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
(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.
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.
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.
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 complies with the
conditions for participation. If an entity has received a tender
abnormally lower than other tenders submitted, it may enquire with the
tenderer to ensure that it can comply with the conditions of
participation and be capable of fulfilling the terms of the contract.
(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.
(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 back to top
1.
A Party may provide for entities to conduct negotiations:
(a) in the context of procurements in which they have indicated
such intent, namely in the notice referred to in paragraph 2 of
Article IX (the invitation to suppliers to participate in the
procedure for the proposed procurement); or
(b) when it appears from evaluation that no one tender is obviously
the most advantageous in terms of the specific evaluation criteria set
forth in the notices or tender documentation.
2.
Negotiations shall primarily be used to identify the strengths
and weaknesses in tenders.
3.
Entities shall treat tenders in confidence. In particular, they
shall not provide information intended to assist particular
participants to bring their tenders up to the level of other
participants.
4.
Entities shall not, in the course of negotiations, discriminate
between different suppliers. In particular, they shall ensure that:
(a) any elimination of participants is carried out in accordance
with the criteria set forth in the notices and tender documentation;
(b) all modifications to the criteria and to the technical
requirements are transmitted in writing to all remaining participants
in the negotiations;
(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.
Article XV: Limited
Tendering back to top
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 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 are 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
products 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 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 with already existing equipment or services(5);
(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 be subject to Articles VII
through XIV(6);
(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 construction 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;
(i) for purchases made under exceptionally advantageous conditions
which only arise in the very short term. This provision is intended to
cover unusual disposals by firms which are not normally suppliers, or
disposal of assets of businesses in liquidation or receivership. It is
not intended to cover routine purchases from regular suppliers;
(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.
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.
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 content. Such
requirements shall be used only for qualification to participate in
the procurement process and not as criteria for awarding contracts.
Conditions shall be objective, clearly 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 documentation.
Article XVII: Transparency back to top
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:
(a) specify their contracts in accordance with Article VI
(technical specifications);
(b) publish the procurement notices referred to in Article IX,
including, in the version of the notice referred to in paragraph 8
of Article IX (summary of the notice of intended procurement)
which is published in an official language of the WTO, an indication
of the terms and conditions under which tenders shall be entertained
from suppliers situated in countries Parties to this Agreement;
(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.
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.
Article XVIII: Information
and Review as Regards Obligations of Entities back to top
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 release of such information would impede law enforcement or
otherwise be contrary to the public interest or would prejudice the
legitimate commercial interest of particular enterprises, public or
private, or might prejudice fair competition between suppliers.
Article
XIX:
Information and Review as Regards Obligations of Partiesback to top
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.
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 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 contract 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 Committee on an
annual basis statistics on its procurements covered by this Agreement.
Such reports shall contain the following information with respect to
contracts awarded by all procurement entities covered under this
Agreement:
(a) for entities in Annex 1, statistics on the estimated value
of contracts awarded, both above and below the threshold value, on a
global basis and broken down by entities; for entities in Annexes 2
and 3, statistics on the estimated value 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 contracts awarded above the
threshold value broken down by categories of entities and categories
of products and services;
(c) for entities in Annex 1, statistics, broken down by entity
and by categories of products and services, on the number and total
value of contracts awarded under each of the cases of Article XV;
for categories of entities in Annexes 2 and 3, statistics on the
total value of contracts awarded above the threshold value under each
of the cases of Article XV; and
(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 classifications to be used.
Article XX:
Challenge Procedures back to top
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.
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 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.
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:
(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;
(d) proceedings can take place in public;
(e) opinions or decisions are given in writing with a statement
describing the basis for the opinions or decisions;
(f) witnesses can be presented;
(g) documents are disclosed to the review body.
7.
Challenge procedures shall provide for:
(a) rapid interim measures to correct breaches of the Agreement and
to preserve commercial opportunities. Such action may result in
suspension of the procurement process. However, procedures may provide
that overriding adverse consequences for the interests concerned,
including the public interest, may be 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.
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.
Article XXI: Institutions back to top
1.
A Committee on Government Procurement composed of
representatives from each of the Parties shall be established. This
Committee shall elect its own Chairman and Vice-Chairman and shall
meet as necessary but not less than once a year for the purpose of
affording Parties the opportunity to consult on any matters relating
to the operation of this Agreement or the furtherance of its
objectives, and to carry out such other responsibilities as may be
assigned to it by the Parties.
2.
The Committee may establish working parties or other subsidiary
bodies which shall carry out such functions as may be given to them by
the Committee.
Article
XXII: Consultations and Dispute Settlement back to top
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.
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 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
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 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 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
Agreement of measures taken to comply with the recommendations and
rulings, within 60 days.
7.
Notwithstanding paragraph 2 of Article 22 of the Dispute
Settlement Understanding, any dispute arising under any Agreement
listed in Appendix 1 to the Dispute Settlement Understanding
other than this Agreement shall not result in the suspension of
concessions or other obligations under this Agreement, and any dispute
arising under this Agreement shall not result in the suspension of
concessions or other obligations under any other Agreement listed in
the said Appendix 1.
Article XXIII: Exceptions
to the Agreement back to top
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.
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.
Article XXIV:
Final Provisions back to top
1.
Acceptance and Entry into Force
This
Agreement shall enter into force on 1 January 1996 for those
governments(8) 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 the
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 into 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 “1988 Agreement”) shall
be governed by the substantive(9) 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 also 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 provisions
of Article VII of the 1988 Agreement shall apply to consultations
and dispute settlement under this Agreement, which provisions are
hereby incorporated in the Agreement by reference for that purpose.
These provisions shall be applied under the auspices of the Committee
under this Agreement.
(e) Prior to the date of entry into force of the WTO Agreement,
references to WTO bodies shall be construed as referring to the
corresponding GATT body and references to the Director-General of the
WTO and to the WTO Secretariat shall be construed as references to,
respectively, the Director-General to the CONTRACTING PARTIES to GATT
1947 and to the GATT Secretariat.
4.
Reservations
Reservations may not be entered in respect of any of the
provisions of this Agreement.
5.
National Legislation
(a) Each government accepting or acceding to this Agreement shall
ensure, not later than the date of entry into force of this Agreement
for it, the conformity of its laws, regulations and administrative
procedures, and the rules, procedures and practices applied by the
entities contained in its lists annexed hereto, with the provisions of
this Agreement.
(b) Each Party shall inform the Committee of any changes in its
laws and regulations relevant to this Agreement and in the
administration of such laws and regulations.
6.
Rectifications or Modifications
(a) Rectifications, transfers of an entity from one Annex to
another or, in exceptional cases, other modifications relating to Appendices I
through IV shall be notified to the Committee, along with information
as to the likely consequences of the change for 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 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.
(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.
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 Agreement and periodically thereafter, the Parties
thereto shall undertake further negotiations, with a view to improving
this Agreement and achieving the greatest possible extension of its
coverage among all Parties on the basis of mutual reciprocity, having
regard to the provisions of Article V relating to developing
countries.
(c) Parties shall seek to avoid introducing or prolonging
discriminatory measures and practices which distort open procurement
and shall, in the context of negotiations under subparagraph (b), seek
to eliminate those which remain on the date of entry into force of
this Agreement.
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.
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 cease to be a
Party to this Agreement with effect from the same date.
11.
Non-application of this Agreement between Particular Parties
This Agreement 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 and Spanish
languages, each text being authentic, except as otherwise specified
with respect to the Appendices hereto.
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.
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