 RESTRICTED  
  
GPA/TN1994/2  
 
16 February 1999  
(24-2576) Page: 1/30 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994   
 
* Pursuant to the relevant Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: gpa85 ) was derestricted on 8 November 2023.  
SUGGESTED DRAFT ING CHANGES TO THE 1994 AGREEMENT * 
NOTE BY THE SECRETARIAT  
At the informal meeting of 9  December  1998, it was agreed that delegations would revert to the 
article -by-article examination of the Agreement on the basis of a two-column table to be prepared 
by the Secretariat.  The left column would contain the text of the 1994 Agreement and the right 
column would indicate the texts of any specific drafting changes that have been suggested since 
February  1997.  The present note h as been prepared in response to this request.  It is based on the 
suggestions and comments that have been made, as reflected in the Seventh Revision of the 
Checklist of Issues, in particular those relating to information technology and the article -by-article 
review of the Agreement.  
 
It might also be noted that certain suggestions have been made for amending the structure of the 
provisions of the Agreement.  These are not reflected in the two -column presentation.  However, the 
specific proposal that has been m ade on this matter is annexed to this note.  
 
_______________  
 
 
  
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Article I  
Scope and Coverage   
1. This Agreement applies to any law, regulation, procedure or practice 
regarding any procurement by entities covered by this Agreement, as specified in 
Appendix I.1 It has been suggested that footnote 1 should be made part of the main text.  
2. This Agreement applies to procurement by any contractual means, including 
through such methods as purchase or as lease, rental or hire purchase, with or 
without an option to buy, including any combination of products and services.  It has been suggested that this paragrap h should include a reference to forms of 
procurement under new phenomena (partnerships between private and public 
sectors, multiplication of "Build Operate Transfer " (BOT) operations, joint ventures).  
3. Where entities, in the context of procurement cover ed under this Agreement, 
require enterprises not included in Appendix I to award contracts in accordance with 
particular requirements, Article  III shall apply mutatis mutandis  to such 
requirements.   
4. This Agreement applies to any procurement contract of  a value of not less 
than the relevant threshold specified in Appendix I.   
Article  II 
Valuation of Contracts   
1. The following provisions shall apply in determining the value of contracts2 for 
purposes of implementing this Agreement.  
 It has been suggested that footnote 2 be amended to read: "This Agreement shall 
apply to any procurement contract for which the contract value is estimated to equal 
or exceed the threshold at the time of the p ublication of the notice in accordance with 
Article IX and at the time of first contact with the supplier in the case of limited 
tendering. " 
 
It has also been suggested that the language of footnote 2 should be aligned with 
that of Article I:4 on threshold  values.  
2. Valuation shall take into account all forms of remuneration, including any 
premiums, fees, commissions and interest receivable.   
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.   
4. If an individual requirement for a procurement results in the award of more 
than one contract, or in contracts being awarded in separate parts, the basis for 
valuation shall be either:   
 (a) the actual value of similar recurring contracts concluded over the 
previous fiscal year or 12 months adjusted, where possible, for anticipated 
changes in quantity and value over the subsequent 12  months;  or It has been sugges ted that individual contracts with values below the threshold 
values resulting from the practice of slicing up of contracts should also be subject 
to the provisions of this Agreement.  
 
1 For each Party, Appendix I is divided into five Annexes:  
  - Annex 1 contains central government entities.  
  - Annex 2 contains sub -central government entities.  
   - Annex 3 contains all other entities that procure in accordance with the provisions of this Agreement.  
   - Annex 4 specifies services, whether listed positively or negatively, covered by this Agreement.   
   - Annex 5 specifies covered construction services.  
 Relevant thresholds are specified in each Party's Annexes.  
2 This Agreement shall apply to any procurement contract for which the contract value is estimated to equal or exceed the thres hold at the time of publication of the 
notice in accordance with Article IX.   
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 (b) the estimated value of recurring contracts in the fiscal year or 12 
months subsequent to the initial contract.   
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;   
 (b) in the case of contracts for a n indefinite period, the monthly instalment 
multiplied by 48.   
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.   
Article III  
National Treatment and Non -discrimination   
1. With respect to all laws, regulations, procedures and practices regarding 
government pr ocurement covered by this Agreement, each Party shall provide 
immediately and unconditionally to the products, services and suppliers of other 
Parties offering products or services of the Parties, treatment no less favourable than:   
 (a) that accorded to domestic products, services and suppliers; and   
 (b) that accorded to products, services and suppliers of any other  
 Party.   
2. With respect to all laws, regulations, procedures and practices regarding 
government procurement covered by this Agreement, each Party shall ensure:   
 (a) that its entities shall not treat a locally -established supplier less 
favourably than another locally -established supplier on the basis of degree 
of foreign affiliation or ownership;  and The point has been made that the term "foreign affiliation or ownership " seemed 
to apply both to Parties and non -Parties to the Agreement.  It has been suggested 
that the consistency of the scope of this provision with that of paragraph 1 should 
be reviewed . 
 (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 t he provisions of Article  IV.  
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 forma lities, and 
measures affecting trade in services other than laws, regulations, procedures and 
practices regarding government procurement covered by this Agreement.   
Article  IV 
Rules of Origin   
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 It has been suggested that the issue of rules of origin of services should be taken 
up in the discussion concerning the extension of the Agreement to services.   
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of trade and  at the time of the transaction in question to imports or supplies of the 
same products or services from the same Parties.  
2. Following the conclusion of the work programme for the harmonization of 
rules of origin for 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.   
Article  V 
Special and Differentia l Treatment for Developing Countries   
Objectives   
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:   
 (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 es tablishment 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 (hereina fter referred to as the 
"WTO") and not disapproved by it.   
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 increas ed imports from developing countries, bearing in mind 
the special problems of least -developed countries and of those countries at low stages 
of economic development.   
Coverage   
3. With a view to ensuring that developing countries are able to adhere to this 
Agreement on terms consistent with their development, financial and trade needs, 
the objectives listed in paragraph  1 shall be duly taken into account in the course of 
negotiations with respect to the procurement of developing countries to be covered 
by the provisions of this Agreement.  Developed countries, in the preparation of their 
coverage lists under the provisions of this Agreement, shall endeavour to include 
entities procuring products and services of export interest to developing countries.  It has been suggested that the issue of granting developing countries 
non-reciprocal access to procurement markets of Parties might be explored.  
 
It has also been suggested that the provisions should be improved to take in to 
account the specific interests o f developing countries and to give developing 
countries additional incentives to join the Agreement.   
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Agreed Exclusions   
4. A developing country may negotiate with other participants in negotiations 
under this Agreement mutually acceptable exclusions from the rules on national 
treatment with respect to certain entities, products or services that are included in 
its coverage lists, having regard to the particular circumstances of each case.  In such 
negotiations, the considerations mentioned i n 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 in dustrial development 
programmes.  It has been suggested that further flexibility should be provided in the evaluation 
of offers from developing countries with respect to non -discriminatory treatment 
and in the application of the procedural provisions.   
5. After entry into force of this Agreement, a developing country Party may 
modify its coverage lists in accordance with the provisions for modification of such 
lists contained in paragraph  6 of Article  XXIV, having regard to its development,  
financial and trade needs, or may request the Committee on Government 
Procurement (hereinafter referred to as "the Committee ") to grant exclusions from 
the rules on national treatment for certain entities, products or services that are 
included in its cov erage 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 g rant 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 a nd 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 n ecessary for consideration of the 
matter.   
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.   
Technical Assistance for Developing Country Parties   
8. Each developed country Party shall, upon request, provide all technical 
assistance which it may deem appropriate to developing co untry Parties in resolving 
their problems in the field of government procurement.   
9. This assistance, which shall be provided on the basis of non -discrimination 
among developing country Parties, shall relate, inter alia, to: It has been suggested that the provisions on technical cooperation should be 
extended to take account of the needs o f developing countries to adjust to new 
developments in the application of information technology to government 
procurement.  
 - the solution of particular technical problems relating to the award of a 
specific contract;  and  
 - any other problem which th e Party making the request and another 
Party agree to deal with in the context of this assistance.    
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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 their request 
addre ssed either to the developed country Parties or to their entities.   
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.   
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 Favourab le 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 originating in t hose 
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 ser vices 
originating in those countries.   
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 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.   
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 tra de 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 
modified or extended.   
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.    
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Article  VI 
Technical Specifications   
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 th e processes and 
methods for their production and requirements relating to conformity assessment 
procedures prescribed by procuring entities, shall not be prepared, adopted or applied 
with a view to, or with the effect of, creating unnecessary obstacles to international 
trade.  It has been suggested that the location of Article VI should be changed in order to 
reflect the close association of the provisions on technical specifications with those 
on tender documentation.  
 
2. Technical specifications prescribe d by procuring entities shall, where 
appropriate:  It has been suggested that there should be a hierarchy between paragraphs  (a) 
and (b) since the provisions of subparagraph  (a) should be the rule and those of 
subparagraph  (b) the exception.  
 (a) be in terms of performance rather than design or descriptive 
characteristics;  and  
 (b) be based on international standards, where such exist;  otherwise, on 
national technical regulations3, recognized national standards4, or building 
codes.   
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.   
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.   
Article  VII 
Tendering Procedures   
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.  It has been suggested that paragraphs  1 and  2 should be separated from 
paragraph  3 describing the types of procurement procedures and be placed in an 
article addressing th e general principles of procurement.  
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.   
3. For the purposes of this Agreement:  
 It has been suggested that the Agreement needs to be clearer about which of its 
procedural provisions apply to which tendering method as defined in Article  VII:3.  
 
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 a nd 
production methods, including the applicable administrative provisions, with which compliance is mandatory.  It may also include or deal exclusively with terminology, 
symbols, packaging, marking or labelling 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 is not mandatory.  It may also include or deal exclusively with 
terminology, symbols, pa ckaging, marking or labelling requirements as they apply to a product, service, process or production method.   
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It has also been suggested that the provisions on tendering procedures should be 
reviewed to accommo date the use of two -stage tendering and electronic 
catalogues.  
 (a) Open tendering procedures are those procedures under which all 
interested suppliers may submit a tender.   
 (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.   
 (c) Limited tendering procedures are those procedures where the entity 
contacts suppliers indiv idually, only under the conditions specified in 
Article  XV.  
Article VIII  
Qualification of Suppliers   
 In the process of qualifying suppliers, entities shall not discriminate among 
suppliers of other Parties or between domestic suppliers and suppliers of other 
Parties.  Qualification procedures shall be consistent with the following:  It has been said that the rules on qualification of suppliers were either of general 
application (for instance, paragraph (b)) or related to the establishment of 
permanent lists of qualified suppliers.  The text should be revised in order to 
separate these two types of rules.  
 (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;   
 (b) any conditions for participation in tendering procedures shall be limited 
to those which are essential to e nsure 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 tech nical 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 tech nical 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;  It has been said that 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.  
 
 (c) the process of, and the time required for, qual ifying suppliers shall not 
be used in order to keep suppliers of other Parties off a suppliers ' list or from 
being considered for a particular intended procurement.  Entities shall 
recognize as qualified suppliers such domestic suppliers or suppliers of oth er 
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;    
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 (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;  
 (e) if, after publication of the notice under paragraph 1 of Article  IX, a 
supplier not yet qualified requests to participate in an intended procurement, 
the entity shall promptly start procedures for qualification;   
 (f) any supplier having requested to become a qualified supplier shall be 
advised by the entities concerned of the decision in this regard.  Qualified 
suppliers included on permanent lists by entities shall also be notified of the 
termination of any such li sts or of their removal from them;   
 (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 con sistent with the national treatment and non -
discrimination provisions of this Agreement.   
Article IX  
Invitation to Participate Regarding Intended Procurement   
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.  
 It has been suggested that the terms "invitation to  participate for all cases of 
intended procurement ", "notice of proposed procurement ", "notice of planned 
procurement " and "notice regarding a qualification system " should be clarified.  
 
It has been suggested that a footnote should be added defining "publication " to 
include either electronic or paper publication of notices and to indicate that 
electronic publication is on the Internet or in one location and is accessible 
worldwide by telephone.  
2. The invitation to participate may take the form of a notice  of proposed 
procurement, as provided for in paragraph  6. 
 It has been said that 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 prese nt use of the word "may" might be interpreted to 
suggest otherwise.  
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.  
 It has been suggested that entities at all levels of government should be able to 
use all methods of invitation to tender  
 
It has been suggested that the use of notices regarding qualification systems as 
invitations to particip ate should be clarified.  
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. It has been suggested that further flexibility should be provided in the procedures 
on the use of a notice of planned procurement.   
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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 t heir interest in 
participating in the procurement.  This information shall include the information 
contained in the notices referred to in paragraphs 6 and 8, to the extent such 
information is available.  Information provided to one interested supplier shall  be 
provided in a non -discriminatory manner to the other interested suppliers.   
6. Each notice of proposed procurement, referred to in paragraph  2, shall contain 
the following information:  
 It has been suggested that the provision should be modified to ob ligate procuring 
entities to include the means by which bids may be submitted in addition to paper -
based tenders.  
 (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;   
 (b) whether the procedure is open or selective or will involve negotiation;   
 (c) any date for starting delivery or completion of delivery of goods or 
services;   
 (d) the address and final date for submitting an application to be invited 
to tender or for qualifying for the suppliers ' lists, or for recei ving tenders, as 
well as the language or languages in which they must be submitted;   
 (e) the address of the entity awarding the contract and providing any 
information necessary for obtaining specifications and other documents;   
 (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  
 (h) whether the entity is inviting offers for purchase, lease, rental or 
  hire purchase, or more than one of these methods.   
7. Each notice of planned procurement referred to in paragraph 3 shall contain 
as much of the information referred to in paragraph  6 as is available.  It shall in any 
case include the information referred to in paragraph 8 and:   
 (a) a statement that interested suppliers should express their interest in 
the procurement to the entity;   
 (b) a contact point with the entity from which further information may be 
obtained.   
8. For each case of intended procurement, the entity shall publish a summary 
notice in one of the official languages of the WTO.  The notice shall contain at least 
the following information:  It has been suggested  that the provisions of Article IX:8 should follow the 
provisions of Article XI:1 on publication of an invitation to participate  
 (a) the subject matter of the contract;   
 (b) the time -limits set for the submission of tenders or an application to 
be invited to tender; and    
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 (c) the addresses from which documents relating to the contracts may be 
requested.    
9. In the case of selective tendering procedures, entities maintaining permanent 
lists of qualified suppliers shall publish annually in one of t he publications listed in 
Appendix  III 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;  
 (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   
 (c) the period of validity of the lists, and the formalities for their renewal.   
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 circumvents 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 am endment or the re -issued notice shall be given the same circulation 
as the original documents upon which the amendment is based.  Any significant 
information given to one supplier with respect to a particular intended procurement 
shall be given simultaneous ly to all other suppliers concerned in adequate time to 
permit the suppliers to consider such information and to respond to it.   
11. Entities shall make clear, in the notices referred to in this Article or in the 
publication in which the notices appear, t hat the procurement is covered by the 
Agreement.   
Article  X 
Selection Procedures   
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 m aintaining 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 particul ar 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   
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Articles  VIII and IX.  The number of additional supplie rs permitted to participate shall 
be limited only by the efficient operation of the procurement system.  
4. Requests to participate in selective tendering procedures may be submitted 
by telex, telegram or facsimile.  It has been suggested to add the words "electronic means, including email " and to 
add a provision stating that the means of communication can be specified by the 
procuring entity.  
Article  XI 
Time -limits for Tendering and Delivery   
General   
1. (a) Any prescribed time -limit shall be adequate to allow suppliers of other 
Parties as well as domestic suppliers to prepare and submit tenders before 
the closing of the tendering procedures.  In determining any such time -limit, 
entities shall, consistent with their own reasonable needs, take in to 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.  It has been suggested to remove all of the deadlines identified in this Article.   
 
It has been further been suggested to modify Article XI:1(a) to delete the words by 
mail" in the last sentence.  
 
 (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.   
Deadlines   
2. Except in so far 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;  
 (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;   
 (c) in selective procedures involving the use of a  permanent list of 
qualified suppliers, the period for receipt of tenders shall not be less than 40 
days from the date of the initial issuance of invitations to tender, whether or 
not the date of initial issuance of invitations to tender coincides with the  date 
of the publication referred to in paragraph  1 of Article  IX.   
3. The periods referred to in paragraph 2 may be reduced in the circumstances 
set out below:  
 It has been suggested to modify Article XI:3 so that when electronic tendering is 
used, all periods referred to in Article XI:2 may be reduced to a minimum of 15 
days 
 
It has also been suggested to modify Article XI:3 so that when electronic tendering 
and electronic bid receipt are used, second -stage periods referred to in Article 
XI:2(b) and (c)  may be reduced to a minimum of one day.  
 (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;   
  (ii) the information referred to in paragraph 8 of Article  IX;   
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  (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 d ays, but in any case not less 
than 10 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 limit for receipt of tenders may be reduced to not less 
than 24 days;    
 (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  
 (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.   
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.   
Article  XII 
Tender Documentation   
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.   
2. Tender documentation provided to suppliers shall contain all information 
necessary to permit them to submit responsive tenders, including information 
required to be published in the notice of intended procurement, except for paragraph 
6(g) of Article  IX, and the following:   
 (a) the address of the entit y to which tenders should be sent;   
 (b) the address where requests for supplementary information should be 
sent;  
 (c) the language or languages in which tenders and tendering documents 
must be submitted;   
 (d) the closing date and time for receipt of tenders and the length of time 
during which any tender should be open for acceptance;   
 (e) the persons authorized to be present at the opening of tenders and the 
date, time and place of this opening;   
 (f) any economic and technical requireme nt, financial guarantees and 
information or documents required from suppliers;    
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 (g) a complete description of the products or services required or of any 
requirements including technical specifications, conformity certification to be 
fulfilled, necessary plans, drawings and instructional materials;   
 (h) the criteria for awarding the contract, including any factors other than 
price that are to be considered in the evaluation of tenders and the cost 
elements to be included in evaluatin g tender prices, such as transport, 
insurance and inspection costs, and in the case of products or services of 
other Parties, customs duties and other import charges, taxes and currency 
of payment;   
 (i) the terms of payment;   
 (j) any other terms or con ditions;   
 (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.   
Forwarding of Tender Documentation by the Entities   
3. (a) In open procedures, entities shall forward the tender documentation 
at the request of any supplier participating in the procedure, and shall reply 
promptly to any reasonable request for explanations relating thereto.   
 (b) In selective procedures, entities shall forward the tender 
documentation at the request of any supplier requesting to participate, and 
shall reply promptly to any reasonable request for explanations relating 
thereto.   
 (c) Entities shall reply promptly to any reasonable request for relevant 
information submitted by a supplier participating in the tendering procedure, 
on condition that such information does not give that supplier an advantage 
over its competitors in the procedure for the award of the contract.   
Article  XIII 
Submission,  Receipt  and Opening  of Tenders  and Awarding  of Contracts   
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 of the telex, telegram or facsimile.  
Tenders presented by telephone shall not be permitted.  The content of the 
telex, telegram or facsimile shall prevail where there is a difference or conflict 
between that content and any documentation received after the time -limit; 
and  It has been suggested to  add "electronic means " to the list of possible 
methods for receiving bids (i.e. telex, telegram and facsimile).  
 
 It has been suggested to delete:  
 - the phrase "by mail " in the first sentence  
 - the second sentence which reads:  "The tender must be  
  confirmed promptly by letter or by the dispatch of a signed copy  
  of the telex, telegram or facsimile. " 
 
 It has been suggested that a definition of the term "writing " should be 
incorporated which would read: "The term 'writing ' as used in this Agreement is t o 
be understood to include any worded or numbered expression which can be read, 
reproduced, and later communicated, and includes electronically transmitted and 
stored information ".  
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 (b) the opportunities that may be given to tenderers to correct 
unintenti onal 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.   
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.  It has been suggested to add a provision to indicate that the means for submitting 
tenders may be specified by the procuring entity, provided that such means shall 
not reduce access by foreign and domestic suppliers.   
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 treatme nt 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.   
Award 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 com plies with the conditions for 
participation.  If an entity has received a tender abnormally lower than other 
tenders submitted, it may enquire with the tenderer to ensure that it can 
comply with the conditions of participation and be capable of fulfilling t he 
terms of the contract.   
(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 advantageou s. It has been said that the reference to "specific evaluation criteria " in this 
subparagraph should be clarified in the light of the relevant terms in Article  VIII(b).  
(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.   
Article  XIV 
Negotiation  It has been suggested that this article could be combined with Articles  VII and  X 
on tendering procedures.  
1. A Party may provide for entities to conduct negotiations:   
 (a) in the context of procurements in which they have indicated such 
intent, namely in the notice referred to in paragraph 2 of Article IX (the 
invitation to suppliers to participate in the procedure for the proposed 
procurement);  or   
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 (b) when it appears from evaluation that no one tender is obviously the 
most advantageous in terms of the specific evaluation criteria set forth in the 
notices or tender documentation.   
2. Negotiations shall primarily be used to identify the strengths and weaknesses 
in tenders.   
3. Entities shall treat tenders in confidence.  In particular, they shall not provide 
information intended to assi st particular participants to bring their tenders up to the 
level of other participants.   
4. Entities shall not, in the course of negotiations, discriminate between different 
suppliers.  In particular, they shall ensure that:   
 (a) any elimination of participants is carried out in accordance with 
the criteria set forth in the notices and tender documentation;   
 (b) all modifications to the criteria and to the technical 
requirements are transmitted in writing to all remaining 
participant s in the negotiations;   
 (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 s hall be permitted to submit final tenders in 
accordance with a common deadline.   
Article  XV 
Limited Tendering   
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 w ould constitute a means of discrimination among suppliers of other 
Parties or protection to domestic producers or suppliers:   
 (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 a re not substantially modified in the contract as awarded;   
 (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) in so far as is strictly necessary when, for reasons of extreme urgency 
brought about by events unforeseeable by the entity, the p roducts or 
services could not be obtained in time by means of open or selective 
tendering procedures;   
 (d) for additional deliveries by the original supplier which are intended 
either as parts replacement for existing supplies, or installations, or as th e   
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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 with already existing equipment 
or services5; 
 (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 procur ements of products or 
services shall be subject to Articles  VII through XIV6;  
 (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, thro ugh 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 s ince 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 c onstruction services may not exceed 50  per cent of the 
amount of the main contract;   
 (g) for new construction services consisting of the repetition of similar 
construction services which conform to a basic project for which an initial 
contract was awarded in accordance with Articles  VII through XIV and for 
which the entity has indicated in the notice of intended procurement 
concerning the initial construction service, that limited tendering procedures 
might be used in awarding contracts for such new  construction services;   
 (h) for products purchased on a commodity market;  It has been said that the Agreement 's coverage of procurements through 
commercially -run websites should be examined in the light of the provisions of 
paragraphs (h) and (i)  
 (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 r eceivership.  It is not intended to cover 
routine purchases from regular suppliers;   
 (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 t o the winners.  It has been suggested that the following paragraph should be added to this article:  
"(k) where there are only a limited number of suppliers who would be reliable in 
meeting the requisite standards and delivery schedule over the terms of the 
contract. " 
 
5 It is the understanding that "existing equipment " includes software to the extent that the initial procurement of the software was covered by th e Agreement.  
6 Original development of a first product or service may include limited production or supply in order to incorporate the resul ts 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 production or supply to establish 
commercial viability or to recover research and development costs.   
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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 Arti cles XVIII, XIX, XX 
and XXII.   
Article  XVI 
Offsets   
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  
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 con tent. Such requirements shall be used only for qualification to participate 
in the procurement process and not as criteria for awarding contracts.  Conditions 
shall be objective, clearly 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 existence of such conditions 
shall be notified to the Committee and included in the notice of intended procurement 
and other docum entation.   
Article  XVII  
Transparency   
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 f rom suppliers situated 
in countries not Parties to this Agreement but which, with a view to creating 
transparency in their own contract awards, nevertheless:   
 (a) specify their contracts in accordance with Article  VI (technical 
specifications);   
 (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 o f the WTO, an indication of the terms and conditions under which 
tenders shall be entertained from suppliers situated in countries Parties to 
this Agreement;   
 (c) are willing to ensure that their procurement regulations shall not 
normally change during a  procurement and, in the event that such change 
proves unavoidable, to ensure the availability of a satisfactory means of 
redress.   
 
7 Offsets in government procurement are measures used to encourage local development or imp rove the balance -of-payments accounts by means of domestic 
content, licensing of technology, investment requirements, counter -trade or similar requirements.   
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2. Governments not Parties to the Agreement which comply with the conditions 
specified in paragraphs 1(a) through 1(c), sha ll be entitled if they so inform the 
Parties to participate in the Committee as observers.   
Article  XVIII  
Information and Review as Regards Obligations of Entities   
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:   
 (a) the nature and quantity of products or services in the contract award;   
 (b) the name and address of the entity awarding the contract;   
 (c) the date of award;   
 (d) the name and address of winning tenderer;   
 (e) the value of the winning award or the highest and lowest offer taken 
into account in the award of the contract;   
 (f) where appropriate, means of identifying the notice issued under 
paragraph 1 of Article  IX or justification according to Article  XV for the use of 
such procedure;  and  
 (g) the type of procedure used.   
2. Each entity shall, on request from a supplier of a Party, promptly provide:   
 (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.   
3. Entities shall promptly inform participating suppliers of decisions on contract 
awards and, upon request, in writing.   
4. However, entities may decide that certain information on the contract award, 
contained in paragraphs  1 and 2(c), be withheld where re lease of such information 
would impede law enforcement or otherwise be contrary to the public interest or 
would prejudice the legitimate commercial interest of particular enterprises, public or 
private, or might prejudice fair competition between suppliers .  
Article XIX  
Information and Review as Regards Obligations of Parties   
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 requ est, to explain to any other Party its government procurement 
procedures.    
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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 th e 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 informa tion shall not be disclosed except after 
consultation with and agreement of the Party which gave the information to the 
government of the unsuccessful tenderer.   
3. Available information concerning procurement by covered entities and their 
individual con tract awards shall be provided, upon request, to any other Party.   
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 competition between suppliers shall not be revealed without formal 
authorization from the party providing the information.   
5. Each Party shall collect and provide to the Commi ttee on an annual basis 
statistics on its procurements covered by this Agreement.  Such reports shall contain 
the following information with respect to contracts awarded by all procurement 
entities covered under this Agreement:  A note by the Chair attemptin g to present a draft revision of the text of  
Article XIX:5 was circulated with Job No. on 9 February 1999.  
 (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 a nd 
broken down by entities;  for entities in Annexes  2 and 3, statistics on the 
estimated value of contracts awarded above the threshold value on a global 
basis and broken down by categories of entities;   
 (b) for entities in Annex  1, statistics on the number and total value of 
contracts awarded above the threshold value, broken down by entities and 
categories of products and services according to uniform classification 
systems;  for entities in Annexes  2 and 3, statistics on the estimated value of 
contra cts awarded above the threshold value broken down by categories of 
entities and categories of products and services;   
 (c) for entities in Annex  1, statistics, broken down by entity and by 
categories of products and services, on the number and total value  of 
contracts awarded under each of the cases of Article  XV; for categories of 
entities in Annexes  2 and 3, statistics on the total value of contracts awarded 
above the threshold value under each of the cases of Article  XV; and  
 (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 awar ded under 
derogations to the Agreement contained in the relevant Annexes.    
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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 o f subparagraphs (a) through (d) as regards the nature and the extent 
of statistical information to be provided and the breakdowns and classifications to be 
used.   
Article  XX 
Challenge Procedures   
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 acc ord impartial and timely consideration to any 
such complaint, in a manner that is not prejudicial to obtaining corrective measures 
under the challenge system.   
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 its challenge procedures in writing and make them 
generally available.   
4. Each Party shall ensure that documentation relating to all aspects of the 
process concerning procurements covered by this Agreement shall be retained for 
three years.   
5. The interested supplier may be required to initiate a challeng e 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. 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 t o judicial review or shall have 
procedures which provide that:   
 (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 procee dings;   
 (d) proceedings can take place in public;   
 (e) opinions or decisions are given in writing with a statement describing 
the basis for the opinions or decisions;   
 (f) witnesses can be presented;   
(g) documents are disclosed to the review body.    
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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 wr iting;  
 (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.   
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.  It has been suggested to add new paragraphs  9 to 11 which would read 
as follows:  
 "9. With a view to ensuring effective implementation and operation of 
this Agreement at all levels, Parties undertake to establish an independent 
authority specialized in public procurement.  This independent authority 
shall:  
  - serve as a contac t point for the rapid, informal solution  
 of problems encountered in gaining access to contracts;  
  - provide useful advice to contracting entities;  
  - have the power to intervene on its own initiative to check 
procurement practices in order to promote efficiency and to ensure that 
mandatory reporting requirements are complied with;  
  - be competent to receive any complaints from natural or 
legal persons concerning the application of this Agreement and competent 
also to lodge formal complaints o r otherwise take administrative or judicial 
action against contracting entities in case of breach of this Agreement in 
the context of a procurement procedure;  
  - perform surveillance and monitoring tasks;  
  - promote the use of preventive mechanisms aim ing to 
ensure that the market functions properly;   
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  - have sufficient resources to perform its tasks 
 effectively.  
 10. Parties shall notify the Committee of the authorities existing or established 
in their respective jurisdictions. Parties shall make clear the relationship between 
the independent authority and the review body.  
 
 11. Parties shall consider the establishment of special direct links 
between existing independent authorities providing for regular contacts 
and regular exchange of infor mation with a view to giving rapid and 
adequate solutions to problems arising in the application of the Agreement 
and to generally improving the functioning of the Agreement. " 
Article XXI  
Institutions   
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 consu lt 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 b odies 
which shall carry out such functions as may be given to them by the Committee.   
Article XXII  
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 Settlement Understanding ") shall be applicable except as otherwise 
specifically provided below .  
2. If any Party considers that any benefit accruing to it, directly or indirectly, 
under this Agreement is being nullified or impaired, or that the attainment of any 
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.    
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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.   
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 
recommendations or in giving the rulings provided for in this Agr eement. "  
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 t o 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.   
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 part ies 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 for eseen 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 t o 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 rulings, within 60 days.   
7. Notwithstanding paragraph  2 of Article 22 of the Dispute Sett lement 
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 disput e 
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.   
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Article  XXIII  
Exceptions to the Agreement   
1. Nothing in this Agreement shall be construed to prevent any Party from taking 
any action or not disclosing any information which it considers necessary for the 
protection of its essential security interests relating to the procurement of arms, 
ammunition or war materials, or to procurement indispensable for national security 
or for national defence purposes.  It has been suggested that the provisions of Article XXIII should be aligned with 
those in the corresponding provisions of GATT 1994.  
2. Subject to the requirement that such measures ar e 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 pre vent 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 instit utions or of prison 
labour.   
Article  XXIV  
Final Provisions   
1. Acceptance and Entry into Force   
 This Agreement shall enter into force on 1 January 1996 for those 
governments8 whose agreed coverage is contained in Annexes 1 through 5 of 
Appendix I of this Agreement and which have, by signature, accepted the Agreement 
on 15 April 1994 or have, by that date, signed the Agreement subject to ratification 
and subsequently ratified t he Agreement before 1 January 1996.   
2. Accession   
 Any government which is a Member of the WTO, or prior to the date of entry 
into force of the WTO Agreement which is a contracting party to GATT  1947, and 
which is not a Party to this Agreement may accede to this Agreement on terms to be 
agreed between that government and the Parties.  Accession shall take place by 
deposit with the Director -General of the WTO of an instrument of accession which 
states the terms so agreed.  The Agreement shall enter int o force for an acceding 
government on the 30th day following the date of its accession to the Agreement.   
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  
 
8 For the purpose of this Agreement, the term "government " is deemed to include the competent authorities of the European Communities.   
  GPA/TN1994/2  
 
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"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.  
 (c) Between Parties to this Agreement which are a lso Parties to the 1988 
Agreement, the rights and obligations of this Agreement shall supersede 
those under the 1988 Agreement.   
 (d) Article  XXII shall not enter into force until the date of entry into force 
of the WTO Agreement.  Until such time, the pro visions of Article  VII of the 
1988 Agreement shall apply to consultations and dispute settlement under 
this Agreement, which provisions are hereby incorporated in the Agreement 
by reference for that purpose.  These provisions shall be applied under the 
auspices of the Committee under this Agreement.   
 (e) Prior to the date of entry into force of the WTO Agreement, references 
to WTO bodies shall be construed as referring to the corresponding GATT 
body and references to the Director -General of the WTO and to the WTO 
Secretariat shall be construed as references to, respectively, the Director -
General to the CONTRACTING PARTIES to GATT 1947 and to the GATT 
Secretariat.    
4. Reservations   
 Reservations may not be entered in respect of any of the provisions of this 
Agreement.   
5. National  Legislation   
 (a) Each government accepting or acceding to this Agreement shall 
ensure, not later than the date of entry into force of this Agreement for it, 
the conformity of its laws, regulations and administr ative procedures, and 
the rules, procedures and practices applied by the entities contained in its 
lists annexed hereto, with the provisions of this Agreement.   
 (b) Each Party shall inform the Committee of any changes in its laws and 
regulations relevant to this Agreement and in the administration of such laws 
and regulations.   
6. Rectifications  or Modifications   
 (a) Rectifications, transfers of an entity from one Annex to another or, in 
exceptional cases, other modifications relati ng 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 rights and obligations and a comparable  
 
9 All provisions of the 1988 Agreement except the Preamble, Article  VII and Article  IX other than paragraphs 5(a) and (b) and paragraph 10.   
  GPA/TN1994/2  
 
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level of mutually agreed coverage provided in this Agreement prior to such 
notification.  In the event of agreement not being reached, the ma tter may 
be pursued in accordance with the provisions contained in Article  XXII. 
 (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 compens atory adjustment, allowance shall be made for the 
market -opening effects of the removal of government control or influence.  It has been suggested that the provisions of this article should be clarified.  
 
It has also been suggested that certain criteria for the removal of entities should 
be developed in order to make this Article more operational.  
7. Reviews, Negotiations  and Future Work   
 (a) The Committee shall review annually the implementation and 
operation of this Agreement taking into account the objectives thereof.  The 
Committee shall annually inform the General Council of the WTO of 
developments during the periods covered by such reviews.   
 (b) Not later than the end of the third year from the date of entry into 
force of this Agreeme nt and periodically thereafter, the Parties thereto shall 
undertake further negotiations, with a view to improving this Agreement and 
achieving the greatest possible extension of its coverage among all Parties 
on the basis of mutual reciprocity, having reg ard to the provisions of Article  V 
relating to developing countries.   
 (c) Parties shall seek to avoid introducing or prolonging discriminatory 
measures and practices which distort open procurement and shall, in the 
context of negotiations under subparag raph (b), seek to eliminate those 
which remain on the date of entry into force of this Agreement.   
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 -discriminatory and efficient 
government procurement through transparent procedures, that contracts covered 
under the Agreement are clearly identified and that all available information relating 
to a particular contract can be identified.  When a Party intends to innovate, it shall 
endeavour to take into account the views expressed by other Parties regarding any 
potential problems.   
9. Amendments   
 Parties may amend this Agreement having regard, inter alia, to the experience 
gained in its implementation.  Such an amendment, once the Parties have concurred 
in accordance with the procedures established by the Committee, shall not enter into 
force for any Party until it has been accepted by such Party .   
  GPA/TN1994/2  
 
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10. Withdrawal   
 (a) Any Party may withdraw from this Agreement.  The withdrawal shall 
take effect upon the expiration of 60 days from the date on which written 
notice of withdrawal is received by the Director -General of the WTO.  Any 
Party may upon such notification request an immediate meeting of the 
Committee.   
 (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 ceas e to be a Party to this 
Agreement with effect from the same date.   
11. 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.   
12. Notes,  Appendices and Annexes   
 The Notes, Appendices and Annexes to this Agreement constitute an integral 
part thereof.   
13. Secretariat   
 This Agreement shall be serviced by the WTO Secretariat.   
14. Deposit   
 This Agreement shall be deposited with the Director -General of the WTO, who 
shall promptly furnish to each Party a certified true copy of this Agreement, of each 
rectification or modification thereto pursuant to paragraph  6 and of each amendment 
thereto pursuant to paragraph  9, and a notification of each acceptance thereof or 
accession thereto pursuant to paragraphs  1 and 2 and of each withdrawal therefrom 
pursuant to paragraph  10 of this Article.   
15. Registration   
 This Agreement shall be registered in accordance with the provisions of Article 
102 of the Charter of the United Nations.   
 Done at Marrakesh this fifteenth day of April one thousand nine hundred and 
ninety -four in a single copy, in the English, French an d Spanish languages, each text 
being authentic, except as otherwise specified with respect to the Appendices hereto.   GPA/TN1994/2  
 
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  ATTACHMENT  
OUTLINE OF A POSSIBLE FUTURE STRUCTURE FOR THE GPA  
("À DROIT CONSTANT ") 
 The restructuring should consist of four sequential elements:  
 
1. deletion of those provisions relating to the entry into force of the WTO and transitional 
periods which have now exp ired (such as Article XXIV:3(a), (b), (d) and (e));  
 
2. grouping related provisions together to follow general WTO practice on structure of 
agreements and the procurement procedure more closely, as well as to facilitate ease of 
use; 
 
3. renaming Articles t o more closely reflect their content;  and  
 
4. renumbering the Articles in the new structure to make them consecutive.  
 
 A possible revised structure of the main body of the GPA (not addressing the 
Preamble or the Appendices) based on these elements is set out below.  It is not intended to be 
exhaustive.  Neither does it take account of the fact that several Articles may need to be either 
clarified or reformulated - for example, the existing Articles XI and XII.  
 
A. SCOPE AND COVERAGE OF THE AGREEMENT  
 
 Article 1  Scope and coverage (was Article I)  
 
 Article 2  Valuation of contracts (was Article II)  
 
B. BASIC PRINCIPLES  
 
 Article 3  Publication of legislation (was Article XIX:1)  
 [This could also be moved to Part D]10 
 
 Article 4  National treatmen t and MFN (was Article XIX:1)  
 
 Article 5  Rules of origin (products and services) (was Article IV)  
 [NB: This Article contains an in -built review mechanism]  
 
 Article 6  Offsets (was Article XVI)  
 
 Article 7  Access of non -Parties to the Agreement (was Article XVI:1)  
 
C. PROCUREMENT PROCEDURES  
 
 Article 8  Methods of procurement (was Article VII)  
 
 Article 9  Use of the selective tendering procedure (was Article X)  
 
 Article 10  Use of the limited tendering procedure (was Article XV)  
 
 Article 11  Qualificat ion requirements for suppliers (was Article VIII)  
 
 Article 12  Technical specifications (was Article VI)  
 
 
10 In commenting on this proposal, it ha s been suggested that Article XIX:1 on publication of basic 
legislation should be placed between sections B and C.  GPA/TN1994/2  
 
- 30 - 
 
   Article 13  Information to bidders:  notices (was Article IX)  
 Article 14  Information to bidders:  tender documentation (was Article XII)  
 
 Article 15  Time-limits for the submission of bids (was Article XI)  
 
 Article 16  Submission, receipt and opening of tenders (was Article  XIII:1 -3 + 
Article  XXII:1)  
 [This Article could be further split]  
 
 Article 17  Negotiation (was Article XIV)  
 
 Article 18  Award of contracts (was Article XIII:4 -5) 
 
 Article 19  Information on contracts awarded (was Article XVIII:1, 3, 4)  
 
C.1 BID REVIEW  
 
 Article 20  Information obligations of entities (was Article XVIII:2)  
 
 Article 21  Challenge procedures (was Article XX)  
 
D. INSTITUTIONAL PROVISIONS  
 
 (This chapter could be divided into different chapters, for instance exceptions to the 
Agreement + Article on developing countries could be a different chapter called "Exceptions to the 
Agreement ".) 
 
 Article 22  Information oblig ation of Parties (was Article XIX:2 -4) 
 
 Article 23  Exceptions to the Agreement (was Article XXIII)  
 
 Article 24  Special treatment for developing countries (was Article V)  
 [NB: This Article has an in -built review mechanism]  
 
 Article 25  Statistical report ing requirements (was Article XIX:5)  
 [NB: This Article has in -built review mechanism]  
 
 Article 26  Institutions (was Article XXI)  
 
 Article 27  Consultations and dispute settlement (was Article XXII)  
 
 Article 28  Final provisions (was Article XXIV and Article XVII:2 on observer 
   status)  
 
 
__________  