intended Procurement  
 
AGREEMENT 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;  
  
(e) a statement that the notice 
constitutes an invitation to 
participate.  
  
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 circumven ts the provisions of 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 amend 
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 wi th respect to 
a particular intended procurement 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.  
 5. If, after publication of a notice of 
intended pro curement, but before the time 
set for opening or receipt of tenders as 
specified in the notices or the tender 
documentation, it becomes necessary to 
amend 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 or 
re-issued notice is based.  Any significant 
information given to one supplier with 
respect to a particular intended 
procurement 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.  
[EC – Job No. 876  
 
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC paragraph 5 is probably better placed before the proposed paragraph 4. [US] 
 
 GPA/TN1994/2/Rev.11  
 
- 105 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Modifications  
 
7. If, during the course of a procurement 
process, an entity modifies the criteria or 
technical requirements set out in previous 
notices and information provided to 
participating suppliers, it shall transmit all 
such modifications in writing:  
 
(a) to all the suppliers that are 
participating at the time the 
information is amended , if 
known, and in all other cases, in 
the same manner as the original 
information; and  
 
(b) in adequate time to allow such 
suppliers to modify and 
re-submit their initial tenders, as 
appropriate.  
[US – Job No.  2867]  
 
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.  
 (e) An indication that the 
procurement is covered by this 
Agreement.  
[US – Job No.  2867]  
 (h) an indication that the 
procurement is covered by the 
Agreement.  
[EC – Job No. 876]  
 
 
Comments  
 
• The US proposal suggests 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 have downloaded or viewed the tender documentation 
and, in many instances, procuring entities will publish the amendment in the same medium . 
The onus should be on the supplier to look at amended information in  such cases . Perhaps the 
proposal should be amended to state that it is sufficient to make the amended information 
publicly available.  [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 changed during the second stage of the process, perhaps 
it would not be reasonable or necessary to share it o r disseminate it to all the suppliers that 
initially expressed an interest in the procurement.  [US] 
• This paragraph provides that if an entity modifies the criteria or technical requirements, such 
modifications shall be transmitted to all suppliers . Are the  two categories, namely, "criteria" 
and "technical requirements" comprehensive enough ? The usage of the term "significant 
information" in Article  IX:9 of the GPA is preferred.  [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 106 - 
 
  ARTICLE X – INVITATION TO PARTICIPATE REGARDING INTENDED PRO CUREMENT  
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 the lists.  
  
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 complete the 
qualification procedure under Artic les VIII and IX . 
The number of additional suppliers permitted to 
participate shall be limited only by the efficient 
operation of the procurement system.  
  
 
Comments relating to the absence of selective tendering procedures in the US proposal  
 
• The fact that the US proposal does not include a specific reference to selection procedures 
does not mean that they cannot be used and are not appropriate . Pursuant to paragraph 1 of 
the existing Article  X, entities must decide whether the maximum level of competit ion has 
been ensured . However, it is questionable whether such a provision requiring entities to decide 
this is necessary.  [US] 
• There may be some variety among countries in relation to the way in which the tendering 
procedures referred to in the Agreement are applied . One of the ways the Agreement can be 
made more accessible to new Parties and to reflect some of the different ways in which the 
current Parties may interpret the Agreement is to define the fundamental concepts and 
framework that all Parties ca n work within that still meet the objective of providing predictable 
and stable market access for both domestic and foreign suppliers . It is not considered 
necessary to have the same level of precision as to when qualification procedures take place 
in a gi ven procurement as the current Agreement provides . The current provisions are overly 
complex . The US proposal moves in the right direction in that it establishes the necessary 
framework.  [Canada]  
• A distinction should be drawn between the use of particular procedures and the disciplines 
contained in the Agreement as they apply to specific procedures . The GPA does not dictate 
that a government should use a particular procedural process for procurement . It merely sets 
out the requirements that apply to whateve r procedure a government chooses to use . 
Therefore, it is preferable to eliminate the distinction between open and selective tendering 
since many governments have the erroneous perception that the GPA dictates how 
governments can operate including what typ e of qualification should be used, when they can 
be used, when selection occurs etc. T his may be an obstacle to Parties' collective efforts to GPA/TN1994/2/Rev.11  
 
- 107 - 
 
  expand participation in the Agreement . Accordingly, the US proposal suggests elimination of 
the reference to the various types of procedures . Providing that a certain procedure is allowed 
to the extent that it is explicitly permitted under the GPA could lead to the establishment of a 
much longer Agreement since different Parties use different procedures in different situations . 
Removal of the reference to selective tendering does not mean that the use of selective 
tendering is inappropriate in certain circumstances.  [US] 
• With respect to Article X:1 of the current Agreement, reference is made selection of "suppliers 
to participate in the procedure in a fair and non -discriminatory manner" . It is understood that 
there is no need to publicise beforehand under this Article . Therefore, this selection rule is 
different from pre -qualification . Further clarification is sought i n relation to the difference 
between the selective tendering rules and the rules relating to pre -qualification.  [Japan]  
• The provisions dealing with tendering procedures are at the heart of the Agreement . Further, 
the Agreement will form the basis for acced ing countries that do not yet have legislation on 
government procurement . It may be necessary to make obvious the possibility to use various 
tendering procedures, including selective procedures, without going into too much detail or 
mandating the use of pa rticular procedures in a given set of circumstances . The GPA should 
contain a requirement that the various tendering procedures must comply with certain 
requirements.  [Switzerland]  
• The US proposal maintains the existing content of the GPA with respect to tendering 
procedures . However, the US proposal does not attempt to apply that content to specific 
processes . In particular, the GPA contains rules in relation to transparency, publication and 
content of notices and technical specifications etc. Those rules apply equally to any type of 
tendering procedure that is used . There are many ways in which procurement may be 
conducted . Some of the various procedures may be inconsistent with the requirements of the 
GPA. It is not considered efficient or des irable to recognise the various procedures that 
countries may use in undertaking government procurement . Further, the GPA should not be 
converted into a model law . That could prove to be more of an obstacle than a benefit in terms 
of new countries wishing to accede . It may be useful to more explicitly produce an explanation 
regarding how the various disciplines contained in the Agreement would relate to the various 
types of procedures . Such an explanatory document may be useful to existing Parties as well 
as other Members that are considering acceding to the GPA . The GPA would become too 
cumbersome if that was done in the Agreement itself.  [US] 
Comments relating to the clarification of the existing Article X  
 
• Paragraph 2 of the existing Article X states that permanent lists may be used, which is not 
particularly useful . In addition, the paragraph refers to "equitable opportunities", the meaning 
of which is unclear . If it means non -discriminatory, a non -discrimination obligation already 
exists in th e Agreement . Therefore, the question arises as to whether paragraph 2 is 
necessary.  [US] 
• In relation to paragraph 3 of Article X, the US proposal contains an equivalent provision in its 
proposed Article VIII:2 . The idea is that if there is a pre -qualificat ion process using a 
permanent list or some other method, even if independent of the tendering process, there 
may be a need to provide the opportunity for new suppliers to participate, if there is time to 
complete the qualification procedure.  [US] 
• See also the Explanatory Notes by the US in Job No. 6772, page 4.  GPA/TN1994/2/Rev.11  
 
- 108 - 
 
  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]  
 
1998 proposal  
 
Comments  
 
• Should the above definition of the term "writing" apply across -the-board in the Agreement or 
only to the provisions on selective tendering ? [US] 
• The US proposal does not contain an equivalent for paragraph 4 of the existing text hence it 
is unclear whether it is necessary to specify how doc uments may be submitted.  [EC] 
 GPA/TN1994/2/Rev.11  
 
- 109 - 
 
  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 reas onable 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 Parties as 
well as domestic suppliers to 
prepare and submit tenders, 
and where appropriate, 
applications to be invited to 
tender or applications for 
qualifying.  In determining 
any such time -limit, 
procuri ng 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 from 
foreign as well as domes tic 
points.  
[EC – Job 876;  Singapore Job No. 3772]  
 
 
General comments in relation to the EC Proposal (Job No. 876):  
 
• The proposed modifications are based mainly on the need to simplify by avoid unnecessary 
details regarding deadlines.  An attempt as been made to consolidate the main deadlines.  With 
respect to circumstances that allow the reduction of the time periods th at would normally apply, 
the proposal provides that time periods can be reduced provided that the minimum number of 
days is 10 calendar days. The proposal lists the circumstances that allow such a reduction to 
take place.  The reduction of time when electr onic means are  used applies not only when the 
notice is published in electronic media but also when the complete tender documentation is made 
available electronically.  It is considered that only if these two circumstances prevail,  there is a 
real advant age in terms of time for potential bidders. [EC] 
 
 
 GPA/TN1994/2/Rev.11  
 
- 110 - 
 
  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 for 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 tender s or of 
applications to be invited to 
tender or for qualifying for 
the supplier's list.  
[EC – Job No. 876 ; Singapore Job No. 3772]  
 
  (c) Where, as a result of a need 
to amend information 
provided to suppliers during 
to procurement process, a 
procuring entity must extend 
the time -period for 
qualification or tendering, 
such entity shall permit all 
participating suppliers to 
submit final tenders in 
accordance with a common 
deadline.  
[EC – Job No. 876]  
 
 2. Under the following circumstances, 
entities may establish a time -period for 
tendering that is shorter than 40 days, 
provided that such time -period is 
sufficiently long to enable suppliers to 
prepare and submit responsive tenders and 
is in no case less than 10 calendar days 
prior to the final date for the submission of 
tenders;  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 111 - 
 
  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. 2. Except in so far as provided in 
paragraphs [4] and [5] procuring ent ities 
shall provide no less than 40 calendar days 
between the date on which the notice of 
intended procurement is published and the 
final date for the submission of tenders.  
[EC – Job No. 876]  
 
 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  
 
• 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.11  
 
- 112 - 
 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Time Periods for Tendering  
 
 1. Except as provided for in paragraphs 2 
and 3 of this Article, procuring entities shall 
provide no less than 40 calendar days 
between the date on which the notice of 
intended procurement is published and the 
final date for the submission of tenders.  
[US – Job No. 2867]  
 
(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 the date of issuance of 
the invitation to tender;  
[Singapore – Job No. 3772]  
 
 GPA/TN1994/2/Rev.11  
 
- 113 - 
 
  Article XI:2  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 1. Where a procuring entity requires 
suppliers to satisfy qualification 
requirements before participating in a 
tendering process, the entity shall publish a 
notice inviting interested suppliers to apply 
for qualification and shall provide no less 
than 15 calendar days prior to the final date 
for the submission of tenders for such 
suppliers to submit their applications . This 
notice may be the same as the notice of 
intended procurement re quired under 
Article V of this Agreement.  
[US – Job No. 2867]  
 
 (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 
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 28 days from the date 
of issuance of the invitation to 
tender;  
[Chinese Taipei – Job No. 3193]  
 
 
Comments  
 
In relation to the US proposal:  
 
• Clarification is sought as to why the minimum period for submitting applications for 
qualification has been changed from 25 days before the final date for submission of tenders 
to 15 days.  [Korea]  
• The US proposal seeks to achi eve the appropriate balance . It is considered that 15 days may 
be sufficient to prepare applications for qualification.  [US] 
• See also the Explanatory Notes by the US in Job No. 6772, pages 5 and 6.  
• The proposal attempts to consolidate paragraphs (b) and (c ) of the existing text.  This is linked 
to the proposed modification to allow the use of permanent lists.  It is considered that both 
time-limits are needed.  The first – 25 days – relates to the qualification stage whereas the 
second, 40 days, relates to the submission and evaluation of bids. [EC] CHECK  
• The EC seems to consider that the interest or merit for supplier is not yet limited.  It is very 
important the consideration but there is a chance to list beforehand for the suppliers. We have 
to keep the m erit for the entity to cut the 25 day period. For the supplier, if listed, they 
expressed the interest that this supplier intend to procure something what kind of the 
procurement is engaged in the near future when the list system is noticed.  25 days is 
necessary under the permanent list system. [Japan] WHAT WAS HE SAYING???  GPA/TN1994/2/Rev.11  
 
- 114 - 
 
  • The reference to 25 calendar days which are required for qualification results in a long process 
because 40 days still remain for invitations to tender.  Could the deadline of 25 days b e 
reduced under certain circumstances. [Switzerland]  
• In some circumstances, reduction of the 25 and 40 day time limits are allowed whereas in 
other cases, only the 40 day time -limit may be reduced. [EC] 
• The proposal attempts to consolidate paragraphs (b) a nd (c) of the existing text.  This is linked 
to the proposed modification to allow the use of permanent lists.  It is considered that both 
time-limits are needed.  The first – 25 days – relates to the qualification stage whereas the 
second, 40 days, relate s to the submission and evaluation of bids. [EC] CHECK  
• The EC seems to consider that the interest or merit for supplier is not yet limited.  It is very 
important the consideration but there is a chance to list beforehand for the suppliers. We have 
to keep the merit for the entity to cut the 25 day period. For the supplier, if listed, they 
expressed the interest that this supplier intend to procure something what kind of the 
procurement is engaged in the near future when the list system is noticed.  25 days is 
necessary under the permanent list system. [Japan] WHAT WAS HE SAYING???  
• The reference to 25 calendar days which are required for qualification results in a long process 
because 40 days still remain for invitations to tender.  Could the deadline of 25 days be 
reduced under certain circumstances. [Switzerland]  
• In some circumstan ces, reduction of the 25 and 40 day time limits are allowed whereas in 
other cases, only the 40 day time -limit may be reduced. [EC] 
 GPA/TN1994/2/Rev.11  
 
- 115 - 
 
  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 g eneral rule, 
shall not be less than 
24 days, but in any case 
not less than 10 days;  
[Singapore – Job No. 3772]  
 
 
Comment  
 
• When procurement notices are published electronically rather than through traditional paper 
means, the efficiency that results may allow for a reduction in the time -period of 10 days, 10 
days representing the potential gain in efficiency by using electronic means . Depending upon 
the circumstances, time -periods could be reduced to a minimum of 10 days.  [US] 
 
  GPA/TN1994/2/Rev.11  
 
- 116 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Under the following circumstances, 
procuring entities may establish a time -
period for tendering that is shorter than the 
periods referred to in paragraphs 2 and 3, 
provided that such time -period is 
sufficiently long to enable suppliers to 
prepare and submit responsive tenders and 
is in no case less than 10 calendar days 
prior to the final date for the submission of 
tenders:  
 
 (a) where a notice  of planned 
procurement under Article XII, 
paragraph 2 has been published 
40 days and not more than 
12 months in advance;  
 
 (b) in the case of the second or 
subsequent publications dealing 
with contracts of a recurring 
nature;  
 
 (c) in the case where the  procuring 
entity procures off -the-shelf 
goods (goods with the same 
technical specifications as those 
of goods that are sold or offered 
for sale to, and customarily 
purchased by non -governmental 
buyers for non -governmental 
purposes);  the procuring entity 
shall not reduce time periods for 
this reason if the entity requires 
that potential suppliers be 
qualified for participation in the 
procurement before submitting 
tenders;  
  
 (d) where a state of urgency duly 
substantiated by the procuring 
entity renders impracticable the 
periods specified in 
paragraphs  2 and 3.  
 
 (e) when the period for the 
submission of tenders referred 
to in paragraph 3, for 
procurements by procuring 
entities in Annex 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.  
[EC – Job No. 876]  
 
 GPA/TN1994/2/Rev.11  
 
- 117 - 
 
  Comments  
 
• With respect to sub -paragraph (c) of the EC proposal, the question arises as to whether the 
Parties would have a common understanding of the meaning of "commercially available off -
the-shelf goods or services " or whether it is necessary for the text to prov ide further detail as 
to what that means. [US] 
• The definition of that expression is in brackets in the EC proposal because the EC is considering 
whether this term should be defined in a separate place or in the same provision.  [EC] 
• The EC and equivalent U S proposal regarding off -the-self goods are welcome.  One of the 
concerns regarding the implementation of the existing GPA is that the existing time -limits may 
not be realistic, especially when they are applied to simple and very straightforward 
procuremen ts such as for paper and stationery when they exceed the GPA thresholds. 
[Singapore]  
• It might be useful to refer to goods with "similar " technical specifications rather than the 
"same " given that there may be small differences but which do not mean that th e goods are 
very different.  [Switzerland]  
• The use of the word "similar " might be more suitable.  [EC] 
• It would also be useful to insert some standard services into this paragraph, such as the 
cleaning of buildings or the provision of security for building s, since these could also be treated 
in the same way as off -the-shelf goods to make the Agreement more attractive to non -Parties. 
[Switzerland]   
• The idea of "off-the-shelf services " does not sound appealing but will be considered.  [EC] 
• The need for sub -paragraph (e) of the EC proposal is questioned. [US] 
• The Agreement currently recognises the possibility that there may be two public notices 
relating to a single tendering procedure . There may be an advance notice which contains a 
certain minimum amount of information followed by a subsequent notice which would still be 
required to have all the information that is required for a notice for an intended procurement . 
The existence of a prior notice that contains a certain amount of information may be a reason 
to reduce the time -period below 40 days because some information is already available to 
suppliers . When the second notice is issued, the tendering procedure can, perhaps, proceed 
more quickly.  [US] 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPO SED MODIFICATIONS  
 5. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article IX of this 
Agreement in an electronic media listed in 
Appendix III, and the complete tender 
documentation is made available 
electronically since the beginning of the 
publication of the notice, such entity may 
reduce the time -periods for tendering by up 
to 12 calendar 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.  
[EC – Job No. 876]  
 
  GPA/TN1994/2/Rev.11  
 
- 118 - 
 
  Comments  
 
• How will 12 calendar days be calculated? This period may be too long taking into account the 
interests of the suppliers.  [Japan]  
 
• There is a difference between the time -limits proposed under the EC and US proposals. 
Article  VI(3) of the US proposal states  that the reduction of time -limits by 10 days can only be 
based on the publication of a notice of intended procurement whereas Article XIV:5 of the EC 
proposal states that the documentation must be provided electronically. Chinese Taipei would 
like to prop ose that different reduction of time limits should be available for all tender 
documentation, rather than in relation to tender notices only.  If a procurement entity publishes 
a tender notice electronically, can such circumstances warrant a reduction of t ime limits for 
tendering?  If this is the case, it is proposed that the time limits should be reduced to 5 days 
instead of 7 days.  In the case where all the tender documentation is made available 
electronically, it is considered that 10 days is acceptable . [Chinese Taipei] CAN'T FIND WHAT 
HE'S TALKING ABOUT  
 
• The EC proposal only concerns time reductions for notice publication in electronic means..  For 
this reason, the EC is not proposing that time -limits should be reduced in the GPA context where 
only the date when the notice is published counts. [EC] ??? 
 
• The proposal regarding electronic tendering is a useful one and will facilitate the use of the 
Agreement. [Switzerland]  
 GPA/TN1994/2/Rev.11  
 
- 119 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (a) where a separate notice, 
including a notice under 
[Article V:3] of this 
Agreement, has been 
published at least 40 
calendar days and not more 
than 12 months in advance, 
and such notice contains: a 
description of the intended 
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 
obtained;  
[US – Job No. 2867]  
 
 
Comments  
 
• Elements required under the proposed paragraph (a) of the US proposal relating to prior notice 
are not as comprehensive as those contained in Article XI:3 of the GPA. The US proposal only 
prescribes elements which are contained in Article XI:3(a)  (ii) of the GPA.  Information such as 
economic or technical requirements or completion date is not prescribed. However, such 
information is essential to enable a supplier to determine whether he or she should bid for that 
tender. [Hong Kong, China]  
 
• The A greement currently recognises the possibility that there may be two public notices relating 
to a single tendering procedure.  There may be an advance notice which contains a certain 
minimum amount of information followed by a subsequent notice which would still be required 
to have all the information that is required for a notice for an intended procurement. The 
existence of a prior notice that contains a certain amount of information may be a reason to 
reduce the time -period below 40 days because some info rmation is already available to 
suppliers. When the second notice is issued, the tendering procedure can, perhaps, proceed 
more quickly. [US] 
 GPA/TN1994/2/Rev.11  
 
- 120 - 
 
  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]  
 
 
Comment  
 
• The proposal to specify a minimum bid period for certain kinds of procurement may go against 
the aim to simplify and improve the Agreement. [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 121 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMEN T (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 receipt 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; EC – 
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 publication of 
notices dealing with 
contracts of a recurring 
nature;  
[US – Job No. 2867]  
 
Comments  
 
• The meaning of "contracts of a recurring nature" is not clear.  Clarification is sought as to whether 
this reference includes contracts which are recurrently required.  For example, there may be an 
annual contract or contract for longer periods, say three years, and renewal is necessary before 
its expiry.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 122 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Under the following circumstances, entities 
may establish a time -period for tendering 
that is shorter than 40 days.  
 
(c) in the case of procurement of 
commercially available off -
the-shelf  goods and 
services, except that a 
procuring entity shall not 
reduce time periods for this 
reason if the entity requires 
that potential suppliers be 
qualified for participation in 
the procurement before 
submitting tenders, in 
accordance with Article [IX] 
of this Agreement; and  
[US – Job No. 1051]  
 
 (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]  
 
 
Comments  
 
In relation to the US proposal:  
 
• It is an open question whether it would be useful to define "commercially available off the shelf" 
goods and services (a lengthy definition is incorporated in the US Federal Acquisition  
Regulation).  It is appropriate to allow for shorter time -periods whe re entities procure goods and 
services that are normally bought and sold outside the public sector and where entities do not 
establish government -unique specifications for such goods and services. [US] 
 
• The US proposal provides for greater flexibility in r educing time periods below the standard 40 -
day time -period in cases including those concerning procurement of commercial goods and 
services, referred to in ArticleVI:2(c) of the US proposal.  In some cases, governments purchase 
"off-the-shelf" products or commercial products, which are products that are not distinguishable 
from products that are purchased by non -governmental users.  Such products can be purchased 
from anywhere and the government does not have any specific technical specifications for that 
product.  Therefore, the procurement can be undertaken in an open and competitive way, more 
quickly than, for example, a major public construction project.  [US] 
 
• Clarification is sought as to the aim, purpose of and necessity for Article VI:2(c) of the US 
proposal.  It appears that this Article governs the procurement of commercially available goods 
and services that are commonly procured by non -governmental buyers, such as pens and 
pencils.  Under Article  XV:1(h) of the existing GPA and Article IX:3(e) of the US proposal, 
procurement of products purchased on a commodity market may involve limited tendering 
procedures.  [Hong  Kong, China]  
 
• Article XV:1(h) dealing with commodity markets relates to bulk commodities like wheat and 
grains and would not necessarily have application to as broad a range of goods as "commercial GPA/TN1994/2/Rev.11  
 
- 123 - 
 
  off-the-shelf" goods.  The latter term does not necessarily relate to a particular product category 
but rather indicates whether a particular product that the government buys is essentially the 
same as the product that is being sold in the general market.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 124 - 
 
  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 
periods in question, the 
periods specified in 
paragraph 2 may be reduc ed 
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 use of a 40 -day time 
period would result in 
serious injury to the entity or 
the relevant Party; however, 
concerns relating to the 
amount of funds available to 
an entity within a particular 
period of time shall not be 
consid ered to be a reason of 
extreme urgency for these 
purposes.  
[US – Job No. 2867]  
 
 
Comments  
 
• With respect to sub -paragraph (d) of the US proposal, the wording should be modified.  
Paragraph 2 of Article IX of the US proposal should contain the same wording.  [Chinese Taipei]  
 GPA/TN1994/2/Rev.11  
 
- 125 - 
 
  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 
responsive 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 Annex es 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 
enabl e responsive tendering 
and shall in any case 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.11  
 
- 126 - 
 
  Article XI  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 3. When a procuring entity publishes a 
notice of intended procurement in 
accordance with Article V of this Agreement 
in an electronic media listed in 
Appendix  III, the entity may reduce the 
time periods provided for in this Agreement 
by up to 10 calendar 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 – Job No. 2867]  
 
 4. Where, 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 
qualification or tendering procedures, such 
entity shall permit all participating 
suppliers to submit final tenders in 
accordance with a common deadline.  
[US – Job No. 2867]  
 
 
Comment  
 
• It is not clear how this section is proposed to apply to a case where the intended procurement 
is published in both paper and electronic media.  The following two cases need to be considered 
and properly addressed:  
 
• If a procuring entity publi shes a notice of intended procurement in an electronic media, the 
entity is entitled to shorten the time for submission of tenders.  However, if a procuring entity 
chooses to publish a notice in both paper and electronic media, those suppliers who can only  
access to the paper media will suffer a reduced period for submission of tenders.  
 
• The publication of a notice of intended procurement in an electronic media does not necessarily 
mean that such procuring entity will accept the submission of tenders via electronic transmission.  
As such, a period of 10 calendar days may seem too short for  a foreign supplier who still needs 
to submit his tender by post or by courier.  [Hong Kong, China]  
 
Drafting suggestion  
 
• Adding a phrase "irrespective of whether such notice is also published in paper media" after 
Appendix III in the first sentence.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 127 - 
 
  Article XI:4  
 
Time-limits for Tendering and Delivery  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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.  
 (d) Consistent with the procuring 
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 o for supply of 
services.  
[EC – Job No. 876]  
 
 Possible replacement paragraphs (can have 
more than one option) : 
 
Clause (a)  
 
 Each Party shall make known in a 
medium which is [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 address 
challenges by suppliers on the inadequacy 
of time -limits given for intended 
procurement.  
[Singapore – Job No. 3772]  
 
 
• With respect to sub -paragraph (d) of the EC proposal and the reference to delivery dates, it 
might be more appropriate for that provision to be included in an article on technical 
specifications.  The delivery date is seen as one of the specifications or r equirements for 
evaluation of offers. [US] 
 
• While Article XI is perhaps not the most appropriate place to discuss delivery dates, it is unclear 
whether the proposed provision should be moved into the section on technical specifications.  
[EC] 
 GPA/TN1994/2/Rev.11  
 
- 128 - 
 
  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.  
 4. If a procuring entity allows tenders to 
be submitted in more than one language, 
one of those languages shall be one of the 
official languages of the WTO.  
[EC – Job. No. 876]  
 
Comments  
 
General Comments in relation to the EC Proposal (Job No. 876):  
 
• The EC proposal attempts to simplify and streamline the Article.  Some of the present 
requirements for inclusions in the tender documentation are not necessary either because they 
are more appropriately included in the notice of intended procurement or because it is considered 
that they involve information that is not needed at the tendering stage. [EC] 
 
Other  
 
• Why has the requirement regarding the use of a WTO language been omitted f rom the US 
proposal ? [Japan]  
• The US considers that it is not necessary to deal with that issue in the Agreement.  [US] 
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:  
 1. Procuring entities shall provide to 
suppliers tender documentation that 
includes all information necessary to permit 
suppliers to prepare and submit responsive 
bids. Unless already provided in the notice 
of intended procurement, such 
documentation shall include a complete 
description of:  
[US – Job No. 2867 , EC – Job No. 876] ] 
 
(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;  
  GPA/TN1994/2/Rev.11  
 
- 129 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(e) the persons authorized to be present 
at the opening of tenders and the 
date, time and place of this opening;  
 (d) the date, time and place for the 
opening of tenders ; and persons 
authorized to be present; and  
[US – Job No. 2867, EC – Job No. 876]  
[US – Job No. 2867]  
 
Drafting suggestion  
 
• Suggest replacing the word "opening" by "lodging" in the US' proposal.  [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 130 - 
 
  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;  
 (b) any conditions for 
participation in the 
procurement, including any 
financial guarantees, 
information and documents 
that suppliers are required to 
submit;  
[US – Job No. 2867, EC – Job 
No. 876]  
 
(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;  
 (a) the intended procurement, 
including the nature and 
quantity of the goods or 
services to be procured and 
any requirements to be 
fulfilled, including any 
technical specifications, 
conformity certification, 
plans, drawings or 
instructional materials;  
[US – Job No. 2867, EC – Job 
No. 876] 
 
(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 inspection co sts, and 
in the case of products or services of 
other Parties, customs duties and 
other import charges, taxes and 
currency of payment;  
 (c) all criteria, including all cost 
factors, to be considered in 
the awarding of the contract, 
and the weights that will be 
assigned to such criteria in 
evaluating tenders;  
 [US – Job No. 2867, EC – Job 
No. 876]  
(i) the terms of payment;  
 (e) the terms of payment and 
any other terms or 
conditions.  
 
(j) any other terms or conditions;  
 [US – Job No. 2867]  
(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.  
 (e) any other terms or 
conditions, including terms 
of pay ment.  
[EC – Job No. 876]  
 
Comments  
 
• With respect to sub -paragraph (c) of the EC and US proposals, it is a good idea for relative 
weightings to be published in advance.  However, there is a probability that the relative 
weighting may not be confirmed in advance or have not yet been decided, f or example, in 
complicated cases such as procurement for BOT or  concession contracts. Further, the US 
proposal regarding limited tendering deletes the reference to design contests which  means that GPA/TN1994/2/Rev.11  
 
- 131 - 
 
  normal procurement procedures should apply to design cont ests.  The relative weighting for 
design contests at the notice stage would be difficult to anticipate since theses are normally 
determined by a jury of specialists after receiving the proposals. There may be need for an 
exceptional clause to deal with the se situations.  [Japan; Switzerland]  It may be also be possible 
to list criteria listed in order of importance.  [Switzerland]  
 
• It is important to include the relative weighting of evaluation criteria in the tender notices or the 
documentation to ensure t ransparency of the process and to ensure that suppliers and others 
can understand the bases for decisions that are made in the procurement process.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 132 - 
 
  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.  
 2. Procuring entities shall forward the 
tender documentation at the requests of 
any suppliers participating in the 
procurement.  
 
[EC Job No. 876]  
(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.  
 3. Procuring entities s hall reply 
promptly to any reasonable request for 
relevant information submitted by a 
supplier participating in the procurement , 
on condition that such information does not 
give that supplier an advantage over its 
competitors in the procurement process.  
 
[EC – Job No. 876]  
 GPA/TN1994/2/Rev.11  
 
- 133 - 
 
  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:   
(a) tenders shall normally be submitted 
in writing directly or by mail . If 
tenders by telex, telegram or 
facsimile 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 
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 o f 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 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 particu lar 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 . 
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 
[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 b e 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]  
 GPA/TN1994/2/Rev.11  
 
- 134 - 
 
  Article XIII  
 
Submission,  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, facsimile 
or electronic transmission, if 
required . Tenders presented by 
telephone shall not be 
permitted . U nless 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  
 
• 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 that 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 provis ion 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 suppliers.  [Canada – Job No. 3481]  
• The proposals do n ot 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 burden imposed upon procuring entities as regards the p rotection 
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]  GPA/TN1994/2/Rev.11  
 
- 135 - 
 
  • 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 transp arency 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 means.  
[EC] 
 GPA/TN1994/2/Rev.11  
 
- 136 - 
 
  Article XIII  
 
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 discriminatory 
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 ] 
 
 4. 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 – Job No. 2867 ; EC – Job No. 876]  
 
 
Drafting comment  
 
• Would like to seek clarification on the meaning of "unintentional errors of form" as it has 
significant implications on the implementation of the Agreement.  GPA/TN1994/2/Rev.11  
 
- 137 - 
 
  Article XIII:2, 3  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMEN T ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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 sp ecified for receiving tenders if 
the delay is due solely to mishandling on 
the part of the entity.  
[US – Job No. 2867 ; EC – Job No. 876]  
 
 
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 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.  
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process.  
[US – Job No. 2867]  
 1. Procuring entities shall receive and 
open all tenders under procedures that 
guarantee the fairness and impartiality of 
the procurement process.  In particular, 
integrity of data must be preserved.  
Tenders shall not be opened until after the 
deadline set by the procuring entity for 
receipt of tenders.  
[EC – Job No. 876]  
 
 5. Where an entity requires suppliers to 
satisfy registration or qualification 
requirements or any other conditions for 
participation in a procurement, it may, 
subject to the other provisions of this 
Agreement, limit the receipt of tenders to 
those suppliers that sati sfy such 
requirements and conditions.  
[US – Job No. 1051  
 
Comments  
 
• US proposal responds to informal consultations in the GPA Committee regarding the implications 
of the initial US proposal for "selective tendering" procedures.  The new paragraph, which is 
permissive rather than prescriptive, would confirm that tendering m ay be limited to suppliers 
that met any conditions for participation.  At the same time, it would clarify that the use of 
"selective tendering" must be understood in the context of the GPA's other requirements, 
including those regarding registration, quali fication and other conditions of participation, and 
that the use of selective tendering procedure does not permit departures from those 
requirements. [US] GPA/TN1994/2/Rev.11  
 
- 138 - 
 
  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 o f participation 
and be capable of fulfilling the terms 
of the contract.  
 5. To be considered for award, a tender 
must be in writing and must, at the time of 
opening, conform to the essential 
requirements of the notices and tender 
documentation that have be en provided in 
advance to all participating suppliers, and 
be from a supplier that satisfies any 
registration or qualification requirements 
or any other conditions for participation.  
[US – Job No. 1051]  
 
 5. To be considered for award, a tender 
must be in  writing and must, at the time of 
opening, conform to the essential 
requirements of the notices and tender 
documentation and be from a supplier 
which complies with the conditions for 
participation, including any specified time 
periods.  Procuring entities shall base 
contract award decisions solely on the 
requirements and evaluation criteria that 
have been specified in the notices and 
tender documentation provided in advance 
to all participating suppliers.  If a procuring 
entity receives 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.  
[EC – Job No. 876]  
 
 
(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.   
6. Entities shall award the contract to 
the tenderer who has been determined to 
be fully capable of undertaking the contract 
and whose tender is determined to be the 
most advantageous on the basis of the 
requirements and evaluation criteria set 
forth in the notices or tender 
documentation.  
[US – Job No. 1051]  
 GPA/TN1994/2/Rev.11  
 
- 139 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. Unless a procuring entity determines 
that it is not in the public interest to award 
a contract, procuring entities shall award 
the contract to the tenderer who has been 
determined to be fully capable of 
undertaking the contract and whose tender 
is eithe r the lowest tender or the tender 
which is determined to be the most 
advantageous in terms of the requirements 
and evaluation criteria set forth in the 
notices or tender documentation.  
[EC – Job No. 876]  
 
 7.  A procuring entity may determine 
that it is not in the public interest to award 
a contract.  
[US Job No. 1051]  
 
Comments relating to the existing paragraph (a)  
 
• For the purpose of simplifying the Agreement, the following test should apply in connection 
with the elimination of the last sentence of Article XIII:4(a) . If there is anything in the 
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 s entence should be eliminated.  [US] 
• The US proposal does not contain a reference to "abnormally low bids" . The examination of 
how abnormal the lowest bid may be can be an important part of the award process, 
particularly if there is a high level of competit ion in the relevant market.  [Japan]  
• Regarding the proposed deletion 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] 
• There is nothing to prevent entities from examining abnormally low bids at any time the entity 
considers it to be appropriate, provide d that such an examination is conducted in a 
non-discriminatory fashion.  [US] 
Comments relating to the existing paragraph (b)  
 
• With the present wording "a procuring entity determines that it is not in the public interest …" 
in paragraph 6, it seems that wh ether there exists the "public interest" element is a subjective 
test of the procuring entity . Hence, how does paragraph 7 inter -play with paragraph 6 ? If a 
procuring entity determines that a procurement exercise should be cancelled in the light of 
public interest, how is paragraph 7 invoked to allege that the procurement process is cancelled 
in a manner that circumvents the obligations of the Agreement ? We noted US' intention to 
avoid the circumvention of tendering procedures by deleting an award after it had been 
granted but it was not popular . However, if a tender had already been awarded, the procuring 
entity would be contractually bound to perform the contract . The supplier could have an action 
for breach of contract if the procuring entity had terminat ed the contract otherwise than in 
accordance with the terms of the contract . There may not be a need to insert this paragraph 
so as to complicate the matter . A more stringent condition is proposed by the US on the 
cancellation of a procurement process in A rticle X:7 . We have reservations about doing away 
with the escape clause on "public interest" as Parties may be left with little leeway in genuine 
cases.  [Hong Kong, China]  
• If contract award information is available electronically, it should be made availa ble for a 
certain period of time so that suppliers are not required to regularly check the electronic site 
where that information is located.  [Canada]  GPA/TN1994/2/Rev.11  
 
- 140 - 
 
  Article XIII  
 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 7. Entities shall not cancel a 
procurement or terminate or modify 
awarded contracts in a manner that 
circumvents the obligations of this 
Agreement.  
[US – Job No. 1051 ] 
 
 
Comments  
 
• Clarification is sought in relation to what is meant by "circumvention of the Agreement" in 
proposed paragraph 7 of the US proposal . The concept appears to be overly broad.  [Korea]  
• Is proposed paragraph 7 necessary since it seems to apply across the board to many 
provisions of the Agreement ? [Switzerland]  
• Proposed paragraph 7 responds to a concern that while tendering procedures may be fully 
compliant with the GPA, an unpopular award may be cancelled, the contract may not be 
awarded at all, or it may be awarded at some time in the future using a different procedure . 
The US proposal aims to avoid such circumvention of the Agreement.  [US] 
• In response to a question on the rationale for paragraph 7 [ Canada ], in a number of major 
procurement situations, suppliers have encountered situations where entities have cancelled 
award procedures at the last moment . There can be an impression among the suppliers that 
the entities had t aken 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 might be contrary to the objectives of the Agreement.  [US] GPA/TN1994/2/Rev.11  
 
- 141 - 
 
  Article XIII:5  
 
Submiss ion, 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.  
  
 New Article : 
 
 Parties shall, within a period of (two) 
years, conduct a review of the Agreement 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 suppliers of a particular 
procurement to use electronic tendering, if 
appropriate.  
[Hong Kong, China – Job No. 3436]  
 
 GPA/TN1994/2/Rev.11  
 
- 142 - 
 
  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:  
 1. A Party may provide for its procuring 
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  
 (a) in the context of procurements 
in which they have indicated 
such intent in the notice of 
intended procurement referred 
to in paragraph 2 of Article IX,  
[EC – Job No. 876]  
(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.  
 (b) when it appears from evaluation 
that no one te nder is obviously 
the most advantageous in terms 
of the specific evaluation criteria 
set forth in the notices or tender 
documentation; or  
[EC – Job No. 876]  
2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in tenders.  
 (c) when, for a limited procurement 
a notice of intended 
procurement has not been 
published in accordance with 
Article IX, paragraph  4.  
[EC – Job No. 876]  
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.  
 2. Procuring entities shall treat tenders 
in confidence . In particular, they shall not 
provide information to particular suppliers  
that might prejudice fair competition 
between suppliers.  
[US – Job No. 2867]  
 
 2. Negotiations shall primarily be used to 
identify the strengths and weaknesses in tenders.  
[EC – Job No. 876]  
 
 2. Procuring entities shall treat tenders 
in confidence.  In particular, they shall not 
provide information to particular suppliers 
that might prejudice application of the 
principles of transparency and non -
discrimination between suppliers.  
[EC – Job No. 876]  
4. Entities shall not, in the course of 
negotiations, discriminate between different 
suppliers. In particular, they shall ensure that:  
 3. Procuring 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;  
 (a) any elimination of participants is 
carried out in accordance with 
the criteria set forth in the 
notices and tender 
documentat ion; GPA/TN1994/2/Rev.11  
 
- 143 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(b) all modifications to the criteria and to 
the technical requirements are 
transmitted in writing to all remaining 
participants in the negotiations;  
 (b) all modifications to the criteria 
and to the technical 
requirements are transmitted in 
writing to all remaining 
participants in the negotiations;  
 
 (c) on the basis of the revised 
requirements and or when 
negotiations are concluded, all 
remaining participants are 
afforded an opportunity to 
submit new or amended tenders 
in accordance with a common 
deadline.  
[EC – Job No. 876]  
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC proposal has not modified the structure.  However, it does add sub -paragraph (c) to the 
list of circumstances that may lead to negotiations.  This has been added to clarify that this 
circumstance is implicit in the GPA but, perhaps, better dealt wit h in a stand -alone provision. 
[EC]   
 
• The US proposal does not include a specific Article on negotiations.  Rather the US proposal 
takes certain provisions out of the existing Article on negotiations and incorporates them into 
other elements of the proposa l. [US] 
 
• There is a question as to whether it is necessary or appropriate to have a separate Article 
specifically related to negotiations.  The EC and US proposals and the GPA all say that any Party 
can use negotiations whenever they state that in their no tice that they will do so. [US] 
 
• Paragraph 2 contains a general statement about the objective of negotiation but it is unclear 
whether that statement has much effect operationally. Paragraph 3 of the EC proposal is merely 
an elucidation of specific measure s or steps related to ensuring that there is non -discrimination. 
Sub-paragraph 3(a) is similar to a provision that has been included in the US and EC proposals 
on qualifications or conditions for participation.  Further, sub -paragraphs (b) and (c) appear t o 
be potentially applicable to a broader range of procurement than just negotiated procurements. 
[US] 
 
• A provision on negotiation is seen to be important internally.  Negotiations usually take place in 
an unstructured environment.  It is strongly believed that a provision explaining what is possible 
and what is not possible in relation to negotiations is important and necessary. [EC] 
 GPA/TN1994/2/Rev.11  
 
- 144 - 
 
  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.  
  
 
Comments  
 
• 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] 
• While the US proposal allows for negotiation i f that has been indicated in the tender 
documentation or when it appears that there is not necessarily a single most advantageous 
tender, it does not contain a requirement that the tender notice should indicate that 
negotiations will occur . Why has this re quirement been omitted from the US proposal ? [EC] 
• The possibility for an entity to use negotiations should not be limited . Nevertheless, there is a 
need to have some basic rules in order to provide a framework and guidelines that should be 
followed when ne gotiations are being conducted.  [EC] 
• Article XIV of the GPA is deleted without replacement . It seems that negotiations are allowed 
under the present draft as Article V:2(c) of the United States' proposal provides that each 
notice of intended procurement sh ould disclose whether the procurement will involve 
negotiations . Does it mean that under the draft agreement, procuring entities are entitled to 
conduct whatever types of negotiations they wish ? On the other hand, the last sentence of 
Article X:5 of the US  proposal provides that procuring entities shall base contract award 
decisions solely on the requirements and evaluation criteria that have been specified in the 
notices and tender documentation provided in advance to all participating suppliers . Does this  
mean that procuring entities are not allowed to conduct negotiations and let remaining 
participating suppliers submit final tenders on the basis of the revised requirements (see 
Article XIV:4 of the GPA) ? [Hong Kong, China]  
• Article XIV:1 states that negot iations are allowed when a Party has indicated in its notice that 
it will provide for negotiations . Article V:2(c) of the US proposal states that if negotiations are 
to be used, that information must be provided in the notice . If an entity holds negotiatio ns 
but that has not been referred to in the notice, Article V of the US proposal will not have been 
complied with . Similarly, Article XIV:4(c) of the existing Agreement provides that when 
requirements for a project have been revised, all remaining particip ants in a tendering process 
should have an opportunity to submit amended submissions on the basis of the revisions . 
Article VII:7 of the US proposal requires that if there are changes in the requirements during 
the process, that information must be provide d to all suppliers that are participating.  [US] 
• It is important that the Agreement appropriately addresses the issue of negotiations . However, 
given that the use of negotiations needs to be appropriately disciplined, the question is GPA/TN1994/2/Rev.11  
 
- 145 - 
 
  whether the general com mitments and obligations contained in the Agreement adequately 
address that need or whether there is a need for additional commitments that specifically 
relate to the use of negotiations . There are many provisions contained in the GPA apart from 
Article XI V that are relevant to the use of negotiations and discipline such use in some way.  
[US] 
• See also the Explanatory Note by the US in Job No. 6772, pages 3 and 4.  
 GPA/TN1994/2/Rev.11  
 
- 146 - 
 
  ARTICLE XV – LIMITED TENDERING  
Article XV:1  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 4. Provided that it does not use this 
possibility for the purposes of avoiding 
competition among suppliers or in a 
manner that discriminates against 
suppliers of the other Parties, or that 
protects do mestic suppliers, a procuring 
entity may choose not to publish a notice of 
intended procurement in the following 
circumstances and, subject to the following 
conditions, where applicable.  
[EC – Job No. 876]  
 
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 manner which would 
constitute a means of discrimination a mong 
suppliers of other Parties or protection to 
domestic producers or suppliers:  
 1. An entity may choose not to publish a 
notice of intended procurement prior to the 
award of a contract in the following 
circumstances  and subject to the following 
conditi ons, where applicable:  
[US – Job No. 1051]  
 
 
Comments  
 
• The US proposal clarifies that the exception  to normal GPA rules allowed by this Article is limited 
to the publication of advance notices.  In the US view, the elimination of the term "limited 
tendering" from the text would not detract from the clarity of the rules.  Rather, it would further 
contribute to the objective of streamlining the GPA text and emphasizing that the GPA provides 
a framework of disciplines  without unnecessarily im posing detailed procedural requirements on 
current and future Parties.  [ US] 
 
General comments in relation to the US Proposal (Job No. 1051):  
 
• The US proposal seeks to avoid reference to particular types of tendering procedures, including 
limited tendering.  The proposal begins by clarifying that limited tendering constitutes an 
exception to the obligation to publish a notice in advance of an int ended procurement.  This 
approach is similar to what has been proposed by the EC.  [US] 
 
In relation to the EC Proposal (Job No. 876):  
 
• The EC proposal introduces the list of circumstances where the use of limited tendering is 
permitted under the Article c oncerning notices of intended procurement.  For the sake of 
coherence and clarity, the provision allowing entities not to publish a notice might be better 
placed close to where the obligation to publish a notice of intended procurement is contained.  
The s ubstance of the list of circumstances allowing deviation from the obligation to publish has 
not been modified since it is believed that the current circumstances are still needed.  However, 
the proposal attempts to make it easier to understand those circum stances.  It is difficult to 
strike the right balance between detail which allows for more security and greater guarantees 
and the necessity to render this provision less cumbersome and less difficult to understand. [EC] 
 
• It is a good idea to include the provisions on limited tendering as an exception to the provisions 
on publication. [Switzerland]  
 GPA/TN1994/2/Rev.11  
 
- 147 - 
 
  Comments relating to the existing subparagraph (a)  
 
• 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 necessa rily 
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] 
• The chapeau of paragraph 4 of the EC proposal is well -drafted, effectively incorporates the 
substance of Article XV and, in some respects, is similar to the US proposal with respect to 
limited tendering. [US] 
• While the chapeau of the EC proposal appears to be different from the existing Article, the 
proposal does not appear to have changed the substance of Article XV.  [Canada]  
• It might be useful to introduce a reference to "limited tendering " in the chapeau. [Switzerland]  
 
• Is the intention of the EC and US pro posals that procuring entities be required to issue tender 
documentation and to do all of the other things that were formerly provided for in 
Article  VII-XVII and, if so, how would this be done in cases such as urgent situations? [Canada]  
NOT SURE WHAT SHE WAS ASKING  
 
• When a limited procedure is used and a contract is awarded to one supplier, it would still be 
useful to state that Articles VII – XIV do not apply in order, for example, to avoid some other 
disgruntled firms going to court in search of reme dies. [Switzerland]  GPA/TN1994/2/Rev.11  
 
- 148 - 
 
  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 requirements 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 s ubstantially modified in 
the contract as awarded;   (a) when no tender or request to 
participate or no suitable 
tenders or requests to 
participate have been 
submitted in response to a 
prior procurement, on 
condition that the 
requirements of the initial 
procurement are not 
substantially modified;  
[EC – Job No.  876]  
   (a) in the absence of tenders 
that conform to the essential 
requirements in the tender 
documentation provided in a 
prior tendering procedure, on 
condition that the 
requirements of the initial 
procurement are not 
substantially modified in the 
contract as awarded;  
[US – Job No. 1051]  
 
  (b) in the absence of tenders 
from suppliers which satisfy 
the registration, qualification 
or other conditions for 
participation established for 
a prior tendering procedure;  
[US – Job No. 1051]  
 
  (b) when, for technical or artistic 
reasons, or for reasons 
connected with protection of 
exclusive rights, the goods or 
services can be supplied only 
by a particular supplier and 
no reasonable alternative or 
substitute exists;  
[EC – Job No. 876]  
 (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 and 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 GPA/TN1994/2/Rev.11  
 
- 149 - 
 
  AGREEMENT ON GOVERNMENT  
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
alternative or substitute 
exists;  
[US – Job No. 1051]  
 
  (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 fo r 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]  
 
 
 
 GPA/TN1994/2/Rev.11  
 
- 150 - 
 
  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;  
 (c) in so far as it is strictly necessary 
where, for reasons of extreme 
urgency brought about by 
events unforeseeable by the 
procuring entity, the goods or 
services could not be obtained in 
time by means  of open or 
selective procurement and the 
use of such methods  would 
result in serious to the procuring  
entity or the responsible Party.  
Procuring entities shall not use 
this provision because of a lack 
of advance planning or concerns 
relating to the amount of funds 
available to an entity within a 
particular period of time ; 
[US – Job No. 876] 
 
 (f) in so far 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 i n time 
under tendering procedures 
consistent with Articles [V] and 
[VI] of this Agreement, and the 
use of such procedures would 
result in serious injury to the 
entity, the entity's programme 
responsibilities, or the 
responsible Party;  
[US – Job No. 1051]  
 (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 pr ocure goods or services not 
meeting requirements of 
interchangeability with existing 
equipment, software, services, 
or installations;  
[EC – Job No. 876 ]  GPA/TN1994/2/Rev.11  
 
- 151 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(d) for additional deliveries by the 
original supplier which are intended 
either 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 
interchangeability wit h 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 goods  or services not 
meeting requirements of 
interchangeability with existing 
equipment, software, services, 
or installations;  
[US – Job No. 1051 ] 
(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 shall b e subject 
to Articles  VII through XIV6; 
 
5 It is the understanding that "existing equipment" 
includes software to the extent that the initial 
procurement of the software was covered by the 
Agreement.  
 
6 Original development of a first product or service ma y 
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 quantity prod uction or 
supply to establish commercial viability or to recover 
research and development costs.  (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 re search experiment, 
study or original development;  
[EC – Job No. 876]  GPA/TN1994/2/Rev.11  
 
- 152 - 
 
  Comments relating to the existing subparagraph (c)  
 
• While paragraph 3(f) of Article IX of the US proposal provides that extreme urgency is a 
condition under which limited tendering can be used, paragraph 2 states that a procuring 
entity cannot use limited tendering because of a lack of advance planning . If a procuring entity 
needs to purchase vaccines as a result of a sudden outbreak of epidemic, can a procuring 
entity make  use of limited tendering under Article IX:3(f) or will the procuring entity by 
accused of a "lack of advance planning" ? On many occasions it is difficult to say whether an 
extreme urgency is due to an unforeseen emergency or due to a lack of advance plann ing. 
How advanced should planning be ? [Hong Kong, China]  
• There have been a number of situations where trading partners have used limited tendering 
procedures merely because money that had been allocated for a fiscal year had to be used 
quickly and there ha d not been enough time to use an open tendering procedure . That 
situation cannot necessarily be categorized as an emergency situation, allowing an exception 
to be made to the general transparency and competitive requirements of the Agreement.  [US] 
• The US E xplanatory Note (Job No. 6772) indicates that the US was concerned about some 
Parties' use of the exception for extreme urgency on the ground that these Parties only had a 
few days before the close of fiscal year for the tendering although they had a long time for 
planning . Clarification is sought as to whether the US' concern are met by arguing that these 
Parties' claim does not fall within Article XVI:1(c) of the existing GPA since such situations are 
not an extreme urgency because they are not brought ab out by "events unforeseeable by the 
entity" . Such Parties could have definitely foreseen when the close of fiscal year would take 
place.  [Hong Kong, China]  
Comments relating to the existing subparagraph (d)  
 
• Subparagraph (d) which relates to additional del iveries is used to a reasonable extent . If 
anything, this subparagraph should be strengthened rather than deleted since the 
circumstances referred to in subparagraph (d) could be used to circumvent competition.  
[Switzerland]  
• Subparagraph (f) of the existing provision may be necessary, although there may be 
opportunities for simplifying and clarifying that provision.  [US] 
Comments relating to the existing subparagraph (e)  
 
• Purchasing entities do use some of the provisions contained in Article XV, such  as 
subparagraph  (e). In relation to the circumstances referred to in subparagraph (e), it would 
be difficult to conduct an open competition since the relevant entity will develop the prototype 
with the selected supplier over time.  [Switzerland]  
• The issue of prototypes is connected with designs . The prototype may be needed to validated 
the design . Continuity may be needed in relation to the design and the subsequent 
development of a prototype.  [Canada]  
• Experience in the US suggests that when a contract is a warded for the development of a 
prototype, the compensation for that development is normally incorporated into the price of 
that contract and that there is no need for an additional incentive of a guaranteed follow -on 
contract for limited tendering in orde r to attract interest in the development of a prototype.  
[US] 
 GPA/TN1994/2/Rev.11  
 
- 153 - 
 
  Comments relating to the deletion of certain subparagraphs under the existing Article  XV 
 
• Caution should be exercised in dropping conditions for limited tendering contained in the 
current Article XV.  [Japan ; Canada ; Korea; Hong Kong, China ; EC] 
• Clarification is sought as to why the US proposal omits subparagraphs (e), (f), (g), (i), (j) 
from the existing text of the Agreement.  [Japan ; Canada ; Korea]  
• Certain subparagraphs – namely, ( e), (f), (g), (j) - that are to be deleted under the US 
proposal should be maintained . Subparagraphs (f) and (j) should be maintained since they 
are often used in relation to construction works . Further, Japan's GPA statistics for the period 
1997 – 1999 in dicate that subparagraph (e) has been constantly used . On the basis of advice 
from construction experts but depending upon confirmation from other agencies and local 
governments, subparagraph (g) may not be necessary.  [Japan]  
• It is necessary to determine o n a substantive basis whether the particular circumstances 
contained in the Agreement warrant the use of limited tendering whereas it is not relevant to 
consider whether the various provisions are currently made use of . Parties should proffer 
specific reas ons why they believe limited tendering is necessary in particular circumstances.  
[US] 
• Some of the existing provisions in Article XV seem to be similar but have been expanded upon 
at great length and, perhaps, in unnecessary detail . For example, subparagrap hs (f) and (g) 
relate to similar construction services . The relevant issues are compatibility or 
interchangeability and the need to maintain consistency . It is unclear whether it is necessary 
to have three or four separate subparagraphs that address those overall, broad issues . The 
US proposal seeks to condense subparagraphs (d), (f) and (g) of the existing text into one 
subparagraph . In addition, at least on the basis of the US system, a number of subparagraphs 
in the existing text are not considered neces sary. [US] 
• Statistical reports regarding limited tendering indicate that the paragraphs that have been 
deleted by the US have not been frequently used . Most cases involve follow -up purchases.  
[Switzerland]  
• The wording contained in some parts of the US proposal differs from the wording contained in 
the existing text . What will be the impact of the proposed wording changes and how will the 
proposed new wording accommodate situations that are proposed to be deleted ? [Canada]  
 GPA/TN1994/2/Rev.11  
 
- 154 - 
 
  Article XV  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(f) when additional 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 difficult for 
technical or economic reasons and 
cause significant inconvenience to 
the entity . However, the total value 
of contracts awarded for the 
additional const ruction services may 
not exceed 50 % of the amount of the 
main contract;  
 (f) when additional services which were 
not included in the initial 
procurement  but which were within 
the objectives of the original tender 
documentation have, through 
unforeseeable circumstances, 
become necessary to complete the 
services described therein, and the 
procuring entity needs to award 
contracts for the additional services 
to the contractor carrying out the 
services concerned since the 
separation of the additional services 
from the initial procurement would 
be difficult for technical or economic 
reasons and cause significant 
inconvenience to the procuring 
entity.  However, the total value of 
contracts awarded for the additional 
services may not exceed 50 per cent 
of the amou nt of the main 
procurement;  
[EC – Job No. 876]  
(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;  
 (g) for new services consisting of the 
repetition of similar services which 
conform to a basic project for which 
an initial contract was awarded 
following an open or selective 
procurement  method and for which 
the procuring entity has indicated in 
the notice  of intended procurement 
concerning the initial service, that a 
limited procurement method might 
be used in awarded contracts for 
such new services;  
[EC – Job No. 876]  
 
Comments relating to the existing subparagraph (f)  
 
• Clarification is sought as to whether, in the United States, limited tendering is used in cases 
of, for example, design contests and prototypes.  [Canada]  
• It is doubted as to whether a design contest can be conducted in a way that would not involve 
limited tendering.  [Canada]  
• With respect to the EC proposal regarding modification of construction services, such a 
modification may entail a change in the existing contract but not a new or different contract. 
Therefore, there will be no need for a notice in respect of such a change.  [J apan]  
• It is not clear why a fully open and competitive tendering process cannot be used in 
circumstances involving the use of prototypes or design contests or why a limited tendering 
process could not be used on the basis of another provision contained in Article XV, such as 
that relating to interchangeability . Clarification is sought as to whether Parties opposing the 
deletion of the paragraphs relating to prototypes and design contests are concerned that the GPA/TN1994/2/Rev.11  
 
- 155 - 
 
  contract for construction of the prototype itse lf should not be competitive or that in the case 
of both prototypes and design contests, the subsequent contract for the construction of the 
prototype or the design should not involve competition for some reason ? [US] 
• In relation to design contests, once a  design had been chosen pursuant to the contest, there 
could be a competition to build the relevant design . However, that would defeat the purpose 
of the design contest . In practice, there would probably not be many applicants for the design 
contest since the contest is viewed by, at least some, a form of qualification . Further, the 
applicants would not be willing to invest in preparing a design for the design contest unless 
they are guaranteed the subsequent construction contract and would be reluctant to enter the 
contest if they are subsequently forced to give up rights to their designs . It is questionable 
whether limited tendering could be used on the basis of interchangeability in such 
circumstances.  [Canada]  
Comments relating to the existing subparagra ph (g)  
 
• Regarding the proposed deletion by the US of the exception relating to additional 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.11  
 
- 156 - 
 
  Article  XV 
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(h) for products purchased on a 
commodity market;  
  (h) for goods purchased on a 
commodity market and for 
purchases of goods made under 
exceptionally advantageous 
conditions which only arise in 
the very short term in the case of 
unusual disposals and note for 
routine purchases from regular 
suppliers;  
[EC – Job No. 876]  
 
 (e) for goods purchased on a 
commodity market;  
[US – Job No. 2867 105 1] 
 
 (i) in the case of contracts award 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 of a notice of 
intended procurement, and 
provided that the participants 
shall be judged by an 
independent jury with a view to 
design contracts being awarded 
to the winners.  
[EC – Job No. 876]  (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 regul ar 
suppliers;  
 
 
Comments relating to the existing subparagraphs (h) and (i)  
 
• The Agreement's coverage of procurements through commercially run websites should be 
examined in the light of the provisions of subparagraphs (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.11  
 
- 157 - 
 
  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)  
 
 
Comments relating to the existing subparagraph (k)  
 
• The new proposed subparagraph (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 appropriateness of products . It is unclear 
why it is considered necessary in these cases to use limited tendering as opposed to s elective 
tendering which could involve qualification requirements including performance records and 
technical specifications establishing high quality standards and would be much more 
transparent and competitive.  [US] 
• This proposal must be carefully consid ered since the use of limited tendering must be strictly 
limited.  [EC] 
• The proposed subparagraph (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 
modifi ed to meet the concerns raised by Hong Kong, China.  [Switzerland ; United States]  
• Singling out a particular sector or set of issues in the new subparagraph (k) would create a 
problem of interpretation of Article XV:1(d) regarding all other cases of addition al deliveries.  
[Switzerland]  
• The existing subparagraph 1(d) may not be wide enough to cover what is proposed to be 
covered by the proposed subparagraph (k) . Also, in relation to the former subparagraph, it is 
unclear what is meant by "interchangeability" a nd "compulsion".  [Hong Kong, China]  
• The concerns of Hong Kong, China could be met by formulating appropriate conditions in 
tender documents.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 158 - 
 
  Article XV:2  
 
Limited Tendering  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 2. Entities shall not invoke paragraph 1 
of this Article:  
 
(a) for the purpose of avoiding 
competition among suppliers; or  
 
(b) because of a lack of advance 
planning or concerns relating to 
the amount of funds available to 
an enti ty within a particular 
period of time.  
[US –- Job No. 2867 1051]  
 GPA/TN1994/2/Rev.11  
 
- 159 - 
 
  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.  4. Entities shall prepare a report in writing on 
each contract awa rded under paragraph 1 of this 
Article.  Each such report shall include the name 
of the procuring entity, the value and kind of 
goods or services procured, and a statement 
indicating the circumstances and conditions 
described in paragraph of this Article t hat 
justified the use of such procedures.  Entities 
shall retain each such report for a minimum of 
three years.  
[US – Job No. 1051]  
 
General comments  
 
• The issue of limited tendering and how it should be addressed in the Agreement is very 
important since limited tendering, while necessary in some cases, has significant implications 
for market access and, therefore, has significant implications for achieving the objectives of 
the Agreement . While limited tendering is used in a limited way by  most entities and in most 
countries, there are some cases and situations in which it is used 80 or 85 % of the time . The 
Agreement should provide flexibility in cases where limited tendering is necessary while at the 
same time ensuring that that flexibilit y is not be abused.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, pages 4 and 5.  GPA/TN1994/2/Rev.11  
 
- 160 - 
 
  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 
 
7 Offsets 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, investment 
requirements, counter -trade or similar requirements.  
 4. Procuring entities shall not consider, 
seek or impose offsets in the qualification 
and selec tion of suppliers, goods or 
services, in the evaluation of tenders, or in 
the award of contracts.  
[US – Job No. 2867]  
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 offsets, 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 awar ding contracts . Conditions shall 
be objective, clearly defined 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 exist ence 
of such conditions shall be notified to the 
Committee and included in the notice of intended 
procurement and other documentation.  
 Definition : 
 
offsets means conditions imposed or 
considered by a procuring entity prior to, or 
in the course of, its pro curement process 
that encourages local development or 
improves a Party's balance of payments 
accounts by means of requirements of local 
content, licensing of technology, 
investment, counter -trade or similar 
provisions;  
[US – Job No. 2867]  
 
Comments  
 
• Offsets are one of the main benefits for developing countries and provision for them in the 
Agreement could encourage other developing countries to become a Party . Developing country 
companies are, generally speaking, small to medium -sized enterprises and it is difficult for 
them to compete in international markets . Offsets provides those companies with an 
opportunity to enter into joint -ventures with international companies and to establish business 
contacts that could lead to participation  in future projects.  [Israel]  
• Given that the flexibility to use offsets is aimed at favouring developing countries, it might be 
more appropriate to address this issue in the context of an Article addressing developing 
countries' needs . Perhaps providing fl exibility in the Agreement will suffice.  [Switzerland ; US] 
• Offsets is not necessarily the best way in which to incorporate flexibility into the Agreement 
in favour of developing countries.  [EC] GPA/TN1994/2/Rev.11  
 
- 161 - 
 
  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 cond itions, 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 transpar ency 
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 term s 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 Agreem ent; 
 
(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 ens ure 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.  
 
 GPA/TN1994/2/Rev.11  
 
- 162 - 
 
  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 intended 
procurement, as provided for under 
Article  IX, paragraph 6(g) [Sing – Job 
No. 5271]] . W here such publication is 
provided, contracting entiti es 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 procurement 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 
informa tion 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 Memb ers 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 procurement 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 term s 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.11  
 
- 163 - 
 
  • 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.11  
 
- 164 - 
 
  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 MODI FICATIONS  
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:  
[EC – GPA/W/87 ] 
 
 2. Not later than 90 calendar days after 
the award of a contract covered by this 
Agreement, the procuring entity shall 
publish a notice in the appropriate 
publication designated in Appendix III of 
this Agreement that includes at least the 
following inf ormation about the contract:  
[US – Job No. 2867]  
 
 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 – Job No. 2867]  
 
 (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] 
 
 
Comments  
 
• It is not clear why 90 calendar days is proposed as a substitute for 72 calendar days in the 
US' proposal . It appears that 72 calendar days are long enough.  [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 165 - 
 
  • 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]  
• Further clarification of Canada's rationale for its proposal is sought.  [US] 
• The underlying intention is to ensure that information remains available to suppliers for a 
reasonable and sufficient period of time . In the case of electronic publication, information may 
be published for a single day and then may disappear.  [Canada]  
• There is a link between the United States' proposal and the proposal of the 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.11  
 
- 166 - 
 
  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 – Job No. 2867]  
 
 (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 – Job No. 2867]  
 
 (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.11  
 
- 167 - 
 
  Article XVIII  
 
Information and Review as Regards Obl igations 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 
or 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 
or the highest and lowest offer 
taken into account in the award 
of the contract ; and 
[US – Job No. 2867]  
 
 (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 informati on. 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 commercially 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 winning 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 ju stify 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 sensitive 
information ? [US] GPA/TN1994/2/Rev.11  
 
- 168 - 
 
  Article XVIII  
 
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 Arti cle 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 method 
used, and in cases where limited 
tendering procedures are used, a 
description of the circumstances 
justifying the use of such 
procedures.  
[US – Job No. 2867]  
 
 (b) Publish such information in 
officially designated media 
which are readily accessible to 
suppliers and other Parties 
within 72 days of contract 
award . O fficially designated 
media, listed in Appendix II, may 
be electronic or paper.  
[Canada – Job No. 3484]  
 
 
Comment  
 
• With regard to paragraph (e) of the US proposal, reference is made to "procurement method" 
which is not defined in the article containing definitions . Clarification is sought in relation to 
the meaning of "procurement method".  [Japan]  GPA/TN1994/2/Rev.11  
 
- 169 - 
 
  Article XVIII:2, 3  
 
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 subject to Article  [XII] of this 
Agreement, procuring entities shall, upon 
request, provide losing bidders with an 
explanation of the reasons for not be ing 
selected and the relative advantages of the 
successful supplier.  
[US – Job No. 2867]  
 
(a) an explanation of its procurement 
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.  
 (c) Provide bidders, upon request, 
with information regarding the 
reasons that they were not 
successful.  
[Canada – Job No. 3484]  
 
3. Entities shall promptly inform participating 
suppliers of decisions on contract awards and, 
upon request, in writing.  
  
 
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, China]  
• Parties should consider setting up a single "information centre" given that some Parties have 
decentralised procurement systems . Accordingly, it is important to e stablish an information 
system that provides suppliers with a single point of access.  [Korea ; EC] GPA/TN1994/2/Rev.11  
 
- 170 - 
 
  Article XVIII:4  
 
Information and Review as Regards Obligations of Entities  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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 i nterest or would prejudice the legitimate 
commercial interest of particular enterprises, 
public or private, or might prejudice fair 
competition between suppliers.  
 Non-Disclosure of Information  
 
1. Nothing in this Agreement shall 
prevent Parties or their procuring entities 
from withholding the release of information 
under this Agreement where release might 
(a) impede law enforcement ; (b) prejudice 
fair competition between suppliers ; 
(c) prejudice the legitimate commercial 
interests of particular supp liers or 
procuring entities, including the protection 
of intellectual property ; or (d)  otherwise be 
contrary to the public interest.  
[US – Job No. 2867]  
 
 3. Nothing in this Article shall be 
construed as requiring any Party and its 
procuring entities to d isclose confidential 
information 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 betw een 
suppliers, without formal authorization 
from the [party] [Party or supplier] 
providing the information.  
[Canada – Job No. 3484]  
 
 
Drafting comment  
 
• In order to emphasize the obligation not to disclose other Parties' confidential information, 
suggest adding the following wording at the end of the paragraph in the US' proposal : ", in 
particular such information which is obtained from or supplied by other Parties or their 
procuring entities. " [Hong Kong, China]  
Comments  
 
• It seems that clarification is required on whether by "confidential" information, the information 
is confidential to any one of the bidders or the procuring entity.  [Hong Kong, China]  
• The basic concepts in Articles VII:2, XIV:3, XVIII:4, XIX:2 and XIX:4 are t he same and do not 
differ in their application to procuring entities or Parties . This appears to provide scope for 
consolidation and simplification, perhaps by stating the concept once in the text and 
incorporating it by reference elsewhere.  [US; Canada]  GPA/TN1994/2/Rev.11  
 
- 171 - 
 
  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.  
 Article IV  
Publication of Procurement Measures  
 
Each Party shall promptly publish any 
law, regulation, judicial decision, 
administrative ruling of general application, 
and procedure regarding procurement 
covered by this Agreement in officially 
designated electronic or paper media which 
are widely dissem inated and readily 
accessible to the public . Each Party shall 
promptly publish in the same media all 
additions and changes to such measures.  
[US – Job No. 2867]  
 
 
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 o f 
provisions that relate to notification, for example in GATT Article 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]  
• In response to a clarification sought as to why the US proposal omits any reference to 
Appendix  IV [Japan ; Korea], Appendix IV may not be necessary, provided that laws, 
regulations etc. are published in an appropriate way.  [US] 
• For the benefit of foreign suppliers, it might be better to publicize the name of officially 
designated media in Appendix IV.  [Japan]  
• The US proposal does not contain a reference to Appendix IV for several reasons . 
Consideration of the administrative burden is necessary . Suppliers i nterested in competing in 
a market are able to locate the necessary information given that the relevant publications are 
open and publicly available . Therefore, it may not be crucial from the suppliers' point of view 
to have a list of publications in the A greement . Further, there may be some Parties that have 
a large number of publications listed in Appendix IV, to which frequent changes may need to 
be made . If there are frequent changes that are not notified in a timely manner, lists in 
Appendix IV may ult imately be less transparent than not having the lists at all . It is necessary 
to consider whether it would be efficient in the long -run to adopt this approach.  [US] GPA/TN1994/2/Rev.11  
 
- 172 - 
 
  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 advantages 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 
prejudice competition in future tenders, this 
information sha ll not be disclosed except after 
consultation with and agreement of the Party 
which gave the information to the government of 
the unsuccessful tenderer.  
 3. Upon the request of any other Party, a 
Party shall provide such detailed 
information on the award o f a contract as 
may be necessary to determine whether the 
procurement was conducted fairly, and in 
accordance with the provisions of this 
Agreement . Such information shall include 
information on the characteristics and 
relative advantages of the winning te nder 
and on the contract price.  
[US – Job No. 2867]  
 
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 ent ity shall provide information 
on the characteristics and relative 
advantages of the winning tender and the 
contract price.  
[Canada – Job No. 3484]  
 
3. Available information 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 th e 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 should 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 information 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] GPA/TN1994/2/Rev.11  
 
- 173 - 
 
  • In some business areas, the entity but also the winner of the contract may not want  the 
contract price to be disclosed.  [Switzerland]  
In relation to the US proposal:  
 
• With respect to proposed paragraph 3, the option not to disclose the contract price has been 
removed, provided the release of information would prejudice competition . In contrast, the 
existing GPA allows flexibility in this respect . It should be considered whether this flexibility 
should be retained.  [Switzerland]  
• Article XII:2 of the US proposal refers to the ability to withhold the release of information . 
Subparagraph (c ) refers to that right in cases where it would prejudice legitimate commercial 
interests.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 174 - 
 
  Article XIX:4  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
4. Confidential information provided 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 co mpetition between 
suppliers shall not be revealed without formal 
authorization from the party providing the 
information.  
 Non-Disclosure of Information  
 
1. The Parties and their procuring 
entities shall not disclose confidential or 
proprietary information.  
[US – Job No. 2867]  
 
 
Comments  
 
• The US proposal attempts to consolidate a number of similar provisions that currently exist in 
the GPA that relate to non -disclosure.  [US] 
• See also the Explanatory Note by the US in Job No. 6772, page 6.  GPA/TN1994/2/Rev.11  
 
- 175 - 
 
  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:  
 Collection and Repo rt of Statistics  
 
5. Each Party shall collect and report to 
the Committee statistics on contracts 
awarded by entities covered under 
Appendix 1 of this Agreement . Each report 
shall be submitted within two years of the 
end of the reporting period, and shall 
contain:  
 
(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 valu e of 
contracts awarded above the 
threshold value on a global basis and 
broken down by categories of 
entities;  
 (a) For Annex 1 entities, statistics 
on the:  
 
(i) aggregate number and 
value, for all such entities 
collectively, of contracts 
covered by this 
Agreement;  
(ii) number and total value of 
all contracts covered by 
this Agreement awarded 
by such entities, broken 
down by categories of 
goods and services 
according to a uniform 
classification system ; and 
(iii) number and total value of 
contracts cov ered by this 
Agreement awarded by 
each such entity under 
limited tendering 
procedures.  
[US – Job No. 2867]  
 
 
Comments  
 
• In developing the US proposal, an effort was made to determine precisely what statistical 
information available under the GPA is used for, how useful that information is and the 
appropriate amount of information that should be provided.  [US] 
• The EC agrees with the idea that some useful statistics are needed under the GPA and that 
the level of complexity associated with the current r equirements needs to be reduced.  [EC] GPA/TN1994/2/Rev.11  
 
- 176 - 
 
  Article XIX  
 
Information and Review as Regards Obligations of Parties  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(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 thre shold value broken 
down by categories of entities and 
categories of products and services;  
 (b) For Annex 2 and 3 entities, 
separately, statistics on the:  
 
(i) aggregate number and 
value of contracts covered 
by this Agreement 
awarded by such entities;  
(ii) estimated total value of 
contracts covered by this 
Agreement awarded by 
such entities, broken down 
by categories of entities ; 
and 
(iii) estimated value of 
contracts covered by this 
Agreement awarded by 
such entities under limited 
tendering procedures, 
broken down by categories 
of entities.  
[US – Job No. 2867]  
 
(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.11  
 
- 177 - 
 
  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 products 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 cla ssifications 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 th e 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 relat ion 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 
procure ment. Statistical reports allow 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 fo r the system and 
the entities . 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 and 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 account 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 requi rements.  [Japan]  
• 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 GPA/TN1994/2/Rev.11  
 
- 178 - 
 
  limited tendering has been useful in showing the num ber of procurement contracts 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.11  
 
- 179 - 
 
  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 enco urage its 
relevant procuring entity and such supplier 
to seek resolution of the complaint through 
consultations . Procuring entities shall 
accord impartial and timely consideration 
to any such complaint in a manner that is 
not prejudicial to suppliers' part icipation in 
ongoing or future procurement activities or 
to suppliers' rights to seek corrective 
measures under the challenge system.  
[US – Job No. 2867]  
 
 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 su ch 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 solv e the situation.  
[EC – GPA/W/87 ] 
 
 
Comments  
 
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]  
Drafting suggestion  
 
• Suggest amending the first sentence of the US proposal as follows : "In the event of a 
complaint by a supplier who has an interest in a procurement that there has been a breach of 
this Agreement, arising in the context of a procurement in which the supplier has, or has had, 
an interest, each Party shall encourage … . " [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 180 - 
 
  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 pro posed 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 central 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 provisi ons 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]  
• The proposal is not intended to make it compulsory for Mem bers to create new bodies . Rather, 
the intention 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 go vernment procurement disputes outside legal judicial 
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 establish 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 the most appropriate review bodies for 
their particular procurement system as is currently the case under the GPA.  [Canada]  GPA/TN1994/2/Rev.11  
 
- 181 - 
 
  Article XX  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 Independent Review Authorities  
 
 2. Each Party shall establish or 
designate at least one impartial authority, 
which is independent from its procuring 
entities, to receive and review supplier 
challenges relating to the provisions of this 
Agreement and make appropriate findings 
and recommendations . Such authorities 
shall be authorized, pending the resolution 
of a challenge, to take prompt interim 
measures to preserve the opportunity to 
correct potential breaches of this 
Agreement, including the suspension of the 
award of a contract or the performance of a 
contract already awarded.  
[US – Job No. 2867]  
 
Drafting suggestion  
 
• The word "authorized" in the last sentence seems to suggest that the "impartial authority" 
shall be given the power to order prompt rapid interim measure . It is suggested to amend the 
last sentence as follows : "Such authorities shall recommend the procuring entity, pending the 
resolution of a challenge, to impose prompt interim measures to preserve the o pportunity to 
correct potential breaches of this Agreement, including the suspension of the award of a 
contract or the performance of a contract already awarded . However, the authorities shall 
take into account the overriding adverse consequences for the i nterests concerned, including 
the public interest, in deciding whether such measures should be applied ." Without prejudice 
to the above, the same sentence of the US draft text, it is better to use "impose prompt 
interim measures" than "take prompt interim measures".  [Hong  Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 182 - 
 
  Article XX:2  
 
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, 
effective, transparent, predictable and 
non-discriminator y means for suppliers to 
challenge alleged breaches of this 
Agreement, without a prejudice to 
suppliers' participation in ongoing or future 
procurement activities . A ll challenge 
procedures shall be in writing and made 
generally available.  
[US – Job No. 2867] 
 
 
Comment  
 
• Article XX:2 of the GPA provides that a challenge procedure should be made available to 
suppliers to challenge alleged breaches of the GPA arising in the context of procurements in 
which they have or have had an interest . One main difference between the US text and the 
GPA is that any supplier, instead of a supplier having an interest in a procurement, can bring 
a case to bid challenge . Suggest inserting "breaches of this Agreement" similar wording to be 
inserted in draft Article XI II:1: "arising in the context of procurements in which the suppliers 
have, or have had, an interest. " [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 183 - 
 
  Article XX:3, 4, 5  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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 . 
  
 2. Parties shall ensure that their 
procuring entities maintain records of 
tendering procedures relating to contract 
awards covered by this Agreement . 
Procuring entities shall maintain such 
records for a period of at least three years.  
[US – Job No. 2867]  
 
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 of less than 10 days.  
 6. 
(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 kn own or reasonably 
should have become known to 
the supplier;  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.11  
 
- 184 - 
 
  Article XX:6  
 
Challenge Procedures  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
(b) the proceedings shall be 
conducted in a transparent 
manner, consistent with 
predictable, written procedures 
that are readily available to all 
participants in advance;  
[US – Job No. 2867]  
 
 
Comment  
 
• Paragraph 6(b) does not prescribe how the bid challenge should proceed if the review body is 
not a court subject to judicial review . For example, some important elements such as open 
hearing and legal representation are not prescribed . The original GPA text is preferred.  
[Hong  Kong, China]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
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:  
 4. In the event that a challenge is 
initially reviewed by a body other than an 
authority established or designated unde r 
paragraph (2) of this Article, 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. 2867]  
 
(a) participants 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;  
  
 
Comments with respect to paragraph 4 of the US proposal  
 
• Is the "impartial administrative or judicial authority" the same authority that is referred to in 
paragraph 2 of the US proposal ? [Japan]  
• Paragraph 4 of the US proposal refers to the possibility that a challenge may be initi ally 
reviewed by a "body" . What kind of body is anticipated by this provision ? The current text in 
Article  XXVI refers to three different types of review bodies.  [Japan]  
• Paragraph 4 of the US proposal provides that a supplier may appeal the initial decisio n to an 
impartial administrative or judicial authority . Is it possible for a supplier to appeal the initial 
decision to the authority designated under Article XIII:2 ? [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 185 - 
 
  • The body referred to in paragraph 4 may be, for example, a body within the procuring entity 
to whom a complaint be made . That body may not necessarily constitute an impartial and 
independent review body . Paragraph 2 refers to "at least one" impartial authority, indicating 
that each government/Party must have at least o ne such body to whom suppliers will have 
access.  [US] 
• In the case of the impartial authority in paragraph 2, there is a provision for prompt interim 
measures . However, it appears that interim measures are not available for the other type of 
review mechanis m provided for under paragraph 4 . The existing GPA allows for interim 
measures for any kind of review mechanism.  [EC] 
• The ability to order prompt interim measures should be available for any review procedure 
that is relied upon.  [US] 
• With respect to paragr aph 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 
situatio ns 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 response 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, admi nistrative or judicial.  [US 
in response to Canada]  
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 6. 
(d) 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;  
[US – Job No. 2867]  
 
 
 5. Each Party shall ensure that any 
confidential or proprietary information that 
is submitted in the course of a challenge 
proceeding is protected in accordance with 
paragraph 1 of Article XII of this 
Agreement.  
[US – Job No. 2867]  
 
 
Comment  
 
• With respect to paragraph 6(d) of the US proposal, it may be appropriate to add "of the review 
body" after "decisions" in order to make the scope of the obligation clear.  [Canada]  GPA/TN1994/2/Rev.11  
 
- 186 - 
 
  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;  
 
 (c) procuring entities shall respond 
in writing to the complaint and 
disclose all relevant documents 
to the review body;  
[US – Job No. 2867]  
  
 
Comments  
 
• What is the relationship between this subparagraph (c) and Article XII:2 ? Does the latter 
prevail such that a procuring entity is entitled to withhold the release of sensitive information 
to the review body in a bid challenge ? [Hong Kong, China]  
• In paragraph 6 of the US proposal, the existing provisions that apply only to non -judicial 
bodies have been simplified s o 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 review procedures, eliminating the need for the some of the distinctions that currently exist 
in Art icle XX. [US] 
 GPA/TN1994/2/Rev.11  
 
- 187 - 
 
  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;  
  
 6. 
(e) decisions relating to supplier 
challenges shall be provided in a 
timely fashion, in writing, with 
an explanation of the basis for 
each decision;  
[US – Job No. 2867]  
 
(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 taken into account 
in deciding whether such measures 
should be applied . In such 
circumstances, just  cause for not 
acting shall be provided in writing;  
  
(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.   
 GPA/TN1994/2/Rev.11  
 
- 188 - 
 
  Comments  
 
• Paragraph 2 of the 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 entity 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] 
• Why has the clause on public interest in the existing 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 would be unusual and rare . 
The use of general exceptions under Article XXIII might be sufficient to protect the public 
interes ts in this respect.  [US] GPA/TN1994/2/Rev.11  
 
- 189 - 
 
  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 dealing with complaints about government 
procurement is contained in a non -paper.  [EC – Job No. 1466]  
 GPA/TN1994/2/Rev.11  
 
- 190 - 
 
  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.  
 Committee on Government Procurement  
 
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 o f 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.  
 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.  
 
 Observers  
 
3. WTO Members and other governments 
who are not Parties to this Agreement shall 
be entitled to participate in the Committee 
as observers upon submitting a written 
notice to  the Secretariat.  
[US – Job No. 2867]  
 
 
Comment  
 
• Under the present system, does a government need the prior endorsement of the Committee 
before it can become an observer ? Under the present draft, no prior approval is required and 
a written notice from a government will suffice.  [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 191 - 
 
  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.  
 1. The provisions of the Understanding 
on Rules and Procedures Governing the 
Settlement of Disputes under th e WTO 
Agreement (hereinafter referred to as the 
"Dispute Settlemen t Understanding") shall 
be applicable, except as otherwise 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 objective 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 Parti es 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 consider s 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 conside ration to the representations 
or proposals made to it.  
 2. Where 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 
objective 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.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 192 - 
 
  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 
other 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 decisions or 
actions taken by the DSB with respect to disputes 
under this Agreement.  
 3. Only Member s of the WTO party to this 
Agreement shall participate in decisions 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:  
 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 assist the DSB in making 
the recomme ndations or in giving the 
rulings provided for in this Agreement."  
 "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 assist 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 Understanding 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 
Agree ment.  
 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 Understanding are 
invoked by one of the parties to the dispute, 
paragraph 3 of this Article 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.  
 5. Panels established by the DSB to 
examine disputes under this Agreement 
shall include persons qualified in the area of 
government procurement.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 193 - 
 
  Comments  
 
• The phrase "consultations regarding remedies when withdrawal of measures found to be in 
contravention of the Agreement is not possible", which appears in Article XXII:3 of the GPA is 
not present in the DSU or the US draft text . This may possibly be an additional power given 
to the DSB . It is therefore wor th reinstating this power in the US draft text.  [Hong Kong, 
China]  
• Clarification is sought as to why paragraph 3 of the US omits some of the wording contained 
in the equivalent paragraph of the existing text.  [EC] 
• The language that has been excluded is contained in the WTO Dispute Settlement 
Understanding . The relevant provisions of the DSU have already been incorporated by 
reference into the dispute settlement procedures for the GPA . Therefore, it is unnecessary to 
restate them in the GPA.  [US] GPA/TN1994/2/Rev.11  
 
- 194 - 
 
  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 
later than seven months, after th e 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 Dispute 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 consistency with a covered 
Agreeme nt of measures taken to comply with the 
recommendations and rulings, within 60 days.  
 6. Every effort shall be made to 
accelerate the proceedings to the greatest 
extent possible . T herefore, 
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 
later 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 Article 
20 and paragraph 4 of Article  21 of the 
Dispute Settlement Understanding by two 
months . Moreover, notwithstanding the 
provisions of pa ragraph 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 consistency with a covered Agreement of 
measures taken to comply with the 
recommendations and r ulings, 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 concessions or other 
obligations under any other Agreement listed in 
the said Appendix  1. 
 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 conc essions or other 
obligations under this Agreement, and any 
dispute arising under this Agreement shall 
not result in the suspension of concessions 
or other obligations under any other 
Agreement listed in the said Appendix 1.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 195 - 
 
  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 nati onal 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.  
  
 GPA/TN1994/2/Rev.11  
 
- 196 - 
 
  ARTICLE XXIV – FINAL PROVISIONS  
Article XXIV:1, 2  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
1. Acceptance and Entry into Force  
 Entry into Force of Amended Agreement  
 
 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 t he Agreement before 
1 January  1996. 
 1. This Agreement supersedes the 
Government Procurement Agreement, 
which entered into force on 
1 January  1996, and enters into force on 
[date].  
 
8 For the purpose of this Agreement, the term 
"government" is deemed to include the competent 
authorities of the European Communities.   
2. Accession  
 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.  
 2. Any government which is a Member of 
the WTO and which is not a Party to this 
Agreement ma y 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.  
[US – Job No. 2867]  
 
 
Comments  
 
• It is objectionable to simply provide that the present GPA is to be superseded by the new 
agreement . It is because according to GPA Article XXIV:9, amendments shall not enter into 
force for any Party until it has been accepted by such Party . Therefore, it is possible that 
amendments will be accepted by Party A but not by Party B.  As such, if the original GPA is  
superseded by the new agreement in respect of Party A, there will not be a GPA to apply 
between Party A and Party B.  What can be provided is that as between two Parties which are 
Parties to both the original GPA and the new GPA, either the new agreement w ill prevail or 
the old one will be superseded.  [Hong Kong, China]  
• It may be premature to consider this question.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 197 - 
 
  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 
Director -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.  
 
9 All provisions of the 1988 Agreement except the 
Preamb le, 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.11  
 
- 198 - 
 
  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 a uspices 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  
 
 Reservations may not be entered in respect 
of any of the provisions of this Agreement.  
 4. Parties may not take reservations in 
respect of any of the provisions of this 
Agreement.  
 
5. National  Legislation  
 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.  
 5. 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 th e rules, procedures and 
practices applied by the entities contained 
in its lists annexed hereto, with the 
provisions of this Agreement.  
[US – Job No. 2867]  
 
 
Drafting comment  
 
• Please consider using "make reservations" or "enter into reservations" instead of "take 
reservations".  [Hong Kong, China]  GPA/TN1994/2/Rev.11  
 
- 199 - 
 
  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. 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 
regula tions.  
[US – Job No. 2867]  
 
6. Rectifications or Modifications  
 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 the 
mutually agreed coverage provided 
in this Agreement . I f 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 of the 
Committee shall promptly convene a 
meeting of the Committee . The 
Committee shall consider the 
proposal and any claim for 
compensatory adj ustments, with a 
view to maintaining a balance of 
rights and obligations and a 
comparable level of mutually agreed 
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. 
 7. 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 the 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 of 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 righ ts and 
obligations and a comparable level of 
mutually agreed 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 XV of  
this Agreement.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.11  
 
- 200 - 
 
  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 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 
and any consequential compensatory 
adjustment, allowance shall 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 
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 of an 
objection, the matter may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XXII.  
[Japan – Job No. 860]  
 
Comments  
 
• In order to avoid any legal ambiguity regarding requests for compensation, subparagraph  6(b) 
would need to be modified.  [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 associated with 
the withdrawal of an entity from Appendix I, notwithstanding a claimed removal of government 
control or influence . Its purpose is to en sure that any future changes to an agreed annex does 
not affect the negotiated balance.  [Job No. 5189]  GPA/TN1994/2/Rev.11  
 
- 201 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The transfer to the private sector of the 
actual control over the entity:  
 
 - the government does not control 
a majority of the entity's capital 
nor the voting rights;  
 
 - the government does not 
appoint more than half of the 
members of the entity's 
managing board who has the 
power to decide on its 
operations;  
 
 - the operation of the entity is 
financed by its business 
revenue, not by government 
subsidies ; and 
 
 - the government does not have 
control or influence over the 
entity's procurement decisions.  
 
 The fact that the entity is exclusively 
engaged in the provision of goods or 
services on markets that are subject to 
genuine competition:  
 
 - the government does not 
provide the entity with any 
special and exclusive rights to 
operate;  
 
 - there are more than one entity 
that engage in the provision of 
goods or services on the market;  
 
 - in principle, downward price 
rigidity regarding goods or 
services on the market has not 
lasted for a long period of time 
after the new entry of suppliers ; 
(Note 1) and  
 
 - in principle, there does not exist 
in the market the situation 
where the market share of 
various suppliers have not 
changed for a long period of time 
after the entry of new suppliers.  
(Note 2)  
[Japan – Job No. 3289]  
 GPA/TN1994/2/Rev.11  
 
- 202 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 (Note 1)  - This condition should not apply 
to special cases where, for example, price 
increase on the market is to be attributed to 
changes in import prices and/or exchange 
rates, with which the state of competition 
in the market could not have linkage.  
 
 (Note 2)  – This condition should apply only 
if the existing suppliers were once 
monopoly or exclusive suppliers 
(cf. Articles 28(h) and 8.5 of the GATS) . The 
condition could not apply to special cases 
where, for example, the new entry of 
suppliers to the market would not be 
expected for a long period of time, due to 
peculiarities of the market.  
[Japan – Job No. 3289]  
 
 
General comments  
 
• There are advantages associated with bo th the Japanese and the US approaches . It might be 
useful to consider more generally what should be included in the Agreement and what should 
be developed in the form of a decision . However, it is first necessary to first have a common 
understanding of wha t is being discussed.  [EC] 
• From Japan's experience with the NTT notification, the questions posed to Japan revealed that 
privatization could be categorized into criteria or conditions, which should be taken into 
account when considering whether the propose d privatised entities deserves to be excluded 
from coverage under the Agreement or not.  [Japan]  
(Reference) Relevant Articles of the GATS:  
 
• Article 28(h):  "'monopoly supplier of service' means any person, public or private, which in 
the relevant market of the territory of a Member is authorized or established formally or in 
effect by that Member as the sole supplier of that service;"  
• Article 8.5:  "The provisions of this Article shall also apply to cases of exclusive service 
suppliers, where a Member, formal ly or in effect, (a) authorizes or establishes a small number 
of service suppliers and (b) substantially prevents competition among those suppliers in its 
territory. " [Japan]  
 GPA/TN1994/2/Rev.11  
 
- 203 - 
 
  Comments relating to the proposal by Japan  
 
• It is difficult to establish simple criteria or parameters to define government control or 
influence is or what constitutes effective elimination of government control or influence . The 
criteria that have been proposed are not sufficient to prove the elimination of governmen t 
control or influence, especially for Parties whose entities may still have to closely follow the 
direction of the government.  [EC] 
• The proposal attempts to define the conditions under which Parties would relinquish their right 
to seek consultation with o ther 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]  
• There is a need to establish clear criteria for cases where privatization occurs and a Party 
wishes to withdraw the privatized entity from Appendix I.  [Korea]  
• The GPA does not prevent privatization and it is unclear whether there is a need for furt her 
clarification of the criteria.  [Canada]  
• Since some Parties consider that criteria contained in the GPA are not objective or clear 
enough, further clarification may be needed as to what the existing language means in specific 
circumstances.  [US] 
• Regardi ng 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 f ishing 
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 on appointment of the managing board would be that it would 
not allow consideration of compens atory adjustment if, for example, an entity that was 
unilaterally withdrawn from Appendix  I still had 48 % government membership on its board . 
What would be an appropriate percentage in this respect ? [US] 
• With regard to the criteria in subparagraph on the financing of the operation of an entity, in 
some circumstances, government subsidies to privatized entities may still be necessary if the 
subsidies are linked to lowering the cost of provision of basic services and where the 
beneficiari es are the members of the general public.  [Korea]  
• The criterion in subparagraph on the financing of the operation of an entity might not be 
appropriate in all cases . For instance, a number of entities in both Annexes 1 and 3 of the 
United States, while ope rating 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 revenue, some non -voting equity infusions by the government 
would not affect the degree of government control or influence.  [Job No. 5189]  
• The Japanese proposal establishes a hierarchy amongst the various criteria and suggests 
something more structured in terms of meeting criteria on a cumulative or on an alternative 
basis.  [EC] 
• The Japanese proposal contains two separate lists of criteria and states that "either of these 
sets of criteria would suffice to define effective elimination of government control or influence" . 
However, it seems clear that fulfilment of one of set of  criteria would not necessarily be 
sufficient.  [US] GPA/TN1994/2/Rev.11  
 
- 204 - 
 
  • The proposal proposes that regard should be had to the market structure in which a entity 
operates should not be incorporated since it implies that those entities operating in a 
competitive environment sh ould be covered by the GPA.  [Hong Kong, China]  
• Given the different market and governmental structure among Parties, there is no one -size-fits 
set of criteria . Instead of developing generalised criteria, the approach in the existing 
Agreement is preferable since it allows for a flexible approach.  [Hong Kong, China]  
With respect to the US proposal in Job No. 3152:  
 
• It is necessary to maintain a procedure that allows for consultations among the Parties relating 
to the withdrawal of entities from coverage . As is the case under the existing Agreement, the 
procedure should not allow for unilateral withdrawal of entities from coverage without 
consultation . Further, elimination of government control or influence should be "effective" and 
not merely a formal change i n legal status . Since it is difficult to generalise what may 
constitute effective elimination of government control or influence in all circumstances, it 
might be useful to develop a Committee Decision that provides illustrative guidance but would 
not nece ssarily be binding . The US proposal includes an illustrative list of factors which might 
cast light on whether government control or influence has been eliminated . It is unclear 
whether the list is complete, whether all the listed factors will be relevant in all cases, and 
how they would be weighted in a particular case.  [US] 
• The illustrative list of criteria contained in the US proposal does not fit within the logic of the 
existing provision.  [EC] 
• Privatization efforts should not be delayed or obstructed s ince, in general, when an entity has 
been privatized and government control or influence has been effectively eliminated, there is 
greater market access than is possible under the GPA . Nevertheless, in cases where the level 
or government investment or inte rest in an entity is significant, it is not self -evident that 
government control or influence has been effectively eliminated simply because, for example, 
the government holding of shares is less than 50 % or because the entity is selling a good or 
service to a non -governmental user.  [US] 
 GPA/TN1994/2/Rev.11  
 
- 205 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 The government [or government controlled 
organization – Korea – Job No. 3413] 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 
the board members appointed by the 
government or government -controlled 
organization hold no special leadership 
position (including such positions as CEO or 
president  of the entity) or privileges over 
other board members ; and 
 
[Korea – Job No. 3413]  
 
 Neither government nor 
government -controlled organization is the 
largest shareholder to the entity.  
 
[Korea – Job No. 3413]  
 
 GPA/TN1994/2/Rev.11  
 
- 206 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 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 Pa rty 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 ser vices on markets 
that are subject to genuine competition . 
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 obj ection 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 and any 
consequential compensatory adjustment, 
allowance shall be made for the 
market -opening effects of the removal of 
government control or influence.  
[EC – Job No. 443]  
 
 
Comments with respect to the EC proposal  
 
• There should be an opportunity for objective proceedings, during which Parties have an 
opportunity to request clarification and information regarding a privatisation . However, such 
a procedure should be based on objective criteria . A Party can always withdraw an entity from 
the GPA without giving any particular reason if the other Parties agree . Under the proposed 
Article, there is a right to withdraw entities but only when certain  objective circumstances are 
met. If those circumstances are not met, a Party can offer compensation or negotiat e for 
withdrawal . Some elements contained in the EC proposal are contained in the existing 
provision . However, experience illustrates that Parties do not necessarily have a clear 
understanding of what is intended by that provision.  [EC] 
• The terms "genuine competition" and "actual transfer of control to the private sector" are not 
concrete, objective criteria in determining whether or not government control or influence of 
the entity has been effectively eliminated since uncertainty and the possibility of co nflict 
among Parties still remains.  [Korea]  
• The existing provision provides the possibility of removing coverage without consensus . 
However, compensation must be paid in such circumstances . Perhaps it should be considered 
whether there are any circumstance s where a consensus might not be necessary to withdraw 
coverage without compensation.  [Canada ; US] 
• If there is a consensus among the Parties to agree with a change to the Agreement, a problem 
does not arise . However, clarification is needed in cases of con flict. [EC] GPA/TN1994/2/Rev.11  
 
- 207 - 
 
  • A mechanism is needed to deal with cases where an entity is no longer controlled by the 
government and there is no longer public ownership or when there is a structural change in a 
market so that it becomes more competitive . It is necessary to have a common understanding 
of what Parties' rights and obligations are in those circumstances.  [EC] 
• Although some Parties consider that it would be useful to have more precise criteria, there are 
limits to the extent to which a precise formula could be in cluded.  [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 co ntrol 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 inter est in subjecting it 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 competition 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 
differ from country to country . Therefore, such elements (for example, price inflation or 
marke t share increases) that 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 te GPA discip lines 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 cla rity 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 phrase 
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 vario us sectors of the 
economy, there is or is not competition or insufficient competition . Further discussion is 
needed as to how to assess "genuine competition".  [Switzerland]  
• It is 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 ri ght balance between using general concepts and being more 
precise.  [EC] GPA/TN1994/2/Rev.11  
 
- 208 - 
 
  AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
 8. 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 of an 
objection, the matter may be pursued in 
accordance with the procedures on 
consultations and dispute settlement 
contained in Article XV of this Agreement . 
In considering the proposed modification to 
Appendix I and any consequential 
compensatory adjustment, allowance shall 
be made for the market -opening effects of 
the removal of government control or 
influence.  
[US – Job No. 2867]  
 
 GPA/TN1994/2/Rev.11  
 
- 209 - 
 
  Article  XXIV:7  
 
Final Provi sions 
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
7. Reviews, Negotiations  and Future Work  
 Reports and Future Work  
 
(a) The Committee shall review annually 
the implementation and operation of 
this Agreement taking into account 
the objectives thereof . T he 
Committee shall annually inform the 
General Council of the WTO of 
developments during the periods 
covered by such reviews.  
 9. The Committee shall annually inform 
the General Council of the WTO of 
developments relating t o the 
implementation and operation of this 
Agreement.  
(b) Not later than the 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 im proving 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.  
  
 
Comments  
 
• Does the deletion of Article XXIV:7(b) in the US proposal mean that the US considers that a 
further review is no longer necessary ? [EC] 
• The US did not intend to prejudge the possibility of further reviews . Its assumption is that the 
US proposal relates to the curre nt review . If modifications to the current text are made during 
the current review process, it is necessary to determine whether, at the end of the current 
review process, there is a need for another review . It may be too early to know how the Parties 
feel about that at the present point in time.  [US] 
• Paragraph 7(b) of the existing text appears to be contained in paragraph 10 of the US 
proposal . However, unlike the existing text, the US proposal does appear to impose an 
obligation on Members to conduct nego tiations to improve the Agreement and to extend its 
coverage . What is the rationale behind this omission ? [Hong Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 210 - 
 
  Article  XXIV 
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
(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.  10. Parties shall seek to avoid introducing 
or continuing discriminatory measures and 
practices that distort open procurement 
and shall, in the context of negotiations, 
seek to eliminate those which remain on the 
date of entry into force of this Agreement.  
[US – Job No. 2867]  
 
Comment  
 
• This paragraph models upon Article XXIV:7(b) of the GPA which provides that Parties shall in 
the context of negotiations seek to eliminate those discriminatory measures and practices . 
However, unlike Article XXIV:7(c) of the GPA, the present draft does not impose an obligation 
on Parties to conduct negotiations to improve the Agreement and to extend its coverage.  
[Hong  Kong, China]  
 GPA/TN1994/2/Rev.11  
 
- 211 - 
 
  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 the 
aims of open, non -discrimin atory 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 identified . When a Party intends 
to inn ovate, it shall endeavour to take into 
account the views expressed by other Parties 
regarding any potential problems.  
  
9. Amendments  
 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 any Party until it has been 
accepted by such Party.  
 11. 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 any Party until 
it has been accepted by  such Party.  
 
10. Withdrawal  
 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 Director -General of the WTO. Any 
Party may upon such notification 
request an immediate meeting of the 
Committee.  
 12. 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 
Director -General of the WTO . Any Party 
may upon such notification request an 
immediate meeting of the Committee.  
[US – Job No. 2867]  
 
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.11  
 
- 212 - 
 
  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. 
 13. If a Party to this Agreement 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  
 Non-application of this Agreement between 
Particular Parties  
 
 This Agreement shall 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.  
 14. This Agreement shall 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  
 Notes, Appendices and Annexes  
 
 The Notes, Appendices and Annexes to this 
Agreement constitute an integral part thereof.  
 15. The Notes, Appendices and Annexes 
to this Agreement constitute an integral 
part thereof.  
13. Secretariat  
 Secretariat  
 
 This Agreement shall be serviced by the 
WTO Secretariat.  
 16. This Agreement shall be serviced by 
the WTO Secretariat.  
14. Deposit  
 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 paragraphs  1 and 2 
and of each withdrawal therefrom pursuant to 
paragraph  10 of this Article.  
 17. This Agreem ent 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 paragraphs 7 and 8 of this 
Article and of each amendmen t thereto 
pursuant to paragraph 11 of this Article, 
and a notification of each accession thereto 
pursuant to paragraph 2 of this Article and 
of each withdrawal therefrom pursuant to 
paragraph 12 and 13 of this Article.  
[US – Job No. 2867]  
 GPA/TN1994/2/Rev.11  
 
- 213 - 
 
  Article  XXIV:15  
 
Final Provisions  
 
AGREEMENT ON GOVERNMENT 
PROCUREMENT (1994)  PROPOSED MODIFICATIONS  
15. Registration  
 Registration  
 
 This Agreement shall be registered in 
accordance with the provisions of Article 102 of 
the Charter of the United Nations.  
 18. This Agreement shall be registered in 
accordance with the provisions of 
Article  102 of the Charter of the United 
Nations.  
[US – Job No. 2867]  
 
 Done at Marrakesh this fifteenth day of 
April one  thousand  nine hundred  and ninety -four 
in a sing le 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 term 
"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.  
  
[cf. US proposals on defi nitions]  
 GPA/TN1994/2/Rev.11  
 
- 214 - 
 
  ATTACHMENT  1 
 
CONSOLIDATED US PROPOSALS FOR STREAMLINING THE TEXT  OF THE  
WTO AGREEMENT ON GOVERNMENT PROCUREMENT  
APRIL  2001 (JOB NO. 2867)  
WTO AGREEMENT ON GOVERNMENT PROCUREMENT  
 
Table of Contents  
 
Article I  Definitions  
Article II  Scope and Coverage  
Article III  Non-Discrimination  
Article IV  Publication of Procurement Measures  
Article V  Publication of Notice of Intended Procurement  
Article VI  Time Periods for Tendering  
Article VII  Information on Intended Procurements  
Article VIII  Qualification  of Suppliers  
Article IX  Limited Tendering  
Article X  Treatment of Tenders and Contract Awards  
Article XI  Transparency of Procurement Information  
Article XII  Non-Disclosure of Information  
Article XIII  Domestic Review of Supplier Challenges  
Article XIV  Institutions  
Article XV  Consultations and Dispute Settlement  
Article XVI  Exceptions to the Agreement  
Article XVII  Final Provisions  
 
Preamble  
 
Parties to this Agreement (hereinafter referred to as "Parties "), 
 
Recognizing  the need for an effective multilate ral framework of rights and obligations with 
respect to measures regarding government procurement, with a view to achieving greater 
liberalization and expansion of world trade and improving the international framework for the 
conduct of world trade;  
 
Recog nizing  that the transparency, integrity and predictability of government procurement 
systems are integral to the efficient and effective management of public resources, the overall quality 
of governance, the economic performance of the Parties ' societies, and the functioning of the 
multilateral trading system;  
 
Recognizing  that the procedural commitments under this Agreement should be sufficiently 
flexible to accommodate the specific circumstances of each Party and limited to what is necessary 
to achieve th e Parties ' objectives of this Agreement;  
 
Desiring  to encourage acceptance of and accession to this Agreement by governments not 
party to it;  
 
Having undertaken further negotiations in pursuance of these objectives;  
 
Hereby agree as follows:  
 
Article I  Definitions  
 
For purposes of this Agreement:  
 
build, operate and transfer contract  means any contractual arrangement under which a supplier 
may own or operate infrastructure, facilities or other assets provided for under a contract for a GPA/TN1994/2/Rev.11  
 
- 215 - 
 
  specified period of time before transferring ownership or operation of such assets to one of the 
Parties or its entities;  
 
consensus standard  means a standard adopted by an independent domestic or international 
standards body, where the decision to adopt that standard is characterized by the absence of 
sustained opposition to substantial issues by any im portant 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 . A consensus standard shall not be applicable to a particular 
Party if the pro cess by which that standard was adopted did not involve seeking to take into account 
the views of that Party and interested stakeholders of that Party;  
 
construction services contract  means a contract that has as its objective the realization by 
whatever m eans of civil or building works, in the sense of Division 51 of the Central Product 
Classification (CPC);  
 
country or countries  include any separate customs territory Party to this Agreement . In the case 
of a separate customs territory Party to this Agreem ent, where an expression in this Agreement is 
qualified by the term "national", such expression shall be read as pertaining to that customs territory, 
unless otherwise specified;  
 
government  is deemed to include the competent authorities of the European Co mmunities;  
 
procuring entity  means an entity covered under Annexes 1, 2 and 3 of Appendix I of each Party;  
 
services  includes construction services contracts, unless otherwise specified;  
 
COMMENTS  
 
• The number of terms included in the Article on definitions should reflect all relevant factors 
including the overall structure of the Agreement . Perhaps, the Article containing definitions 
could be included as an Annex, as in the case of the SPS Agreement.  [Korea]  
• Definitions at the beginning of the Ag reement could be useful since the reader would see those 
first and then would have a context for understanding the commitments referred to in the text 
of the Agreement . However, if the article containing definitions became very lengthy, it might 
be useful to include it at the end of the Agreement or in an Annex.  [US] 
• It is questioned whether Article I is the correct location for the proposed paragraph 1 . Since 
proposed paragraph 1 contains, in part, a definition of government procurement, perhaps it 
should be included in the Article containing definitions . Nevertheless, it also seems to be 
something more than a mere definition.  [EC] 
supplier  means a natural person or enterprise that has provided or could provide goods or services 
in response to a procuring e ntity's call for tenders ; and 
 
technical specification  means a tendering requirement that lays down the characteristic of goods 
to be procured or their related processes and production methods or the characteristics of services 
to be procured or their rela ted operating methods, including any applicable administrative provisions . 
It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling 
requirements as they apply to a good, process, or production or operating method.  
 
in writing  or written  means any expression of information in words, numbers or other symbols, 
including electronic expressions, that can be read, reproduced, and stored1; 
 
limited tendering procedures  means procedures in which a procuring entity invites tenders only 
from a supplier or suppliers that the entity selects in a non -competitive manner;  
 
1 This definition is contained in a proposed revision to the U.S. Federal Acquisition Regulation (FAR), 
which was published in the U.S. Federal Register on November 1, 2000.  As of March 30, 2001, the Civilian 
Agency Acquisition Council and the Defense Acquisition Regulations Council continue to review this regulatory 
proposal.  The United States reserves its right to modify the language of this submission, based on our ongoing 
internal consul tations.  GPA/TN1994/2/Rev.11  
 
- 216 - 
 
   
offsets  means conditions imposed or considered by a procuring entity prior to, or in the course of, 
its pr ocurement process that encourages local development or improves a Party's balance of 
payments accounts by means of requirements of local content, licensing of technology, investment, 
counter -trade or similar provisions;  
 
Article II  Scope and Coverage  
 
1.  This Agreement applies to:  
 
(a) any measure specifically governing the procurement of goods or services, or any 
combination thereof, for governmental purposes and not with a view to commercial 
resale or with a view to use in the production or supply of  goods or services for 
commercial sale ; and 
 
(b) procurement by procuring entities specified in Appendix I to this Agreement, by any 
contractual means, including direct purchase ; lease; rental or hire purchase, with or 
without an option to buy ; and build, operate and transfer contracts.  
 
2. For each Party, Appendix I shall be divided into five Annexes:  
 
(a) Annex 1 specifies the central government entities whose procurement is covered by this 
Agreement;  
(b) Annex 2 specifies the sub -central government entit ies whose procurement is covered 
by this Agreement;  
(c) Annex 3 specifies all other entities whose procurement is covered by this Agreement;  
(d) Annex 4 specifies the services covered by this Agreement ; and 
(e) Annex 5 specifies the construction services c overed by this Agreement.  
 
3.  Where procuring entities, in the context of procurement covered by this Agreement, require 
enterprises not included in Appendix I to award contracts in accordance with particular requirements, 
Article III of this Agreement sh all apply mutatis mutandis  to such requirements.  
 
4. This Agreement applies to any procurement contract for which the value of the contract is 
estimated, at the time of publication of the notice of intended procurement, in accordance with 
Article V of this Agreement, to equal or exceed the relevant threshold  specified in Appendix I.  The 
value of a contract shall be estimated in accordance with the provisions of paragraph 5 of this Article.  
 
Valuation Of Contracts  
 
5. In determining whether a contract is covered under this Agreement, procuring entities shall 
apply the following provisions:  
 
(a)  Procuring entities shall not divide an intended procurement into separate contracts or 
otherwise use a particular method for estimating the value of a contract for the purpose 
of avoiding the application of this Agreeme nt. 
 
(b)  In calculating the value of a contract, an entity shall take into account all forms of 
remuneration, including premiums, fees, commissions, interest, other revenue streams 
provided for under the contract and the value of the maximum permissible o ptions 
provided for by the contract.  
 
(c)  Except as provided for in subparagraph (d) of this Paragraph, contracts that are 
awarded in multiple parts, are awarded to more than one supplier, are for an indefinite 
quantity, or result in the awarding of more than one contract or recurring contracts, 
shall be valued at the total estimated value of the contract and any resulting contracts 
over the duration of such contracts.  
 GPA/TN1994/2/Rev.11  
 
- 217 - 
 
  (d) Contracts for which the duration is not known shall be valued at the actual value o f 
similar previous contracts awarded over the most recent two -year period, adjusting for 
any anticipated changes in the quantity and prices of the goods or services to be 
supplied.  
 
Article III  Non-Discrimination  
 
Basic Principles  
 
1. With respect to any measure specifically governing procurement covered by this Agreement, 
each Party shall accord to the goods and services of another Party and to the suppliers of another 
Party offering the goods or services of another Party, treatment no  less favorable than the most 
favorable treatment the Party accords to:  
 
(a) its own goods, services and suppliers ; and 
 
(b) goods, services and suppliers of another Party.  
 
2. With respect to any measure governing procurement covered by this Agreement, no  Party 
may: 
 
(a) treat a locally established supplier less favorably than another locally established 
supplier on the basis of degree of foreign affiliation or ownership ; or 
 
(b) discriminate against a locally established supplier on the basis that the goo ds or services 
offered by that supplier for a particular procurement are goods or services of another 
Party.  
 
Rules of Origin  
 
3. For purposes of procurement covered by this Agreement, no Party may apply rules of origin 
to goods imported from another Party  that are different from or inconsistent with the rules of origin 
the Party applies in the normal course of trade.  
 
Offsets  
 
4.  Procuring entities shall not consider, seek or impose offsets in the qualification and selection 
of suppliers, goods or services, in the evaluation of tenders, or in the award of contracts.  
 
Option Clauses  
 
5. Procuring entities shall not use option clauses in a manner that circumvents the provisions of 
this Agreement.  
 
Measures Not Specific to Procurement  
 
6. The provision s of paragraphs 1 and 2 of this Article do 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 or formalities, and measures affecting trad e in services other than 
measures specifically governing procurement covered by this Agreement.  
 
Article IV  Publication of Procurement Measures  
 
Each Party shall promptly publish any law, regulation, judicial decision, administrative ruling 
of general appl ication, and procedure regarding procurement covered by this Agreement in officially 
designated electronic or paper media which are widely disseminated and readily accessible to the 
public . Each Party shall promptly publish in the same media all additions and changes to such 
measures.  
 GPA/TN1994/2/Rev.11  
 
- 218 - 
 
  Article V  Publication of Notice of Intended Procurement  
 
1.  For each contract covered by this Agreement, except as provided for in Article IX of this 
Agreement, procuring entities shall publish a notice inviting interested suppliers to submit tenders 
for that contract . The notice shall be published in the appropriate publication listed in Appendix  III. 
Such publications shall be in electronic or paper media which are widely disseminated and readily 
accessible to t he general public.  
 
2.  Entities shall include the following information in each notice of intended procurement:  
 
(a) A description of the intended procurement, including the nature and quantity of the 
goods or services to be procured and, where applicable, any requirements for the 
qualification of suppliers;  
 
(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;  
 
(c) The procurement method  that will be used and whether it will involve negotiation;  
 
(d) The time limits set for the submission of tenders and, when appropriate, any time limits 
for the submission of applications to qualify for participation in the intended 
procurement and the dates for starting or completing delivery of goods and services ; 
and 
 
(e) An indication that the procurement is covered by this Agreement.  
 
3.  Each Party shall encourage its procuring entities to publish as early as possible in each fiscal 
year informatio n regarding entities ' future procurement plans . Such information should include the 
subject matter of the procurement and the planned date of the publication of the notice of intended 
procurement . When the published information is in accordance with Articl e VI:2(a) of this 
Agreement, entities may apply Article VI:2 for the purpose of establishing more flexible time periods 
for tendering of procurements covered by this Agreement.  
 
Article VI  Time Periods for Tendering  
 
1. Except as provided for in paragraphs  2 and 3 of this Article, procuring entities shall provide 
no less than 40 calendar days between the date on which the notice of intended procurement is 
published and the final date for the submission of tenders.  
 
2.  Under the following circumstances, ent ities may establish a time period for tendering that is 
shorter than 40 days, provided that such time period is sufficiently long to enable suppliers to 
prepare and submit responsive tenders and is in no case less than 10  calendar days prior to the final 
date for the submission of tenders:  
 
(a) where a separate notice, including a notice under Article V:3 of this Agreement, has 
been published at least 40 calendar days and not more than 12 months in advance, and 
such notice contains : a description of the int ended 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 obtained;  
 
(b) in the case of the second or subsequent publicatio n of notices dealing with contracts of 
a recurring nature;  
 
(c) in the case of procurement of commercial goods and services that 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 requires that potential suppliers be qualified for 
participation in the procurement before submitting tenders, in accordance with Article  IX 
of this Agreement ; and 
 
(d) when, for duly substantiated reasons of extreme urgency brought about by events 
unforeseeable by the entity, the use of a 40 -day time period would result in serious GPA/TN1994/2/Rev.11  
 
- 219 - 
 
  injury to the entity or the relevant Party ; however, concerns relating 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.  
 
3. When a procuring entity publishes a notice of intended procurement in accordance with Article 
V of this Agreement in an electronic media listed in Appendix III, the entity may reduce the time 
periods provided for in this Agreement by up to 10 calendar 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.  
 
4. Where, as a result of a need to amend information provided to suppliers during the 
procurement process, a procuring entity must extend the time period fo r qualification or tendering 
procedures, such entity shall permit all participating suppliers to submit final tenders in accordance 
with a common deadline.  
 
Article VII  Information on Intended Procurements  
 
Tender Documentation  
 
1.  Procuring entities shal l provide to suppliers tender documentation that includes all information 
necessary to permit suppliers to prepare and submit responsive bids . Unless already provided in the 
notice of intended procurement, such documentation shall include a complete descri ption of:  
 
(a) the intended procurement, including the nature and quantity of the goods or services 
to be procured and any requirements to be fulfilled, including any technical 
specifications, conformity certification, plans, drawings or instructional mate rials; 
 
(b) any conditions for participation in the procurement, including any financial guarantees, 
information and documents that suppliers are required to submit;  
(c) all criteria, including all cost factors, to be considered in the awarding of the contract, 
and the weights that will be assigned to such criteria in evaluating tenders;  
 
(d) the date, time and place for the opening of tenders ; and 
 
(e) the terms of payment and any other terms or conditions.  
 
Technical Specifications  
 
2. Each Party shal l 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.  
 
3. In establishing the technical specifications for each good or service being procured, each Party 
shall ensure that its entities specify, whenever available and applicable to that Party, an existing 
domestic or international consensus standard, except where the use of a consensus standard would 
fail to meet the entity 's program requirements or wo uld impose more burdens than the use of a 
government -unique standard.  
 
4.  Each Party shall ensure that, wherever appropriate, any technical specification prescribed by 
its entities is specified in terms of performance requirements for the good or service being procured 
rather than design or descriptive characteristics.  
 
5. Each Party shall ensure that the technical specifications prescribed by its entities do not require 
or refer to a particular trademark or trade name, 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 documentatio n. 
 
6. 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.  GPA/TN1994/2/Rev.11  
 
- 220 - 
 
  Modifications  
 
7. If, during the course of a procurement process, an entity modifies the criteria or technical 
requirements set out in previous notices and information provided to participat ing suppliers, it shall 
transmit all such modifications in writing:  
 
(a) to all the suppliers that are participating at the time the information is amended, if 
known, and in all other cases, in the same manner as the original information ; and 
 
(b) in adequ ate time to allow such suppliers to modify and re -submit their initial tenders, 
as appropriate.  
 
Article VIII  Qualification of Suppliers  
 
1. Where a procuring entity requires suppliers to satisfy qualification requirements before 
participating in a tenderi ng process, the entity shall publish a notice inviting interested suppliers to 
apply for qualification and shall provide no less than 15 calendar days prior to the final date for the 
submission of tenders for such suppliers to submit their applications . This notice may be the same 
as the notice of intended procurement required under Article V of this Agreement.  
 
2. If at any time within the 15 -day period referred to in paragraph 1 of this Article a supplier not 
yet qualified submits an application for quali fication, the entity shall promptly start the qualification 
procedures and shall allow such supplier to participate in the tendering process, provided there is 
sufficient time to complete the qualification procedure within the time period established for t he 
tendering process.  
 
3. Where a notice inviting applications for qualification in a procurement process is issued 
separately from the notice of intended procurement required under Article V of this Agreement, such 
notice shall be published in the same manner as the notice of intended procurement and shall contain 
at least the following information:  
 
(a) A description of the intended procurement;  
 
(b) The qualification requirements;  
 
(c) The name and address of the procuring entity and other informa tion necessary to 
contact the entity and obtain all relevant documents relating to the contract;  
 
(d) The time limits, if any, for the submission of applications for qualification ; and 
 
(e) An indication that the procurement is covered by this Agreement.  
 
4. Procuring entities shall ensure that any conditions for participation in a tendering process that 
they use are limited to those that are essential to ensure a potential supplier 's ability to fulfil the 
requirements and technical specificatio ns of the procurement in question.  
 
(a) Procuring entities shall evaluate the financial, commercial and technical capabilities of 
a supplier on the basis of that supplier's global business activities, and shall not impose 
the condition that, in order for a  supplier to participate in a procurement process, the 
supplier has previously been awarded one or more contracts by an entity of that Party 
or that the supplier has prior work experience in the territory of that Party.  
 
(b) Nothing in this Article shall p reclude the exclusion of a supplier on grounds such as 
bankruptcy or false declarations.  
 
5. Procuring entities shall recognize as qualified suppliers all suppliers 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 notices or tender 
documentation.  
 GPA/TN1994/2/Rev.11  
 
- 221 - 
 
  Information on Qualification Decisions  
 
6. A procuring entity shall promptly advise any sup plier that requests qualification of its decision 
as to whether that supplier is qualified.  
 
7. Where a procuring entity rejects a supplier 's application to qualify or ceases to recognize a 
supplier as qualified, the entity shall inform the supplier and, o n request of the supplier, promptly 
provide the supplier with a written explanation of the reasons for its decision.  
 
Article IX  Limited Tendering  
 
1.  Where 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.  
 
2. Procuring entities shall not use limited tendering procedures for the purpose of avoiding 
competition among suppliers or in a manner that constitutes a means of discrimina tion between 
suppliers of the other Parties or protection of domestic suppliers . Notwithstanding any of the 
provisions of paragraph 3 of this Article, entities shall not use limited tendering because of a lack of 
advance planning or concerns relating to th e amount of funds available to an entity within a particular 
period of time.  
 
3. Procuring entities may use limited tendering procedures in the following circumstances and 
subject to the following conditions, where applicable:  
 
(a) in the absence of tenders that conform to the essential requirements in the tender 
documentation provided in a prior tendering procedure, on condition that the 
requirements of the initial procurement are not substantially modified in the contract as 
awarded;  
 
(b) in the abs ence of tenders from suppliers which meet qualification requirements 
established for a prior tendering procedure;  
 
(c) where, for works of art, or for reasons connected with the protection of exclusive rights, 
such as patents, copyrights or proprietary inf ormation 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;  
 
(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 goods or 
services not meeting requirements of interchan geability with existing equipment, 
software, services, or installations;  
 
(e) for goods purchased on a commodity market ; and 
 
(f) in so far 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 under tendering procedures consistent with Articles V and VI of this Agreement, 
and the use of such procedures would result in serious injury to the entity, the entity 's 
program responsibilities, or the r esponsible Party.  
 
4. Procuring entities shall prepare a report in writing on each contract awarded under 
paragraph  3 of this Article . Each such report shall include the name of the procuring entity, the value 
and kind of goods or services procured, and a statement indicating the circumstances and conditions 
described in paragraph 3 of this Article that justified the use of limited tendering . Entities shall retain 
each such report for a minimum of three years.  
 GPA/TN1994/2/Rev.11  
 
- 222 - 
 
  Article X  Treatment of Tenders  and Contract Awards  
 
Receipt and Opening of Tenders  
 
1. Procuring entities shall receive and open all tenders under procedures that guarantee the 
fairness and impartiality of the procurement process.  
 
2. Procuring entities shall treat tenders in confidenc e. In particular, they shall not provide 
information to particular suppliers that might prejudice fair competition between suppliers.  
 
3. Procuring entities shall not penalize any supplier whose tender is received after the time 
specified for receiving ten ders if the delay is due solely to mishandling on the part of the entity.  
 
4. When procuring entities provide suppliers with opportunities to correct unintentional errors of 
form between the opening of tenders and the awarding of the contract, the entities  shall provide the 
same opportunities to all participating suppliers.  
 
Awarding of Contracts  
 
5. To be considered for award, a tender must be in writing and must, at the time of opening, 
conform to the essential requirements of the notices and tender documentation and be from a 
supplier which complies with the conditions for participation, including any specified time periods . 
Procuring entities shall base contract award decisions solely on the requirements and evaluation 
criteria that have been specif ied in the notices and tender documentation provided in advance to all 
participating suppliers.  
 
6. Unless a procuring entity determines that it is not in the public interest to award a contract, 
procuring entities shall award the 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 criteria set 
forth in the notices  or tender documentation.  
 
7. Procuring entities shall not cancel a procurement process, or terminate or modify awarded 
contracts in a manner that circumvents the obligations of this Agreement.  
Article XI  Transparency of Procurement Information  
 
Informatio n Provided to Suppliers  
 
1. Procuring entities shall promptly inform suppliers that have submitted tenders of the contract 
award decisions . Subject to Article XII of this Agreement, procuring entities shall, upon request, 
provide losing bidders with an exp lanation of the reasons for not being selected and the relative 
advantages of the successful supplier.  
 
Publication of Award Information  
 
2.  Not later than 90 calendar days after the award of a contract covered by this Agreement, the 
procuring entity shall publish a notice in the appropriate publication designated in Appendix  III of 
this Agreement that includes at least the following information about that contract:  
 
(a) the name of the procuring entity;  
 
(b) a description of the goods or servic es procured;  
 
(c) the name of the winning tenderer;  
 
(d) the value of the winning award or the highest and lowest offer taken into account in the 
award of the contract ; and 
 
(e) the type of procurement method used, and in cases where limited tendering proc edures 
are used, a description of the circumstances justifying the use of such procedures.  
 GPA/TN1994/2/Rev.11  
 
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  Provision of Award Information to Parties  
 
3. Upon the request of any other Party, a Party shall provide such detailed information on the 
award of a contact as may be necessary to determine whether the procurement was conducted 
fairly, impartially and in accordance with the provisions of this Agreement . Such information shall 
include information on the characteristics and relative advantages of the winning tender and  on the 
contract price.  
 
Maintenance of Records  
 
4. The Parties shall ensure that their procuring entities maintain records of tendering procedures 
relating to contracts covered by this Agreement . Procuring entities shall maintain such records for a 
period of at least three years.  
 
Collection and Report of Statistics  
 
5. Each Party shall collect and report to the Committee statistics on contracts awarded by entities 
covered under Appendix 1 of this Agreement . Each report shall be submitted within two years of the 
end of the reporting period, and shall contain:  
 
(a) For Annex 1 entities, statistics on the:  
 
(i) aggregate number and value, for all such entities collectively, of contracts 
covered by this Agreement;  
(ii) number and total value of all contracts covered by this Agreement awarded by 
such entities, broken down by categories of goods and services according to a 
uniform classification system ; and 
(iii) number and total value of contracts covered by this Agreement awarded by each 
such entity under limited tendering procedures.  
 
(b) For Annex 2 and 3 entities, separately, statistics on the:  
 
(i) aggregate number and value of contracts covered by this Agreement awarded by 
such entities;  
(ii) estimated total value of contracts covered by this Agr eement awarded by such 
entities, broken down by categories of entities ; and 
(iii) estimated value of contracts covered by this Agreement awarded by such entities 
under limited tendering procedures, broken down by categories of entities.  
 
Article XII  Non-Disclosure of Information  
 
1. The Parties and their procuring entities shall not disclose confidential or proprietary 
information.  
 
2. Nothing in this Agreement shall prevent the Parties or their procuring entities from withholding 
the release of information under this Agreement where release might:  
 
(a) impede law enforcement;  
 
(b) prejudice fair competition between suppliers;  
 
(c) prejudice the legitimate commercial interests of particular suppliers or procuring 
entities, including the protection  of intellectual property ; or 
 
(d) otherwise be contrary to the public interest.  
 
Article XIII  Domestic Review of Supplier Challenges  
 
Consultations  
 
1. In the event of a complaint by a supplier that there has been a breach of this Agreement, 
each Party sh all encourage its relevant procuring entity and such supplier to seek resolution of the GPA/TN1994/2/Rev.11  
 
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  complaint through consultations . Procuring entities shall accord impartial and timely consideration 
to any such complaint, in a manner that is not prejudicial to suppli ers' participation in ongoing or 
future procurement activities or to suppliers ' rights to seek corrective measures under the challenge 
system.  
 
Independent Review Authorities  
 
2. Each Party shall establish or designate at least one impartial authority, which is independent 
from its procuring entities, to receive and review supplier challenges relating to the provisions of 
this Agreement and make appropriate findings and recommendations . Such authorities shall be 
authorized, pending the resolut ion of a challenge, to take prompt interim measures to preserve the 
opportunity to correct potential breaches of this Agreement, including the suspension of the award 
of a contract or the performance of a contract already awarded.  
 
Principles for Review an d Appeal  
 
3. Each Party shall provide timely, effective, transparent, predictable and non -discriminatory 
means for suppliers to challenge alleged breaches of this Agreement, without prejudice to suppliers ' 
participation in ongoing or future procurement act ivities . All challenge procedures shall be in writing 
and made generally available.  
 
4. In the event that a challenge is initially reviewed by a body other than an authority established 
or designated under paragraph 2 of this Article, each Party shall ensu re 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.  
 
5. Each Party shall ensure that any confidential or pr oprietary information that is submitted in 
the course of a challenge proceeding is protected in accordance with paragraph 1 of Article XII of 
this Agreement.  
 
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 be come known to the supplier;  
 
(b) The proceedings shall be conducted in a transparent manner, consistent with 
predictable, written procedures that are readily available to all participants in advance;  
 
(c) Procuring entities shall respond in writing to the complaint and disclose all relevant 
documents to the review body;  
 
(d) 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 ; and 
 
(e) Decisions relating to supplier challenges shall be provided in a timely fashion, in writing, 
with an explanation of the basis for each decision.  
 
Article XIV  Institutions  
 
Committee on Government Procurement  
 
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 o f affording Parties the 
opportunity to con sult 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.  
 GPA/TN1994/2/Rev.11  
 
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  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.  
 
Observers  
 
3. WTO Members and other governments who are not Parties to this Agreement shall be entitled 
to participate in the Committee as observers upon submitting a wr itten notice to  the Secretariat.  
 
Article XV  Consultations and Dispute Settlement  
 
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 Settleme nt 
Understanding") shall be applicable, except as otherwise provided below.  
 
2. Where 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 objective 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 pro visions 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 t o 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.  
 
3. Only Members of the WTO party to this Agreement shall participate in decisions 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 
otherwi se 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 assist 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 
Agreemen ts listed in Appendix 1 of the Dispute Settlement Understanding are invoked by one of the 
parties to the dispute, paragraph 3 of this Article shall apply only to those parts of the panel report 
concerning the interpretation and application of this Agreemen t. 
 
5. Panels established by the DSB to examine disputes under this Agreement shall include persons 
qualified in the area of government procurement.  
 
6. Every effort shall be made to accelerate the proceedings to the greatest extent possible . 
Therefore, no twithstanding 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 later than seve n 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 Article 20 and paragraph 4 of Article  21 of the 
Dispute Settlement Understandi ng 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 consistency with a covered Agre ement 
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 Settl ement 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 concessions or other obligations u nder any other Agreement listed in the said 
Appendix  1. 
 GPA/TN1994/2/Rev.11  
 
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  Article XVI  Exceptions to the Agreement  
 
[The United States is reviewing its positions on this Article.]  
 
Article XVII  Final Provisions  
 
Entry into Force of Amended Agreement  
 
1. This Agreement supersedes the Government Procurement Agreement, which entered into 
force on 1  January  1996, and enters into force on [date].  
 
Accession  
 
2. Any government which is a Member of the WTO 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.  
 
Technical Assistance and Cooperation  
 
3. [The United States is reviewing its positions on these provisions.]  
 
Reservations  
 
4. Parties may not take reservations in respect of any of the provisions of this Agreement.  
 
National Legislation  
 
5. 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.  
 
6. 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.  
 
Rectifications or Modifications  
 
7. 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 the mutually agreed coverage provided 
in this Agreement . If the rectifications, trans fers 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 of the Committee shall promptly convene a meeting of the Committee . The 
Committee sh all 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 agreed coverage 
provided in this Agreement prior to such notification . In the event of a greement not being reached, 
the matter may be pursued in accordance with the provisions contained in Article XV of this 
Agreement.  
 
8. Where a Party wishes, in exercise of its rights, to withdraw an entity from Appendix I on the 
grounds that government con trol 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 of an objection, the matter may be 
pursued in accordance with the procedures on consultations and dispute settlement contained in 
Article XV of this Agreement . In considering the pr oposed modification to Appendix I and any 
consequential compensatory adjustment, allowance shall be made for the market -opening effects of 
the removal of government control or influence.  
 GPA/TN1994/2/Rev.11  
 
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  Reports and Future Work  
 
9. The Committee shall annually inform the General Council of the WTO of developments relating 
to the implementation and operation of this Agreement.  
 
10. Parties shall seek to avoid introducing or continuing discriminatory measures and practices 
that distort open procurement and shall, in the cont ext of negotiations, seek to eliminate those which 
remain on the date of entry into force of this Agreement.  
 
Amendments  
 
11. 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 any Party until it has been 
accepted by such Party.  
 
Withdrawal  
 
12. 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 
Director -General of the WTO . Any Party may upon such notification request an immediate meeting 
of the Committee.  
 
13. If a Par ty to this Agreement ceases to be a Member of the WTO, it shall cease to be a Party 
to this Agreement with effect from the same date.  
 
Non-application of this Agreement between Particular Parties  
 
14. This Agreement shall not apply as between any two Parti es if either of the Parties, at the time 
either accepts or accedes to this Agreement, does not consent to such application.  
 
Notes, Appendices and Annexes  
 
15. The Notes, Appendices and Annexes to this Agreement constitute an integral part thereof.  
 
Secretariat  
 
16. This Agreement shall be serviced by the WTO Secretariat.  
 
Deposit  
 
17. 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 rectif ication or modification 
thereto pursuant to paragraphs 7 and 8 of this Article and of each amendment thereto pursuant to 
paragraph 11 of this Article, and a notification of each accession thereto pursuant to paragraph 2 of 
this Article and of each withdraw al therefrom pursuant to paragraphs 12 and 13 of this Article.  
 
Registration  
 
18. This Agreement shall be registered in accordance with the provisions of Article 102 of the 
Charter of the United Nations.  GPA/TN1994/2/Rev.11  
 
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  ATTACHMENT 2  
 
PROPOSAL BY SWITZERLAND ON THE REVISI ON OF ARTICLE V (JOB NO. 1274)  
 
Article ZZI :  Treatment for non -parties developing and least -developed countries  
 
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.  
 
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 and least -developed countries.  
 
3. Bearing in mind the economic development needs of developing and least -developed 
countries, the Parties shall facilitate increased imports for pro ducts representing particular export 
interests to these countries.  
 
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 
Participat ion of Developing Countries (B ISD 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 countries.  
 
5. Each developed country Party shall, upon re quest, 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 lea st-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.  
 
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, no n-discrimination and 
national treatment.  
 
2. Upon accession 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 deve lopment, 
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 under 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. Mutual ly 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.  
 GPA/TN1994/2/Rev.11  
 
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  Article ZZIII:  Temporary exemptions to coverage for developing and least -developed 
countries Parties and further negotiations  
 
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 
temporary 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 cir cumstances of each case 
and taking duly into account its development, financial and trade situation.  
 
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.  
 
3. In the course of further negotiations in accordance with paragraph 7 of Article XXIV, each 
developing and least -developed country Party shall give consideration to the possibility of enlarging 
its coverage lists , having regard to its development, financial and trade situation.  
 
Article ZZIV:  Technical assistance and information centres  
 
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.  
 
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 docume ntation, award procedures, remedy systems;  
 
 - training of local purchasing entities.  
 
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 service s procured or to be procured, including available 
information about future tenders . The Committee may also set up an information centre.  
 
Article ZZV:  Review  
 
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 implementati on 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 accordanc e with the provisions of Articles ZZII and ZZIII shall be modified 
or extended.  GPA/TN1994/2/Rev.11  
 
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  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 alr eady the 
case in several other WTO Agreements for provisions referring to developing and 
least-developed countries.  [Switzerland – Job No. 1274]  
 
  GPA/TN1994/2/Rev.11  
 
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  ATTACHMENT 3  
 
ISSUES RAISED AND POINTS MADE IN INFORMAL CONSULTATIONS REGARDING THE 
SIMPLIFICATION AND IMPRO VEMENT OF THE APPENDICES  
TO THE AGREEMENT  
 
 A summary of the discussion relating to the simplification of Appendices at the informal 
consultations held in 1997 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 3 0 January  2001. 
 
_______________  
 
 
A. CHOICE BETWEEN POS ITIVE 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 gene ral 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 connection 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 procurement covered under the Agreement was clearly determined or not . If a 
positive list was being used, there was a need for a ver y 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 Appen dix I of individual Parties in the form of detailed positive lists 
was complex but what was important was that they were clear as compared 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 specified 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 
Agreement . A comprehensive positive list also gave an indication to other Parties of wh at 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 lists of entitities was often 
a matter of practicality and the practicality may diff er 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 generic sense since if a negative list of entities was created of all the 
townshi ps or counties that might not be subject to the Agreement, it could turn out to be a fairly 
difficult task.  [US] 
 
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 Mem bers, 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 to this view, the loose -leaf process for the Annexes had also worked 
well. [Canad a] 
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 coverage of services as possible, subject 
to limited negotiated exceptions whereas  a positive list tended to give the impression that the GPA/TN1994/2/Rev.11  
 
- 232 - 
 
  starting -point was to assume that everything was excluded until a decision was made to cover a 
type of service . The real issue was the extent of coverage . If coverage was limited and the 
classificatio n 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 type 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 negative list could be sufficiently clear.  
[Switzerland ] It has also been said in th is 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 al so 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 feasib le 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 enterprises covered changed from country to country.  [Job No. 5189; Japan]  
 
11. It has been s uggested 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 covered 
by which Annex.  [Switzerland]  
 
D. PRESENTATION OF ANNEXES  
12. It has been stated tha t 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 assist non -Parties and Parties to 
anticipate where relevant notes could be found in relation to coverage in various Annexes.  [US] 
 
__________  