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I. Preamble back to top
A. Text of the Preamble
Parties
to this Agreement (hereinafter referred to as “Parties”),
Recognizing
the need for an effective multilateral framework of rights and
obligations with respect to laws, regulations, procedures and practices
regarding government procurement with a view to achieving greater
liberalization and expansion of world trade and improving the
international framework for the conduct of world trade;
Recognizing
that laws, regulations, procedures and practices regarding government
procurement should not be prepared, adopted or applied to foreign or
domestic products and services and to foreign or domestic suppliers so
as to afford protection to domestic products or services or domestic
suppliers and should not discriminate among foreign products or services
or among foreign suppliers;
Recognizing
that it is desirable to provide transparency of laws, regulations,
procedures and practices regarding government procurement;
Recognizing
the need to establish international procedures on notification,
consultation, surveillance and dispute settlement with a view to
ensuring a fair, prompt and effective enforcement of the international
provisions on government procurement and to maintain the balance of
rights and obligations at the highest possible level;
Recognizing
the need to take into account
the development, financial and trade needs of developing countries, in
particular the least-developed countries;
Desiring,
in accordance with paragraph 6(b) of
Article IX of the
Agreement on Government Procurement done on 12 April 1979, as amended on
2 February 1987, to broaden and improve the Agreement on the basis of
mutual reciprocity and to expand the coverage of the Agreement to
include service contracts;
Desiring to encourage acceptance of and accession to this
Agreement by governments not party to it;
Having undertaken further negotiations in pursuance of these
objectives;
Hereby
agree as follows:
B. Interpretation and Application of the Preamble
(a) “to expand the coverage of the Agreement to include service
contracts”
1. The Panel in Korea — Procurement recalled the
background to the Agreement on Government Procurement, including its
expansion to cover services:
“The original Agreement on Government Procurement was negotiated
during the Tokyo Round of trade negotiations and was done in Geneva on
12 April 1979 (“Tokyo Round Agreement”). This Agreement was amended
following negotiations in pursuance of Article IX:6(b) through a
Protocol which entered into force on 14 February 1988. During the
Uruguay Round of Trade Negotiations, Parties to the Tokyo Round
Agreement held further negotiations in the context of an Informal
Working Group,(2) which involved the broadening of entity
coverage, expansion of the coverage to services and construction
services and further improvements of the text of the Agreement.”(3)
2. The Panel in
US — Large Civil Aircraft (2nd Complaint)
referred to the sixth recital of the Preamble (and also Article
I) of
the Agreement on Government Procurement, in the context of interpreting
the definition of a subsidy found in Article 1 of the SCM
Agreement. The
Panel concluded that transactions properly characterized as purchases of
services are excluded from the scope of Article 1 of the SCM
Agreement,
which expressly refers to purchases of goods but omits any reference to
purchases of services. In the course of its analysis, the Panel observed
that “while the SCM Agreement was being negotiated, the parties to the
plurilateral Tokyo Round Procurement Code were in the process of
extending the scope and coverage of that agreement to cover purchases of
services” and referred to the sixth recital of the Preamble (and also
to Article I) of the WTO Agreement on Government
Procurement.(4)
The Panel concluded that when the omission of “purchases” of “services”
from the text of Article 1 of the SCM Agreement is read against this
historical background, it offers further confirmation that the drafters
of that provision could not have removed the express reference to “purchases”
of “services” from Article 1 of the SCM Agreement on the
understanding that the reference was superfluous.(5)
II. Article I
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A. Text of Article I
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)
(footnote original) 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 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.
3. Where entities, in the context of procurement covered under this
Agreement, require enterprises not included in Appendix I to award
contracts in accordance with particular requirements, Article III shall
apply mutatis mutandis to such requirements.
4. This Agreement applies to any procurement contract of a value of
not less than the relevant threshold specified in Appendix
I.
B. Interpretation and Application of Article I
1. General
3. The Panel in Korea — Procurement provided a general
overview of the scope and coverage of the Agreement on Government
Procurement:
“The GPA establishes an agreed framework of rights and obligations
among its Parties with respect to their national laws, regulations,
procedures and practices in the area of government procurement.
The obligations under the Agreement apply to procurement:
(a) by procuring entities that each Party has listed in
Annexes 1 to
3 of Appendix I relating respectively to “central government entities,”
“sub-central government entities” and “other entities”;
(b) of all products; and
(c) of services and construction services that are specified in lists
found respectively in Annexes 4 and
5 of Appendix
I.
Furthermore, GPA coverage under each of the Annexes is contingent
upon certain threshold values being exceeded. These threshold values are
expressed in terms of Special Drawing Rights (SDRs). GPA coverage under
each of the Annexes is also contingent upon the various notes found in
the Annexes.”(6)
2. Article I:1
(a) “procurement”
4. In US — Large Civil Aircraft
(2nd Complaint), the Panel
found that transactions properly characterized as purchases of services
are excluded from the scope of Article 1 of the SCM
Agreement, and then
proceeded to address the question of whether the transactions at issue
were properly characterized as “purchases of services”. In that
context, the Panel made reference to prior GATT panel reports examining
the question of whether a transaction was properly characterized as a
government “procurement”. The Panel in US — Large Civil
Aircraft (2nd Complaint) stated:
“In the Panel’s view, whether or not NASA’s R&D contracts
with Boeing are properly characterized as a “purchase of services”
depends on the nature of the work that Boeing was required to
perform under the contracts, and more specifically, whether the
R&D that Boeing was required to conduct was principally for its own
benefit and use, or whether it was principally for the benefit and use
of the U.S. Government (or unrelated third parties). This for
several reasons. First, the Panel considers that NASA’s R&D
contracts with Boeing should be characterized based on their terms,
and the core term of these contracts is the work that Boeing was
required to perform. Second, it is inherent in the ordinary meaning of
the concept of a “service” that the work performed be for the
benefit and use of the entity funding the R&D (or unrelated third
parties). Third, characterizing the transactions on the basis of whether
the R&D that Boeing was required to conduct was principally for its
own benefit and use, or whether it was principally for the benefit and
use of the U.S. Government (or unrelated third parties), is broadly
consistent with the arguments of the parties and third parties in this
case. Fourth, focusing on whether the work performed was principally for
the benefit and use of the government (or unrelated third parties) is
consistent with prior GATT panel reports examining the question of
whether a transaction was properly characterized as a government
procurement.”(7)
5. Regarding the prior GATT panel reports examining the question of
whether a transaction was properly characterized as a government
procurement, the Panel explained that:
“In US — Sonar Mapping, the panel stated that “{w}hile
not intending to offer a definition of government procurement within the
meaning of Article I:1(a) {of the Tokyo Round Agreement on Government
Procurement}, the Panel felt that in considering the facts of any
particular case the following characteristics, none of which alone could
be decisive, provide guidance as to whether a transaction should be
regarded as government procurement within the meaning of Article I:1(a):
payment by government, governmental use of or benefit from the
product, government possession and government control over the
obtaining of the product”. The panel concluded that in that case, the
government agency would “enjoy the benefits of the system’s
purchase — Antarctic research and the preparation of seabed maps — which were clearly for government purposes, and the Government
can thus be regarded as the ultimate beneficiary of the system”.
(GATT Panel Report, US — Sonar Mapping, paras. 4.7 and 4.10
(emphasis added). See also, GATT Panel Report, Norway — Trondheim,
paras. 4.8–4.13.)”(8)
(b) “entities covered by this Agreement, as specified in Appendix I”
6. The Panel on Korea — Procurement examined whether several
entities concerned at successive stages with the procurement of airport
construction in Korea, specifically the Korean Airport Construction
Authority (KOACA), Korea Airports Authority (KAA) and the Inchon
International Airport Corporation (IIAC) were within the scope of Korea’s
list of “central government entities” as specified in Annex 1 of
Korea’s obligations in Appendix I of the Agreement on Government
Procurement. The United States contended that the practices of these
entities were inconsistent with Korea’s obligations under the
Agreement on Government Procurement. In this regard, the Panel noted:
“A critical question we must first address is determining what is
explicitly contained in Korea’s Schedule. A preliminary issue is the
status of Note 1 to Annex 1, in particular the extent to which Parties
can qualify the coverage of listed entities through such Notes. In our
view, Members determine, pursuant to negotiation, the scope of the
coverage of their commitments as expressed in the Schedules. In this
regard, we take note of the panel finding in United States —
Restrictions on Imports of Sugar (‘United States — Sugar’) wherein
the panel observed that Headnotes could be used to qualify the tariff
concessions themselves.”(9)
7. Accordingly, the Panel noted that:
“[T]he first step of the analysis, therefore, will be to examine
Korea’s Schedule and determine whether, within the ordinary meaning of
the terms therein, the entity responsible for Inchon International
Airport (IIA) procurement is covered. This will include a review of all
relevant Annexes and Notes.”(10)
8. In light of the fact that the Ministry of Construction and
Transportation (“MOCT”) was included in the list of central
government entities in Annex 1 to Korea’s Schedule, the Panel went on
to consider whether “there exists the possibility of the inclusion of
certain procurements of an entity which is not listed, due to its
relationship with a listed entity”:
“[T]here is a remaining question as to whether there exists the
possibility of the inclusion of certain procurements of an entity which
is not listed, due to its relationship with a listed entity. These
arguably are general issues which arise with respect to any Member’s
Schedule regardless of the structure and content of the Schedule and any
qualifying Notes.”(11)
9. The Panel eventually rejected the United States’ argument that
KAA could be considered a part of MOCT because it was controlled, at
least for the purposes of the IIA project, by MOCT. The Panel noted in
this respect that:
“There is no use of the term ‘direct control’ or even ‘control’
in the sense that the United States wishes to use it. It has not been
defined in this manner either in the context used in the Tokyo Round
Agreement or elsewhere. We cannot agree with the overall US position
that a ‘control’ test should be read into the GPA. However, we also
do not think that it is an entirely irrelevant question. We think the
issue of ‘control’ of one entity over another can be a relevant
criterion among others for determining coverage of the GPA, as discussed
below.
…
[W]e do believe that entities that are not listed in an
Annex 1 to
the GPA whether in the Annex list or through a Note to the Annex, can,
nevertheless, be covered under the GPA. We believe that this flows from
the fact that an overly narrow interpretation of ‘central government
entity’ may result in less coverage under Annex 1 than was intended by
the signatories. On the other hand, an overly broad interpretation of
the term may result in coverage of entities that were never intended to
be covered by signatories.”(12)
10. The Panel on Korea — Procurement then put forward two
criteria for answering the question referenced in paragraph 8
above:
“In the present case, our view is that the relevant questions are:
(1) Whether an entity (KAA, in this case) is essentially a part of a
listed central government entity (MOCT) — in other words, are the
entities, legally unified? and (2) Whether KAA and its successors have
been acting on behalf of MOCT. The first test is appropriate because if
entities that are essentially a part of, or legally unified with, listed
central government entities are not considered covered, it could lead to
great uncertainty as to what was actually covered because coverage would
be dependent on the internal structure of an entity which may be unknown
to the other negotiating parties. The second test is appropriate because
procurements that are genuinely undertaken on behalf of a listed entity
(as, for example, in the case where a principal/agent relationship
exists between the listed entity and another entity) should properly be
covered under Annex 1 because they would be considered legally as
procurements by MOCT. In our view, it would defeat the objectives of the
GPA if an entity listed in a signatory’s Schedule could escape the
Agreement’s disciplines by commissioning another agency of government,
not itself listed in that signatory’s Schedule, to procure on its
behalf.”(13)
11. With respect to the first question, the Panel, persuaded on
balance by the indicia of independence of KAA and its successors, found
that KAA was not legally unified with or a part of MOCT, basing itself
on the following criteria:
“KAA was established by law as an independent juristic entity; it
authored and adopted its own by-laws; it had its own management and
employees who were not government employees; it published bid
announcements and requests for proposals of its own accord; it concluded
contracts with successful bidders on its own behalf; and it funded
portions of the IIA project with its own monies.”(14)
12. With regard to the question whether or not KAA and its successors
were acting on behalf of MOCT, at least with respect to the IIA project
(i.e. whether the IIA project was really the legal responsibility of
MOCT), the Panel, after having reviewed the laws governing construction
of the IIA as well as other factual evidence regarding involvement of
MOCT in the IIA project, found that:
“[T]here certainly is a role under Korean law for MOCT in the IIA
project. It appears to be a role of oversight. We do not think oversight
by one governmental entity of a project which has been delegated by law
to another entity (which we have already found to be independent and not
covered by GPA commitments) results in a conclusion that there is an
agency relationship between them.”(15)
13. The Panel ultimately concluded that:
“[T]he IIA construction project was not covered as the entities
engaged in procurement for the project are not covered entities within
the meaning of Article I of the GPA. Furthermore, the kind of
affiliation that we have concluded is necessary to render an unlisted
entity subject to the GPA is not present in this case. Therefore, we do
not need to proceed further and make specific findings with respect to
the alleged inconsistencies of Korea’s procurement practices in this
regard.”(16)
(c) Loose-leaf system for updating appendices
14. At its meeting of 4 June 1996, the Committee on Government
Procurement decided to establish a loose-leaf system with legal effect
to periodically update the Appendices to the Agreement on Government
Procurement.(17) At its meeting on 24 February 1997, the
Committee on Government Procurement agreed on the procedures for
subsequent modifications to the loose-leaf system.(18) With a
view to providing a starting point for the loose-leaf system, the
Secretariat circulated in document GPA/W/35 of 5 February 1997 a draft
set of Appendices that reflected the Appendices attached to the
Agreement as signed at Marrakesh and the subsequent rectifications,
modifications and new concessions made under the procedures adopted by
the Interim Committee and under the Agreement itself. An updated version
was made available to Parties in document GPA/W/35/Rev. 1 of 8 July
1999. The Procedures for Future Changes to the Loose-Leaf System for
Appendices to the Agreement are set out in document GPA/W/110 of 7 March
2000.
15. In addition to being made available in hard-copy form, the
loose-leaf system and future new or replacement pages are circulated to
parties and other WTO Members in electronic form through the WTO
Document Dissemination Facility. An up-to-date copy of the loose-leaf
system is also available to the general public through the government
procurement site on the WTO Home Page on the Internet.(19)
16. In 2009, the Status of Notifications by Parties to the GPA,
including with respect to: (i) changes in national laws and regulations;
(ii) statistical reports; (iii) rectifications and modifications to
Parties’ Appendices; and (iv) the value of applicable thresholds in
national currencies was set out in a Note by the Secretariat.(20)
3. Article I:3
17. In Korea — Procurement, the Panel found that
Article I:3
was not applicable to the situation before it. The Panel stated that:
“We note that Korea raised the question of the applicability of GPA
Article I:3 to the present situation. This provision reads as follows:
“Where entities, in the context of procurement covered under this
Agreement, require enterprises not included in Appendix I to award
contracts in accordance with particular requirements, Article III shall
apply mutatis mutandis to such requirements.”
This provision applies “in the context of procurement covered by
this Agreement.” This implies that it is already agreed that there is
a covered entity with procurement under its responsibility. Here the
question is whether the entity in question, KAA, is covered. The
provision also refers to a covered entity requiring a particular enterprise
to award contracts for a project. It is unclear what guidance this
provides when reviewing the relationship of two entities. Thus, we do
not think this provision provides guidance in the present situation.”(21)
4. Article I:4
18. At its meeting of 27 February 1996, the Committee on Government
Procurement decided on the “Modalities for Notifying Threshold Figures
in National Currencies”.(22)
19. In 2009, the Status of Notifications by Parties to the GPA,
including with respect to: (i) changes in national laws and regulations;
(ii) statistical reports; (iii) rectifications and modifications to
Parties’ Appendices; and (iv) the value of applicable thresholds in
national currencies was set out in a Note by the Secretariat.(23)
III. Article II back to top
A. Text of Article II
Article II: Valuation of Contracts
1. The following provisions shall apply in determining the value of
contracts(2) for purposes of implementing this Agreement.
(footnote
original) 2 This Agreement shall apply to any
procurement contract for which the contract value is estimated to equal
or exceed the threshold at the time of publication of the notice in
accordance with Article IX.
2. 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
(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 an 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.
B. Interpretation and Application of Article II
No jurisprudence or decision of a competent WTO body.
IV. Article III
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A. Text of Article III
Article III: National Treatment and Non-discrimination
1. With respect to all laws, regulations, procedures and practices
regarding government procurement covered by this Agreement, each Party
shall provide immediately and unconditionally to the products, services
and suppliers of other Parties offering products or services of the
Parties, treatment no less favourable than:
(a) that accorded to domestic products, services and suppliers; and
(b) that accorded to products, services and suppliers of any other
Party.
2. With respect to all laws, regulations, procedures and practices
regarding government procurement covered by this Agreement, each Party
shall ensure:
(a) that its entities shall not treat a locally-established supplier
less favourably than another locally-established supplier on the basis
of degree of foreign affiliation or ownership; and
(b) that its entities shall not discriminate against
locally-established suppliers on the basis of the country of production
of the good or service being supplied, provided that the country of
production is a Party to the Agreement in accordance with the provisions
of Article IV.
3. The provisions of
paragraphs 1 and 2 shall not apply to customs
duties and charges of any kind imposed on or in connection with
importation, the method of levying such duties and charges, other import
regulations and formalities, and measures affecting trade in services
other than laws, regulations, procedures and practices regarding
government procurement covered by this Agreement.
B. Interpretation and Application of Article III
No jurisprudence or decision of a competent WTO body.
V. Article IV
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A. Text of Article IV
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 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.
B. Interpretation and Application of Article IV
No jurisprudence or decision of a competent WTO body.
VI. Article V
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A. Text of Article V
Article V: Special and Differential 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 establishment or development of domestic industries
including the development of small-scale and cottage industries in rural
or backward areas; and economic development of other sectors of the
economy;
(c) support industrial units so long as they are wholly or
substantially dependent on government procurement; and
(d) encourage their economic development through regional or global
arrangements among developing countries presented to the Ministerial
Conference of the World Trade Organization (hereinafter referred to as
the “WTO”) and not disapproved by it.
2. Consistently with the provisions of this Agreement, each Party
shall, in the preparation and application of laws, regulations and
procedures affecting government procurement, facilitate increased
imports from developing countries, 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.
Agreed Exclusions
4. A developing country may negotiate with other participants in
negotiations under this Agreement mutually acceptable exclusions from
the rules on national treatment with respect to certain entities,
products or services that are included in its coverage lists, having
regard to the particular circumstances of each case. In such
negotiations, the considerations mentioned in subparagraphs 1(a) through
1(c) shall be duly taken into account. A developing country
participating in regional or global arrangements among developing
countries referred to in subparagraph 1(d) may also negotiate exclusions
to its lists, having regard to the particular circumstances of each
case, taking into account, inter alia, the provisions on
government procurement provided for in the regional or global
arrangements concerned and, in particular, products or services which
may be subject to common industrial development programmes.
5. After entry into force of this Agreement, a developing country
Party may modify its coverage lists in accordance with the provisions
for modification of such lists contained in paragraph 6 of Article
XXIV,
having regard to its development, financial and trade needs, or may
request the Committee on Government Procurement (hereinafter referred to
as “the Committee”) to grant exclusions from the rules on national
treatment for certain entities, products or services that are included
in its coverage lists, having regard to the particular circumstances of
each case and taking duly into account the provisions of subparagraphs
1(a) through 1(c). After entry into force of this Agreement, a
developing country Party may also request the Committee to grant
exclusions for certain entities, products or services that are included
in its coverage lists in the light of its participation in regional or
global arrangements among developing countries, having regard to the
particular circumstances of each case and taking duly into account the
provisions of subparagraph 1 (d). Each request to the Committee by a
developing country Party relating to modification of a list shall be
accompanied by documentation relevant to the request or by such
information as may be necessary for consideration of the matter.
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 country
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:
- the solution of particular technical problems relating to the
award of a specific contract; and
- any other problem which the Party making the request and another
Party agree to deal with in the context of this assistance.
10. Technical assistance referred to in
paragraphs 8 and 9 would
include translation of qualification documentation and tenders made by
suppliers of developing country Parties into an official language of the
WTO designated by the entity, unless developed country Parties deem
translation to be burdensome, and in that case explanation shall be
given to developing country Parties upon their request addressed 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 government
procurement, notices about intended procurements which have been
published, addresses of the entities covered by this Agreement, and the
nature and volume of products or services procured or to be procured,
including available information about future tenders. The Committee may
also set up an information centre.
Special Treatment for Least-Developed Countries
12. Having regard to paragraph 6 of the Decision of the CONTRACTING
PARTIES to GATT 1947 of 28 November 1979 on Differential and More
Favourable Treatment, Reciprocity and Fuller Participation of Developing
Countries (BISD 26S/203–205), special treatment shall be granted to
least-developed country Parties and to the suppliers in those Parties
with respect to products or services originating in those Parties, in
the context of any general or specific measures in favour of developing
country Parties. A Party may also grant the benefits of this Agreement
to suppliers in least-developed countries which are not Parties, with
respect to products or services originating in those countries.
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 trade situation of the developing countries concerned, the Committee
shall examine whether exclusions provided for in accordance with the
provisions of paragraphs 4 through 6 of this Article shall be 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.
B. Interpretation and Application of Article V
20. In 2009, the WTO Secretariat’s technical assistance activities
relevant to the GPA were set out in a Note by the Secretariat.(24)
Footnotes:
1. The provisionally agreed revised text of the Agreement on
Government Procurement was circulated on 16 December 2010 as WTO
document GPA/W/313 (see also
GPA/W/313/Corr.1 of 13 January
2011). The provisionally agreed revised text is reproduced in Section
XXVIII of this Chapter, entitled “Text of the Revision of the
Agreement on Government Procurement as at 13 December 2010”. For
information on the background to the provisionally agreed revised text
of the Agreement on Government Procurement, see the Section of this
Chapter on Article XXIV:7(b). back to text
2. (footnote original) The Informal Working Group on
Negotiations was originally established in May 1985 to improve the text
of the Tokyo Round Agreement. back to text
3. Panel Report, Korea — Procurement, para. 2.2. back to text
4. Panel Report, US — Large Civil Aircraft (2nd
Complaint), para. 7.967. back to text
5. Panel Report, US — Large Civil Aircraft
(2nd Complaint),
para. 7.969. back to text
6. Panel Report, Korea — Procurement,
paras. 2.7–2.9. back to text
7. Panel Report, US — Large Civil Aircraft
(2nd Complaint),
para. 7.978. back to text
8. Panel Report, US — Large Civil Aircraft
(2nd Complaint),
footnote 2471. back to text
9. Panel Report, Korea — Procurement,
para. 7.30.back to text
10. Panel Report, Korea — Procurement,
para. 7.12. back to text
11. Panel Report, Korea — Procurement,
para. 7.49. back to text
12. Panel Report, Korea — Procurement,
paras. 7.57–7.58. back to text
13. Panel Report, Korea — Procurement,
para. 7.59. back to text
14. Panel Report, Korea — Procurement,
para. 7.60. back to text
15. Panel Report, Korea — Procurement,
para. 7.70. back to text
16. Panel Report, Korea — Procurement,
para. 7.83. back to text
17. GPA/M/2, Section E. back to text
18. GPA/M/5, Section D. back to text
19. GPA/19, para. 7. See
http://www.wto.org/english/tratop_e/gproc_e/appendices_e.htm. back to text
20. GPA/W/306 of 28 September 2009 and
GPA/W/306/Corr.1 of 13
October 2009. back to text
21. Panel Report, Korea — Procurement, footnote 724. back to text
22. GPA/M/1, Section B. The Text of the Decision can be found in
GPA/1, Annex 3. back to text
23.
GPA/W/306 of 28 September 2009 and GPA/W/306/Corr.1
of 13
October 2009. back to text
24.
GPA/W/308 of 6 October 2009. back to text
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